Union Carbide Corporation-Nuclear Division

National Labor Relations Board - Board Decisions

Jan 7, 1981

259 N.L.R.B. 974 (N.L.R.B. 1981)

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Corporation-Nuclear Division and in conspicuous places, including all places where
Office and Professional Employees Internation- notices to employees are customarily posted. Rea-
al Union, AFL-CIO. Case 10-CA-15949 sonable steps shall be taken by Respondent to
January 7, 1981 insure that said notices are not altered, defaced, or
covered by any other material."
DECISION AND ORDER
DECISION
On June 16, 1981, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in STATEMENT OF THE CASE
this proceeding. Thereafter, Respondent filed ex- HUTTON S. BRAN N, Administrative Law Judge:
ceptions and a supporting brief. This case was heard before me in Knoxville, Tennessee,
Pursuant to the provisions of Section 3(b) of the on April 29, 1981. The charge was filed by Office and
National Labor Relations Act, as amended, the Na- Professional Employees International Union, AFL-CIO,
tional Labor Relations Board has delegated its au- herein called the Union, on June 18, 1980,1 and the com-
thority in this proceeding to a three-member panel, plaint in the case issued on August 15, alleging that
The Board has considered the record and the at- Union Carbide Corporation-Nuclear Division, herein
tached Decision in light of the exceptions and brief called Respondent or the Company, violated Section
and has decided to affirm the rulings, findings,' and 8(a)(l) and (3) of the National Labor Relations Act, as
conclusions of the Administrative Law Judge and amended, herein called the Act, beginning around mid-
to adopt his recommended Order, as modified May. More specifically, the complaint alleges that Re-
herein. 2 spondent violated Section 8(a)(l) of the Act by remov-
ing, contrary to past practice, notices of union activities
ORDER from its bulletin boards, by removing an employee peti-
Pursuant to Section 10(c) of the National Labor tion involving union and protected concerted activities
Relations Act, as amended, the National Labor Re- from an employee breakroom, by confiscating from em-
ployees notices of union meetings, by threatening em-lations Board adopts as its Order the recommended Ployees witlos of peron angs, theatenng em-
Orderof the A inistr e Lw J , - ployees with loss of personal and sick leave benefits if
Order of the Administrative Law Judge, as modi- they designated the Union as their collective-bargaining
fied below, and hereby orders that the Respondent, agent, by soliciting employees to report to it the identity
Union Carbide Corporation-Nuclear Division, Oak of employees who join or engage in activities on behalf
Ridge, Tennessee, its officers, agents, successors, of the Union, and by threatening employees with disci-
and assigns, shall take the action set forth in the plinary action if they joined or engaged in activities on
said recommended Order, as so modified: behalf of the Union. The complaint also alleges that Re-
1. Substitute the following for paragraph 2(b): spondent violated Section 8(aX3) and (1) of the Act by
"(b) Post at its two Oak Ridge, Tennessee, plant denying its employee Jean Kiel use of the Company's
facilities (ORNL(X-10) and Y-12) copies of the at- telephone, by reprimanding her, and by prohibiting, con-
tached notice marked "Appendix."9 Copies of said trary to past practice, Kiel from talking about the Union
notice, on forms provided by the Regional Direc- with fellow employees during worktime.
tor for Region 10, after being duly signed by a rep- Upon the entire record, including my observation of
resentative of Respondent, shall be posted by Re- the demeanor of the witnesses, and after due considera-
spondent immediately upon receipt thereof, and be tion of the briefs filed by the General Counsel and Re-
maintained by it for 60 consecutive days thereafter, spondent, I make the following:
FINDINGS OF FACT
' Although the Administrative Law Judge stated that Essex Internation-
al Inc., 211 NLRB 749 (1974), reflects current Board law. his statement
is dictum and, moreover, he was unaware that Essex has been overruled I. JURISDICTION
by the subsequently issued decision in T.R.W. Bearing Division, a Division
ofT.R.W., Inc., 257 NLRB No. 47 (1981). Respondent is a New York corporation with an office,
' Respondent has excepted to the Administrative Law Judge's recom- plant, and a place of business located at Oak Ridge, Ten-
mendation that Respondent be required to post the notice to employees nessee, where it is engaged in operating certain laborato-
at each of its three Oak Ridge facilities (ORNL(X-10), ORGDP(K-25), ries and nuclear facilities. During the calendar year pre-
and Y-12). Inasmuch as the conduct found unlawful herein occurred only
at the X-10 and Y-12 facilities, and because there is no showing that the ceding issuance of the complaint, Respondent sold and
unfair labor practices found herein had an impact on the organizational shipped finished products valued in excess of $50,000
activities at the K-25 facility, we find that the record is insufficient to from its Oak Ridge facilities directly to customers locat-
require Respondent to post the notice at the K-25 facility, we shall limit
the posting requirement to the two facilities where the unfair labor prac- ed outside the State of Tennessee. The complaint alleges,
tices occurred. Reads, Inc., 228 NLRB 1402 (1977). Respondent by its answer thereto admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
'All dates are in 1980 unless otherwise stated.
259 NLRB No. 130
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UNION CARBIDE CORPORATION-NUCLEAR DIVISION 975
II. THE UNFAIR LABOR PRACTICES items for sale, such as trucks, cars, motorcycles, and CB
radios.
A. The Removal of the Union's Notices From Plant Diden testified that he experienced some difficulty in
Bulletin Boards and the Confiscation of Union keeping the union announcement posted and over a
Material From Employees period of about I week found it necessary to replace re-
Respondent operates three separate plant facilities in moved notices about 12 times. Diden was ultimately ad-
and around Oak Ridge utilizing some 17,817 employees vised by other employees that supervisors, including
represented by 20 various craft labor organizations in a Paul R. Wilson, the fabrication division general foreman
coalition called the Atomic Trades and Labor Council and an admitted supervisor, were removing the an-
(ATLC). Each plant facility which may consist of many nouncements. Diden testified without contradiction that
different plant buildings and which may cover several on or about June 20 he approached Wilson and asked
square acres has a different function and/or product. him why the signs were being taken down. Wilson re-
Thus, the Oak Ridge National Laboratory (ORNL) is plied, according to Diden, "You are not recognized."
one plant facility engaged primarily in research and de- Subsequently, on the same day, Diden observed Wilson
velopment and is referred to as the X-10 plant. The Oak remove one of Diden's announcements from the bulletin
Ridge Gaseous Diffusion Plant (ORGDP) is engaged in board, an announcement that Diden had posted only a
enriched uranium production and is referred to as the K- short time before. Diden related that he had never seen
25 plant, while the third facility, known as the Y-12 anyone in supervision remove notices from the bulletin
plant, is engaged in weapons production. The plant facil- board before. He also added that the notices posted for
ities may be separated from each other by several miles personal items had remained on the bulletin board for
and one of the plants is located in an adjoining county. from 2 to 4 weeks. According to Diden, the practice was
Respondent maintains bulletin boards in various of its that the employee who posted the notice on the bulletin
buildings throughout all three of its plant facilities. The board removed his own notice.
collective-bargaining agreement between Respondent Wilson was not called as a witness by Respondent and
and the ATLC, effective June 1978 through June 1981, Diden's testimony was thus not contradicted. On the
and covering the Y-12 plant contains a provision on bul- other hand, his testimony received support from that of
letin boards at article 15, section 1. That provision reads employee Jerry Peddicord who testified that he was
as follows: aware of no restrictions on the use of the bulletin boards
in the Y-12 facility where he worked. He related that he
The Company shall provide the Union with suitable saw Wilson remove six different union notices from the
bulletin boards for the purpose of posting notices of bulletin board used by Diden. Moreover, Peddicord testi-
union meetings and union social events. Any other fled that he personally used the bulletin board in the Y-
material must be approved by the Company prior to 12 facility to announce personal items for sale. He re-
posting. ceived no prior approval from anyone and personally re-
moved the notices on the sale of the items referred to in
An identical provision is contained in article 16, section the posted material. One of his notices on a personal item
1, of the collective-bargaining agreement between the remained posted for 3 months.
ATLC and Respondent applicable to the X-10 plant. Peddicord further testified that he posted several of
The Charging Party Union herein began its organiza- the Union's announcements on different bulletin boards
tional campaign among Respondent's office employees at in Y-12 facility buildings including the one in a facility
all three of Respondent's plants in mid-March. In con- cafeteria specifically identified as a "union" bulletin
nection with that campaign the Union prepared printed board. This also included bulletin boards in the areas of
announcements of an open house held each Wednesday Y-12 where the production employees were represented
at a given location and time and invited employees of by the Chemical Workers International Union, another
Respondent to attend. Employees were further invited in member of the ATLC. While Peddicord related that he
the announcement to call a specific telephone number for knew of no complaints by any union to his postings he
further information. These printed announcements were observed salaried personnel, not identified as supervisors,
distributed to a number of Respondent's employees by remove them.
the Union. One such employee, James Gilbert Diden, On June 26, according to Peddicord, Peddicord took a
employed by Respondent in the Y-12 plant, testified that packet of about 25 of the Union's meeting notices into
he distributed some of the Union's announcements to em- the plant and placed them in his desk drawer. After
ployees and about mid-June began posting the announce- lunch that day he found that his notices were missing. 3
ment on the bulletin board just outside the machine shop Subsequently, he had occasion to go to the desk of
office 2 at building 9204-2 at the Y-12 plant. Diden testi- Wilson to get a tool and, in going through the drawers
fied that he was aware of no restrictions on the use of of the desk, observed the Union's notices he had brought
the bulletin board and had frequently seen the bulletin in that morning, identifying them by the manner in
board used by individual employees to announce private which he had folded them for carrying in his shift
iaesh-- ----- h tiorasctdntewrpocket. He did not confront Wilson about the matter and
It appears that the bulletin board was located in the work area of was told only about a week prior to the hearing herein
production and maintenance employees represented by Machinists Local
Union 480, one of the craft unions in the ATLC. According to Diden,
Machinists notices of meetings were posted on this bulletin board from ' Peddicord conceded that his desk was accessible to other employees
time to time, apparently with no interference from management. looking for tools also retained in his desk drawers.
11.
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976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Wilson that Wilson did not take the announcements In the case sub judice, however, the posting of the no-
from Peddicord. Nevertheless, Peddicord's testimony on tices of the Union's campaign meetings was not the post-
the matter was credible and uncontradicted. Moreover, ing of "rival" factions within the incumbent unions. Nor
while Wilson may belatedly have denied taking the was it even posting of notices by a rival union. Indeed,
union's meeting notices he did not deny that he had had there was no evidence that any of the incumbent unions
them in his possession, and obviously he did not return objected to the meeting notices posted regarding the
them to Peddicord. Accordingly, in the absence of any Union. Such notices could not be the basis for strife or
denial under oath at the hearing by Wilson, and because discipline problems. Thus, since Respondent had allowed
it is undenied that he removed similar notices when he the indiscriminate use of its bulletin boards by employees
saw them posted on bulletin boards, I believe it not un- for personal items without regard to any contractual res-
reasonable to infer that Wilson either took the announce- ervations or prior approval, I conclude that it had
ments from Peddicord or they were taken with his waived such reservations. It follows that Respondent
knowledge and approval. could not lawfully remove the Union's notices here.4 Ac-
As the Board said in Container Corporation of America, cordingly, I find and conclude that, in removing the
244 NLRB 318 (1979): posted material regarding the Union here, Respondent
violated Section 8(a)(l) of the Act as alleged.
It is well established that there is no statutory right I further find that Wilson's confiscation of Peddicord's
of employees or a union to use an employer's bulle- union notices also violated Section 8(a)(1) of the Act in-
tin board. However, it is also well established that asmuch as it clearly interfered with his right to possess
when an employer permits, by formal rule or other- and distribute his material in nonwork areas on nonwork-
wise, employees and a union to post personal and time. See Photo-Sonics, Inc., Instrumentation Marketing
official union notices on its bulletin boards, the em- Corporation; Photo Digitizing Systems, Inc., 254 NLRB
ployees' and union's right to use the bulletin board 567 (1981).
receives the protection of the Act to the extent that
the employer may not remove notices, or discrimi- The Threatened Loss of Benefits
nate against an employee who posts notices, which Diden briefly testified regarding a comment made to
meet the employer's rule or standard but which the him by H. E. Hamilton, a dispatching supervisor, on
employer finds distasteful. June 25 in Diden's building at the Y-12 facility. Accord-
ing to Diden, Hamilton remarked that if the office em-
Here Respondent contractually granted to ATLC ployees did organize there was a possibility that they
unions the right to post notices of union meetings and would lose their personal leave with pay and their sick
union social events. While the contracts made other post- leave with pay. Diden could not recall the context in
ings subject to Respondent's prior approval it is clear which Hamilton's remark was made or any other circum-
from the credited testimony of Diden and Peddicord stances surrounding the statement, but explained that
that, in practice, postings for personal items by individual what he did recall "just happened to register."
employees, even unrepresented clerical employees, were While Diden's testimony regarding Hamilton's state-
not subjected to Respondent's prior approval. Indeed, ment is weak and suspect because of his failure to recall
there was no evidence of policing of the bulletin boards the context in which it was made, such testimony was
by Respondent except for the removal of the Union's not contradicted because Hamilton was not called to tes-
meeting notices herein. It thus appears, and I conclude, tify. Accordingly, and because Diden appeared to be a
that, in practice, Respondent did not have a restrictive truthful and reliable witness, I credit Diden's testimony
policy with respect to employee use of the bulletin regarding Hamilton.
boards and had no previous policy of "policing" the bul- Hamilton's statement points to the "possibility" of a
letin boards. loss of certain benefits as a result of union organization.
Even where an employer has permitted the posting of Without explanation or clarification the statement is
personal notices by employees on its bulletin boards as clearly subject to the interpretation that the risk of the
well as official union notices regarding meetings, elec- loss stems directly from the fact of organization rather
tions, and nominations, it may nevertheless legitimately than from the collective-bargaining process. It is the rea-
bar use of the bulletin boards for rival partisan internal sonable tendency of Hamilton's remark to coerce which
union campaigns which could be conducive to continual is critical to the finding of a violation, not the existence
strife between rival factions and which could make the of actual coercion of employees or unlawful motivation
bulletin boards a battleground for competing groups. on Hamilton's part. El Rancho Market, 235 NLRB 468
Nugent Service, Inc., 207 NLRB 158 (1973). Further, the (1978); American Freightways Co., Inc., 124 NLRB 146
Board held in Armco Steel Corporation, 148 NLRB 1179 (1959). Without explanation or clarification I find and
(1964), that the contractual reservation of a bulletin conclude that Hamilton's remark to Diden did tend to
board for the exclusive use of an incumbent union does coerce and restrain employees in their Section 7 rights
not violate Section 8(a)(1) of the Act since such reserva-
tion constitutes a collective-bargaining concession which, See Special Machine and Engineering. Inc., 247 NLRB 884 (1980);
when granted by an employer, may be accompanied by Container Corporation. supra Group One Broadcasting C
ao. West, 222
NLRB 993 (1976); Nugent Service. Inc., supra, Tempco Manufacturing
such usage regulations that the employer deems appro- Company. Inc., 177 NLRB 336 (1969); Challenge Cooke Brothers of Ohio.
priate. Inc.. 153 NLRB 92 (1965).
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UNION CARBIDE CORPORATION-NUCLEAR DIVISION 977
and that Respondent by Hamilton's remark violated Sec- political propaganda which does not relate to employees'
tion 8(aXl) of the Act as alleged. problems and concerns qua employees. Ford Motor Com-
pany, 221 NLRB 663, 666 (1975), enfd. 546 F.2d 418 (3d
C. The Taxpayers' Petition Cir. 1976). But where the material distributed contains
Curtis Hammontree, an employee in the mechanical matters impacting on the employees' working conditions
department of Respondent's X-10 plant and the chief ste- its distribution may not be lawfully barred because it also
ward of Millwright and Carpenters Local 2738 which has political overtones or contains "social comment."
represents certain of Respondent's employees in that See Samsonite Corporation, Inc., 206 NLRB 343 (1973).
plant, testified for the General Counsel that on June 16 In the case sub judice the taxpayers' petition in my judg-
he placed a petition given him by Bob Kiel, president of ment does have direct impact on the employees' working
ATLC, in the lunchroom of building 2013 at the X-10 conditions and, more specifically, their right to organize
facility. The petition, captioned "Taxpayers' Petition," in order to change or effect such conditions. The peti-
contained the following language: tion, rather than seeking to persuade the selection of
some political candidate or to influence the endorsement
We, the undersigned, object to Union Carbide cor- of a political party or platform, sought only to invoke
poration's use of our tax dollars for anti-union activ- the attention and aid of the President and Congress in
ities. The United States Government is officially in enforcing a national policy on collective bargaining. The
favor of collective bargaining. We therefore call "problem" identified in the petition was the perception
upon congress and the president to investigate and that Respondent, subsidized by Government funds, was
stop this improper use of our taxes. utilizing such funds to thwart national policy by combat-
ing union organizational efforts. Thus, the petition,
Under the above language was space for signatures and, whether the premise on which it was based was ill
following that, the instructions to return the petition to founded or not, was directly related to employee work-
the Union at a given address. ing conditions as affected by their right to organize. It
Hammontree testified that the petition remained in the therefore constituted a distribution of material "pertinent
lunchroom for 3 or 4 days. When he went back to pick to a matter which is encompassed by Section 7 of the
up the petition he could not find it in the lunchroom. A Act." McDonnell Douglas Corporation, 210 NLRB 280
supervisor named Earl Chapman reported to Hammon- 1973)
tree that the petition had been picked up by John Fields, ind and conclude that the taxpapers petition wasI find and conclude that the taxpapers' petition wasa general foreman and an admitted supervisor within the clearly a concerted and a union activity since it was pro-
meaning of the Act. Hammontree, in the presence of 45 y distributed through the ATLC.
another steward, Austin Massengill, and at the direction e ni ir tThe distribution of union literature or material may not
of Kiel, went to Fields' office to retrieve the petition. he lawfully bad in non l t e r a re or nonw orktime
ere' Hamotre skd iedsfoteett bu be lawfully barred in nonwork areas on nonworktimeThere Hammontree asked Fields for the petition butr tr s i l s f r t titi t absent special circumstances not shown here. Republic
Fields related he had turned it in to the labor relations absent special circusances not shown here. Republic
department. Hammontree asked Fields why he hadAviation, supra. Accordingly, I find that Respondent bydepartment. Hammontree asked Fields why he had
picked it up and Fields replied that it was not acceptable confiscating the taxpayers' petition from a nonwork area
.picked it ua Fviolated Section 8(a)(l) of the Act as alleged in the com-to the Company. Hammontree's testimony on this matter
is generally supported by Massengill who also testified. la
Therefore, and because he was not contradicted by any D. The Solicitation To Report Union Employees
Respondent witness, Hammontree is credited.
It was also Hammontree's uncontradicted testimony The complaint alleges that on May 21 Respondent, by
that it was not unusual for employees to leave collection distributing a document entitled "Freedom From Harass-
jars and sign-up sheets in the lunchroom for employees ment-A Fact Sheet" to its employees, solicited its em-
retiring or experiencing tragedy or other difficulty. The ployees to report to Respondent the identity of employ-
procedure was for employees to place money in the jar if ees who supported the Union. Bob Worrell, Respond-
they desired to contribute and then sign a sheet by the ent's labor relations manager for its Nuclear Division,
jar showing the amount contributed. These papers, ac- admitted that around May 21 certain leaflets were dis-
cording to Hammontree, were never disturbed by Re- tributed to employees in response to the Union's cam-
spondent. paign. One of those leaflets bore the caption specified
Respondent argues that it always had an unwritten above in the complaint allegation and stated:
policy against allowing political activity on its premises
since its facilities were supported by Federal Govern- The N.L.R.A. states that employees have the right
ment funds. In keeping with this policy, and because it to refrain from all or any labor union activities.
viewed the "Taxpayers' Petition" as a political activity, The same law also makes it an unfair labor practice
it admittedly picked up Hammontree's petition. for a labor organization to restrain or coerce em-
The rights of employees under Section 7 of the Act ployees in the exercise of their rights to refrain
are not without limitations and must be balanced with an fro lor nion ctivities
from labor union activities.employer's right to regulate his property. Republic Avi-
ation Corporation v. N.L.R.B., 324 U.S. 793 (1945). And Company rules are designed to protect employees
the Board has previously held that it is not unlawful for while at work. This protection includes protection
an employer to bar distribution on its premises of wholly from harassment of employees while at work or on
( .
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t l i t , t i i it ill
f ll i t t, t i tr ti t t t titi t f i tl l t l
t i i . i iti ff t t ir i t t r i . It
ti ti f ti ri l i t
l r f r r . t t i t tt i i ti
t titi l t fi it i t l . ll las oration,
r i l r rt t - (1973).
tr t t t titi i i l I i l ' ti
a r l f r itt r i r it i t rt i ti it i it
i f t t. tr , i t r f y t U i t i t
t r t r , ti ngill, t t i i Th d b o u ra o t m n
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ti b e la il redstn no shon ere.Re ic
i i t l r r l ti
ab se nt spec 181 cir"""sa ces not shown here. Republic
Fiels rlatd h ha tunedit i tothelabr rlatons Aviation, supra. ccordingly, I fi t t s t
rt t. tr i l cnian the Accors' pind a Rondentaby
i t l t t l "tisatin t t r ' titi fr a rk areapickd i upandFiels r lid tat t wa no aceptble vi l t ti ( )(1) t t ll i t -
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978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the premises. Any such harassment should be re- ty, and worked in building 9202. She had worked for a
ported to supervision. total of 8 years for Respondent but had a break in that
Thus any employee threatened, coerced or harassed employment and had begun her second period of em-
because of exerting his/her right to refrain from ployment about 2 years prior to the hearing. Kiel was
labor union activities, including a refusal to sign a described by William H. Dodson, director of develop-
card, has dual protection by supervision and by the ment, as "one of the best" workers, and had been rated
National Labor Relations Board if he/she desires to as "superior" during performance ratings in April. She
file a charge. had received a wage increase in May. Prior to May 29
she had never been warned or reprimanded regarding
The General Counsel argues that the leaflet constitutes any aspect of her work.
a solicitation to report legitimate union activity or solici- On April 16 Kiel became involved in activity on
tation. Respondent on the other hand argues that it does behalf of the Union. In connection therewith Kiel posted
not, and that it only seeks to preclude that type of union notices regarding union meetings on bulletin boards at
activity which threatens, coerces, or harasses employees the Y-12 facility as well as on restroom and cafeteria
Recently the Board in Bil-Mar Foods of Ohio, Inc., 255 walls, building walls, and facility buses. On May 27 Kiel
NLRB 1254 (1981), had occasion to reaffirm the princi- was called into the office of Marrow, who advised Kiel
pie that an employer's request that employees report in- that another employee had complained to Dodson that
stances in which employees were "put under pressure to she was posting notices during working hours. He ad-
join the union" was violative of Section 8(a)(l) of the vised her that she was not supposed to do that. Kiel ad-
Act. The rationale for such a finding as stated in J. H. mitted that she had posted the notices but added that she
Block & Co., Inc., 247 NLRB 262 (1980), is that such re- had been careful not to do it during working hours Ac-
quests to report have "the potential dual effect of en-
couraging employees to report to Respondent the identi- cording to the testimony of Kiel, a very convincing andcredible witness whose testimony was largely uncontra-ty of union card solicitors who in any way approach em- die Marow to e satse wt
ployees in a manner subjectively offensive to the solicit- dted, Marrow appeared to be atisfied with her re-
ed employees, and of correspondingly discouraging card spon and the disssion of the matter ended.
solicitors in their protected organizational activities." On May 29 Kie was again called into Marrow's office
Thus, consistent with this rationale the Board has found and confronted by both Marrow and his superior,
violations of the Act where an employer solicited em- Dodson. Dodson told Kiel that he had received two
ployees to report union activity that caused them "trou- complaints about her union activities, the one that had
ble" or put them "under any pressure" (Sunnyland Pack- already been discussed with Marrow on May 27 and the
ing Company, 227 NLRB 590, 594-595 (1976), enfd. 557 second involving a complaint from an employee at the
F.2d 1157 (5th Cir. 1977), and Colony Printing and Label- X-10 plant that Kiel had spoken to her by telephone re-
ing, Inc., 249 NLRB 223 (1980); that amounted to "pes- garding union activities. Dodson told Kiel with respect
tering or pressure" or being "bothered" (Lutheran Hospi- to the first complaint that he was satisfied she had not
tal of Milwaukee, Incorporated, 224 NLRB 176, 178 posted notices during working time. With respect to the
(1976)); that constituted a failure to leave employees remaining complaint Dodson was either unwilling or
alone (Poloron Products of Mississippi, Inc., 217 NLRB unable to identify the complainant, but Kiel did not deny
704, 707 (1975); or that amounted to being "threatened in generally that she had telephoned an employee at the X-
any way or subjected to constant badgering" (Bank of St. 10 plant regarding union activity. Dodson admonished
Louis, 191 NLRB 669, 673 (1971)). And in Bil-Mar, Kiel not to use the telephone for union activities because
supra, the Board found an employer's request of employ- it took up her time as well as the other person's time.
ees to report union activity which "harassed, coerced, Kiel responded that she had not used the telephone for
pressured, or threatened them" to constitute conduct union calls any more than other secretaries in the divi-
warranting a rerun election. sion had used it for personal calls. According to Kiel, in
The Board's rationale in the above-cited cases appears the ensuing discussion Dodson told Kiel that she was not
to be applicable to the language in the leaflets in the case to use the telephone for personal calls at all explaining
sub judice. And the language of the leaflet here, particu- that he had to make it that strict because it was the only
larly the reference to harassment, falls within the realm way he could have control over whether it was a per-
of language found unlawful by the Board when used as a sonal call or a union call. Kiel complained that this was
basis for a solicitation to report union activity. Under overly restrictive but Dodson cited the Company's
these circumstances and on the precedent cited I con- phone book containing provisions prohibiting the use of
elude that the solicitation to report here has the pro- company telephones for personal calls. Dodson went on
scribed "potential dual effect" described in J. H. Block to tell Kiel that she was not to talk with other employees
supra. Accordingly, I find that Respondent violated Sec- about the Union except before or after work, during
tion 8(a)(l) of the Act as alleged in the distribution of lunch hours, and when she and the other employees
the May 21 leaflets. were on their own time. In addition, he told her that she
E. The Re d of Jean Kiel could post union notices on the bulletin boards coming
E. The Reprmnd of Jean elinto the plant, but she should recognize that they would
Jean Kiel was employed by Respondent as a secretary be removed. Further, Kiel was told by Dodson that she
to George Marrow, the administrative assistant of the di- was not to use the interplant mail for any union commu-
rector for development, fifth division, at the Y-12 facili- nications. Finally, Dodson told Kiel that if she did not
ervision,.total
r ri f -
. , i t l -
s
arge,.had

it t i . ti t it i l t
t t , r , r r ss s l s. t e - facility as ell as on restroo and cafeteriant ly i n B - M a r F ds fOhio, I nc 5 l i l , ili .
( ), i ffi i i l
i t t l r' r t t t l i l
t i i l t ti .
j i t i i l ti f ti ( )(l) t i t t. i l
. m i t te d t h at s h e h ad
l ar I ., t uj, < i* i* i iBloc d o., nc. 24 NLR 26 (190),is hat uchre- had been careful not to do it during working hours. Ac-
t ti l l
i t t i ti-
c o r d i to th e t sti y f iel, a very convincing and

t f i r li it r i r - edicle rr appe tony s ahg e r re-
l i r j ctiv ly ff i t t li it- sdpnt ed s rr r d t s ti fi it r r -
ondi gl i "^ an d t h e ^" f .
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E. The Repriman f i l c o u l d st u io n ti t ll ti boards co ingE. The Reprimond Ki l into i t t t l
a n
n i ces
a s o n e
e t h e
e
UNION CARBIDE CORPORATION-NUCLEAR DIVISION 979
follow these guidelines she would be subject to disciplin- a memo of Dodson in May 1979, to various supervisors
ary action. in his division relative to abuses in telephone usage in
On May 30 after confirming with Marrow her under- which it is stated that the impression should be made on
standing of the limitations explained by Dodson and in people that "the phones are business phones and should
keeping with those limitations Kiel rejected a personal not be used except for business reasons or personal rea-
telephone call from her daughter's high school. Because sons of a type that we would allow personal leave."7
of this she apparently became visibly upset. This was re- Lastly, Respondent relies on a regulation set forth in its
ported to Dodson who came to Kiel and in the ensuing employee handbook, "You at Union Carbide" (Resp.
discussion explained to Kiel that she had misunderstood Exh. 2) generally distributed to employees, which states
his earlier instructions and had overreacted. He said that that "Plant telephones are for the conducting of Compa-
Kiel could use the telephone for personal calls but not ny business only. You must refrain from making unneces-
for union activities. He added that the telephone was for sary calls." The handbook also contains the following
business use only, although it was Respondent's accepted no-solicitation rule which is cited in Respondent's brief:
policy for employees to use it for some personal calls. Unless authorized by the Plant Superintendent or
Kiel thereupon asked for written guidelines but Dodson Laboratory Director, you are forbidden to solicit,
denied her request. sell tickets, collect, transact any business, or indulge
According to Kiel employees had previously been al- in any activity not related to your employment on
lowed to use the telephone for local personal calls, and Company time.
she knew of no one who had been reprimanded for this.
Moreover, she said that secretaries such as herself had Respondent's brief refers to the foregoing rule as a valid
previously been allowed to engage in personal nonwork no-solicitation rule. The General Counsel's brief refers to
related discussions among themselves during worktime. it as an unlawfully overly broad rule, although the rule
Kiel admitted in her testimony that she had used her was not alleged as a violation of the Act in the com-
business telephone to talk to two employees at the X-10 plaint.
plant as well as some employees at the Y-12 and K-25 It is clear from the credited evidence that Respondent,
plants regarding union matters. However, she estimated notwithstanding all its stated policies regarding the use
that such calls which had averaged about two per day of its telephones, had allowed Kiel and other clerical em-
ployees to use its telephones for personal reasons.were no greater in number or longer in duration than the loyees to use its tele
Dodson acknowledged as much in his testimony. It is
local personal calls which she was accustomed to further clear that, on May 29 and 30, Kiel was chastized
making In addition, she testified that during the penod and threatened with discipline for any further use of her
when she made the te ho calls telephone l for union-related matters. She was, however,
she stopped making her customary personal calls. allowed on May 30 and thereafter to use the telephone
Based on Kiel's testimony,' the General Counsel con- for personal reasons to the extent she had done so in the
tends, in effect, that Dodson's restrictions imposed on past except for union matters. Accordingly, Respondent
Kiel coupled with the threat of disciplinary action for did, I conclude, discriminatorily apply its telephone use
breach of the restrictions constituted disparate and dis- restrictions against union activities. The issue is whether
criminatory treatment in violation of Section 8(a)(3) and it was privileged in doing so.
(I) of the Act. In short, the General Counsel argues that It is well established that an employer may bar union
the restrictions imposed on Kiel were "simply to discour- activities including union solicitation on worktime. See,
age discussion about, and solicitation for, the Union on e.g., Essex International, Inc., 211 NLRB 749 (1974). But
Company premises and to punish" Kiel by withdrawing it may not bar union solicitation on worktime where it
unrestricted telephone usage as a condition of employ- allows employees to engage in other forms of solicitation
ment. during worktime. See The Timken Company, 236 NLRB
Respondent, on the other hand, argues that it has con- 757 (1978); Maremont Corporation, 229 NLRB 746 (1977);
sistently restricted the personal use of its telephones. In Walton Manufacturing Company, 126 NLRB 697 (1960).
keeping with this policy of restriction its telephone book Where it enforces its work rules in a disparate manner
states that personal calls were to be made only in an against union activities an employer violates Section
emergency and "must be placed collect, billed to person- 8(a)(1) of the Act. In the absence of a formal and valid
al credit cards, or billed to your residence telephone." no-solicitation rule an employer may discipline an em-
Further, Respondent introduced a number of exhibits in ployee for solicitation but has the burden of showing that
evidence consisting of several back issues of its employee the solicitation resulted in actual work interference. See
newspaper containing a question box column answering Midwest Stock Exchange, Incorporated; Midwest Clearing
several questions on personal use of Respondent's tele- Corporation; Midwest Securities Trust Co; Midwest Stock
phones by employees.' Still further, Respondent points to Exchange Service Corporation, 244 NLRB 1108 (1979).
In the instant case, I conclude that, as pointed out in
' Kiel's credibility has already been noted. Dodson testified for Re- the General Counsel's brief, Respondent's no-solicitation
spondent but couched his testimony in more general terms. I credit Kiel
wherever her testimony may be viewed as contradicting that of Dodson. he reference to the use of personal leave apparently meant that the
a Such answers related essentially to personal use of telephones for personal use of the telephone was acceptable if it were used to handle
long-distance or toll calls or other extraordinary usage, and clearly indi- matters which would otherwise require the expenditure of personal leave,
cated a company policy against this type of personal use. i.e., matters which would take the employee from his job.
'
E x h . )
t h a t P la n t
b u s in e s s . Y o u m u s t r e f r a in f r o m i -
c a ll s . l t i t f ll i
t' i :
r
i t ri lf i li
i l l l li i ti r l
i l
t as an l ll l r r l , lt t r l
ti w a
s no t ll as a v io lat io n o f t h e A
c t in t h e c o m -
l t t l i t.
ll i
r i ti t it t i ll it t t li i r r i the use
l o f
h ad al lo w ed K el an d o t er c c a l e m
. . , i - . , .. ,1, -ployees lti py wle i n for pesonal is
loca pesona ls wichshe as ccusome to odson ackno ledged as uch in his testi ony. It isl l r l ll i she ast drin th peio further clear that, on May 29 and 30, Kiel was chastized
ings t ti i d t r t it i i li f r f rt r s f r
s a e t telep ne calls regarding the Union telephone for union-related matters. She was, however,
she stopped aking her custo ary personal calls.^allowed on ay 30 and thereafter to use the telephone
, , ' .

t t i ti tit t is r t is- restricti s against union activities. he issue is hether
i i l ti f ti ( )( ) a it as privileged in doing so.
1
i l i . ,
, t i . ., I t ti l, I c., 211 749 (1974). ut
it
ll l t i t r f r s f s licitati

); );
.
l)
.
.
r
t . I r it i l
r r r t sti e ie e as c tra icti that f odson. ,The reference to the use of personal l ave apparently eant that the
te
2
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was overly broad and unlawful. See Stoughton Trailers, has engaged in, and is engaging in, unfair labor practices
Inc., 234 NLRB 1203 (1978). This is because the phrase within the meaning of Section 8(a)(l) of the Act.
in the rule barring solicitation on "company time" has 4. By discriminatorily restricting its employee Jean
been held by the Board to be reasonably susceptible to Kiel in personal conversations and the use of its tele-
the interpretation that an employee may not engage in phones, and by threatening Kiel with discipline for the
solicitation while the employee is on the clock even at a violation of such unlawful restrictions Respondent has
time the employee has finished his work and is in a non- engaged in, and is engaging in, unfair labor practices
work area. Florida Steel Corporation, 215 NLRB 97 within the meaning of Section 8(a)(3) and (1) of the Act.
(1974). Respondent's rule therefore serves as no defense
to disparate application of restrictions without an affirm- THE REMEDY
ative showing by Respondent of actual work interference Having found that Respondent has engaged in certain
by Kiel. unfair labor practices, I shall recommend that it cease
Applying the foregoing principles to the instant case, and desist therefrom and that it take certain affirmative
Respondent could unquestionably bar its telephones to action necessary to remedy the unfair labor practices and
any personal use by employees, but once it grants the to effectuate the policies of the Act, to include the usual
employees the privilege of occasional personal use of the posting of appropriate notices. In my opinion, since the
telephone during worktime, including the privilege of unfair labor practices found herein directly affected em-
calling other employees at work, it would appear that it ployees of two of Respondent's Oak Ridge plant facili-
could not lawfully exclude the Union as a subject of dis- ties, and because the policies of Respondent underlying
cussion particularly where, as here, no actual work inter- the violation found, particularly with respect to bulletin
ference has been shown. board useage, telephone useage, and no-solicitation rule
There can, of course, be an abuse of any privilege and appear to be applicable to all of the Oak Ridge plant
Respondent would be within its rights to police any facilities, effectuation of the policies of the Act will best
abuses. But, I conclude, absent any such abuse not be achieved by requiring Respondent to post the notices
shown here, it was unlawful for Respondent to disparate- to employees hereinafter recommended at all three of the
ly apply its phone policy in the manner it did here. See Oak Ridge facilities.
K-Mart Corporation, 255 NLRB 922 (1981). Thus, I find With respect to the reprimand of Jean Kiel the record
and conclude that under the circumstances here Re- does not establish that such reprimand amounted to any
spondent discriminated against Kiel in violation of Sec- more than a threat of discipline. There was no showing
tion 8(a)(3) and (1) in limiting her personal use of her the threat was ever reduced to written form nor does it
business telephone including barring her from union dis- appear that any record was made of any disciplinary
cussions or solicitations. action regarding Kiel. Thus, there appears to be no basis
Moreover, although not alleged in the compalint, I for an order for expunging any respondent record on
find that Respondent violated Section 8(a)(1) of the Act Kiel. However, Respondent shall be ordered to retract
by maintaining an overly broad no-solicitation rule in its the threat of discipline of Kiel and so advise her in writ-
employee handbook. Respondent itself submitted the rule ing.
in evidence and has relied on it in defense of other com- Upon the foregoing findings of facts, conclusions of
plaint allegations to the extent that the legality of the law, and the entire record and pursuant to Section 10(c)
rule has been brought into issue. Under such circum- of the Act, I hereby issue the following recommended
stances, the absence of a complaint allegation does not
preclude the finding of the violation which I have made ORDER S
on the rule. See Jax Mold & Machine, Inc., 255 NLRB T , Union C e
A942 (1981); The Timken Company supra. The Respondent, Union Carbide Corporation-Nuclear
Division, Oak Ridge, Tennessee, its officers, agents, suc-
CONCLUSIONS OF LAW cessors, and assigns, shall:
1. Cease and desist from:
1. Respondent is an employer engaged in commerce (a) Unlawfully removing from its bulletin boards no-
within the meaning of Section 2(6) and (7) of the Act. tices of meetings of Office and Professional Employees
2. The Union is a labor organization within the mean- International Union, AFL-CIO.
ing of Section 2(5) of the Act. (b) Unlawfully confiscating from employees notices of
3. By removing notices of union meetings from its bul- union meetings or other union-related material.
letin boards; by confiscating notices of Union meetings (c) Unlawfully removing employee petitions concern-
from its employees; by removing an employee petition ing union or protected concerted activity from nonwork
concerning union and protected concerted activities from areas.
a nonwork area; by threatening employees with loss of (d) Threatening loss of personal leave and sick leave
personal leave and sick leave benefits if they selected the benefits if employees select a union to represent them.
Union as their collective-bargaining representative; by
soliciting employees to report the identity of other em- In the event no exceptions are filed as provided by Sec. 102.46 of the
ployees who engage in union activity or ask them to sign Rules and Regulations of the National Labor Relations Board, the find-
union cards; and by maintaining a no-solicitation rule Sc 108 of te Rlis, nd recommended Order heein shall, as provided inSec. 102.48 of the Rules and Regulations, be adopted by the Board and
which prohibits employees from soliciting for the Union become its findings, conclusions, and Order, and all objections thereto
in work areas during their nonworking time, Respondent shall be deemed waived for all purposes.
,
). .
i i t t l i t i i
l ti , ll t t it
t l
i i tl t -
' l t ili
ll ti
,.board , l
ly a l its e lic i t r it i r . i .
.
l
"
R n i Cor.ratin-Nulea
942 (1981); The Ti ken Company, supra. T
h e Respondent, Union Carbide Corporation-Nuclear
S li Ot '

l 0" 0n conclsions, a rec e e rder herein shall, as provided in
union cards; and. by maintaining a no-solicitation rule ec 02 48 o f h e
W i , , ll j ti t t
UNION CARBIDE CORPORATION-NUCLEAR DIVISION 981
(e) Soliciting employees to report the identity of other Labor Relations Board found that we have violated the
employees who engaged in union activity or ask them to National Labor Relations Act, as amended, and has or-
sign union cards. dered us to post this notice.
(f) Discriminatorily restricting employees in their per-The Act a these
sonal conversations at work or in the personal use of To engage in self-organization
telephones or threatening with discipline employees who To form, join, or help a union
breach such restrictions.breach such restrictions. To bargain collectively through a representa-
(g) Maintaining a no-solicitation rule which prohibits te of yr n col iv ous
employees from soliciting for unions in work areas
during their nonworking time. To act together for collective bargaining or
(h) In any like or related manner interfering with, re- other mutual aid or protection
straining, or coercing employees in the exercise of the To refrain from any or all of these things.
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef- WE WILL NOT unlawfully remove from bulletin
fectuate the policies of the Act: boards notices of meetings of the Office and Profes-
(a) Retract the threat of discipline issued to Jean Kiel sional Employees International Union, AFL-CIO.
and so advise Kiel in writing. WE WILL NOT unlawfully confiscate from em-
(b) Post at its three Oak Ridge, Tennessee, plant facili- ployees notices of union meetings or other union-re-
ties copies of the attached notice marked "Appendix." 9 lated material.
Copies of said notice, on forms provided by the Regional WE WILL NOT unlawfully remove employee peti-
Director for Region 10, after being duly signed by a rep- tions concerning union or protected concerted ac-
resentative of Respondent, shall be posted by it immedi- tivity from nonwork areas.
ately upon receipt thereof, and be maintained by it for a WE WILL NOT threaten employees with loss of
period of 60 consecutive days thereafter, in conspicuous personal leave and sick leave benefits if they select
places, including all places where notices to employees a union to represent them.
are customarily posted. Reasonable steps shall be taken WE WILL NOT solicit employees to report the
by Respondent to insure that said notices are not altered, identity of other employees who engage in union
defaced, or covered by any other material.activity or ask them to sign cards.
(c) Notify the Regional Director for Region 10, in WE WILL NOT enforce any rule which prohibits
writing, within 20 days from the date of this Order, whatemployees from soliciting in behalf of any union in
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis- work aras dring nonorte
missed only insofar as it alleges unfair labor practices not WE WILL NOT discrminatorly restrct employees
found herein. in their personal conversations at work or in the
personal use of business telephones and WE WILL
NOT threaten with discipline employees who breachIn the event that this Order is enforced by a Judgment of a United NOT threaten with discipline employees who breach
States Court of Appeals, the words in the notice reading "Posted by any such discriminatory restriction.
Order of the National Labor Relations Board" shall read "Posted Pursu- WE WILL NOT in any like or related manner in-
ant to a Judgment of the United States Court of Appeals Enforcing an terfere with, restrain, or coerce employees in the
Order of the National Labor Relations Board."Order of the Ntional Lo Relations rd." exercise of the rights guaranteed them in Section 7
APPENDIX of the Act.
WE WILL retract the discriminatory threat of dis-
NOTICE To EMPLOYEES cipline issued to Jean Kiel and so advise her in writ-
POSTED BY ORDER OF THE ing.
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government UNION CARBIDE CORPORATION-NUCLEAR
DIVISION
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
li i ti
L ab o r l i t t i l t t
ti i i l l i , r-
i d e r ed
u s
i i t ril tri i i
T h e A c t g all emplye t h
es e rh
l ti i l lf i ti
i i l n
tri T b c to a rpst
li i ti l i i i To bargain collectively thr gh a representa-
li i tive of your own choosing
i t i i ti . t ll ti i i
i ti f t t.
. f ti i f
W E W N OT l f ll f ll ti
t
.
'

t

activity t i .
riti , it i fr t t f t i r r, t l e f li iti i lf i i
st ep s h as ta k e n t o c o m p ly w as dun "onworktime.
I IS F t t t e l i t is- WE W N d n r e
n n tri l s
------- ,.,„,. , ,. ., -. ,~~~NOT
'In iysu c h
O
t t t f t it tates rt f eals f rci an terfere it , restrain, or c erce e ployees in the
. ,. . . (. -
exercise of the rights guaranteed the in ection
I I P TI - LE
., , .,., ,, .., ^ , .~~~~~~DIVISION
t h s

. .. . .-