Keystone Metal Moulding Co.

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keystone Metal Moulding Company and Aluminum Workers International Union, AFL-CIO. Case 26-CA-7290 May 14, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 29, 1978, the National Labor Re- lations Board issued its Decision and Order' in the above-entitled case finding that Respondent had en- gaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, as amended, and ordered Respondent to take specific action to remedy such unfair labor practices. Thereafter, the Board applied to the United States Court of Appeals for the Fifth Circuit for enforcement of its Order. In an unpublished opin- ion dated October 30, 1979, the court denied en- forcement of the Board's Order, and remanded the case to the Board for reconsideration of the propri- ety of the Board's earlier Decision and Certifica- tion of Representative 2 upon which the present finding of an 8(a)(1) and (5) violation is based. The court interpreted Section 102.69(g) of the Board's Rules and Regulations and Statements of Proce- dure, as amended, to require the Regional Director to include affidavits as part of the record to be transmitted to the Board for purposes of review by the Board and the courts. As the Regional Director had not so included in the record transmitted to the Board the two affidavits of the Employer's election observers prepared during the Regional Director's administrative investigation of the Em- ployer's election objections, the court remanded the case to the Board so that the record could be completed and the case reconsidered by the Board on the basis of the complete record. The Board accepted the remand, ordered the two affidavits noted above transmitted to the Board and made part of the record, and advised the parties that they could file statements of posi- tion. Thereafter, the Employer filed a statement of position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. In its statement of position, the Employer asserts that the Board disregarded the statements of its ob- servers that the ballot box was not unsealed in their presence prior to the second of two voting ses- '238 NLRB 843. 2 236 NLRB 697 (1978). 249 NLRB No. 75 sions, and therefore it must have been unsealed prior to the observers' entrance into the polling area. Accordingly, the Employer claims that it had no opportunity to determine whether anyone had tampered with the ballot box, and that it effectively had been deprived of its observers. The Employer further argues that the Board should not reject the Regional Director's recommendation that the elec- tion be set aside, but should accept its view that the Board agent's conduct of the election raises a reasonable doubt as to the fairness and validity of the election. Finally, the Employer argues that the decision relied on by the Board, Polymers, Inc., 174 NLRB 282 (1969), is factually distinguishable and that the Board incorrectly stated that the observers did not otherwise claim that the Board agent acted in an improper manner. 3 Should the Board decide not to set the election aside, the Employer finally submits that it should order a hearing regarding the conduct of the Board agent during the election. Upon a review of the affidavits of the Employ- er's election observers, we find that the evidence contained therein was, in all essential respects, fully set forth in the Regional Director's Report on Ob- jections herein, and that no additional evidence has been presented which merits a result contrary to that reached previously or which would warrant a hearing on the conduct of the election. While the Employer correctly states that the facts in Poly- mers, Inc., supra, are not identical to those con- tained herein, our reliance on that decision was with respect to the legal standard set forth therein: that allegations of election misconduct are to be analyzed on the basis of "whether the manner in which the election was conducted raises a reason- able doubt as to the fairness and validity of the election." For the reasons stated in our earlier deci- sion, we reaffirm our prior finding that no such "reasonable doubt" has been raised in this regard. 4 Therefore, we reaffirm our conclusion, made in our earlier Decision and Certification of Repre- sentative, that the Employer's objections to the a In this regard the Employer notes that the affidavits of its observers show that the Board agent did not have the observers sign the certifica- tion of conduct form after the end of the first voting session; that he had the observers mark the eligibility list with an X" rather than with their initials as voters received their ballots; and that he took the ballot box away from the observers before they were finished placing their marks on the sealed ballot box at the conclusion of the first voting session. 4We note that our review of the affidavits indicates, as contended by the Employer, that the Board agent failed to have observers sign the cer- tification of conduct form at the close of the first voting session While it is our normal procedure to have such forms signed following each voting period, the failure of the Board agent to do so does not enhance the Em- ployer's argument that the election was conducted in a defective manner under the standard set forth in Polymers. Inc., supra. In this regard, the record clearly shows that the Board agent attempted to have such forms completed at the end of the second and last voting session We find no merit in the Employer's contentions that the Board agent otherwise de- parted from normal procedures in conducting the election herein. KEYSTONE METAL MOULDING COMPANY 511 election be overruled. Therefore, the Union was properly certified as the exclusive bargaining repre- sentative of employees in the appropriate unit. We further reaffirm our earlier Decision and Order, that Respondent had refused to bargain with this Union in violation of Section 8(a)(1) and (5) of the Act, and our remedial order concerning that viola- tion. ORDER It is hereby ordered that the Order issued by the Board in Keystone Metal Moulding Company, 238 NLRB 843 (1978), concerning the Employer's re- fusal to bargain in violation of Section 8(a)(1) and (5) of the Act be, and it hereby is, reaffirmed. DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This proceeding was heard on April 23 and 24, in Memphis, Tennessee, on the consolidated complaint of the General Counsel issued on August 30, 1978,' and the answer of Respondent. In issue are whether Respondent, in viola- tion of Section 8(a)(1) and (3) of the National Labor Re- lations Act, as amended, 2 coerced employee Linda Cole- man by expressing its disapproval of Coleman's filing charges with OSHA and suspended employees Linda Coleman and Brenda McNeil for 5 days because said em- ployees joined or assisted the Union or engaged in other union activities or concerted activities for the purpose of collective bargaining or other mutual aid and protection; and whether by those acts Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby violated Section 8(a)(1) and Section 2(6) and (7) of the Act; and further whether by the said suspensions Respondent discriminated and is discriminating in regard to hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organizations and thereby did engage and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(aX3) and Section 2(6) and (7) of the Act. Finally, there is an issue of whether Re- spondent violated Section 8(a)(1) of the Act by its solici- ' The consolidated complaint is based on charges filed in Case 26-- CA--7294 and 26--CA--7344 on July 13 and August 9, 1978, respectively, by United Furniture Workers of America, AFL--CIO, Local 282, herein called the Union, against The Davis Company, herein called Respondent. The charges were duly served on Respondent by registered mail on or about July 13 and August 9, 1978, respectively. I Sec. 8(aXl) of the Act makes it an unfair labor practice for an em- ployer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Insofar as pertinent herein, Sec. 7 provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Sec. 8(aX3), with certain qualifications not material herein, prohibits an employer from "discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." tation of revocation of dues-checkoff authorizations for its employees. All the parties were given full opportunity to present witnesses, to adduce other evidence, and to make oral and written arguments. Upon the entire record in this case, my observation of the witnesses as they testified, and after due considera- tion of the post-hearing briefs filed by the General Coun- sel and Respondent, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a corporation doing business in the State of Tennessee with an office and place of business located in Memphis, Tennessee, where it is engaged in manufac- tuirng wood tables and chairs. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received at its Mem- phis, Tennessee, location products valued in excess of $50,000 directly from points located outside that State and, during the same period of time, Respondent sold and shipped from its Memphis, Tennessee, location prod- ucts valued in excess of $50,000 directly to points located outside that State. At all times material herein Respond- ent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all material times herein United Furniture Workers of America, AFL--CIO, Local 282, has been a labor or- ganization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent employs approximately 185 persons who have been represented for more than 25 years by the Union. For the past 21 years Fred Bays has been Re- spondent's plant manager. His responsibilities include op- erating the plant, purchasing material, negotiating collec- tive-bargaining agreements with the Union, hiring, firing, and overall supervision of the production of employees. For the last 21 years Respondent and the Union have been parties to collective-bargaining agreements covering Respondent's employees. Brooks Benjamin is the head foreman and Betty Owens is the foreman of the sanding and assembly department where she supervises approxi- mately 45 employees. B. The Alleged Solicitation of Revocation of Dues- Checkoff Authorizations The complaint alleges that between January 20 and August 20, 1978, 3 supervisors and agents of Respondent on some 31 occasions "asked its employees if they wished to get out of the Union." The complaint further alleges that supervisors and agents of Respondent had on five occasions provided preaddressed envelopes and dues deduction revocation letters to its employees. In September 1977, a strike took place at Respondent's Memphis, Tennessee, location involving the collective- 3 All events herein occurred in 1978 unless otherwise indicated 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement.4 Plant Manager Bays testified that immediately following the strike several employees asked how and when they could get out of the Union.5 Bays testified further that he established and maintained a card file listing the names of the employees who had filed checkoff authorizations and the dates. Bays said that ap- proximately once a week he would check the card file to see which employee's anniversary date was coming up. When that employee's date arrived, Bays would notify his supervisor who would, in turn, tell the employee that it was time for him to get out of the Union if he or she wanted out. When the employee was informed that his or her "escape" period was approaching, Respondent would also offer to the employee two envelopes, one ad- dressed to the Davis Company and one to the Union, and a form letter which stated, "Please stop witholding Union dues from my check." Space was provided for the date and the employee's signature. Boys further testified that the supervisors were told to tell employees that it was none of Respondent's business whether an employee wanted to get out or stay in. During the investigating of the case, Bays prepared a summary of Respondent's actions and provided it to the Board agents investigating the charge. That summary is included in the record as an exhibit. 6 C. The Alleged Coercion of Linda Coleman for Filing an OSHA Charge Linda Coleman was employed by Respondent on or about August 17, 1977, in the finishing department. As in the case of other employees hired by Respondent, she was provided with a copy of Respondent's company rules. In June Coleman becamne a shop steward for the Union. Coleman testified that, on the day following the in- spection resulting from a complaint she filed with the Tennessee Department of Labor, Division of Occupa- tional Safety and Health, on July 20, Plant Manager Bays pointed out to her a section of the collective-bar- gaining agreement which he had underscored and which provided that the employees will cooperate with Re- spondent to maintain sanitary conditions throughout the plant. Respondent did not present any evidence to rebut the testimony of Coleman, although in its answer Respond- ent denied that allegation of the complaint. The General Counsel contends that Bays' action in pointing out that section of the agreement to Steward Coleman was an expression of disapproval of her filing charges with OSHA and constitutes coercion within the 4 There were numerous incidents of violence culminating in the issu- ance of a state court injuction 5 The then current collective-bargaining agreement contained a provi- sion for dues-checkoff authorizations which provided for the revocation thereof after a period of I year, but which was automatically renewable for another year unless written notice of revocation by mail was given to Respondent and the Union not more than 25 days and not less than 10 days prior to the expiration of the -year period or the anniversary of a succeeding collective-bargaining agreement. whichever occurred first. G.C. Exh. II meaning of Section 8(a)(1) of the Act. I will consider that conduct in connection with the other allegations of the complaint involving Linda Coleman and Fred Bays. D. The Alleged Discriminatory Suspension of Linda Coleman On Thursday, August 3, the employees of Respondent engaged in a walkout over a grievance involving over- time pay. The employees congregated outside the plant and wcre told by Don Parker, business agent of the Union, to report to the plant gate on Monday morning, August 7. The day after the walkout, Friday August 4, Plant Manager Bays met with Business Agent Parker, Charles Moore, another union official, and Linda Cole- man to resolve the grievance involving overtime. No res- olution was reached at that meeting. After the meeting, Parker told Coleman and Brenda McNeil to report to the plant gate on Monday, morning August 7. Still later that Friday, Moore and Parker decided to end the strike upon advice from the Union's attorney. On Saturday, August 5, Don Parker sent a telegram to Fred Bays stating that the Union was terminating the strike, and that "all employees will report to work Monday, August 7, 1978, at the regular starting time." The telegram was sent to the plant, which was closed for the weekend, and therefore was not received by Re- spondent until 10:05 a.m. on August 7. Over the week- end, Parker and other union officials (Moore and Willie Rudd) informed many, but could not reach all, employ- ees that they were to report to work on Monday morn- ing. McNeil and Coleman were not informed of the strike's termination. Brenda McNeil testified that on Sunday, August 6, she and Coleman discussed the possibility of setting up a picket line at the plant on the following morning, Monday, August 7. Both Coleman and McNeil testified that neither was informed of the decision to end the strike and report to work on Monday, August 7. 1. Parker's Testimony At or about 5:30 a.m. on Monday, August 7, Plant Manager Bays arrived at the plant still unaware that the Union had terminated the strike. At or about 6 a.m. on August 7, Union Business Agent Parker arrived at the plant to advise the employees that the strike had been terminated. Parker met Bays and asked him if he had re- ceived the telegram. When Bays respondend that he had not, Parker informed him of the content of the telegram. Bays then told Parker to tell the employees to wait around while he looked into whether he could work the employees that day. Bays then went into the plant and returned shortly thereafter. He told Parker that there was not enough work for everyone, but that there was approximately 4 hours work in Betty Owens' and Brooks Benjamin's departments. Parker went across the street and relayed this information to the waiting employees. Parker further testified that, as he was notifying the employees, Coleman drove up in her car. When she asked him what was taking place, he repeated Bays' mes- sage and the fact the strike had been terminated. Cole- man told Parker she was not prepared to work because KEYSTONE METAL MOULDING COMPANY 513 she was not properly dressed and had made no arrange- ments for a babysitter. Parker told Coleman that he would talk to Bays. He then walked across the street and notified Bays that some of the women were not properly dressed and had not made arrangements for babysitters. Parker said Bays told him, "Okay." Parker then testified that he went back across the street and told Coleman and two or three other women who were nearby who had the same problems as Coleman that Bays had said, "Okay." 2. Coleman's Testimony Coleman testified that, on Sunday, August 6, she spoke to head steward Brenda McNeil about bringing material to make picket signs for the following morning, August 7. She said she went to the plant at approximately 6:10 on Monday morning, August 7, to participate in the strike. She said she was wearing shorts, a sleeveless top, and a pair of sandles when she went to the plant that morning.7 She further testified that, when she arrived at the plant, she asked Parker what was going on, and he told her that the employees were going back to work. Coleman told Parker that she was not prepared to go to work; that she was not properly dressed and had not made arrangements for a babysitter for her three chil- dren, ages 5, 7, and 9 years. She told her children that morning that she would be back at approximately 8:30 a.m. after she walked the picket line.8 Coleman's testimony corroborated that of Parker con- cerning Parker's discussion with Bays and Bays' reaction. When Parker returned after discussing the matter with Bays, he told Coleman that Bays said it would be all right for the employees who had not come prepared to work to take the rest of the day off as those employees who would be working would only be there for 4 hours. Coleman telephoned her supervisor, Floyd Lancaster, that afternoon at approximately 3 p.m. inquiring when she should return to work. Lancaster asked her why she didn't come in that morning, to which Coleman replied that she was improperly dressed and had not made prep- arations for a babysitter. Lancaster told her she could have gone home and changed her clothes, but Coleman responded that she still had not made preparations for a babysitter. Lancaster then told her to come in Wednes- day morning. Coleman further testified that on Tuesday, August 8, she received a message that Respondent had attempted to phone her. She called Lancaster at approximately 3 p.m. and was told that she was laid off for I week, be- ginning the next day, because of her absence on August 7. She told Lancaster that Parker had told her that Bays had said it would be all right. Coleman then called Bays wanting to know the reason for her layoff. Bays asked her why she hadn't come to work on August 7, to which * She usually wears jeans and shoes with 2-inch heels to protect her feet when she goes to work. Respondent did not permit employees to wear shorts to work. u Coleman also stated that her normal babysitter arrangements were with a young girl who stays with her children from 9 a.m. until she ar- rives home from work between 3 and 5 p.m. Coleman's home is approxi- mately 12 minutes from Respondent's plant she replied she was unprepared because she hadn't ar- ranged for a babysitter and was not properly dressed. She also told Bays that she was informed by Parker that Bays had said that all employees not prepared to work on Monday could take the rest of the day off, inasmuch as only some of the employees would only be working and for only 4 hours. Bays' response was that she was laid off for a week. At a stewards meeting that evening, August 8, Cole- man told Parker and McNeil of her layoff. Parker told her to go to the plant Wednesday morning and write up a grievance if she were not allowed to work. 3. Bays' Version Plant Manager Bays testified that he arrived at the plant at or about 5:30 a.m. on the morning or August 7, unlocked the gates, went in, and closed them behind him. At approximately 6 a.m. he turned an employee away, telling him they would not be working that day. A few minutes later Parker arrived and asked him if he had re- ceived a telegram terminating the strike. He told Parker he had not received the telegram, and that he would go in and see if Respondent could put any of the employees to work. Bays then returned to the gate where approxi- mately 35 to 45 employees were standing. He told Parker he could work all those people for a half day, and that he would let the employees come in to work. Bays denied that Parker told him anything about any employees not being properly dressed and denied telling Parker that such employees could go home. He further stated that the work force that day was made up of mixed-matched crews, and that he was not prepared to have any of the employees go to work when he arrived at the plant on August 7.9 Bays also testified that, after the employees had gone into the plant, he spoke to Parker concerning Stewards Linda Coleman and Brenda McNeil. He told Parker that what he was about to say was not concerning union ac- tivity, but he wanted to talk to him about Coleman's and McNeil's nuisance claim that just took up time and energy when they knew they were wrong. Bays also stated that he had a conversation sometime after that concerning the nuisance claims of Coleman and McNeil with Union Representatives Don Parker, Charles Moore, Robert Spann, and Willie Rudd. While testifying, Bays was asked why he brought up the subject "nuisance claims" on a day when employees were returning to work from a strike. His answer to that question was "I can't answer you. I don't know how to answer it really." Bays further testified that on the afternoon of August 7, or the morning of August 8, he made the decision to discipline employees who had been absent of their own accord on Monday. He assumed that, if an employee was at the plant gate and did not report to work, then that employee was absent of his or her own accord. Bays fur- ther stated that those people who were absent and were 9 To the extent Bays' testimony concerning the ents leading to Cole- man's failure to report to work on August 7 is inconsistent with that of Parker and Coleman, I do not credit Bays He not only had no answers to some questions, but at times was hesitant and somewhat evasive when he did give answers. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not outside the plant gate did not know that they should have returned to work on August 7, and, therefore, he decided not to discipline those people. He said that, al- though there were approximately 60 to 70 employees absent on August 7 who were presumably subject to the same rules of absenteeism and discipline as Coleman, the only one Respondent disciplined was Coleman. He said he made the decision to discipline Coleman based upon a progressive absence policy of Respondent.' ° Supervisor Lancaster checked Coleman's attendance record and found that she was subject to I week's suspension for being absent on August 7. Although Bays admitted that he was not able to recog- nize many of the employees outside of the gate that morning, he made no effort to find out their identity or that of the absent employees. He also testified that many of the employees absent on August 7 were not marked absent on Respondent's attendance calendar, although some of the employees did not return to work until the following Wednesday or Thursday. Bays also admitted that it would have been "more fair" if he had found out positively whether Linda was the only person at the gate who had not reported to work or whether she was one of several. Because Cole- man had the misfortune of being known and seen by Bays, she was punished and others who were unknown to him were not. Finally, Bays testified that Coleman notified him of the reasons for her absence, but he did not consider those reasons to be sufficient justification. E. The Alleged Unlawful Suspension of Brenda McNeil Brenda McNeil has been an employee of Respondent in the sanding and assembly department for the past 2-1/ 2 years, and for the last 2 of those years she has been chief steward. On or about the initial date of employ- ment she was given a copy of Respondent's company rules. On the morning of August 9, Brenda McNeil clocked in sometime between 6:25 and 6:30 a.m. (The workday begins at 6:30 a.m.) Linda Coleman approached her near the timeclock and notified her that she wished to file a grievance based on Coleman's 5-day suspension. When the second warning whistle to start the workday sound- ed, Brooks Benjamin approached McNeil and Coleman and told them to go to work. McNeil told Benjamin that she was handling a grievance, and that the contract pro- vided that one steward could be off from work during working hours to handle grievances. Benjamin walked off and went to the office and while there he learned that McNeil had clocked in. He then called Bays and in- formed him that, although it was past 6:30 a.m., McNeil refused to go to work. Bays told Benjamin to get McNeil's supervisor and again tell McNeil to return to work, and if she refused Benjamin was to lay her off for I week. "' Respondent's policy was. First and second absences, no penalty; third absence, I-day suspension fourth absence, I week's suspension; fifth absence, discharge of employee. Benjamin went to McNeil's department and talked to her supervisor, Betty Owens. Together they looked for McNeil and located her in the finishing department. McNeil and Coleman were talking to Coleman's fore- man, Floyd Lancaster. Benjamin ordered McNeil to go to the assembly room and begin working. McNeil re- fused, stating that she would after she finished writing out the grievance. Benjamin told her if she refused again she would be suspended for I week. Again McNeil re- fused, stating that she would go back when she finished processing the grievance. At that point Benjamin sus- pended her. McNeil then proceeded to the break area to complete the processing of the grievance. That occurred at or about 6:45 a.m. At approximately 7 a.m. Bays arrived, approached McNeil in the break area, and asked her if she had been laid off; upon her affirmative answer, he told her to punch out. She did, and shortly thereafter Coleman and McNeil filed grievances over their respective -week sus- pensions. IV. DISUSSION AND CONCLUSIONS A. The Alleged Coercion of Linda Coleman As previously stated, Union Steward Linda Coleman filed a complaint with the Tennessee Department of Labor, Division of Occupational Safety and Health. Fol- lowing an inspection by a representative of that division, Plant Manager Bays pointed out a section of the collec- tive-bargaining agreement, which he had underscored, stating that the employees would cooperate with Re- spondent in maintaining sanitary conditions throughout the plant. Coleman testified that at that time a brief argu- ment ensued concerning the sanitary conditions of the building. Employee Linda Coleman was also a steward and an official of the Union with whom Respondent had a col- lective-bargaining agreement. Standing alone, for Bays to point out to a representative of the Union a provision of the contract that requires cooperation between the em- ployees and management with respect to maintaining sanitary conditions throughout the plant, in the circum- stances, is not, in my judgment, coercion. If Coleman had not been a steward and had filed a complaint, and Respondent had pointed out that provision to her with- out the presence of a union representative, then a case of coercion could probably have been made out absent other conduct toward Coleman. However, in view of Bays' other actions, which will be discussed more fully herein, I find that Bays' conduct constitutes coercion within the meaning of Section 8(a)(l) of the Act. B. The Alleged Discriminatory Suspensions of Linda Coleman and Brenda McNeil 1. Linda Coleman Respondent contends that it had good cause to sus- pend Coleman. It bases its contention on several factors, including the company rules regarding absences, and its strict enforcement of company rules, including the rule regarding absenteeism. Respondent points out that Cole- man's calendar for 1978 shows that prior to August 3 she KEYSTONE METAL MOULDING COMPANY 515 had seven tardinesses and one absence; Coleman was at the gate, was seen by Bays, and did not work, and there- fore she was considered absent; and Coleman's excuse is implausible in that she must have known prior to August 7 she would be going back to work on that morning. Re- spondent states the reason for her suspension is "solely because she had 'too many lates and absences."' The General Counsel contends that Respondent's as- sertion that Coleman's suspension was nondiscriminatory and that it followed a strict adherence to its attendance policy "is an incredulous attempt to cover up its retali- atory act against Coleman for her union activities, in- cluding the filing of the OSHA complaint on July 20; the employee walkout two weeks later on August 3; and [the] so-called prior nuisance claim Coleman filed in her capacity as union steward." I agree with the General Counsel. The total circumstances surrounding the suspension of Linda Coleman convice me that she was suspended not for the reasons stated by Respondent, but because Linda Coleman was an aggressive union advocate and a ste- ward who, according to Respondent, filed too many "nuisance" grievances. In that connection, Bays testified that, after the employees had gone into the plant, he went out and spoke to Parker concerning Coleman's and McNeil's nuisance grievances that just took up time and energy when they knew they were wrong. He was not able to explain the timing of his complaint. Bays testified that he also had a later conversation with Union Repre- sentatives Don Parker, Charles Moore, Robert Spann, and Willie Rudd concerning the nuisance grievances. He said those claims consisted of inquiries about the previ- ous year's holiday pay for an employee and a grievance concerning a credit on a paycheck for dues checkoff. When asked why he was complaining of the "nui- sance" grievances of Coleman and McNeil on the day when employees were returning to work from the strike, Bays did not give any reasons.'" He admitted that the grievances brought up by McNeil and Coleman were within the realm of activities of the union steward, but he still considered them to be "nuisances." He further testified, in response to a question concerning his reac- tion to the part that McNeil and Coleman played in the walkout of August 3, that he neither liked it nor was he happy about it. Monday, August 7, was a day of confusion in that the employees who were present were not all informed as to whether they would be going to work or continuing the strike. Indeed, even Respondent had not been notified until that very morning of the Union's decision to termi- nate the strike and have the employees return to work. Bays testified that he assumed that if an employee was outside the plant gate and did not report to work that employee was absent of his or her own accord. He fur- ther assumed without making any check that those em- ployees who were absent and were not outside the plant gate were not informed that they should have returned ' The liming of Bays' complaint, follodssing a strike in which Stewards McNeil and Coleman were very active, certainly casts suspicion as to the movitves of Bays' subsequent conduct concerning the two alleged discri- minatees to work on August 7. Therefore he did not discipline those employees. Bays said that Coleman's discipline was based on his personal observance of her outside the plant gate on August 7. He admitted that he did not recognize many of the employees outside the gate that morning. As previ- ously stated, he made no effort to ascertain the identity of those employees other than to ask his foremen for their observation of the employees. He did not check the records or ascertain which or how many of the employ- ees were absent, but he did have Lancaster check Cole- man's attendance record. He also admitted that many of the employees absent on August 7 were not marked absent on the attendance records, although some of the employees did not return to work until the following Wednesday or Thursday. He also admitted that it would have been "fairer" to find out whether Linda Coleman was the only one who was at the gate and didn't go into work or whether she was I out of 10 employees who had been outside and who had the misfortune of being known and seen by Bays and therefore was the only one punished. Finally, even Respondent did not know whether there would be any work that day. Bays went in to find out what departments could put employees to work and for how long. He came out and told Parker that two depart- ments would be working but for ony 4 hours that day. Thus, in all the circumstances, I am constrained to con- clude that Respondent's actions towards Linda Coleman in suspending her for 5 days were not for the reasons stated by Respondent, but rather were because she filed an OSHA complaint and because Bays thought she filed too many nuisance grievances which were her right to do under Section 7 of the Act. Accordingly, I find that Respondent discriminatorily suspended Linda Coleman in violation of Section 8(a)(1) and (3) of the Act. 2. Brenda McNeil Respondent contends that, because of her insubordina- tion, it had good cause to suspend Brenda McNeil. McNeil testified that on the morning of Wednesday, August 9, she clocked in sometime between 6:25 and 6:30 a.m., starting time being 6:30 a.m. She said Coleman ap- proached her near the timeclock and told her that she wished to file a grievance because of the disciplinary layoff she received. While conversing, they were ap- proaced by Assistant Plant Manager Brooks Benjamin. He told them it was almost time for them to go to work. McNeil told Benjamin that she was handling a grievance, and that the contract provided that one steward could be off from work during working hours to handle griev- ances. Benjamin said he didn't know about that and walked off. McNeil and Coleman then went to the finishing de- partment to see Coleman's supervisior, Floyd Lancaster, to find out why Coleman had been laid off, that being the first step in the grievance procedure provided in the collective-bargaining agreement. McNeil said that, while she and Coleman were in conversing with Lancaster, Benjamin and Betty Owens (McNeil's foreman) ap- proached them, after the 6:30 buzzer had gone off. Ben- jamin told her that she had better go back to work. She 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responded that she would after she finished writing out the grievance. He again asked her if she were going back to work, to which she again responded that she would when she finished the grievance. McNeil further testified that at that point Benjamin notified her that she was sus- pended for a week if she did not return to work. McNeil said, "Okay," and left the finishing department to go to the break area to complete processing the grievance. Benjamin testified as follows: Upon sounding of the 6:30 starting buzzer, he notified Coleman and McNeil that it was time to go to their jobs. McNeil told him that Coleman was not punched in, and that McNeil was han- dling Coleman's grievance. Benjamin then returned to the office and, after checking the timecards, learned that McNeil had punched in. He told Bays of the situation, whereupon Bays decided that if McNeil did not return to work when next told to do so by Benjamin he should give her a week's suspension. Benjamin then went to the assembly department looking for McNeil and upon arriv- ing asked Owens if she had seen McNeil. After a nega- tive response Owens and Benjamin went looking for McNeil. They found her and Coleman in the finishing department talking to Lancaster.12 Benjamin stated that upon being told of her layoff McNeil went to the break room at approximately 6:45 a.m. Benjamin further testi- fied that this was the first occasion on which he has had to approach a union steward while processing a griev- ance on company time. He said he knew McNeil was a chief steward and that her business was to talk to people concerning their grievances, but he felt that McNeil should have made arrangements to handle the grievance at a later time in the day. Benjamin elaborated that McNeil's absence from her department would throw pro- duction behind as the assembly work which came right after the sanding operations would not have any material to work with. Benjamin said that at the time he did not tell McNeil that her being away from her machine was interfering with work in her department. He stated fur- ther that a factor in McNeil's suspension was her tone of voice which was loud and arbitrary, and which he inter- preted to mean a refusal to go to work. 13 Brenda McNeil was chief steward and apparently an aggressive one. When approached by Benjamin, she as- serted her contract right to engage in stewards' business, the processing of a grievance. She notified Benjamin that that was what she was doing, and, even though there is nothing explicit in the contract with respect to a stew- ards' obligation to notify management before leaving her work station to conduct union business, her notification to Benjamin, in the circumstances described above, was enough. And as for the charge of insubordination, Owens, McNeil's supervisor, testified that she was a good worker and had no history of insubordination. McNeil may have been loud in her response to Benja- min, but I attribute that to her annoyance with Benja- min's persistent interference with her conduct of union business. Moreover, in view of McNeil's participation with Coleman in the strike activity, and the fact that 12 Benjamin's testimony as to the the remainder of the conversation with McNeil corroborated that of McNeil. '3 The testimony of McNeil's supervisor. Owens, contradicted most of Benjamin's testimony concerning the indispensability of McNeil. Bays stated at the termination of the strike that McNeil and Coleman filed too many nuisance grievances, I con- clude that Bays and Benjamin were determined to punish McNeil not for her "insubordination," but for filing too many "nuisance" grievances and otherwise engaging in protected union activity. Accordingly, I find that McNeil was not insubordinate, as claimed by Respond- ent, and not suspended for that reason, but rather was suspended because she was engaging in protected union activity. I further find that the reason given by Respond- ent for punishing her is pretextual and in violation of Section 8(a)(3) and (1) of the Act. C. The Alleged Solicitation of Revocation of Dues- Checkoff Authorizations The General Counsel contends that Respondent's so- licitation of revocation of dues checkoff aurthorizations for its employees is in violation of Section 8(a)(l) of the Act. Respondent denies that it violated the Act. Bays testified that he made up a card file in response to inquir- ies by employees on how to revoke their dues-checkoff authorizations. He said he would go through these cards about once a week and find those whose time was ap- proaching, and after finding one he would mention the employee's name to the supervisor. He said there were some four or five employees that told him they would like to get out, and that those were the ones that were asked. He said the cards were made up in the beginning because of the number of people who asked when and how they could get out. Bays further testified that there were only five such employees who were actually approached and only one withdrew from dues-checkoff authorization. Bays further testified that during the investigation he prepared a sum- mary of Respondent's actions and provided it to the Board agent investigating the charge. Counsel for the General Counsel offered this exhibit and it was received as G.C. Exh. 11. When asked about this summary, Bays pointed out that it contained several errors. He said these errors were dis- covered after the summary was prepared for the Board agent. However, the corrected summary was not submit- ted to the Board agent prior to the hearing in this case nor offered in evidence at the hearing. Bays testified that a total of five mistakes were indicated and were correct- ed on the record. Of these five corrections he said Abner Felix and Ed Fields were originally listed as employees that had withdrawn from the Union since January 1978, but Bays pointed out that both were not union members during the period in question. The company records reveal that Abner Felix withdrew from the Union in No- vember 1976. Ed Fields was also provided the form let- ters, but the record shows that he had never joined the Union. With respect to Abner Felix a review of the summary sheet reveals that not only was Felix listed as an employ- er who asked Respondent how to get out of the Union, but that he actually revoked his dues-checkoff authoriza- tion. With respect to Ed Fields, Bays testified that the blank revocation forms were provided to a woman who was attempting to induce Fields to revoke a "nonexistent KEYSTONE METAL MOULDING COMPANY 517 dues-checkoff authorization." The existence of the revo- cation of dues-checkoff authorization dated July 7, which Ed Fields sent to both Respondent and the Union, and the fact that Fields and Felix, both nonunion mem- bers, were contacted by Respondent, demonstrate the extent to which Respondent went to induce employees to revoke dues checkoff authorizations. 14 Respondent contends, and I agree, that an employer can lawfully respond to employees' questions about the withdrawal of checkoff authorizations, provided there is no coercion of the employees. As indicated by the fore- going, Respondent provided much more assistance to the employees than merely responding to questions from them. Shenango Steel Buildings. Inc., 231 NLRB 586 (1977); Dayton Blueprint Company, Inc., 193 NLRB 1100 (1971); Reilly Tar & Chemical Corporation, 151 NLRB 1503 (1965). Accordingly, I conclude that Respondent violated Section 8(a)(1) by its assistance to the employees in withdrawing their dues-checkoff authorizations. CONCLUSIONS OF LAW 1. The Davis Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, United Furniture Workers of America, AFL--CIO, Local 282, is a labor organization within the meaning of Section 2(5) of the Act. 3. On several dates between January 20 and August 20, 1978, Respondent interfered with, restrained, and co- erced its employees in the exercise of the rights guaran- teed them in Section 7 of the Act by asking them if they wished to get out of the Union, and on five separate oc- casions between those dates provided certain employees preaddressed envelopes and revocation letters of employ- er authorization to withhold union dues from employee paychecks. 4. On July 27, 1978, Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act by ex- pressing its disapproval of its employees' filing charges with OSHA. 5. On August 8, 1978, Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act and dis- criminated and is discriminating in regard to hire or tenure or terms and conditions of employment of its em- ployees, thereby discouraging membership in a labor or- ganization, by issuing to Linda Coleman and Brenda McNeil 5-day suspensions. 6. The aforesaid conduct constitutes unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(l) and (3) of the Act. THE REMEDY Since it has been found that Respondent has commit- ted unfair labor practices, I recommend that Respondent be ordered to cease and desist therefrom and take certain 14 Such activity does not substantiate Respondent's contention that it contacted and supplied revocation letters and addressed envelopes only to those employees who asked how to revoke authorizations or get out of the Union. affirmative action to effectuate the policies of the Act, as is customary in cases such as this. I shall further recommend that Respondent be ordered to expunge from the records of Linda Coleman and Brenda McNeil all references to the 5-day suspensions they received on August 8, 1978, and to make these em- ployees whole for any losses of pay they may have suf- fered by payment to each of them the sums they would have earned but for the discrimination against them, with interest thereon, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).'5 Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' " The Respondent, The Davis Company, Memphis, Ten- nessee, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Asking its employees if they wish to get out of the Union or providing them with preaddressed envelopes and revocation letters of employer authorization to with- hold union dues from employee paychecks. (b) Coercing its employees by expressing disapproval of their filing charges with OSHA. (c) Issuing to its employees suspensions because said employees joined or assisted the Union or engaged in other union activities or concerted activity for the pur- pose of collective bargaining or other mutual aid and protection. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Expunge from the records of Linda Coleman and Brenda McNeil all references to the 5-day suspensions each received on August 8, 1978, and make them whole for any loss of pay they may have suffered as a result of the discrimination each has suffered in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Memphis, Tennessee, plant, copies of the attached notice marked "Appendix." 7 Copies of said it See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962) 1' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes '7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- Continued 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for places, including all places where notices to employees Region 26, after being duly signed by Respondent's au- are customarily posted. Reasonable steps shall be taken thorized representative, shall be posted by Respondent by Respondent to insure that said notices are not altered, immediately upon receipt thereof, and be maintained by defaced, or covered by any other material. it for 60 consecutive days thereafter, in conspicuous (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what ant to a Judgment of the United States Court of Appeals Enforcing an steps Respondent has taken to comply herewith. Order of the National Labor Relations Board.