Ling Products Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 152 (N.L.R.B. 1974)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ling Products Company , Inc. and International Print-
ing and Graphic Communications Union, AFL-
CIO. Case 30-CA-2428
June 28, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On February 25, 1974, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The General Counsel has excepted, inter alia, to the
failure of the Administrative Law Judge to find that
Respondent threatened employees with discipline for
engaging in union activities in violation of Section
8(a)(1). Specifically, this exception concerns alleged
threats made by Respondent's supervisor, Weber, to
employee Muthig. We find merit in this exception.
In late April 1973, after Respondent had learned of
the Union's organizing campaign, Plant Superinten-
dent Weber called employee Muthig aside and told
him he couldn't talk union during working hours, and
that it was "a Federal offense." Again in May, Weber
and Muthig were having a conversation about the
Union, and Weber indicated to Muthig that the way
the latter voted was up to him, but also stated that
Muthig had to keep his mouth shut about the Union
during working hours. He also told Muthig that orga-
nizing a union within the plant was a Federal offense.
A third conversation between Weber and Muthig
occurred on July 31. Muthig had stopped at the work
station of employee Waldock, and the latter was tell-
ing Muthig about a movie she had seen. Weber ap-
proached and asked Muthig what he was doing. When
Muthig replied that he was waiting for an instrument
to dry, Weber insisted that he knew Muthig had been
talking to the girls about the Union, accused Muthig
of going to the other plant to talk to another employee
about the Union, and told Muthig that if he continued
these activities the Company would have to file unfair
labor practice charges against him. Weber also told
Muthig that, if he didn't do what he was supposed to
do during working hours, he would have to be fired.
Citing Muthig's admission that he had, on occa-
sion, spoken to employees who were working, and his
belief that Weber may have been referring to these
occasions when he told Muthig the first two times not
to talk union during working hours, the Administra-
tive Law Judge found that Weber merely admonished
Muthig that "work time is for work," and threatened
him with discipline in response to his violations of this
accepted rule. In so doing, he rejected the arguments
of the General Counsel that such threats were in fur-
therance of Respondent's no-solicitation rule (found
to be unlawful by the Administrative Law Judge), and
that Respondent condoned other conversations dur-
ing working time. In his rejection of the latter argu-
ment, the Administrative Law Judge cited a lack of
sufficient evidence that Respondent was aware of em-
ployees' soliciting for different things or carrying on
conversations while working. We cannot agree.
Although it may be true that Respondent was not
aware of other solicitation during working time, we do
not believe it reasonable to assume that Respondent
was unaware that employees other than Muthig car-
ried on conversations during their working time, or
that it did not condone such activities.
Weber supervises approximately 35 employees in
the plant and, in doing so, moves all around the plant.
In light of testimony by two employees that they con-
verse during worktime "all the time" and "60 percent"
of the time, respectively, it is hard to envision Weber's
being unaware of this activity. Yet, neither of these
employees had been admonished for talking. In fact,
it was employee Waldock who was telling Muthig of
a movie she had seen when, on July 31, Weber ad-
monished and threatened Muthig for talking union
saying nothing to Waldock. This makes it clear that
talking was not an offense which disturbed Weber,
but talking about union matters was.
Further, although Muthig admittedly talked to em-
ployees about the Union on worktime prior to
Weber's first two admonitions of Muthig, Weber did
not state that this was known by him or that it was his
reason for warning Muthig.
Based on the foregoing, we find that Weber tried to
impress upon Muthig that he would not tolerate union
talk in the plant, and that Muthig would be disci-
plined for such activity. Such threats were an attempt
to restrain, coerce, and interfere with Muthig's Sec-
tion 7 rights, in violation of Section 8(a)(1) of the Act.
We further find that such activity was an enforce-
ment of Respondent's illegal no-solicitation rule, in
violation of Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
212 NLRB No. 38
LING PRODUCTS CO.
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified,
and hereby orders that Ling Products Company, Inc.,
Neenah, Wisconsin, ' its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as herein modified:
1. Substitute the following for paragraph 1(a):
"(a) Publishing, distributing, or enforcing any rule
which prohibits employees from soliciting or distrib-
uting literature on behalf of a labor organization on
Respondent's premises during nonworking time."
2. Insert the following as paragraph 1(b) and relet-
ter 1(b) as 1(c):
"(b) Threatening employees with discipline or dis-
charge for engaging in conversations concerning the
Union."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER KENNEDY , dissenting in part:
I do not agree with my colleagues' reversal of the
Administrative Law Judge's Decision. He found that
Respondent did not violate Section 8(a)(1) by warn-
ing employee Muthig not to engage in union activities
during his working time. As found by the Administra-
tive Law Judge, employee Muthig admitted that he
was never threatened with discipline for talking about
the Union or engaging in union activities on company
premises during his nonworking time.
The evidence does not establish that Respondent
knowingly permitted employees to discuss or to en-
gage in activities unrelated to their work during their
working time at the plant. Nevertheless the majority
concludes "it reasonable to assume" that Respondent
must have been aware of such conversations and con-
doned them. Like the Administrative Law Judge who
heard this case , I am unwilling to indulge in such
assumptions and instead would rely on the record
evidence.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that:
WE WILL NOT publish, distribute, or enforce any
employment rule which prohibits our employees
from soliciting or distributing literature on behalf
of a labor organization on the premises of Ling
Products Company, Inc., during their nonwork-
ing time, and we will delete from our present
153
employment rules that portion of rule 17 which
prohibits such activities.
WE WILL NOT threaten employees with disci-
pline or discharge for engaging in conversations
concerning the Union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
LING PRODUCTS COMPANY,
INC.
(Employer)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin 532
03, Telephone 414-224-3861.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
case' came on to be heard before me at Neenah, Wisconsin,
on October 15 and 16, 1973, upon a complaint 2 issued by
the General Counsel of the National Labor Relations Board
and an answer filed by Ling Products Company, Inc., here-
inafter called the Respondent. The issues raised by the
pleadings in this proceeding relate to whether or not the
Respondent has violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by acts and conduct
hereinafter specified. Briefs have been received from the
General Counsel and the Respondent, and have been duly
considered.
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of the witness-
es, I hereby make the following:
1 During the course of the hearing , the formal documents pertaining to this
proceeding were amended to reflect the current name of the Charging Union
as International Punting and Graphic Communications Union , AFL-CIO.
2 The complaint in this case was issued on September 25, 1973, upon a
charge filed on August 3, 1973, and served on the Respondent on the same
date
154 DECISIONS OF NATIONAL
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find that
the Respondent is a Wisconsin corporation, is engaged in
the manufacture, sale, and distribution of plastic products
-from its Neenah, Wisconsin, facility, and during the past
calendar year purchased goods and materials directly from
sources situated outside the State of Wisconsin in an
amount valued in excess of $50,000. I find, accordingly, that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint also alleges , the answer admits, and I find
that International Printing and Graphic Communications
Union, AFL-CIO, hereinafter called the Union , is a labor
organization within the meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
In the original complaint in this proceeding, the General
Counsel alleged that the Respondent violated Section
8(a)(1) of the Act by (l) granting a wage increase to discour-
age its employees' support of the Union; (2) threatening an
employee with disciplinary action because of his union sym-
pathies and activities; and (3) creating the impression that
its employees' union activities were under surveillance. At
the outset of the hearing, the General Counsel amended the
complaint to additionally allege that the Respondent also
violated Section 8(a)(1) by'promulgating and maintaining
an unlawful no-solicitation and no-distribution rule. By its
answer, as amended to conform to the General Counsel's
additional allegation, the Respondent denies that it has en-
gaged in any acts or conduct in violation of the National
Labor Relations Act.
A. Background
The Respondent maintains two plants at Neenah, desig-
nated in the record as plants I and 3. In February 1973,3 the
Respondent undertook negotiations for the sale of the Com-
pany, and on March l became a wholly owned subsidiary
of The George Banta Company. At all times material to this
case, Charles J. Lingelback has been the Respondent's pres-
ident, and Robert M. Weber has been its plant superinten-
dent in plant 1. Both Lingelback and Weber are admitted
to be supervisors and agents of the Respondent within the
meaning of Section 2(13) of the Act.
The Respondent has a varied product line and some items
are produced for its own behalf, while other items are pro-
duced under contracts from other concerns on a cost-plus
basis. In April, when events relevant to this case materi-
alized, the Respondent employed 45 to 48 hourly paid em-
ployees. Historically the Respondent has utilized its
J All dates recited hereinafter are in 1973, unless specified to the contrary
LABOR RELATIONS BOARD
employees ii a broad variety of functions, and transfers
from one classification to another have been common prac-
tice. The testimony of Lingelback, supported by
Respondent's employment records, reflects that permanent
and temporary changes in job classification, may, or may
not have, resulted in wage increases.
Late in March the Union undertook an organizing cam-
paign among the Respondent's employees. The first union
meeting was held on March 24, and was followed by a series
of subsequent meetings which culminated in a Board elec-
tion on July 26. The election resulted in a tie vote and, as
of the dates of the hearing in this proceeding, had not been
scheduled for a rerun.
B. The Wage Increase
The General Counsel has alleged that from April 14 to
approximately July 26 the Respondent granted wage in-
creases for the purpose of inducing its employees to discon-
tinue their support of the Union. In support of this
allegation, and upon evidence contained in the.
Respondent's employment records, the General Counsel ar-
gues that the wages granted in April were unprecedented in
terms of both the percentage of employees affected and the
amounts of the raises granted. The General Counsel con-
cedes that, to accord merit to the allegation, the record must
contain requisite proof that (1) the Respondent was aware
of its employees' union activities, and (2), assuming proof
of the above, the wage increases were motivated, in whole
or in part, by the Respondent's intent to frustrate and un-
dermine the collective-bargaining aspirations of its employ-
ees. For the reasons related below, I find that the General
Counsel has failed to sustain the burden of proof on both
counts.
Employee Bradley Muthig was the only witness presented
by the General Counsel with testimony relevant to the issue
of when, and by what means, the Respondent became aware
that its employees were engaged in union activities. Muthig
testified that talk about a union started about March 23 or
24, and that a union meeting was held on the latter date at
the Eagle's Club Tavern. As to Muthig's other testimony, it
is clear that his union activities, such as talking to other
employees, passing out leaflets, and serving on the Union's
organizing committee, did not transpire or come to the
Respondent's attention until late in April. I find, therefore,
that the record contains no direct evidence to support the
General Counsel's contention that the Respondent had
knowledge of any union activities among its employees
when it finalized and implemented a wage increase on or
about April 2.
The General Counsel has other strings to her bow, howev-
er, and contends that the record contains evidence to sup-
port a presumption sufficient to warrant a finding of
company knowledge. The General Counsel argues, alterna-
tively, that the Respondent received a letter from the Union
on March 31 which constituted notice of an active or im-
pending organizing campaign, and that, in any event, the
restricted scope of the Respondent's employment comple-
ment is sufficient to support a finding of knowledge as of
the date of the first union meeting on March 24.
As to the so-called letter from the Union of March 31, the
LING PRODUCTS CO. 155
Respondent received a copy of a printed form entitled "It's
the Law," which purports to advise employees of the guar-
antees provided by Federal law, and the protection afforded,
those who wish to form, join, or assist labor organizations.
The printed form was signed by a representative of the
International Union, and by representatives of certain local
unions affiliated with the Printing Pressmen, but there is
nothing in the record to indicate that the signatories were
employed by, or otherwise known to, the Respondent. Nei-
ther is there anything in the contents of the printed form to
apprise the Respondent that its employees had engaged, or
intended to engage, in any union activities which would
entitle them to the protection and guarantees specified. Not-
withstanding the evidence that Lingelback brought the doc-
ument to the attention of his managerial and supervisory
personnel shortly after its receipt, I find that it is insufficient
to support a finding of company knowledge.
I find an equal lack of merit in the General Counsel's
contention that knowledge can be inferred from the limited
size of the employment complement, and the evidence that
about one-half of the Respondent's employees attended a
union meeting on March 24. The "small plant" doctrine is
simply not applicable where the evidence is limited to some
union activities coupled with evidence of a limited comple-
ment of employees. The application of the doctrine requires
additional proof that the union activities were undertaken
at such times and places, and with sufficient openness and
notoriety, that in the normal course of events the employer
would have noticed them.4 Here, aside from a union meet-
ing held off company premises on March 24, there is no
evidence of union activity on the Respondent's time or
property until late April-several weeks after the com-
plained of wage increases had been granted.
Accordingly, I find that the General Counsel has failed
to prove beyond a reasonable doubt that the Respondent
had knowledge of any union activities among its employees
when it granted the wage increases on and after April 2.
Even if, contrary to the foregoing, there was sufficient
proof of knowledge, the whole of the record will not support
a finding that the wage increases granted by the Respondent
on and after April 2 were given for purposes proscribed by
the Act.5
Lingelback's testimony, supported in pertinent part by
the Respondent's employment records, reflects that prior to
the spring of 1972, the Company had no uniform policy with
respect to periodic review of its employees for wage increas-
es. Employees were sometimes granted wage increases in
connection with a transfer from one classification to anoth-
er, and wage increases were sometimes granted without re-
gard to a change in the employee's job functions. The
Respondent's practice with regard to periodic employee re-
view was similarly lacking in uniformity, and the Company
had no standard policy for wage reviews during an
employee's probationary period, or at subsequent intervals
in the employment relationship.
4Amyx Industries, Inc v. N.LR B, 457 F.2d 904,907 (C.A. 8, 1972), citing
Ralston Purina Co., 166 NLRB 566, 570, and Hadley Mfg. Co, 108 NLRB
1641, 1650.
s N L R B. v. Exchange Parts Co., 375 U.S. 405 (1964); Tonkawa Refining
Co., 175 NLRB 619, enfd. 434 F.2d 1041 (C A. 10, 1970)
In mid-December 1972, coincidental with negotiations
for acquisition of Ling Products by The George Banta Coin-
- pany, the Respondent was instructed to institute an ac-
counting system and a uniform wage policy to conform with
the system utilized by another Banta subsidiary, Daniels
Packaging Company. Discussions on the wage policy con-
tinued in February, after Banta made the final decision to
purchase Ling Products. The merger was effective March 1,
1973, the new accounting system was made effective March
5, and the new policy for periodic wage reviews became
effective the following week.
Under the new policy, the Respondent reviews all em-
ployees at the conclusion of 30 and 60 days of employment,
at the end of each 6 months, and additional merit increases
are permitted without regard to time intervals. Continuing
its prior policy, employee reviews are conducted by the
plant superintendents, and President Lingelback reserves
authority to finally determine which employees are entitled
to wage increases. The new policy was implemented during
the third week in March and, on March 26, Plant Superin-
tendent Weber gave Lingelback the results of his reviews
and recommendations, for individual wage increases. Lin-
gelback approved the increases, and they became effective
in the paychecks received by the employees on April 2.6
As related above, the General Counsel contends that the
wage increases granted by the Respondent in April were
unprecedented in terms of both numbers of employees af-
fected and the amounts granted. The record reflects that the
Respondent granted 54 individual wage increases after
March 31, 1973, but 31, or 57 percent of the increases were
accompanied by changes in job classifications. The remain-
ing 23 increases granted over a period of approximately 6
months can hardly be described as excessive or unprece-
dented, particularly when reviewed in the light of an excep-
tionally high turnover of employees. Even if, however, the
total wage increases granted after March 31 exceeded in
number and amount the Respondent's historical practice,
the statistics alone are no proof that the wage increases were
motivated by any purpose other than valid economic rea-
sons.
I find and conclude, accordingly, that the wage increases
authorized by the Respondent after March 31 were granted
for valid economic reasons, unattended by any motive or
purpose to induce its employees to reject the Union or their
rights to collective-bargaining representation. I shall recom-
mend that this allegation of the complaint be dismissed.7
C. The Threats of Disciplinary Action
Bradley Muthig, employed by the Respondent as a die-
6 Employee Marsha Waldoch testified that she received a 10-cent wage
increase effective April 1, and that about 2 weeks before, at a time she
described as mid-April, she was given a wage review by Plant Superintendent
Robert Weber, who informed her of the Respondent's new policy on periodic
wage reviews According to Waldoch's further testimony, Weber informed
her that the raise was not intended to influence her in connection with the
Union's campaign. The Respondent's records reflect that Waldoch's raise
became effective April 2, but from Waldoch's confusion over the date when
the review took place, I find that her testimony simply confirms the
Respondent's contention concerning the new review policy and the dates of
its implementation
7 N.L.R B v. Exchange Parts Co, supra, The Singer Company, Friden Divi-
sion, 199 NLRB 1195; Tonkawa Refining Co, 175 NLRB 619.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maker , testified that in late April Plant Superintendent We-
ber called him aside and told him that he couldn 't talk union
during working hours, because , "It's a Federal offense."
Muthig agreed with Weber 's admonition , and that appears
to have ended the conversation.
Muthig testified that on a second occasion in May he had
another conversation with Weber which took place in the
lunchroom. According to Muthig, there was a general con-
versation about the Union, followed by Weber 's warning
that the way Muthig voted was up to him , but Muthig had
to keep his mouth shut about the Union during working
hours . Weber counseled Muthig that organizing a union
within the plant was a Federal offense.
On July 31, Muthig had a third conversation with Weber.
As Muthig testified , he had just finished a die and while
walking to the restroom stopped to talk to employee Marsha
Waldoch. While a conversation concerning a movie was in
progress , Weber came up and asked Muthig what he was
doing . Muthig replied that he had just finished a die and was
waiting for the instrument to dry. Weber inserted that he
knew Muthig had been talking to the girls about the Union,
accused Muthig of going to plant 3 to talk to another em-
ployee about the Union , and cautioned that if Weber con-
tinued these activities the Company would have to file
unfair labor practice charges against him . According to Mu-
thig, Weber also warned that , if Muthig continued to fail to
perform his work during duty hours , he would have to be
fired.
With respect to the April conversation with Weber, Mu-
thig testified on cross-examination that at an earlier time on
the same day he had talked to another employee about the
Union during her worktime , and that he interpreted
Weber's warning to relate to the prior conversation. As to
the May conversation in the lunchroom , Muthig similarly
admitted that he had been engaged in occasional conversa-
tions with other employees about the Union , and that
Weber's comments and warning were in response to
Muthig's conduct.
As to the July 31 conversation , Muthig insisted on cross-
examination that the subject of his conversation with Mar-
sha Waldoch concerned a current movie , and not the
Union. Muthig also insisted on cross-examination , contrary
to Weber, that he was on a break period at the time of the
conversation , but also admitted that Waldoch was at her
work station and supposed to be working when he engaged
her in the conversation.
In further answers on cross -examination, Muthig admit-
ted that the only warnings and threats of discipline he re-
ceived from Weber or any other agent of the Respondent
concerned his conduct in discussing the Union with other
employees during working time . Muthig candidly admitted
that he was never cautioned , warned, or threatened with
discipline for talking about the Union, or engaging in other
union activities on company premises during nonworking
time.
Muthig's testimony does not support the allegation of the
complaint that he was threatened by management with dis-
cipline because of his sympathies for and activities on be-
half of the Union. All the record supports is the
Respondent's admission that Muthig was warned not to use , , ,
company time for his organizing activities , and threatened Corporation v. N L R B, 324 U.S. 793, 802-803 (1945).
with discipline if he persisted in his prior conduct. The
admonition that "Work time is for work" 8 is too well estab-
lished in the law to require further explication. The warning
and threats of discipline meted out to Muthig were solely in
response to his violations of the ordinary and accepted rules
of the employment relationship-that nonwork related ac-
tivities are restricted to nonwork time.
The General Counsel contends, nevertheless, that the
warnings and threats of discipline issued to Muthig were in
furtherance of the Respondent's alleged unlawful no-solici-
tation rule, and violative of Section 8(a)(1) of the Act be-
cause the Respondent permits other nonwork related
activities to be conducted during working hours.
There is no evidence in this record to support a finding
that the Respondent 's alleged unlawful no-solicitation rule
has ever been enforced in any of its alleged unlawful as-
pects. As to its lawful aspects, that is the prohibition against
engaging in nonwork related activities on worktime, I find
insufficient evidence in this record to support the General
Counsel's contention that the Respondent has permitted
and condoned other violations of the rule unconnected to
union activities.
In support of the contention of condonation, the General
Counsel adduced testimony from Marsha Waldoch and em-
ployee Camille Sanders that they conversed about nonwork
related matters on the job, and have never been warned or
threatened with discipline for such conduct. The employees
also testified to the activities of an Avon solicitor, and col-
lections taken up for weddings and similar events, including
a contribution made by President Lingelback and Superin-
tendent Weber.
As to the conversations on the job, the General Counsel
elicited no testimony that the practice or pattern is known
to, or condoned by supervisors, management officials, or
any other agent of the Respondent. As concerns the Avon
solicitations, the evidence reflects that the employee who
solicits Avon business leaves order blanks in the lunchroom
and the employees place their orders during break periods.
After the orders are filled, the solicitor leaves the merchan-
dise in the ladies restroom to be picked up by the purchaser.
The evidence, accordingly, does not support the General
Counsel's asserting of condonation of violations of the rule
against solicitation on company time.
The employees also testified that contributions for gifts
for members of the employee complement are solicited in
the plant, during both working and nonwork time, and em-
ployee Sanders testified that both President Lingelback and
Plant Superintendent Weber may have contributed on their
own behalf. Like the on-the job conversations, however,
there is no evidence that this practice is known to the Re-
spondent, or its agents, and there is not even evidence that
the contributions solicited from Lingelback and Weber
were obtained on company time, or company premises.
In summary I find and conclude that the General Coun-
sel has not sustained the burden of proving that the Re-
spondent unlawfully threatened employees with discipline
because of their union sympathies and activities, and I shall
recommend that the allegation be dismissed.
8 Peyton Packing Company Inc 49 NLRB 828 843; Republic Aviation
LING PRODUCTS CO. 157
D. The Impression of Surveillance
The General Counsel offered no independent evidence
on the allegation that the Respondent violated Section
8(a)(1) by giving employees the impression that their union
activities were under company surveillance, but contends
that Weber's comments to employee Muthig, particularly
those of July 31 to the effect that Muthig's union related
conversations on company time were known, provides the
necessary proof for this allegation. The General Counsel
also asserts that the proof of the allegation is enhanced by
the evidence that Muthig later repeated Weber's comments
to employee Waldoch.
I have found above that the warnings and threats of
discipline meted out to Muthig related solely to his union
activities during work time, and did not impinge in any
manner on Muthig's rights, or the rights of any other em-
ployee under Section 7 of the Act. In the light of that find-
mg, I fail to perceive the slightest degree of merit, or
commonsense in the General Counsel's contention that the
Respondent unlawfully created an impression of surveil-
lance by warning an employee that his union activities on
company time were known and would not be tolerated. I
will recommend dismissal of the allegation.
on its face and I am equally obligated to recommend a
remedy. The mere existence of an invalid no-solicitation or
no-distribution rule, even though never enforced, is a viola-
tion of Section 8(a)(1) of the Act.' On the facts, the rule set
forth above has been in existence since 1970, and has been
published and distributed in two editions of the
Respondent's employment rules. According to Lingelback's
testimony, the Respondent's employment rules are distrib-
uted to employees at the time of hire, and each employee
is required to read the rules and execute a signed statement
to the effect that he understands the rules and intends to
follow them. In these factual circumstances, the need for a
remedial order is apparent.
V. THE REMEDY
Having found that the Respondent's no-solicitation and
no-distribution rule is invalid on its face and violative of
Section 8(a)(1) of the Act, I shall recommend that the Re-
spondent cease publishing and distributing the rule, and
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the foregoing finding of fact and conclusions, and
upon the entire record in the case, I hereby make the follow-
ing:
E. The No-Solicitation, No-Distribution Rule
At all times material to this case the Respondent has
maintained the following rule in effect at its plants 1 and 3
at Neenah, Wisconsin:
Solicitation
Actions involving selling, soliciting, canvassing, or
distributing on plant premises and of any kind are
expressly prohibited.
By its brief the Respondent concedes that the rule is
poorly drafted, and I agree that its ban on solicitation and
distribution on company premises at all times exceeds the
bounds of what is lawfully permitted under Board and court
precedent. I have also found above, however, that the Re-
spondent has never applied or enforced the rule in any of
its unlawful aspects, so that the rule remains illegal only as
published and distributed, and not as construed or applied.
Under these circumstances, and in further consideration
of the fact that the allegation concerning the illegality of the
rule was interjected into this proceeding at the very last
moment, and after the hearing had been once postponed, I
have some doubt that the policies and purpose of the Act
are served by the finding of a violation and issuance of a
remedial order. This proceeding began with a complaint of
rather ambitious scope, but in all respects save the no-solici-
tation, no-distribution rule the General Counsel has failed
to sustain the burden of proof. The result is a finding of a
purely technical violation, which, as the record reflects,
could have been settled or adjusted at the outset of the
hearing to the full satisfaction of the law and all the parties.
The opportunity for settlement or adjustment has now
been foreclosed, however, and upon the whole thrust of the
law and the facts I am obligated to find that the rule is illegal
CONCLUSION OF LAW
1. Ling Products Company, Inc., is, and has been at all
times material to this proceeding, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The International Printing and Graphic Communica-
tions Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the conduct set forth in section III, subsection E,
above, the Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER10
The Respondent, Ling Products Company, Inc., Neenah,
Wisconsin, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Publishing or distributing to its employees any rule
which prohibits employees from soliciting or distributing
9 Pueblo Supermarkets, Inc, 156 NLRB 654
10 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.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
literature on behalf of a labor organization on Respondent's
premises during nonworking time.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative actions to effectuate
the policies of the Act:
(a) Delete from its existing employment rules that por-
tion of its rule 17 which prohibits employees from soliciting
or distributing literature on behalf of a labor organization
on the Respondent's premises during their nonworking
time.
(b) Post at its plants 1 and 3 copies of the attached notice
marked "Appendix." I I Copies of said notice, on forms pro-
In the event that the Board's Order is enforced by a Judgment of a
vided by the Regional Director for Region 30, after being
duly signed by the Respondent, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 30, in writ-
ing, within 20 days of the receipt of this Decision, what steps
have been taken by the Respondent to comply herewith.
IT IS HEREBY FURTHER ORDERED that all other allegations of
the complaint in this proceeding be, and they hereby are,
dismissed.
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."