THE TIMKEN COMPANY

National Labor Relations Board - Administrative Judge Opinions

Mar 10, 1997

08–-CA–-028174 (N.L.R.B. Mar. 10, 1997)

JD–43–97
Bucyrus, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
THE TIMKEN COMPANY
Cases 8–CA–28174
and 8–CA–28181
8–CA–28202
UNITED STEELWORKERS OF 8–CA–28252
AMERICA, AFL-CIO, CLC 8–CA–28262
8–CA–28299
8–CA–28308
8–CA–28321
8–CA–28353
Nancy Recko, Esq., of Cleveland, OH,
Counsel for the General Counsel.
Mark A Rock and Ann Knuth, Esqs.
(Schwarzwald & Rock), of Cleveland,
OH, for Charging Party.
James K. Brooker, James R. Blake and
Robert J. McBride, Esqs. (Day, Ketterer,
Wright & Rybolt, Ltd.), of Canton, OH,
for Respondent.
DECISION
Statement of the Case
THOMAS R. WILKS, Administrative Law Judge: The original consolidated complaint
was issued by the Regional Director of Region 8 against the Timken Company, herein called
Respondent, on June 13, 1996, in all the above-captioned cases except for Case 8–CA–26353.
A Second Order Consolidating Cases, Complaint and Notice of Hearing was issued on July 19,
1996, in Case 8–CA–28353. An amendment to complaint was issued on August 14, 1996. The
complaints were issued pursuant to unfair labor practice charges filed by United Steelworkers of
America, AFL-CIO, CLC, herein called either the Union or the Charging Party. The
consolidated complaints, as amended, will be referred to hereinafter as the complaint. The
complaint alleges violations of Sections 8(a)(1) and (3) of the Act that allegedly occurred on
various dates from February 23, 1996, through June 20, 1996, during the Union’s futile
organizing campaign at Respondent’s Bucyrus, Ohio, plant facilities. The Respondent is
alleged to have unlawfully interfered with employees’ union literature distribution and hand-
billing and union solicitation by restricting employee union hand-billers’ access to a certain
location at the public highway entrance to the facilities’ parking lots; by limiting the distribution of
union leaflets at the pedestrian turnstile fence entrances to the interior plant facilities located
beyond the parking lot; and by initially placing, although subsequently abandoning, a limitation
of access to or presence at the plant turnstile entrances to employees who were scheduled to
start work no longer than 30 minutes or whose work shift ended not more than 30 minutes
before such ingress or presence. The alleged interference with employees’ statutory rights took
the form of unlawful surveillance by camera, “counseling” (which Respondent argues does not
constitute discipline), warnings, parking tickets, police enforcement and suspensions to certain
employees who refused Respondent’s orders to leave designated areas in compliance with the
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above restrictions, which employee refusal was and is characterized by Respondent as
insubordination. It is also alleged that Respondent’s manager perpetrated an assault and
battery upon one employee who refused an order to comply with an unlawful restriction upon
his attempt to engage in unprotected activity at one turnstile entrance.
In argument and in proofs, the parties recognized the foregoing allegations to constitute
the most significant issues.
The complaint also alleges that certain employees were disciplined with counseling for
discussing the Union in violation of a no-solicitation rule in Respondent’s employee handbook
which the General Counsel argues was disparately enforced.
The complaint further alleges as unlawfully discriminatory, the disparate enforcement of
the employee handbook rule regarding bulletin board postings by similar disciplinary warnings
to certain employees. Related issues are Respondent’s enforced limitations upon the
placement and its confiscation of open, face up, union literature in working areas, employee
personal property, open-faced storage racks known as “cubbyholes,” and from the tops of
certain employee’s tool boxes in working areas.
Finally, the complaint also alleges that Respondent unlawfully disciplined an employee
with a verbal warning because he had, during the performance of his work duties, stopped to
look out of nearby open overhead door opening to view the union employee leafleting at one of
the fence entrance turnstiles.1
Respondent’s timely filed answers and position at trial admitted much of the allegations
but denied the commission of unfair labor practices. In essence, Respondent takes the position
that it was exercising its lawful right to control the use of its property and to maintain discipline
and safety on its premises and at entrances to its premises by placing reasonable limitations
upon the numbers of employees engaged in leafleting at the turnstile entrances and those non-
leafleting employees who, in support of the leafleters, stood with them, and by limiting the area
where they leafleted at the highway entrance to its parking lot. Respondent argues that it did
not prohibit access because, despite the limitations, effective leafleting did occur near those
areas as well as in the plant cafeteria and locker rooms, and, in effect, by employees who were
permitted to and did wear union insignia upon their clothing in the plant during working time.
Respondent denies the alleged assault and battery. It admits the photographing and
videotaping of employee leafleting at the turnstile entrances on a daily basis after the alleged
assault and battery, but claims that it was done for the purpose of protecting its managers and
security guards from subsequent false claims of assault and battery.

1 The complaint (General Counsel Exhibit No. 1(s)) was amended at hearing in the following
respects: paragraph 5 at page 3, the name Larry Morton was amended to read “Larry Young”
and the name of Paul Frankenhouser was deleted; paragraph 6 at page 3 was withdrawn;
paragraph 7 at page 3 was withdrawn; paragraph 33(A) at page 7 was amended to read “. . . in
violation of the rule described above in paragraphs 9 and/or 12”; paragraph 35(A) at page 8
was amended to read “. . . in violation of the rule described above in paragraphs 9 and/or 12”;
paragraph 39(A) at page 9 was amended to omit reference to the “five day disciplinary
suspension”; and paragraph 40 at page 9 was amended to include the following employee
names and suspensions: Robert Berry, 5 days and Nancy Seybert, 5 days.
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Respondent denies that its preexisting no solicitation/distribution rules and its restrictive
bulletin board rules were disparately or discriminatorily enforced. Respondent claims that its
personnel actions were based upon insubordinate refusal by employees to obey the requests of
its manager and agents to remove themselves from the area because they were in excess of
the number permitted at the turnstile, or south of an area designated by it at the northern
highway entrance.
Respondent contends that personal actions and confiscation of employee union
literature were justified as a consequence of violations of its lawful preexisting no
solicitation/distribution and posting rules, and as a consequence of other employee complaints
of harassment by employee union solicitors and/or leaflet distributors.
The complaint was litigated before me at trial held in Bucyrus, Ohio, on September 11,
12, 13 and 14, 1996. The parties were given full opportunity to and did adduce documentary,
photographic, schematic, stipulated and testimonial evidence of 55 witnesses of whom 45 were
summoned by the General Counsel. In a 4-day litigation, the parties, by virtue of cooperation
and highly professional behavior, were able to compile a testimonial record of over 1,000
pages. Briefs were received by the Judges Division no later than November 19, 1996.
The briefs submitted by the parties fully delineate the facts and issues and, in form,
approximate proposed findings of fact and conclusions. Portions of those briefs have been
incorporated herein, sometimes modified, particularly as to undisputed factual narration.
However, all factual findings herein are based upon my independent evaluation of the record.
Based upon the entire record, the briefs and my observation and evaluation of witnesses’
demeanor, I make the following findings:
I. Business of Respondent
At all material times, Respondent, an Ohio corporation, with an office and place of
business in Bucyrus, Ohio, herein called Respondent’s Bucyrus facility, has been engaged in
the manufacture and distribution of tapered roller bearings, tube and special alloy steels,
including bars. Annually, Respondent, in conducting its business operations sells and ships
from its Bucyrus, Ohio facility goods valued in excess of $50,000 directly to points outside the
State of Ohio.
It is admitted, and I find, that at all material times, Respondent has been an employer
engaged in commerce within the meaning of Sections 2(2), (6) and (7) of the Act.
II. Labor Organization
It is admitted, and I find, that at all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
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III. Alleged Unfair Labor Practices
A. Background
Respondent, an international corporation, conducts business in 25 countries on 7
continents and employs 17,000 people. Some of the company’s plants are unionized and in the
United States, the unionized employees are represented by the Charging Party.
The bearing plant heat treat division and distribution center at Bucyrus employs
approximately 850 hourly employees and is not unionized. The United Auto Workers and
Charging Party Union have conducted multiple organizing campaigns at Bucyrus during the
1970’s, 1980’s and 1990’s. Prior to the current campaign, the most recent union campaign and
Board-conducted election took place in 1993.
A 60-foot wide, east-west-county highway designated as Route 330 constitutes the
northern border of the Bucyrus facility property line. There are two entrances, a west entrance
and an east entrance, to Respondent’s property from Route 330. Respondent maintains a
large parking lot utilized by members of management, employees working in the bearing plant
and visitors to the facility. Employees working in the distribution center park in a separate
parking lot south of the bearing plant and adjacent to the distribution center. The distribution
center is located approximately one-half mile south of the bearing plant. A security fence
encloses all manufacturing and warehouse operations.
Respondent limits access to its property to people who have business with it and its
employees. However, employees’ family members are permitted on the property for briefs
periods of time and tow trucks and mechanics are permitted in the parking lot to deal with
disabled vehicles, and a Red Wing Shoe truck has periodically appeared just north of the
turnstile entrance to solicit sales.
After entering Respondent’s property through the west or east driveway entrances,
employees of the bearing plant park in the parking lot between Route 330 and the encircling
fence. Two turnstile entrances provide access through the chain link fence which separates the
bearing plant from the parking lot. The turnstiles are over 6 feet in height and have multiple
tines. Hourly employees are free to enter through either the east or west turnstile, but the vast
majority utilize the east turnstile which is closer to production areas. Each employee is provided
a personal magnetic bar-coded identification card which is passed or swiped through a scanner
attached to the locked turnstile assembly. After the card registers in the computerized time and
attendance system, the identity of the employee is registered, the turnstile spins and thereby
allows the person activating the turnstile to enter through the fence. After the employee enters,
the turnstile is again locked. Each specific work area has its own scanner which must be
swiped when the employee arrives there.
For payroll purposes, that work area swipe recordation is utilized by the payroll
department to commence computation of the employees’ shift hours.
The east turnstile is covered by an orange canopy supported by several metal poles.
Immediately to either side of the turnstile are a garbage container and a recycling container.
The scanner which reads cards to permit access to the turnstile is to the west of the turnstile.
Large yellow poles surround the east and west sides of the turnstile. The physical layout of the
turnstile made it impossible for an employee handing out union literature to stand directly next
to an employee situated within the turnstile itself. To the east of this turnstile is a bicycle rack.
The guard house is approximately 176 feet west of the east turnstile and parallel to it. There
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are several parking spaces between the east turnstile and the guard house designated for the
use of visitors, plant vehicles and the handicapped. On occasion, there are large recycling bins
placed in those parking lots.
The guard house itself is a single-story, slab foundation, flat roofed brick structure,
elevated only slightly above ground level. It is located at the western edge of Respondent’s
property. Immediately west of it is the 25-foot wide main entrance road which runs directly
north to Route 330. The east wall of the guard house has one door and two windows.
Contiguous to its east wall is the path to the west turnstile beyond which is the plant office area.
The east-west fence ends at a point somewhat south of the guard house’s midsection.
The west turnstile is south of the fence. The view from the guard house’s east windows
is immediately partially obstructed by a structure that resembles a typical clear, plexi-glass
walled transit bus stop. The so-called bus stop serves as a place for employees to gather and
wait, either before their shift or afterward, for rides to their homes. There have been no
restrictions ever put on the number of employees who may stay within that bus stop. It is about
10 feet long and its length parallels the fence so that several bodies of persons therein would
significantly block the east view of the guard house, as would any cars parked in the 12 spaces
along and north of the fence between the bus stop and the east turnstile. The view is also
partially obstructed by recycling bins periodically placed in the parking area. I agree with the
General Counsel that at best only the upper third of the east turnstile is clearly visible to the
guards in the guard house for any practical purpose for any significant period of time.
Prior to the installation of the turnstiles in 1994, employees gathered outside a chain link
fence gate until it was unlocked one-half hour before the start of a shift. A security shanty was
located directly next to the gate and a security guard, either in the shanty or beside it, would
observe employees entering the facility after the gate was unlocked. Employees would show
their badge to the security guard when entering through the opened gate. The present turnstile
system has replaced the badge system. The security shanty was replaced by the guard house.
No security guard is located at the east turnstile.
According to the testimony of Robert Arbogast, Respondent’s Human Resources
Manager, the Bucyrus facility management first heard rumors of the Union’s organizing efforts
in late 1995. In February 1996, union supporters began to congregate at the driveway
entrances to the Respondent’s facility. On March 28, 1993, employees in support of the Union
began to pass out handbills at the east turnstile entrance to the plant.
Prior to the onset of the current union organizing campaign, Respondent maintained a
handbook which contains rules of employee conduct. The handbook has a series of general
rules, the violation of which can lead to discipline, up to and including discharge, including the
following:
Distributing literature of any kind in work areas at any time. Associates cannot solicit for
any purpose or collect money for any purpose whatsoever or distribute literature of any
kind on working time.
* * *
Entering or leaving the premises without authorization.
There is no rule in the handbook which restricted employee access to the Respondent’s plant or
parking lot more than one-half hour before or after their shift. There is no rule in the handbook
which forbids more than two employees from standing at the turnstile entrances or, for that
matter, any place outside the plant. There is no rule in the handbook which requires that
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employees who wish to distribute literature at Respondent’s driveway entrances must stand
only at designated areas.
B. Limited Access and Related Issues
1. Facts
a. Non-objectionable hand-billing
With respect to leafleting, Respondent did not object to the distribution and placement of
union literature in its cafeteria or in the locker rooms. At the distribution center, it actually
accommodated the employee hand-billers. The distribution center,
located approximately one-half mile south of the bearing plant, is a busy operation with
numerous trucks arriving and departing. Due to safety concerns because of the truck traffic,
limited parking and a limited security force, the Respondent limits access to the distribution
center. Respondent, nonetheless, has assisted union hand-billers who wished to leaflet at the
distribution center. When employees expressed a desire to handbill at the distribution center,
the Respondent transported them there in a company vehicle, dropped them off and then
picked them up at a time designated by the hand-billing employees.
b. Route 330 hand-billing
Since February 1996, hand-billers frequently gathered in the areas around the east and
west driveway entrances on Thursdays. The Respondent has not attempted to impose
limitations on the number of people that may gather on its property north of the stop signs at
each entrance way. The Respondent has permitted union organizers employed by the Union
and other non-employees to gather and handbill near the entrances north of the stop signs. At
times, as many as 55 people have gathered near the entrance ways.
The stop sign at the west entrance is 33 feet south of the property line contiguous to
Route 330. The stop sign at the 20-foot wide east entrance is only 5 feet from the property line.
The entire area between the highway and parking lot is flat, grassy ground with a slight
depression for rain drainage. About 35 feet south of the west stop sign is the entrance to the
first row of the paved employee parking lot. West of the main entrance driveway, between that
road and a fenced-in neighboring retail complex, is a row of large evergreen trees. At the
intersection of the main entrance road and Route 330, there is an overhead suspended traffic
light signal that is cycled to activate at the 3-3:30 p.m. shift break time to facilitate employee
egress.
Arbogast testified that on unspecified dates, probably in early April 1996, he perceived a
potential safety problem to exist at the west entrance by virtue of group employee hand-billing
south of the stop sign. He explained that in excess of 125 trucks, including large tractor-trailers
must negotiate a sharp turn south and some employee vehicles, after turning south onto the
main entrance road, must, in about 65 feet, turn east onto a parking lot lane. Arbogast testified
that employee hand-billers positioned themselves in the center of the main entrance road lined
up with the overhead suspended traffic signal light and attempted to distribute handbills to
incoming traffic. He testified that he concluded that this caused no safety problem if they
remained north of the stop sign even though that would have forced the hand-billers closer to
Route 330, and that he so ordered them to do so. Arbogast testified that on April 11, many
times he ordered employee hand-billers to move north of the stop sign, i.e., closer to Route
330. Employees Ralph Hart and Nancy Seybert refused his order and remained south of the
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stop sign without vocally responding to him or even acknowledging his presence. Another
employee who was with them complied with his order.
On the evening of April 11, Arbogast summoned a deputy sheriff who appeared and
who unsuccessfully attempted to persuade Hart and Seybert to move northward. Arbogast
testified that his instruction to the sheriff was to make sure that “the area” stayed open. There
is no clear, coherent evidence of any blocking of incoming or outgoing traffic. Nor are
Arbogast’s safety concerns apparent inasmuch as his orders would appear to move hand-billers
closer to highway traffic. Nor is it clear that incoming or outgoing employee vehicles were
actually impeded in making any turns. Indeed, only those using the first parking row would
have had to turn immediately. There are four rows of employee parking. However, there is no
showing that leafleting was in any way impeded by employees who chose to comply with
Arbogast’s order, and apparently many did so. Seybert and Hart were subjected to
Respondent’s counseling, i.e., they were subsequently interviewed by Arbogast, told they had
been insubordinate and they were warned of future discipline. A memorandum under the
counseling procedure was placed in the departmental file in the office of the manager of the
area of the plant where the employees worked. No memorandum, under this procedure, is
placed in the employee’s personnel file in the human resources department. Despite the fact
that Respondent and many employees do not characterize “counseling” as “discipline” per se,
some employees do and indeed were told they were disciplined when they were counseled. 2
Although counseling is used in situations of employee good performance recognition and as a
tool for educating employees as to plant policy, a counseling memorialization of improper
conduct clearly constitutes an adverse personnel action regardless of what it is called. This is
so because, as was conceded by Respondent witnesses’ testimony, the memorialization may
be relied upon by the manager in future situations where that manager may decide upon a
more severe course of action because of the past history memorialized in that counseling
record.
c. The half-hour access rule
On the afternoon of April 4, Arbogast and/or his security guards approached a group of
employees who were either handing out union leaflets or who were assisting and supporting
that effort. He and his agents told them that they were in violation of a company rule which
precluded their presence there at a time more than a half-hour before or after their shift start or
shift end. Those employees were in fact off-duty by more than a half-hour. They refused to
obey the order to leave Respondent’s property. On April 4, 1996, employees Glen Crum, Louis
Niedermier, Larry Beck, Ralph Hart, Roger Eldridge, Ron Grandstaff and Bob Berry were
counseled by Arbogast in a manager’s office at the plant. They were informed that on April 3
they had been “unauthorized to be on company property.” Their memorialized counseling
memorandum further reflected that they had violated a long-standing policy that precluded their
presence “on the premises 30 minutes before or after the shift.” They were further told and it
was memorialized that they had been insubordinate by refusing to comply with the rule and
obey a direct order to leave. It was related therein, as was in virtually all counseling herein, that
“any further violations will be subject to disciplinary action up to and including discharge.”

2 One supervisor referred to it as “discipline” in his testimony.
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Arbogast testified that such a rule had long preexisted the 1995 union effort. However,
he himself was newly employed at the plant in the spring of 1995 and of little competency to
testify as to past policy and practice. Evidence of the so-called half-hour rule’s preexistence as
expressed in employee notices in 1990 and 1994 clearly refers to access to the plant building
and not presence in the parking lots or at the turnstiles. Arbogast testified that he was unaware
of any problems regarding employee congregations before 1996, but again he did not
specifically monitor the parking lot and fence areas.
Four employees, one of 27 years’ seniority, testified credibly and without contradiction to
the lack of enforcement of such rule as to locker room gatherings of off-duty employees in the
presence of supervisors; the daily practice of five or six employees gathering 1 hour before shift
start in or near the bus stop who, upon arrival of the entire group, proceeded to the cafeteria for
coffee; gatherings of up to 6 off-duty employees at the west turnstile waiting for the next shift;
and finally, according to a former security guard from 1970 to 1988 and now production
employee, gatherings of 40 to 50 employees at the gate entrance 45 minutes or more before
shift start who were not told to disperse.
Arbogast gave no coherent explanation for the enforcement of a rule not previously
addressed to nor applied to outside-the-plant building presence, and which in effect constituted
a new rule never before in its present form announced to any employee prior to the 1995-1996
union campaign. After consultation with legal counsel, Respondent ceased enforcement of the
half-hour rule after April 4. However, the counseling memoranda remain, and there has been
no announcement to employees rescinding the rule.
d. The two-person limitation
Respondent argues that it has not permitted employees to congregate en masse outside
the turnstiles at any time since their installation and that prior to the current union campaign,
there has been no occasion to test that “policy” because there had been no occasion for
employee congregation at the turnstiles since their installation. The argument is premised upon
some very limited remarks by Arbogast in cross-examination wherein he referred to no such
“policy.” What Arbogast did testify to was that “people don’t stand at the turnstiles . . . When
people come to work, they walk in, they swipe and they go to work, they don’t congregate at the
turnstiles.” In further explanation of his competency to testify as to 850 production employee
practice of accessing the plant, he conceded that this conclusion is based upon mere casual
observation by himself when he enters the plant and when he, on some unspecified number of
times, stared out of his northern facing office window at the west end of the plant. Prior to the
union campaign, he admitted that he did not position himself in the guard house and watch
entering employees. There is no other evidence in the record, documentary or otherwise to
support the conclusion that Respondent had any policy as to how many employees could
position themselves at the turnstiles. Furthermore, it is undisputed that there was no limit on
the number of employees who lingered in the bus stop.
Arbogast testified that the two-person turnstile rule which limited the number of
employee leafleters as well as any other employee standing with them to no more than two
persons was precipitated by the current union campaign. He testified that it was formulated and
effectuated pursuant to a joint discussion between himself, the General Manager and corporate
headquarters representatives and legal counsel in late February or early March 1996. Its
unmemorialized effective date, he testified, was sometime in early March 1996. There was no
formal announcement made to employees who learned about in on an ad hoc basis when it was
enforced at the turnstiles. Initially, as an adverse witness for the General Counsel, Arbogast
described the purpose of the rule as:
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. . . to strike a reasonable balance at the turnstile areas to make sure that people can
flow through very freely, [and] . . . it enables our security department to insure
everything is safe in that area as well as we can visually examine or see who enters the
plant . . . [and] it insures safety from the point that if you have large groups of people in
the area, what can happen is that people will back into the -- or end up into the roadway
aisle [between the parking rows and turnstile approach path] at a shift change [which] it
is not the safest place to be in any roadway in a plant.
The road he refers to, of course, is actually an east-west vehicular aisle contiguous to the rows
of parked employee cars and parallel to the northern front of the fence to the east and the
visitor parking area and guard house, both of which abut the fence to the west. No evidence
was adduced that parking lot speeding near the guard house is a frequent phenomenon.
Later, as a Respondent witness, Arbogast amplified the purpose of the rule. He
explained that it was important for the guards at the guard house to have a clear view of the
east turnstile 176 feet away and already obstructed as described above. He explained that a
clear view was necessary in order to observe whether employees who had entered had slipped
their magnetic cards back through the fence to unauthorized persons who could then enter
unobserved by the guards whose view was obstructed. There is no evidence of any kind that
such conduct had constituted a problem or had ever occurred.
Arbogast further testified that a clear view from the guard house was needed so that the
guards could observe any conflicts between pro and anti-union employees. There is no
evidence that such conflicts had occurred prior to the time of the rule’s formulation even during
past organization campaigns.
There is very little evidence of conflicts between groups of pro and anti-union employees
at the turnstiles or elsewhere thereafter except for a couple of instances of alleged individual
harassment to be described hereafter regarding solicitors.
Arbogast further testified that during the deliberations which led to the rule, it was
decided that groups of employee leafleters would be intimidating to employees entering the
turnstiles. There was no explanation as to why it was decided that two persons would not be
intimidating but three would, or that four would, or that five would be intimidating. Respondent
introduced the testimony of only two employees who testified to feeling subjectively intimidated
by the presence of a group of employees leafleters and supporters at the east turnstile as they
entered. One complained to Arbogast after the rule was decided upon. Neither employee
explained satisfactorily why they chose not to enter the west turnstile entrance where there was
no leafleting. Neither employee felt physically threatened.
Arbogast testified that any employees seen standing with union leafleters were
considered by him to have been allied with the leafleters and thus were subject to the rule
regardless of what conduct, if any, that allied employee had engaged in at the turnstile. In any
event, the multitude of non-leafleting employees counseled, warned and suspended for non-
compliance of the rule, and who refused Arbogast’s or his security officers’ orders to move,
testified that their intent was to support the leafleters, support the Union, or encourage incoming
employees by their presence to accept leaflets and to support the Union. Thus there is no
dispute that those employees were engaged in concerted activities that would have been
protected by the Act in the absence of the two-person rule. In fact, generally, only two persons
actually leafleted. Most General Counsel employee witnesses present during confrontations
with Arbogast at the turnstiles testified, when asked, that two leafleters were adequate to
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accomplish effective leafleting. A few testified that two leafleters were not adequate. All
disciplined employees corroborated Arbogast that they were given multiple warnings by him at
the turnstiles before they were subjected to counseling, formal warnings and, in some cases,
suspensions varying from a day to a week.3 Again, the underlying reason memorialized for the
counseling and disciplining was the employees’ refusal to obey Arbogast’s orders to disperse.
Generally, the employees testified that they believed Arbogast’s orders were invalid and that
they had a right to remain at the turnstile which in fact was the east turnstile where all the
confrontation and leafleting occurred.
Arbogast testified that on March 28, he enforced the rule for the first time when he
confronted 11 employees at the east turnstile, advised them of the new rule and ordered all but
2 of them to disperse. They complied with his order.
On the evening of April 3, the first episode occurred of non-compliance with Arbogast’s
dispersal orders under the two-person rule at the east entrance at a confrontation with about 10
to 12 employee leafleters and/or supporters of leafleters, of whom 9 were identified in his notes:
Ralph Hart, Roger Eldridge, Louis Niedermier, Don Perdue, Dave Crum, Ronald Grandstaff,
Larry Beck, Robert Santer and Robert Berry. Arbogast testified that some employees were
blocking the turnstile by standing in front of it for periods of seconds or an unspecified number
of minutes which varied per employee. He could not identify any specific employee. No
employee was ever counseled for blocking turnstile entrances. Arbogast made no reference to
blocking in his recordation of the event dated April 4. No security guard was called to testify.
Arbogast was not corroborated as to the blocking allegation either by another witness, by
recorded notes or by counseling memorialization as to this episode or any subsequent episode
to which he similarly, vaguely testified that subsequent turnstile blocking occurred. No
photograph that was submitted into evidence several disclosed blocking. Subsequent
confrontations were photographed and videotaped by Respondent’s agents. No videotape was
offered into evidence to corroborate Arbogast. The security guard’s notes of the event, which
were introduced into evidence by the General Counsel, refer to no blocking. They do reflect
that after the alleged assault and battery incident which occurred that evening, the leafleters
and companions were requested by him, on Arbogast’s orders “to allow more room for
employees to enter the turnstile [and] . . . those who were still there, (10 to 12) did comply with
the request.”
Hart, Eldridge, Grandstaff, Beck and Niedermier all testified that no blocking occurred. I
credit their more convincing, corroborated testimony and that of a parade of other employees
as to subsequent confrontations and discredit the generalized, vague, unspecified,
uncorroborated, unconvincing testimony of Arbogast that any significant blocking of the east
turnstile occurred on April 3 or at the following similar episodes on the Thursdays of April 4, 11,
18, 25, May 2, 9, 23, 30, June 6, 13 and 20, 1996.
According to the credible evidence of the hand-billers and their supporters and
photographs, they divided themselves on either side of a 10-foot long open path of at least 6-
foot width from the vehicle aisle to the turnstile. To the east, they backed into a bicycle rack
which occupied part of the space. To the west at about 10 feet was the angled rear end of a
parked vehicle. A photograph, Respondent Exhibit No. 12 dated April 4, 1996, discloses a view

3 The rule was enforced at times when only one or two persons exceeded the limit. About 6
to 12 persons constituted the employee turnstile groups but, on occasion, 20 persons were
present. Respondent clearly did not consider the number of persons in the group to be a
relevant factor in its enforcement efforts.
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of 3 entering employees with at least 16 persons, i.e., leafleters and supporters divided about
equally on either side of the entrance path without even closely suggesting the congestion
characterized by Respondent as a “wall of flesh.” At least half of the union group is not even
paying attention to the entering employees. Their uncontroverted testimony reveals that they
often chatted amongst themselves socially about matters not even related to the union
campaign. If Respondent possessed photographs of worse congestion, it failed to proffer them
into evidence.
At most, the employees moved across the open path along the aisle, momentarily
stepping into the aisle or in the path, but not so as to cause any entering person to delay
ingress. Except for isolated episodes discussed hereafter, there were no taunts, no gestures,
no chants, no heated words, but only even-tempered solicitation to accept a leaflet and to
support the Union.
The counseling, warnings and suspensions issued for insubordinate non-compliance
with the rule did not cite any misconduct other than refusal to disperse. All the confrontations at
the east turnstile concerning enforcement of the two-person-rule from April 3 to June 20, 1996,
involved 22 counseling sessions for insubordination, 28 written warnings for insubordination, 5
written warnings with 5-day suspensions and 30 instances of 1 or 2-day unpaid “Investigation of
Rule Infraction” suspensions.
Based upon employee responses in the counseling and warning sessions, Arbogast
concluded that the employees had acted based upon an incorrect understanding of their rights
as probably explained to them by the Union. Accordingly, he testified that Respondent deviated
from its historic practice of dealing with insubordination by giving a written warning for a first
occurrence and immediate discharge for subsequent occurrences.
On the evening of the April 3 confrontation, it is alleged that Arbogast assaulted and
battered Ronald Grandstaff, an off-duty employee on sick leave who refused the order to depart
in view of six or seven employees. Grandstaff’s account of the event was not satisfactorily
corroborated by General Counsel employee witnesses Ralph Hart and Robert Berry who, in
significant detail, corroborated Arbogast. Grandstaff’s demeanor was neither spontaneous nor
convincing, and his testimony was internally inconsistent. Arbogast was not corroborated by
the testimony of the security guard, except for his recorded notes adduced into evidence by the
General Counsel which do corroborate Arbogast. I credit the more certain and convincing
testimony of Arbogast. I find that at most, Arbogast lightly touched Grandstaff upon the
shoulder when he requested him to leave but that when Grandstaff erupted with vehement
indignation, Arbogast quickly removed his hand and in effect apologized by saying, “Everything
is cool.” I find that the incident is too trivial to constitute any significant interference in the form
of a bodily attack.
Grandstaff, for a period of time, filed and pursued a criminal charge against Arbogast
until he withdrew it on advice of his attorney. Arbogast testified that on April 4, he heard a
variety of rumors at the plant to the effect that he had assaulted and battered Grandstaff the
day before by a variety of means and that he was going to be arrested. Arbogast testified that
in order to protect himself and other Respondent agents from future false accusation, none of
which ever occurred, that he would photograph and videotape every subsequent east turnstile
leafleting event, which was done continuously thereafter as employees leafleted or stood with
the leafleters.
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Respondent asserts that it had no intention to coerce employees but merely wanted
documentation to protect Arbogast and the security personnel as well as to have a record in
subsequent litigation.
It was stipulated by the parties that on all occasions when there were more than two
employees at the east turnstile, the employees were videotaped and/or photographed at the
direction of the Respondent while engaging in passing out union literature or standing with
people who were passing out union literature. That stipulation, as well as employee testimony,
indicates that such photographing and videotaping were not limited to periods of time when
Arbogast or the guards were present and confronting them.
It is also alleged that the access restriction of employees was enforced by the issuance
of a disciplinary warning and a parking ticket to employee Ralph Hart because he violated the
two-person limitation rule on about April 4, 1996. The evidence fails to establish that Hart was
issued a disciplinary warning for parking in an unauthorized area. He was counseled in April by
supervisor Leslie Keiter for insubordinately refusing to comply with the two-person limitation rule
on April 3. Hart did receive a “parking ticket,” apparently on April 4, for parking in an
unauthorized area, i.e., the visitors parking lot, on April 3. Apparently, the citation was raised in
the Keiter counseling session but how and in what terms is not clear. There is no evidence that
Keiter related it to the two-person rule. It is not clear who issued the ticket and when. The
nature of the citation was, apparently, an in-house discipline. It is not clear what
consequences, if any, arise from such a citation. In any event, Hart admitted that the area he
parked in was reserved for visitors’ vehicles but that he chose it because it was “handy.” He
testified that he did so in the past, but the circumstances were not explained. He admitted that
the visitor parking area was an area where he should not have parked his vehicle. There is no
evidence of disparity of treatment for such conduct. I conclude that there is insufficient
evidence to support any conclusions about this vague and trivial episode.
2. Analysis
Respondent readily acknowledges, in its brief, “that its off duty employees have the right
under Section 7 of the [Act] to distribute union literature and to solicit for the union on non-work
time and in non-work areas.” The General Counsel argues that “the work place is a singularly
appropriate place for the distribution of Section 7 material,” quoting the Supreme Court’s
observation in Eastex v. NLRB, 437 U.S. 556 (1978), “. . . [the work place] is the one place
where [employees] clearly share common interests and where they traditionally seek to
persuade fellow workers in matters affecting their union organizational life.” See, Automotive
Plastic Technologies, d/b/a Nashville Plastic Products, 313 NLRB 462, 463 (1993).
Respondent points to the freedom allotted to its employees and non-employees to distribute
literature in large groups at its highway entrances north of the stop sign at Route 330. It points
to its assistance to the distribution center hand-billers and its tolerance of insignia-wearing
throughout the plant and literature distribution in the cafeteria as evidence of its non-oppressive
stance toward employees’ exercise of their Section 7 rights.
Respondent argues that the analysis herein ought not therefore involve access issues
because, in its opinion, there was effective access by the Union and employees at the highway
entrances and by employees at the turnstiles where effective leafleting occurred because of the
ease with which two employees could proffer a leaflet to a single file of employees entering one
by one into the turnstile, and also in the cafeteria and in the plant by virtue of insignia-wearing.
It should be noted, however, that during an 8-hour shift, employees are entitled to only one 18-
minute lunch break and are allowed no other breaks except for ad hoc personal relief breaks as
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needed upon supervisory approval. Thus opportunity for solicitation in the cafeteria and in
working areas was not as extensive as it might otherwise seem. Arbogast testified that there
was little downtime because machines are constantly being tended.
Respondent, however, argues that because access was not absolutely denied but only
limited, that this case ought not involve analysis of a no-access rule and application of no-
access legal precedent, but rather an analysis that balances its right to control the use of its
property against the alternative effective means available for employee union advocates to
proselyte despite limitations imposed. Of course, Respondent has not imposed an absolute
universal no-access rule. However, Respondent has denied access to certain areas and to
certain employees and this does constitute a no-access rule for them. Respondent argues that
the limitation upon employees in any event meets the test for a no-access rule validity set forth
by the Board in Tri-County Medical Center, 222 NLRB 1089 (1976), in which the Board
evaluated the validity of a rule prohibiting plant access by off-duty employees. The Board in
Automotive Plastic Technologies, supra, p. 463, reiterated that test, stating as follows:
In Tri-County, the Board has held that rules limiting the access of off duty
employees are valid only if it:
(1) limits access solely with respect to the interior of the plant and other
working areas; (2) is clearly disseminated to all employees; and (3) applies to off
duty employees seeking access to the plant for any purpose and not just to
those employees engaging in union activity. Finally, except where justified by
business reasons, a rule which denies off-duty employees entry to parking lots,
gates, and other outside nonworking areas will be found invalid [222 NLRB 1089
(1976)].
Respondent argues that it has met the business justification criteria of the test.
Respondent, however, ignores the prerequisite that the restrictive rules must be disseminated
to all employees, which they were not, and applied to all employees, not just those employees
engaged in union activities. Here, the rules were initiated in response to the union campaign
and applied only to employees involved in union activities, i.e., witness the toleration of any
number of employees in the bus stop to obstruct the view of the east turnstile, and the toleration
of an obstructive stationary Red Wing Shoe truck in the vehicular aisle near the east turnstile.
Respondent goes on to argue, pursuant to its suggested balancing analysis, its right to
use its private property as it sees fit, particularly for safety concerns, must be balanced against
the effectiveness of employee union advocates’ alternative means of proselytizing within those
limitations. Respondent argues that the General Counsel and Union are seeking the absolute
right of employees to engage in concerted activities any where any time they desire despite its
impact upon Respondent’s business. That is not the position of the General Counsel. Rather,
the General Counsel argues that it is not within Respondent’s prerogative to arbitrarily
determine when, where and how many employees may exercise rights guaranteed by the Act.
Further, the General Counsel argues that the test is not one of balancing interests as would be
done with non-employee union agents, but rather whether Respondent has satisfied the Tri-
County criteria, including the demonstration of business justification for the limitation of off-duty
employees’ protected activities and that Respondent has failed that test in all of its restrictive
access rules.
The balancing test advanced by Respondent is one which has been applied to non-
employee union agent visitors. See, Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The
balancing test implicitly concerns itself with the right of a union to effectively carry its message
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to employees. The Tri-County test addresses the individual rights of employees. The Board
has explicitly rejected the argument that Lechmere applies to its off-duty employees. The
Board considers off-duty employees who seek access for hand-billing to fall within the scope of
Supreme Court precedent protecting their individual organizing activities. Automotive Plastic
Technologies, supra, p. 46, citing Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978);
Eastex, Inc. v. NLRB, supra; and NLRB v. Le Tourneau Co. of Georgia, 324 U.S. 793 (1945).
The Board’s citation of Eastex in its reaffirmation of Tri-County undermines Respondent’s
suggestion in its brief that Eastex establishes yet another kind of balancing analysis which,
herein it argues, is the balancing of its managerial concerns, i.e., safety and security versus
individual employee hand-billing rights. I conclude that the Tri-County test is the one now viable
and applicable to the employee hand-billers herein. In any event, the “balancing” suggested by
Respondent may be just a variant restatement of the business justification analysis in Tri-
County.
Under the Lechmere test, Respondent’s defense has much appeal and what some
might characterize as pragmatic sense. That is to say, the Union’s message was apparently
carried to incoming traffic north of the stop sign and to individuals entering the turnstiles by two
hand-billers who did so freely and without restraint. Yet, even under that analysis, the defense
is vulnerable because of the limited ability of union supporters to proselyte and express support
in the plant during very limited non-working time under a plant no-solicitation/distribution rule.
Further, regardless of whether the non-leafleting employees who stood with the leafleters at the
turnstile actually said or did anything, their very physical presence rendered an effective
statement of numerical support and mute appeal for support. As one of the employees
testified, those entering the plant could see that employees could stand witness to the union
cause without fear and they also could and were urged to do the same without fear. Close
monitoring and limiting that activity tended to dissipate the impact of such message. In any
event, under Board precedent, it is the validity of the business consideration that must be
analyzed as justification for the deprivation of employees’ rights to handbill or show support
thereof at certain locations and times, and in numbers of their choosing rather than the
Respondent’s choosing under the Tri-County test as reaffirmed in Automotive Plastics, supra.
See, also, Fairfax Hospital, 310 NLRB 299 (1993); and Sweet Street Desserts, 319 NLRB 307,
312-313 (1995), where it was held violative of the Act to promulgate a no-access rule solely in
response to organizational activity without evidence of business justification.
With respect to the April 3-4 promulgation of a half-hour turnstile access rule under the
guise of a different preexisting, no internal plant access rule, that conduct was clearly violative
of the Act as it was done solely in response to union activity without business justification. It is
not a trivial incident because certain employees suffered adverse personnel action, i.e., a
negative counseling memorialization. Accordingly, a remedial order is necessary.
With respect to the turnstile and Route 330 entrance limitations, applying the business
justification analysis, it is irrelevant that effective access was reached by many other union
employee hand-billers north of the stop sign and by two hand-billers at the east turnstile.
Certain employees were prohibited from engaging in concerted union activities a few feet south
of the stop sign, I conclude, without compelling business reasons, and unrelated to the number
of employees involved and specific area south of the stop sign, i.e., pursuant to an arbitrary
decision of Respondent as to how and when it would permit those activities which tended to
undermine the impact of the activities.
With respect to the east turnstile, there was no credible evidence of blocking threats,
intimidation of any significance, unsafe traffic conditions or group conflicts. That such problems
might have occurred is based upon pure speculation, not even premised upon past organizing
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campaign events. Respondent argues that yes, the view of the east turnstile was so obstructed
even at the best of times and therefore it could tolerate no further obstruction. Yet, the
evidence in the form of testimony and photographs fails to demonstrate that the limitation of two
hand-billers would provide any significant improvement. Furthermore, the need for a clear view
to prevent magnetic card abuse was a non-existent problem and one upon which there is no
evidence to expect an occurrence. If, indeed, it had ever been a concern, there would have
been a guard at the east turnstile or at least a clear view of it established.
With respect to the Route 330 entrance stop sign limitation, neither testimony,
photographs nor schematic plans offered into evidence cogently and clearly establish any basis
for perceiving that it was safer for hand-billers to stand closer to the highway traffic intersection
in the center of the incoming road, than further south after vehicles negotiated their incoming
turn and when only some of incoming traffic made a second and necessarily slower turn into the
first lane of parking. It would have made more sense to have ordered the hand-billers to stand
out of the driveway itself if the premise was safety. The only instance of an unsafe incident was
when one hand-biller complained that an incoming vehicle nearly made contract with him. It is
not clear whether the cause of the problem was leafleting south of the stop sign or more likely
because the hand-biller was in the middle of the driveway. Arbogast’s additional reason to
maintain a clear view of the stop sign is not convincing. The hand-billers were in the middle of
the driveway and were not obscuring the sign which was on the side of the driveway. The north
of stop sign rule, I conclude, was a mere arbitrary limitation imposed by the Respondent without
regard to actual numbers of employees, actual conditions or actual location south of the sign for
no apparent safety concern. I therefore conclude that all Respondent’s access limitations were
imposed without business justification, were not previously promulgated, were a direct reaction
to the union campaign and were limited to union hand-billers. I conclude that they constituted a
demonstration of arbitrary authority and control of monitored union hand-billing. I find that such
access limitations and enforcement, including summoning the deputy sheriff, are violative of
Section 8(a)(1) of the Act as alleged in the complaint.
With respect to the counseling, warnings and suspensions, the Respondent claims that
such actions were for insubordination. When an employee is discharged for conduct that is the
res gestae of protected activities, the relevant question is whether the conduct was so
egregious as to take it outside the protection of the Act. Consumers Power Co., 282 NLRB
130, 132 (1986). Respondent cites cases not appropriate to the issue herein, i.e., precedent
involving misbehavior in the course of concerted activities, e.g., Earle Industries, Inc. v. NLRB,
75 F.3d 400 (8th Cir. 1996), and Carolina Freight Carriers Corp., 295 NLRB 1080 (1987). The
instant case is distinguishable. The employees herein did not engage in any misbehavior in the
course of performing work duties nor did they refuse a work order in the course of asserting
Section 7 rights. The off-duty hand-billers herein, however, did refuse a dispersal order up to
the point of counseling, warnings for those who persisted, and suspensions to a few who
persisted further. The activity they were engaged in was not the performance of work tasks but
rather union activities on their own time. They performed the hand-billing and support thereof in
no insulting or offensive manner, albeit Arbogast became incensed by their passive, sometimes
non-acknowledging reception of his dispersal orders. The hand-billers’ presence would have
been in no violation of any lawful access policy of the Respondent. Under the foregoing
analysis, those orders were violative of the Act. The Board has long held that a refusal to
comply with such unlawful order does not constitute unprotected insubordination, as the Union
correctly argues, citing Cooper Tire & Rubber, 299 NLRB 942, 953 (1990), which case in turn
cites, inter alia, Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616 (1962). See, also, Simplex Wire
and Cable Company, 313 NLRB 1311,1316 (1994), involving an unlawful discharge for a
refusal to obey an unlawful order to cease protected activities in the plant; and Olathe
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Healthcare, 314 NLRB 54 (1994), also involving an unlawful enforcement of an overly broad
solicitation/distribution rule.
Accordingly, I find Respondent violated Sections 8(a)(1) and (3) of the Act by its
enforcement of the unlawful access limitation rules through the issuance of counseling,
warnings and suspensions to employee union hand-billers as alleged in the complaint.
With respect to the surveillance of the protected hand-billing by photographs and by
videotaping, Respondent asserts that it was simply done for defensive and non-coercive
motivation. It is lawful for an employer to observe open union activity. However, continuous
scrutiny over substantial periods of time may constitute coercive surveillance. Automotive
Plastic Technologies, Inc., supra, p. 463-464. The test of validity of such conduct is whether
there was proper justification and whether it reasonably tends to coerce employees. F.W.
Woolworth Co., 310 NLRB 1197, 1204 (1993) (hand-billers); Athens Disposal Company, Inc.,
315 NLRB 87, 98 (1994); Dayton Hudson Co., 316 NLRB 477 (1995) (leafleters at store
entrance); Parsippany Hotel Management Co., 319 NLRB 114 (1995), and cases cited therein.
The mere belief that something might happen to justify the recordation is insufficient when
balanced against the tendency it may have to interfere with the free exercise of employee
rights. F.W. Woolworth, supra.
Respondent’s photographing and videotaping were not shown to be limited to times
when Arbogast or the security guards conversed with the hand-billers. It was continuous and
unlimited and, I conclude, unjustified by the single, early episode involving Grandstaff. No
similar confrontations occurred thereafter. I find that the pervasive photographing and
videotaping unlawfully complemented the invalid access limitations and their unlawful
enforcement and reasonably tended to discourage employees from engaging in or supporting
lawful union hand-billing and therefore was violative of Section 8(a)(1) of the Act as alleged in
the complaint.
C. Removal and Confiscation of Union Literature
1. Bulletin Board
The employee handbook sets forth a preexisting rule restricting the use of the plant
bulletin boards to managerially approved materials. Employees have no statutory right to use
an employer’s bulletin board but, if permission is granted, it must not be accorded selectively
and disparately to prevent union literature postings whereas other non-business postings are
permitted. Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983). An
employer who permits non-business postings but excludes union related material violates the
Act. Kroger Co., 311 NLRB 1187, 1199 (1993); Fairfax Hospital, 310 NLRB 299, 304 (1993);
Ford Motor Company, 315 NLRB 609, 613 (1994) (involving permitted postings of personnel
notices).4
The General Counsel argues that prior to the 1995-1996 union campaign, the
Respondent permitted its employees to post a variety of personal notices, cartoons and
newsprint articles. It is the Respondent’s position that only business related matters were
allowed to be posted on about 11 communication boards throughout the plant and

4 Respondent’s cited authority to the contrary is Guardian Industries Corp. v. NLRB, 49 F.3d
317 (7th Cir. 1995), which rejected the Board’s view and found that permitted personal notice of
sales and social announcements did not constitute discriminatory conduct.
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“departmental boards” and that the supervisors have routinely enforced that rule by removing
all other materials found there with one exception. Arbogast testified that the sole exception
was that a personal condolence card or thank-you card relating to a death in an employee’s
family may, upon approval of the general manager or his agent, be placed by the supervisor for
a short time only on the departmental board. Union literature was admittedly removed during
the campaign from informational boards. The General Counsel adduced the testimony of
employees Joyce Bordner, Diana Gabriel, Michael Shiefer and Stephen Bishop as to the use of
the bulletin boards. Bordner testified that she, on unspecified dates, observed thank-you notes
for flowers sent to bereaved or ill employees and undescribed cartoons posted on “bulletin
boards” on her line in buildings 8(A) and (B). She testified that she saw unidentified
supervisors and managers reading the cartoons but that she did not see them remove the
cartoons. However, she testified they were removed subsequently after some undisclosed
period of time. Even if those unidentified persons were in fact supervisors within the meaning
of the Act, her testimony is so vague as to be non-probative.
Similarly, Gabriel testified with the same vagueness that on unspecified dates she
observed unidentified persons she characterized as “supervisors” read and walk away from
one notice for one weekend hog roast at a blue grass festival held on the notice author’s farm,
an unspecified number of auction notices, sympathy cards and unspecified numbers of “notices
for get well presents” posted on four bulletin boards in the area where she works in the “old
cone finish” building 8A. She was silent as to what length of time, if any, those items remained
posted.
Shiefer testified there are three bulletin boards where he works in building 8(A), Cone
Finish, on the north wall. He testified that on unspecified dates “from time to time,” he
observed an unspecified number of auction notices authored by two hourly paid employees and
one hog roast notice in October 1995 authored by an unnamed supervisor. He testified that at
some unspecified time the auction notices were removed, as was the hog roast notice, the latter
after the event. He admitted that he observed supervisors “eventually” removing the auction
notices. In redirect examination, he testified that he also saw supervisors removing cartoons.
Bishop also works in building 8(A). He identified six bulletin boards at the end of the
lines and one main one between the rest rooms. He testified broadly that employees have
posted “anything they want to put up there [on the line boards].” He observed auction notices,
thank-you notes from the ill or hospitalized, cartoons, newspaper clippings and “just about
everything under the sun.” None of the postings were described or otherwise identified. He
testified that he observed supervisors tearing down and throwing away “certain things that they
didn’t like or thought they shouldn’t be there,” which he did not identify, but that they did not
remove the auction notices. He testified that he posted undescribed newspaper clippings on
unspecified dates without permission and without being disciplined. In cross-examination, he
admitted that he did not know whether all employees posted personal materials.
Respondent adduced the testimony of several supervisors. They testified that they
routinely removed unauthorized materials, including auction notices and cartoons.
I agree with the Respondent that in a large plant of 850 production employees, there are
bound to be some limited occasions when unauthorized materials have been posted. However,
based upon the very generalized, vague, imprecise, very limited testimony of 4 of General
Counsel’s 45 witnesses, I cannot conclude that Respondent had tolerated free use of its bulletin
boards for un-authored personal notices to the extent that its removal of union literature can be
found disparate or discriminatory. Thus I find no merit to this complaint allegation.
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2. Cubby Hole and Tool Box Literature Confiscation
Undisputed testimony reveals that union literature placed face up on top of employee
purses and lunch bags in cubby holes used by employees, as well as union stickers attached to
the interior walls of the open-faced cubby hole, were removed and confiscated on the grounds
that the cubby holes near the work area were the property of Respondent despite the fact that
materials placed therein were the personal property of the employee.5 Locker rooms are
located away from the work area and there is no evidence of union literature confiscation in the
locker rooms. Similarly, union literature was taken from the tool box of employee and union
activist Roger Eldridge on one occasion, May 4, when he placed a union leaflet face up on the
top of his personally owned items therein at his work area on working time. According to the
confiscating supervisor, he did so because the tool box had been on the floor, which was
Respondent’s property, in the working area even though no one was seen reading the leaflet.
The Respondent argues in the brief that the leaflets were removed pursuant to a proper
non-discriminatory enforcement of its solicitation rules because such open-faced literature was
“capable of being read by people walking by during work hours” and, on their face, constituted
a solicitation for support. Respondent’s responsible agents testified to the routine removal of
non-union litter and newspapers from the cubby holes. Employee Cooley testified without
contradiction that employees who wish to sell items such as candy or cookies place them in the
cubby holes. Employees who wish to purchase the items will place money in the cubby hole
and remove the items. She testified to a variety of sales on working time, but she was unclear
where these sales were negotiated. She said some of them occurred in the locker room. She
did not describe where the cubby hole sale was negotiated nor how and where the pickup was
arranged. There is no evidence that supervisors are aware of such sales by cubby hole, and it
is unclear how extensive the practice was and how evident that the material therein was for sale
since the practice was apparently done by word of mouth. No specific cubby hole is assigned
to any specific employee.
Respondent’s argument rests upon its contention that the material in the work areas
was capable of being read by an employee walking by during working time, thus being subject
to solicitation. Respondent tolerated the wearing of union insignia attached to employees’ work
clothing and stickers attached to purses or other personal property during working time and
work areas. See, Burger King Corp., 265 NLRB 1507 (1982); Malta Construction Co., 276
NLRB 1494 (1985), for a discussion of employees’ presumptive right to wear union insignia..
In reality, any literature proffered for reading, whether by physical tender or by strategic
placement for reading, constitutes a distribution albeit the message therein was a solicitation. I
conclude that the Board’s test for validity of distribution limitation is the appropriate test herein.
An employer may prohibit the distribution of union literature in working areas but a broad rule
banning distribution during non-working time in non-working areas of the plant is presumptively
invalid. Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616-621 (1962). A prohibition of union

5 Roberta Shifflet testified to two instances of cubby hole confiscation, one of which she
claimed involved singled folded leaflet of distinctive color. The then Cupp Business Manager
Menning testified that he removed several documents which he recognized as solicitation. I do
not discredit the more certain Menning that the condition of the document or documents was
such as to have enabled him to recognize it as an open solicitation for union support. Arbogast
testified that it was Respondent’s policy and practice not to remove face down literature or that
which is attached to employee property, or face down in tool boxes.
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literature anywhere in the plant is presumptively invalid on its face where there is no shown
need to maintain production and discipline. Formosa Plastics Corp., Louisiana, 320 NLRB 631,
632 (1996), citing Stoddard-Quirk, supra.
There is Court precedent, contrary to the Board’s views, that it was lawful for an
employer to order temporary employees to remove union stickers from hard-hats which were
company property on the grounds that since the employer recognized presumptive rights of
employees to wear union insignia on their own clothing, including jackets owned by them, that
the employer need not suffer its own property to be used as a “billboard” for the union. NLRB
v. Windemuller Electric, Inc., 34 F.3d 384 (6th Cir. 1994), enforcing in part 306 NLRB 664
(1992) (the Court applied a Lechmere test of validity).
The General Counsel’s theory of violation in regard to the leaflet confiscation rests upon
alleged disparity of treatment. The only evidence of disparity cited in Cooley’s testimony, I find
to be inconclusive. As a distribution, the placement of literature clearly occurred in the working
areas on working time. If the placing of literature is a solicitation, it also occurred during
working time in working areas. Neither conduct was shown to have been disparately treated.
Accordingly, I find no merit to this complaint allegation.
D. Disciplinary Enforcement of the No-
Solicitation/Distribution Rule
1. The Policy
Respondent’s preexisting handbook rule prohibited solicitation or distribution of literature
on working time. Arbogast testified that Respondent strictly enforces that policy and that
supervisors are instructed that they should counsel individuals who solicit and if solicitation
persists, disciplinary action should be taken. He testified that the Respondent has turned away
charitable organizations, free pizzas and discounts on food pursuant to the solicitation rule, and
that, as corroborated by supervisor Leslie Keiter, if supervisors notice the sale of Girl Scout
cookies, candy bars for Little League or other similar products, they are under orders to stop
the solicitation.
The Respondent also makes a distinction between solicitation and conversation in that it
permits employees to talk about the union while on working time on the lines at their machines
but prohibits solicitation for union support on working time. Arbogast testified that as long as
employees are tending their machines without formal breaks and with only one 18-minute lunch
break, Respondent does not care what they talk about. However, if they leave their machines
and gather in a group, they will be ordered back to their machines. He defined solicitation as,
“when someone tries . . . to solicit for the procurement of, or sale of goods, for the acquisition
of something for the sale of something.” He gave as examples in addition to the sales of
cookies and candies, the membership in fraternal organizations.
The prohibition of any protected activity, including union solicitation in work areas during
non-working time, is presumptively unlawful. Brunswick Corp., 282 NLRB 794, 795 (1987), and
cases cited therein; Ford Motor Company, 315 NLRB 609 n. 2 (1994), citing Brunswick. The
General Counsel, however, argues that Respondent disciplined, i.e., counseled, employees
Roberta Shifflet on about March 8, 1996, James Knapp on about March 9 and employees
Roger Pfleiderer, Richard Sharp and John Harvey on about May 23 as a result of a disparate
enforcement of its working time, non-solicitation rule. Respondent admits the counseling but
denies any disparity of treatment and contends further that the May 23 counseling of those
three employees related to a violation of its preexisting handbook rule prohibiting the
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harassment and abuse of co-workers. It contends that those three employees harassed a co-
worker in a solicitation related incident.
2. Evidence of Disparate Treatment
The General Counsel argues that “solicitation on the work floor during work time was
fairly commonplace,” and that Respondent’s enforcement of its solicitation rules was “sporadic
at best.”
Only four General Counsel witnesses testified in support of the disparity allegation, i.e.,
employees Pfleiderer, Knapp, Cooley and Louis Niedermier.
Pfleiderer testified to a past practice of supervisor toleration of employee talking during
working time in working areas. He testified that there were occasions when he discussed the
Union during working time in working areas during which he sometimes stopped work. He was
counseled on May 23, 1996, for harassment of a co-worker but not for talking about the Union.
The incident will be discussed more fully hereafter.
Knapp’s testimony in direct examination regarding solicitation toleration was very
generalized and conclusionary, i.e., he saw during the entire period of his employment from
1968 “people [employees?] selling raffle tickets for a volunteer fire department, your Girl Scout
cookies, Little League Ball, a lot of community activities, people bring in things for their kids to
sell and that’s for the community type [sic].” He gave no names, dates, locations or any
circumstances except that it occurred “at work.” He answered “Oh, yes, they’re aware of it” to
Counsel for General Counsel’s question of whether unnamed supervisors and management
were aware of it. In cross-examination, he testified that the solicitations occurred “in the
working site” in front of “supervision.” However, he could not identify specific occasions when
a supervisor was present, but he identified his own supervisor, Leslie Keiter, as having been
present. Again, he could not recall any specific occasion when Keiter was present. He was
asked and he answered:
Q. Throughout the time that you have been with the company, has the
company had this rule prohibiting solicitation?
A. Yes, that I know of.
Niedermier testified that he has seen during working time and in working areas
employees soliciting for “lotteries -- football lotteries, state lotteries, different ticket sales, candy
bar sales, shoe sales.” He only identified one such occasion. On April 10, 1996, he observed
an hourly rated employee, Lee Holt, selling candy bars of which two candy bars were sold to
Niedermier’s supervisor, Beatrice Morton, at an undescribed work area where Niedermier does
his 2 o’clock routine scrap check. He gave no further details, i.e., whether it was Holt’s working
time or personal break time.
Cooley testified that “at work,” she observed other unnamed employees at undisclosed
times and places sell Girl Scout cookies, Little League candy bars, raffle tickets and bicycles.
She testified that currently, she observed sales for “Chef’s Pride,” a specialty kitchen utensil.
She answered “yes” to Counsel for General Counsel’s question as to “whether any of these
products are sold during work time.” She did not explain. She testified that “supervisors,”
including every supervisor she ever had, bought candy bars and cookies to benefit school
children from herself and other employees “on work time.” She named no other supervisor.
She gave no details as to location nor explanation as to whose work time was involved, i.e.,
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herself or other employees. Her current supervisor for a year and a half is Dave Bailey. In
cross-examination, more elucidation was elicited. She admitted awareness of the handbook’s
working time, solicitation prohibition but claimed it had never been enforced. She admitted that
yes, soliciting employees could have been counseled without her awareness. She identified
fellow employee Kim Sebring as having sold candy bars with her in May 1996 and an employee
named Tisha who sold the kitchen utensils. She explained that Tisha executed the sales in the
locker room by leaving her order booklet in the locker room for employees to make the sale
order there. As noted elsewhere, with respect to the cubby hole issue, she described how she
left something, probably another order booklet in the bathroom, and using the cubby hole as a
drop-pickup site for candy bars and cookies. She could not identify any other employee in her 8
years of employment who violated the working time, no-solicitation rule.
Supervisor Keiter denied having ever observed the solicitation for sales by employees in
the work area and stated that he would have enforced the solicitation policy if he had done so
by confrontation and counseling. Supervisor Morton denied that she purchased candy bars
from employee Holt on April 10 and denied that she observed such sales and insisted with
certitude and conviction that she would not tolerate such sales. Both Keiter and particularly
Morton testified with greater certainty and more persuasively than Knapp and Niedermier. I
credit Keiter and Morton. Bailey did not testify, but Cooley’s testimony is so imprecise,
conclusionary and uncertain as to be of no probative value.6 Her cross-examination revealed
that the only solicitations she could specifically recall occurred in the bathroom and locker
rooms. As to the pickup at the cubby hole, there is no evidence that it was witnessed by a
supervisor.

6 Bailey’s supervisory status is not alleged in the complaint and it was not litigated. There is
a Larry Morton alleged as a supervisor but not a Beatrice Morton.
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Regardless of the credibility of General Counsel’s witnesses, the testimony of 3 of 45
witnesses of 850 employees is too generalized, imprecise and conclusionary to support a
finding of widespread Respondent toleration of non-union solicitations on working time. I
cannot conclude that enforcement of the solicitation rule against union solicitations during
working time would constitute disparate treatment.
Furthermore, if the Respondent had enforced the no working time solicitation in the
locker rooms, the bathroom and on personal break time, it might have been liable to a charge of
unlawful interference inasmuch as such time in work places, when employees are not actively
working, is not considered by the Board to constitute working time despite the fact that
employees are paid for such time. Sweet Street Desserts, 319 NLRB 312-313 (1995); see,
also, Our way, Inc., 238 NLRB 209, 214 (1978); Ichikoh Mfg. Inc., 312 NLRB 1022 (1993);
Wellstream Corp., 313 NLRB 698, 703 (1994).
3. The Counseling of Shifflet and Knapp
The General Counsel alternatively argues that according to Shifflet and Knapp, they
merely talked to other employees on working time about the Union and did not solicit union
support. Knapp admitted that he had a conversation with a co-worker on working time wherein
he told the co-worker that he thought the employees needed a union. This does not come
within Arbogast’s above-noted definition nor the counseling supervisor Keiter’s definition of
solicitation, i.e., trying to sell or “push” something or someone. According to Knapp, he merely
expressed an opinion.
Shifflet testified that she merely inquired of co-worker Mike Young whether he had
signed a union card while on her personal relief break. She had no union cards and did not
solicit his signature. It is not clear whether Young was engaged in active working at the time.
He did not testify. Shifflet denied, however, any other union card-referenced conversations. I
agree that such casual inquiry would not fall within Respondent’s agents’ definition of
solicitation. She was counseled by supervisor Ridge for solicitation during working time.
Respondent proffered the testimony of Keiter and Ridge to prove that Knapp and
Shifflet’s conduct went beyond what they had testified. They, however, acted upon reports of
employees who reported the solicitation. The employees did not testify. I must credit the
testimony of Shifflet and Knapp inasmuch as the contradictory hearsay is obviously non-
probative of actual misconduct.7
At best, I find that Respondent had reasonable cause to believe that the two employees
had engaged in misconduct during the course of protected activities not inconsistent with plant
rules, i.e., merely talking about the Union. The Respondent has raised a presumption of
misconduct which the employees have rebutted. Thus Respondent has acted at its risk in
adversely counseling two employees who had engaged in protected activities while committing
no actual misconduct and therefore Respondent violated Section 8(a)(1) of the Act. Keco
Industries, 306 NLRB 15, 17 (1992), citing NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964);
see, also, Alexander Linn Hospital Association, 244 NLRB 387 (1979).

7 I do not view Ridge’s testimonial account of Shifflet’s counseling response as an
admission of misconduct, “Well, I didn’t realize I was doing that, I understand now.” In any
event, I find her contradictory version of the conversation more certain, convincing and
spontaneous and more credible.
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4. The Counseling of Pfleiderer, Sharp and Harvey
The above-named three employees were adversely counseled for harassment of a
fellow employee. The Harvey counseling was not alleged in the complaint, but he was allegedly
involved in the purported union-solicitation harassment of employee Shauna Moore on about
May 23, 1996, as were Pfleiderer and Sharp.
Respondent had maintained a preexisting rule against “fighting, striking, threatening or
intimidating another [employee] or supervisor, committing any act of violence or improper or
immoral conduct, using abusive, profane, or improper language to another [employee] or
supervisor.”
I credit Moore’s testimony where it conflicts with that of Pfleiderer or Sharp. She
testified in a fluently, vivid, more spontaneous and more certain and sure, convincing manner
than did Pfleiderer or Sharp. Accordingly, I find that the following events occurred. On May 22,
1996, during working hours on the afternoon shift during working time, Pfleiderer admittedly
unsuccessfully solicited employees to pass out union literature and in so doing, admittedly
upset them. Moore was one of those who refused. Pfleiderer persisted in asking her if her co-
worker, Sherry Wells Young, was interested in passing out literature. Moore answered, “I don’t
know. Ask her. There she is.” Her tone of voice in recounting the incident indicated that she
responded to Pfleiderer in an impatient or exasperated manner. Wells Young came up next to
her just as Pfleiderer finished his question, but Moore walked away at that point. On the
afternoon shift of May 23, 1996, as Moore approached the east turnstile, Pfleiderer extended a
union flyer to her. She declined, saying “no thank you.” He retorted “take the goddamn thing.”
She angrily responded with an obscenity. During the course of her working time that night,
Sharp, a past good friend, approached her. She told him she was upset with Pfleiderer’s
solicitation attempts. She told him that she had attempted to retrieve and rescind her union
card. Sharp angrily and loudly persisted in trying to get her to explain why. She did so. More,
a relatively young person, answered that she acted upon her father’s advice. Sharp yelled out
that her father was a stupid son of a bitch and that she was stupid if she followed his advice and
otherwise reproved her. Sharp, an older, more mature person, was shouting and thrust his
finger in her face. She unsuccessfully tried to move away from him. She began to visible
shake and she wept. She testified that Wells Young had attempted to come to her aid by
remonstrating with Sharp but that Harvey appeared and restrained Wells Young and caused
more commotion. Sharp departed as Moore’s supervisor approached. She complained to her
supervisor, Richard Spradlin, about Sharp and asked for permission to go home. Spradlin
reported the incident to Arbogast. Moore had also complained to Spradlin of Pfleiderer’s
solicitation attempts that preceded the Sharp confrontation.
Harvey admitted that he observed from a short distance on the next job Moore “having
problems” with Sharp, i.e., she was shaking and “almost in tears.” He asked if she were all
right and she complained that Sharp had harassed her and that Pfleiderer had pushed literature
at her. He confirmed that she complained at that time that Sharp had said things about her
father and that it was apparent to him that she was defending her father. Harvey claimed that
Sharp had started moving away as Harvey approached. Harvey denied that he even talked to
Wells Young or blocked her attempts to join the conversation. Wells Young was not called to
testify. I find the testimony of Moore more convincing than the less spontaneous Harvey.
I conclude that Respondent has established sufficient factual justification for its
counseling of Pfleiderer, Sharp and even Harvey, although the complaint was never amended
to include Harvey. Pfleiderer, in any event, violated the no-working time solicitation rule and
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would have been liable for counseling for violation of that rule, if not harassment. Similarly,
Sharp’s abusive hectoring of Moore’s desire to withdraw her union support also constituted
grounds for liability under the no working time solicitation rule. Accordingly, I find no merit to
the complaint allegation regarding the May 23 counseling of Pfleiderer and Sharp. Finally, I do
not find that Harvey was engaged in any union or concerted protected activity regardless of his
actual culpability for misconduct.
E. The Open Door Incident
The General Counsel alleges that on April 25, 1996, Respondent violated Section
8(a)(1) of the Act by the conduct of its agent, Donald Leitzy, by his threatening of employee
David Kelley with discipline for viewing out from within the plant, through an open overhead
garage-like door, employees engaged in the concerted protected union leafleting at the east
turnstile.8
On April 11 or April 25, 1996, as on other Thursdays, a group of employees gathered at
the east turnstile. Arbogast testified that while explaining Respondent’s policy regarding the
turnstiles to the employees present at the east turnstile that morning, he observed a group of
employees gathered in the heat treat doorway of the bearing plant. The doorway is a 16-foot
overhead door which resembles a large garage door. Arbogast summoned a supervisor,
Donald Leitzy, and informed him that a group of employees had gathered in that doorway. By
the time Leitzy arrived at the door, David Kelley was the only person in the area. Leitzy testified
that he asked Kelley if he was standing in the doorway observing what was going on at the east
turnstile and that Kelley responded that he was observing the events at the east turnstile but
that this was his work area. According to Leitzy, Kelley’s response ended the conversation. He
denied that he told Kelley that he “could be punished” for viewing the leafleting.
According to Kelley, Leitzy also told him that the door would be closed thereafter, to
which Kelley responded that it was a ridiculous thing to do because of the extreme heat in that
part of the plant. Kelley testified that Leitzy retorted: “This -- it will be closed and this is an oral
warning.” In cross-examination, although Kelley conceded that he did not consider himself to
be disciplined per se, he reiterated that he had been orally warned, i.e., warned of future
discipline. He testified:
He really just told us to stay away from there, the whole area, and I said, this is my work
area. And when I pursued it, he told me ‘this is an oral warning.’
There is no dispute that Kelley was in his work area at the time of the viewing. There is
no evidence that he halted his work activities nor neglected them for any significant time. Leitzy
did not dispute Kelley’s protest to him that he was in his work area. Leitzy admitted that Kelley
was normally permitted to walk to the door which is concededly in his work area to get cool air
and that he had at least a partial view of the machines he was running from the doorway.
Thereafter, the door was opened only to waist level on Thursdays so that employees would not
be enticed to the doorway. This conduct is not alleged to be unlawful.
With respect to any differences in their testimony, I credit Kelley over Leitzy. Kelley was
more detailed, assured, spontaneous and convincing.

8 Leitzy testified that the events occurred on April 11. He testified that he acted pursuant to
an instruction by Arbogast who also testified that the date was April 11.
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I conclude that Kelley was orally warned of unspecified adverse personnel action if he
were to view outside union activities from the doorway in his work area regardless of the status
of his work, or any interference with it, and regardless of whether he was simply getting a
breath of air or walking by the doorway. By such disparate conduct, I find that Respondent, by
its agent Leitzy, violated Section 8(a)(1) of the Act as alleged in the complaint.
Conclusions of Law
1. As found above, Respondent is an employer engaged in commerce within the
meaning of Sections 2(6) and (7) of the Act, and the Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. As found above, Respondent has violated Sections 8(a)(1) and (3) of the Act and,
further, I find such violations affect commerce within the meaning of Sections 2(6) and (7) of the
Act.
The Remedy
Having found that the Respondent engaged in unfair labor practices in violation of
Sections 8(a)(1) and (3) of the Act, I recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to effectuate the purposes of the Act.
Having found that Respondent unlawfully in the enforcement of its access, solicitation and
distribution rules, counseled and issued written warnings to employees and suspended
employees in March, April, May and June 1996, as reflected in Joint Exhibit No. 1, entitled
“Record of Associate Infractions and Actions of The Timken Company,” I shall recommend that
it expunge all records of such personnel actions wherever located in any of its files and make all
employees who were suspended under such enforcement9 whole for any loss of earnings and
other benefits, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:10

9 Excluding the harassment counseling to Sharp, Pfleiderer and Harvey on May 23, 1996,
and the parking tickets to Ralph Hart on April 3 and May 5, 1996.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, The Timken Company, its officers, agents, successors and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully and disparately prohibiting employees from engaging in the discussion
of union matters while working.
(b) Unlawfully threatening employees with discipline for viewing employees engaged
in union hand-billing.
(c) Implementing and disparately enforcing rules which limit the access of off-duty
employees engaged in concerted protected union activities to areas other than the interior plant
and other work areas, including plant public highway entrances and pedestrian turnstile
entrances, without business justification for such limitation.
(d) Adversely counseling, warning, suspending or otherwise disciplining employees
for violations of the above referred to unlawful access rules.
(e) Unlawfully coercing employees engaged in union hand-billing by summoning local
police authorities to disperse them.
(f) Unlawfully videotaping and/or photographing employees engaged in union and/or
protected concerted activities.
(g) In any other like or related manner interfering with, restraining or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Rescind the unlawful access rules described above, in writing, and notify all
employees of such.
(b) Expunge all disciplinary warnings, notes of counseling sessions, suspensions,
investigatory or otherwise, and all other discipline given to employees in March, April, May and
June 1996 in enforcement of the above-described unlawful access limitation rules as described
in the Remedy section of this decision or thereafter, in whatever file they may be contained, and
notify those employees, in writing, with a copy to the Regional Director, that such expungement
has been accomplished.
(c) Make all employees whole for all monetary losses suffered as a result of their
unlawful suspensions in the manner set forth in the Remedy section of this Decision.
(d) Within 14 days after service by the Region, post at its Bucyrus, Ohio, facilities
copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by

11 If this 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
Continued
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the Regional Director for Region 8, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since March 1, 1996.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. March 10, 1997
___________________________
Thomas R. Wilks
Administrative Law Judge
_________________________
COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD.”
JD–43–97
Bucyrus, OH
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unlawfully and disparately prohibit employees from engaging in the discussion
of union matters while working.
WE WILL NOT unlawfully threaten employees with discipline for viewing employees engaged in
union hand-billing.
WE WILL NOT implement and disparately enforce rules which limit the access of off-duty
employees engaged in concerted protected union activities to areas other than the interior plant
and other work areas, including plant public highway entrances and pedestrian turnstile
entrances, without business justification for such limitation.
WE WILL NOT adversely counsel, warn, suspend or otherwise discipline employees for
violations of the above referred to unlawful access rules.
WE WILL NOT unlawfully coerce employees engaged in union hand-billing by summoning local
police authorities to disperse them.
WE WILL NOT unlawfully videotape and/or photograph employees engaged in union and/or
protected concerted activities.
WE WILL NOT in any other like or related manner interfere with, restrain or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the unlawful access rules described above, in writing, and notify all
employees of such.
WE WILL expunge all disciplinary warnings, notes of counseling sessions, suspensions,
investigatory or otherwise, and all other discipline given to employees in March, April, May and
June 1996 in enforcement of the above-described unlawful access limitation rules or thereafter,
in whatever file they may be contained, and WE WILL notify those employees, in writing, with a
copy to the Regional Director, that such expungement has been accomplished.
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Bucyrus, OH
WE WILL make all employees whole for all monetary losses suffered as a result of their
unlawful suspensions.
THE TIMKEN COMPANY
(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 with any other material. Any questions concerning this
notice or compliance with its provisions may be directed to the Board's Office, 1240 East 9th
Street, Room 1695, Cleveland, Ohio 44199–2086, Telephone 216–522–3729.
JD–43–97
Bucyrus, OH
NOTICE TO EMPLOYEES
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unlawfully and disparately prohibit employees from engaging in the discussion
of union matters while working.
WE WILL NOT unlawfully threaten employees with discipline for viewing employees engaged in
union hand-billing.
WE WILL NOT implement and disparately enforce rules which limit the access of off-duty
employees engaged in concerted protected union activities to areas other than the interior plant
and other work areas, including plant public highway entrances and pedestrian turnstile
entrances, without business justification for such limitation.
WE WILL NOT adversely counsel, warn, suspend or otherwise discipline employees for
violations of the above referred to unlawful access rules.
WE WILL NOT unlawfully coerce employees engaged in union hand-billing by summoning local
police authorities to disperse them.
WE WILL NOT unlawfully videotape and/or photograph employees engaged in union and/or
protected concerted activities.
WE WILL NOT in any other like or related manner interfere with, restrain or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the unlawful access rules described above, in writing, and notify all
employees of such.
WE WILL expunge all disciplinary warnings, notes of counseling sessions, suspensions,
investigatory or otherwise, and all other discipline given to employees in March, April, May and
June 1996 in enforcement of the above-described unlawful access limitation rules or thereafter,
in whatever file they may be contained, and WE WILL notify those employees, in writing, with a
copy to the Regional Director, that such expungement has been accomplished.
WE WILL make all employees whole for all monetary losses suffered as a result of their
unlawful suspensions.
THE TIMKEN COMPANY
(Employer)
Dated By
(Representative) (Title)
1240 East 9th Street, Room 1695, Cleveland, Ohio 44199–2086, Telephone 216–522–3729.