T.R.W. Bearings Division, 442 (1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

T.R.W. Bearings Division, a Division of T.R.W.,

Inc. and Laland D. Anderson. Case 10-CA15080

July 31, 1981 DECISION AND ORDER

On August 8, 1980, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief answering Respondent's exceptions.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein.3

The Administrative Law Judge found, inter alia, that rule 9 in Respondent's March 1, 1979, 'Employee Guide,' prohibiting employees from engaging in solicitation or distribution of unauthorized literature during 'working hours,' is presumptively invalid as being unlawfully broad. In reaching this conclusion, the Administrative Law Judge relied on the general proposition, announced in Essex International, Inc.,4 that rules, such as rule 9 in the instant case, which prohibit solicitation or distribution during 'working hours' are presumptively invalid as they are susceptible to the interpretation that such activity is prohibited during all business hours, including employees' nonworking mealtimes and breaktimes.

Respondent contended before the Administrative Law Judge, and reasserts in support of its exceptions to the Administrative Law Judge's finding that rule 9 was unlawful, that it rebutted the presumptive invalidity of rule 9 by showing that, in accordance with the requirements set out in Essex International, the prohibition against solicitation and distribution during 'working hours' was communicated to the employees in such a way as to convey an intent clearly to permit such activity Respondent has excepted to certain credibility findings made by the Administrative Law Judge. I is the Board's established policy not to overrule a administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence consinces us that the resolutions are incorrect. Standard Dry Wall Products.

Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

Member Jenkins would provide interest on the backpay award in accordance with his partial dissent in Olympic Medical Corporation, 250

NLRB 146 (1980).

:' In par. 2(a) of his recommended Order, the Administrative Las Judge inadvertently omitted a portion of the reinstatement language traditionally used by the Board. Accordinlgly, ,e shall modify the recommended Order to correct this error.

'211 NLRB 749 (1974) (then Member Fanning and Member Jenkins dissenting).

257 NLRB No. 47 during mealtime or breaktime or other periods when employees are not actively at work.5

In this regard, Respondent notes the Board's companion holding in Essex International,that rules prohibiting solicitation or distribution during 'working time' or 'work time' are presumptively valid, as connoting only the period of time that is spent in the performance of actual job duties, not including employees' mealtimes or breaktimes when they are free to engage in solicitation or distribution. Here, Respondent points out that since at least August 1, 1978, some 7 months prior to its initial issuance of rule 9 in March 1979, and continuing thereafter at least through the time of the hearing herein in April 1980, it has distributed to its employees an employee handbook which, inter alia, prohibits employees from engaging in solicitation for such things as 'memberships or other outside activities during working time' (emphasis supplied).

Moreover, urges Respondent, it reiterated this policy as set out in the employee handbook in an October 1979 posted notice to employees. Thus,

Respondent contends that its August 1978 prohibition against solicitation during 'working time,' and its October 1979 reiteration of that 'working time' prohibition, made it clear to the employees that its March 1979 'working hours' prohibition did not preclude them from engaging in solicitation and distribution of literature when not actually engaged in work.

The Administrative Law Judge, for the reasons set out in section III,A, of his Decision, failed to find that the presumptive invalidity of the 'working hours' prohibition in rule 9 had been rebutted, and he therefore concluded that rule 9 was violative of Section 8(a)(1) of the Act.

We agree with and affirm the Administrative Law Judge's conclusion that Respondent's rule 9 violates Section 8(a)(1) of the Act. We reject, as did the Administrative Law Judge, Respondent's contention that the presumptive invalidity of rule 9's prohibition against solicitation and distribution during 'working hours' was rebutted by Respondent's prior and subsequent publication of a presumptively valid rule prohibiting solicitation during 'working time.' However, unlike the Administrative Law Judge, our rejection of Respondent's claim of rebuttal is based not on the particular circumstances outlined by the Administrative Law Judge, but instead on our rejection of the principle, espoused in Essex International, that prohibitions against solicitation and distribution during 'working time' or 'work time' are presumptively valid.

'Id. at 750.

442

T.R.W. BEARINGS DIVISION As noted above, the majority in Essex International held that rules which prohibit solicitation and distribution during 'working time' are presumptively valid, but that rules prohibiting solicitation and distribution during 'working hours' are presumptively invalid. The latter presumption, however, could be overcome in any particular case by a presentation of extrinsic evidence that such 'working hours' rules were communicated or applied in such a way as to convey an intent clearly to permit solicitation during breaktime or other periods when employees are not actually at work.

These conclusions concerning the distinctions between 'working time' and 'working hours' were predicated entirely upon what the Essex International majority saw as the 'clear distinction' to be drawn between the terms; that is, 'working hours' connoted the period of time from the beginning to the end of a workshift, including breaktime and mealtime, while 'working time,' on the other hand, connoted only the period of time that is spent in the performance of actual job duties, thereby excluding breaktime and mealtime from its scope.

We, however, see no inherent meaningful distinction between the terms 'working hours' and 'working time' when used in no-solicitation rules.

Both terms are, without more, ambiguous, and the risk of such ambiguity must be borne by the promulgator of the rule. Either term is reasonably susceptible to an interpretation by employees that they are prohibited from engaging in protected activity during periods of the workday when they are properly not engaged in performing their work tasks (e.g., meal and break periods). As such, either term tends unlawfully to interfere with and restrict employees in the exercise of their Section 7 organizational rights.

Inasmuch as employees may rightfully engage in organizational activities during breaktime and mealtime, rules which restrain, or which, because of their ambiguity, tend to restrain employees from engaging in such activity constitute unlawful restrictions against and interference with the exercise by employees of the self-organizational rights guaranteed them by Section 7 of the Act.6

As pointed out in the dissenting opinion in Essex International, an employer who does not intend that its employees misinterpret rules against solicitation during 'working time' or 'working hours' in the unlawfully broad sense described above need only incorporate in the rule itself a clear statement that the restriction on organizational activity contained in ' See Avon Convalescent Center Inc., 200 NLRB 702, 704-705 (1972), enfd. 490 F.2d 1384 (6th Cir 1974); see also the dissenting opinion of then Member Fanning and Member Jenkins in Essex Internotional. supra.

the rule does not apply during break periods and mealtimes, or other specified periods during the workday when employees are properly not engaged in performing their work tasks.

In view of the foregoing, we hold that rules prohibiting employees from engaging in solicitation during 'work time' or 'working time,' without further clarification, are, like rules prohibiting such activity during 'working hours,' presumptively invalid.

We are, of course, aware that Respondent's prohibitions against solicitation during 'working time' were not alleged in the complaint to be unlawful.

Nor has Respondent otherwise been put on notice that the presumptive lawfulness of those prohibitions was to be challenged or otherwise litigated.

Consequently, we shall not conclude, in this proceeding, that the prohibitions against solicitation contained in Respondent's employee handbook and its October 1979 notice are in violation of Section 8(a)(l) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent,

T.R.W. Bearings Division, a Division of T.R.W.,

Inc., Flowery Branch, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

Substitute the following for paragraph 2(a):

'(a) Offer Laland Anderson immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his...

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