Extract
United Pacific Insurance, 981 (1984)
UNITED PACIFIC INSURANCE
United Pacific Reliance Insurance, Inc. and William J. Whitman. Case 19-CA-1282631 May 1984 DECISION AND ORDERBY CHAIRMAN DOTSON AND MEMBERSZIMMERMAN AND HUNTEROn 14 June 1982 Administrative Law Judge Harold A. Kennedy issued the attached decision.The Respondent filed exceptions and a supporting brief. The General Counsel filed a motion to strike the Respondent's exceptions, a brief in support of the motion, and a brief in support of the decision.The Respondent filed a reply to the General Counsel's motion to strike.The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel.The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.The judge found that the Respondent violated Section 8(a)(1) by maintaining and enforcing an overly broad no-distribution rule and by discharging employee William J. Whitman pursuant to that rule. We agree with the judge that the rule was invalid and its maintenance constituted an 8(a)(l) violation. However, we find merit in the Respondent's exception to the discharge finding. We therefore shall reverse the judge and dismiss that portion of the complaint.For the reasons set forth below we find that Whitman's publicizing and conducting of his 'lottery' was not protected activity within the meaning of Section 7 of the Act. We further find that he was discharged on 26 September 1980 not for failing to comply with the invalid rule but for breaking a private written agreement between himself and the Respondent entered into on 24 September.Accordingly, we also reverse the judge's finding that the Respondent unlawfully enforced the invalid rule as to Whitman.Whitman was employed as a loss control representative in the Seattle branch office of the Respondent's insurance business. On 23 September 1980 Whitman distributed a 'memo' on company premises during the lunch break to all 'non-techniI Counsel for the General Counsel filed a motion to strike the Respondent's exceptions and brief on the grounds that they do not comply with Sec. 102.46(b) and (c) of the National Labor Relations Board Rules and Regulations. We have examined the exceptions in light of the supporting brief and conclude that the Respondent has substantially complied with the specificity requirements of Sec. 102.46(b) and (c). In these circumstances, we shall deny the General Counsel's motion to strike.270 NLRB No. 142 cal' or clerical employees in the office. The memo was 'from' Whitman and announced the subject as 'Seattle Branch Poor Persons Lottery.' It read in pertinent part:This is to announce the first biweekly poor persons lottery.The purpose of the lottery is to dispose of my net salary increase for the coming year ....You see, when I was advised of my raise in pay and compared it with the rate of inflation,I advised 'The Company' they could keep it (by accepting the raise, I would be giving tacit approval to both the amount/percentage and the methods/policies by which it was determined). However, 'The Company' would not accept return of the raise-hence the 'lottery.' The lottery memo was authored by Whitman, typed by a fellow technical employee, and reproduced by Whitman away from company premises and after working hours. Whitman distributed the memo with knowledge of and in accord with a rule published in the employee handbook which read, in pertinent part:2. All peddling, canvassing, soliciting and distribution of literature of any kind on Company premises by an employee is prohibited (1) during such employee's working hours, or (2) during such employee's non-working hours when such peddling, canvassing, etc., is made to employees who are then engaged in the performance of their duties.The validity of this rule is not challenged by the General Counsel and is not in issue.The following day, however, Branch Manager James Wuerch informed Whitman that the memo distribution was in violation of a rule in the personnel manual, not known to Whitman, which stated, inter alia:All canvassing, peddling, soliciting, and distribution of literature of any kind on Company premises by an employee is strictly prohibited.Wuerch then prepared a memo directed to Whitman's personnel file which was signed by both of them. It read:The memo by Bill Whitman distributed to the employees regarding a drawing for the increase on his paycheck required a meeting with Bill regarding our policy on employee canvassing, peddling, soliciting and distribution of literature of any kind on our premises b...See the full content of this document
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