John H. Swisher & Son, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1974

211 N.L.R.B. 777 (N.L.R.B. 1974)

JOHN H. SWISHER & SON, INC. 777
John H . Swisher & Son, Inc . and Local 589, National
Council Distributive Workers of America. Case
12-CA-6068
June 20, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Respondent violated Sec . 8(a)(l) of the Act by enforcing these rules because
there is no evidence to establish that the rules were , in fact, enforced.
Chairman Miller also disagrees with the conclusion that Respondent
violated Sec . 8(aXl) of the Act by a supervisor 's statement to employee
Hyser to the effect that the Company meant what it said in a notice on the
bulletin board . The notice informed employees that the Respondent would
require employees to adhere to their obligations under the current
collective-bargaining agreement . Since the supervisor was merely affirming
the message conveyed in an admittedly lawful notice , Chairman Miller finds
no basis for the inference that the supervisor's statement could be construed
as a threat to discharge the employee if she engaged in protected union
activity.
On December 18, 1973, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, John H. Swisher &
Son, Inc ., Jacksonville, Florida, its officers, agents,
successors, and assigns , shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
2 Chairman Miller , for the reasons he stated in Essex International, Inc.,
211 NLRB No. 112, agrees that Respondent's rules relating to union
solicitation and distribution of union literature were overly broad and
violated Sec . 8(a)(1) of the Act. In his view , thepresumption of an invalidity
that arises from these rules has not been rebutted by the Respondent
because there is no evidence in this case to establish that employees knew
that union activity was not proscribed during breaks and lunch periods.
However, Chairman Miller does not agree with the conclusion that
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: This case
was heard at Jacksonville, Florida, on October 16, 1973,1
pursuant to a charge filed on June 25 by Local 589,
National Council Distributive Workers of America (herein
referred to as the Union), and a complaint issued on
September 14.
The complaint alleged that John H. Swisher & Son, Inc.
(herein referred to as the Respondent) violated Section
8(a)(1) of the National Labor Relations Act, as amended
(herein referred to as the Act), by maintaining unlawful no-
solicitation and no-distribution rules, threatening employ-
ees if they engaged in union activity, and interrogating an
employee concerning her union activities. Respondent, in
its answer , denied the commission of any unfair labor
practices.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses , to argue orally on the record and to
submit briefs.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the oral argument
made by counsel for the General Counsel and of the brief
filed by the Respondent, I make the following:
FINDINGS OF FACT
I. JURDISDICTION
I find, as the complaint alleges and the answer admits,
that the Respondent, a Delaware corporation, is engaged
in the business of producing tobacco products at its place
of business located in Jacksonville, Florida; that during the
12-month period preceding the issuance of the complaint,
Respondent received goods, materials, and supplies valued
in excess of $50,000 directly from points located outside
the State of Florida; that during the same period, it
1 Unless otherwise indicated , all dates hereinafter refer to 1973.
211 NLRB No. 114
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipped from its Jacksonville, Florida, plant, products
valued in excess of $50,000, directly to points outside the
State of Florida. Based on the foregoing , I find that
Respondent is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits , and I find that
Local 589, National Council Distributive Workers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
For more than 30 years Respondent has had a collective-
bargaining relationship with Locals 86 and 119, Cigar
Makers International Union of America, covering the
production employees and certain designated maintenance
employees , about 1,000 in number. Lodge 1003 , Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO has represented the remaining maintenance
employees . On June 22, 1973, the Charging Party herein
filed a representation petition (Case 12-RC-4402). A
hearing was held and the case was transferred to the Board
for decision . No Board decision has yet issued.
B. The No-Solicitation and No-Distribution Rules
Since 1956 the Respondent has written rules which have
been posted on the bulletin boards and disseminated to its
employees . The rules, 27 in number , included the following
prohibitions:
6. Participation in organizational activities of any
kind on Company time.
7. Passing of petition on Company time or proper-
ty (only exception : permission specifically granted by
Management.)
25. Solicitation on Company premises.
According to the undisputed and credited testimony of
Maurice Tipple , Respondent 's director of employee rela-
tions the Respondent revised its rules in early August 1973.
The revision consisted only of adding another rule, Rule
28, which reads as follows:
28. The only exception to Rules #6, 7, and 25
would involve union activities ; in these cases, those
action to which referred would be prohibited only
during work hours in work areas.
The rules , as revised , were posted on all the bulletin
boards throughout the plant in early August 1973 and
have been passed out to new employees.
2 N.L.R B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1956);
Republic Aviation Corp v. N L.R B., 324 U.S. 793.
3 G.C Murphy Co, 171 NLRB 370, affd. 422 F. 2d 685 (C.A.D.C., 1%9);
Marlene Industries Corp., 166 NLRB 703, enfd in relevant part 406
F 2d 886 (A.C. 6,1%9)
Conclusions
The General Counsel's complaint alleged that rules 6, 7,
and 25 , described supra, were unlawful rules. At the
hearing, the General Counsel contended that rule 28 did
not sanitize the invalidity of the no-solicitation and no-
distribution rules.
Respondent , in his brief, does not appear to contest the
presumptive invalidity of rule 25 , but argues that rule 28,
promulgated in August 1973, cured the defect . Respondent
also contends that rule 6, prohibiting "organizational
activities of any kind on Company time ," is presumptively
valid . With respect to rule 7, prohibiting "passing of
petition on Company time or property," except where
permission is specifically granted by Respondent, he
argues that the rule is not, nor could it reasonably be
interpreted to be , directed at union organizational solicita-
tions or distribution.
It is well established that the Act protects the right of
employees during their nonworking time both to solicit
union membership while on company premises and to
distribute literature in nonworking areas on the company
property unless the employer can demonstrate that unusual
circumstances necessitate some restriction of that right in
order to maintain production or discipline.2 No unusual
circumstances were claimed by the Respondent herein.
The propriety of rules governing employee distribution
of literature and union solicitation has been the subject of
considerable litigation over the years. The Board and the
courts have been called upon all too frequently to
determine the presumptive validity or invalidity of man-
agement rules on this subject. It may be through ignorance,
or perhaps by design, that these rules are often fraught with
ambiguity and are subject to various interpretations. Legal
experts , including Board members and the courts, some-
times reach different conclusions on the validity of these
rules. It would appear that with the passage of time and all
the legal pronouncements in this area, simple language
could be employed so that it could be readily understood
by the employees to whom the rules are directed . For it is
the promulgator of the rules who must assume the risk of
ambiguity , rather than the employees who are supposed to
abide by them.3 So once again the Board is called upon to
determine the validity of the rules.
We now turn to the rules promulgated in the present
case . It needs no discussion to conclude that rule 25 is
invalid on its face . It prohibits solicitations on company
premises without any reservations or exceptions as to the
employees' nonworking time. Rule 6 is all encompassing,
covering almost every form of union activity , particularly
solicitation and distribution of literature "on company
time." Although it could be argued that prohibition of
solicitation or distribution of literature on "company time"
is presumptively valid,4 in the present case such presump-
tion would be misplaced . Insofar as solicitation is con-
cerned , rule 6 cannot be read in isolation but must be read
together with rule 25, which prohibits solicitation on the
4 Logan Mfg. Co., 162 NLRB 1586. In WIPO, Inc., 199 NLRB 649, a
majority of the Board announced it had not passed upon the validity of the
no-solicitation rule containing similar language in finding a Section 8(a)(1)
violation in Universal Cigar Corporation, 173 NLRB 865.
JOHN H. SWISHER & SON, INC.
company premises without any reservations . Under these
circumstances , I find and conclude that rule 6, read
together with rule 25, creates a sufficient ambiguity so that
they could easily be interpreted by employees to prohibit
union solicitation during the employees' free time. Rule 7
prohibits circulation of petitions on company time or
property except where permission is specifically granted by
management . I find and conclude that rule 7 is presump-
tively invalid on its face . As the Board stated in WIPO,
Inc., 5 "on company time on company property" might
reasonably be interpreted by an employee as prohibiting
union solicitation during nonworking time. Moreover, here
too rule 7 must be read together with rule 25. I find no
merit to Respondent's contention that because of the
qualified exception to the rule-the necessity for company
approval, the rule is valid in absence of any evidence that
any employee was refused permission. An employer may
not condition the exercise of Section 7 rights upon its own
authorization.6
In August 1973, after the unfair labor practice charge
was filed in the instant matter but before a complaint had
issued, the Respondent apparently attempted to clarify any
questioned validity of its rules described above by
promulgating rule 28. This latest rule prohibited solicita-
tions and distributions only "during work hours in work
areas ." I find and conclude that this rule is likewise
presumptively invalid because of its vagueness and
ambiguity. It does not with sufficient clarity advise the
employees when they may engaged in union solicitation or
distribution of literature. Such rule may be interpreted to
prohibit union solicitation or distribution of literature
during working hours, even during nonworking time,
periods when the employees engaged in such activity are
not expected to actually be working, e.g., break time, lunch
periods, and the like. Rules prohibiting union activities
such as solicitations and distribution of literature during
"work hours" have been declared by the Board, with court
approval, as presumptively invalid.?
C. Other Acts of Interference, Restraint, and
Coercion
Employee Montana Rose Hyser, a machine operator
employed by the Respondent for the past 16 years, testified
she was active on behalf of the Union. According to
Hyser's undisputed and credited testimony, on June 26,
James Green, division foreman and her immediate supervi-
sor, came up to her machine and asked her if she had read
the notice on the bulletin board. When she acknowledged
having read it, he replied he hoped so "because the
company meant every word they said." A few minutes
later, Green returned and she asked him if that was a
threat. According to Hyser, Green "said no, that he just
didn' t want to see me get in any trouble or be fired." Green
then asked Hyser not to tell anybody about their
conversation . Green did not attempt to dispute or
S WIPO, Inc., supra.
6 Greentree Electronics Corp., 176 NLRB 919; Standard Pressed Steel Co.,
176 NLRB 175; American Coach Co., 158 NLRB 158.
7 Campbell Soup Company, 159 NLRB 74, enfd. in relevant part, 380 F.2d
372 (C.A. 5, 1967); Saco-Lowell Shops, 169 NLRB 1090, enfd .405 F.2d 175
(C.A. 4, 1968); Farah Manufacturing Company, 187 NLRB 601, 602,enfd.
779
contradict her testimony. His testimony consisted of
having no recollection of talking to Mrs. Hyser about the
notice.
The notice referred to in their conversation was received
in evidence as General Counsel Exhibit 3. It had been
posted on Respondent's bulletin boards the morning of
their conversation. The notice advised the employees of the
petition filed by the Union and the Company's position
that its contracts with the incumbent unions would be
upheld as bars to the further processing of the petition.
Referring to these contracts, the notice also contained the
following language:
Since these are valid and binding contracts, we wish to
remind everyone that any action taken by any of our
employees, which is in conflict with these Labor
Agreements, exposes those employees to immediate
termination without recourse7either legal or contractu-
al.
None of the contracts were offered in evidence or
otherwise referred to at the hearing. Director of Employee
Relations Tipple testified he caused the notice to be posted
because, "At that time there was considerable talk around
the plant about some outside union-unaffiliated union
-trying to raid the plant. We had rumors of a possible
wildcat." The notice itself has not been attacked by the
General Counsel. It may be that Respondent was prompt-
ed to post the notice by the possibility of a wildcat strike.
However Green never alluded to such strike in his
conversation with Hyser nor did he explain what he meant
when he said she could get in trouble or be fired. In my
opinion, his statement could reasonably be construed as a
veiled threat to discharge her if she engaged in any
activities on behalf of the Union. Accordingly, I find that
on June 26, Green threatened Hyser with discharge or
other disciplinary action if she engaged in activity on
behalf of the Union and that such threat constituted a
violation of Section 8(a)(1) of the Act.
Employee Carol Miller, employed by the Respondent for
the past 7 years, testified that sometime in the latter part of
May, Marvin Odom, head of the production department
and an admitted supervisor, came up to her as she was
filling hoppers. According to Miller, Odom asked her if she
knew anything about the new union. She denied any
knowledge and then he asked her if she had been
circulating or had any knowledge of the circulation of
cards. She responded in the negative. Odom then said,
"Well, you know you can be taken off of your job and put
back on your machine." 8 Odom also told her he had been
receiving complaints she had not been filling the hoppers
promptly.
Odom admitted having a conversation with her regard-
ing her work as a hopper filler . He testified he had received
complaints from girls on the roller machines that Miller
was not keeping the hoppers filled. He then told Miller of
450 F.2d 942 (C.A. 5, 1971); G. C. Murphy Company, supra at 370.
E At the time of this conversation, Miller was a hopper filler-filling the
hoppers of the roller machines for the production employees . Previously she
operated a roller machine making the cigars . She had been transferred to
hopper filler at her request.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these complaints and that he had observed her away from
her working area. He told her that if she did not improve
he would have to put her back on the roller machine. He
was not asked whether he interrogated her concerning the
Union or the circulation of the cards. I find Miller's
account more credibly reflects what actually was said and
that Odom did interrogate her as to her knowledge of the
Union and the circulation of cards. I further find that he
subtly threatened her with return to her former job if she
engaged in activities on behalf of the Union. Accordingly,
I conclude such interrogation and threat constituted
violations of Section 8(a)(l) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing rules
prohibiting employees from soliciting in connection with
union activities during their nonworking time or from
distributing literature on behalf of any labor organization
during nonworking time in nonworking areas, by threaten-
ing discharge or other reprisals against employees for
engaging in union activities, by interrogating employees
concerning their or other employees' union activities,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by
Section 7 of the Act and thereby committed unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(axl)
of the Act, I shall recommend that it cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDERS
John H . Swisher & Son, Inc ., Respondent herein, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees con-
cerning their or the union activities of other employees or
threatening its employees with discharge or other reprisals
for engaging in such activities.
(b) Promulgating , maintaining , or enforcing any direc-
tive, regulation, or rule which in terms or effect prohibits or
prevents any of its employees , during times when they are
not required to be working, from orally soliciting any other
employees and/or obtaining the signatures of any other
employees on union authorization cards or petitions on
behalf of any labor organization during any times when
such other employees are not required to be working.
(c) Promulgating, maintaining, or enforcing any direc-
tive, regulation or rule which in terms or effect prohibits or
prevents any of its employees, during times when they are
not required to be working, from distributing literature on
behalf of any labor organization in nonworking areas of its
premises.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary and appropriate to effectuate the policies of the
Act:
(a) Forthwith rescind its rules to the extent that it
prohibits its employees from engaging in the activities
described in 1(b) and (c) immediately above.
(b) Post at its plant in Jacksonville, Florida, copies of the
attached notice marked "Appendix." 10 Copies of the
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
9 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
10 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
JOHN H. SWISHER & SON, INC.
National Labor Relations Act and has ordered us to
post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join or assist any union
To bargain collectively through representatives of
their own choice
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from the exercise of any or all such
activities.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights.
WE WILL NOT establish, maintain, or apply any rule
which prohibits or prevents any employee from orally
soliciting any other employee on our premises and/or
obtaining the signatures of employees on union
authorization cards or on petitions on behalf of any
labor organization , during time neither is working nor
required to be working.
WE WILL NOT establish , maintain, or apply any rule
which prohibits or prevents our employees from
distributing literature on behalf of any labor organiza-
tion in nonworking areas of our premises during the
time they are not working nor required to be working.
781
WE WILL NOT coercively question employees con-
cerning their or other employees ' union support or
activities.
WE WILL NOT threaten employees with discharge or
other reprisals because of their union support or
activities.
Dated By
Joni H. SwlsIwI & SON,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Room
706, Federal Office Building, 500 Zack Street, Post Office
Box 3322, Tampa, Florida 33602, Telephone
813-228-2641.