Taylor-Dunn Mfg. Co.

TAYLOR-DUNN MFG. CO Taylor-Dunn Manufacturing Company and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW. Case 21-CA-17382 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLIO On March 17, 1980, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions 2 of the Administrative Law Judge, except as noted below, and to adopt his rec- ommended Order,a as modified herein. 1. The Administrative Law Judge found that Re- spondent violated Section 8(a)(3) and (1) of the Act by terminating employee Smith. We agree for the following reasons. The General Counsel established a prima facie case that Smith's discharge was unlawfully moti- I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bilhty unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We hase carefully examined the record and find no basis for reversing his findings In fn 8 of his Decision, the Administrative Law Judge inadvertently refers to the date of employee Smith's final warning as December 7, 1978, and that of his discharge as December 8, 1978, whereas his earlier findings and the record reveal that these events occurred on November 7 and 8, 1978, respectively 2 The Administrative Law Judge concluded that Respondent violated Sec. 8(a)I) of the Act in misstating the law by asserting that the topic of union dues checkoff was a mandatory, rather than voluntary, subject of bargaining. However, it is well established that union dues checkoff is a mandatory subject of bargaining. H. K. Porter Company, Inc., Dission Di- vision-Danville Works, 153 NLRB 1370, 1372 (1965), enfd. 363 F2d 272 (D.C. Cir. 1966). Therefore, we do not adopt the Administrative Law Judge's finding of a violation in this respect The Administrative Law Judge further concluded that Respondent vio- lated Sec. 8(aHI) of the Act in its letters of November 17 and December 15, 1978, by misstating the law by implying that employees would have to pay union fines and assessments and accede to contractual dues-check- off requirements in order to retain their jobs. In adopting these conclu- sions, we emphasize that these misstatements were made in the context of Respondent's repeated unlawful threats in its preelection letters, including those of November 17 and December 15, that a victory for the Union would destroy the employees' job security. ' In par (k) of his recommended Order, the Administratise Law Judge used the broad cease-and-desist language "in any other manner." We agree that such an order is warranted under the standards set forth in llickmott Foods. Inc. 242 NLRB 1357 (1979) 252 NLRB No. 118 vated. Thus, prior to late September, Smith did not support the Union. At that time, however, he became a union activist. He attended organizational meetings, and, at work, discussed the Union with fellow employees on his free time, solicited signa- tures on authorization cards, distributed leaflets, and taped an authorization card to his locker. In addition, it is clear that Respondent was well aware of Smith's prounion activities. Two weeks prior to his discharge, Smith proffered a blank au- thorization card to Production Manager Junkins, and, on October 23, Smith distributed leaflets which listed him as a member of the union steering committee. Thereafter, by letter dated October 25, the Union sent a list of steering committee mem- bers, which included Smith, to Respondent. Respondent's animus toward the Union in gener- al, and Smith's prounion activities in particular, is amply demonstrated by the record herein. During its vigorous antiunion preelection campaign, Re- spondent engaged in numerous unfair labor prac- tices, at least two of which were directed specifi- cally at Smith. Thus, Respondent removed an au- thorization card from Smith's locker on or about October 6, 1978, and prevented him from distribut- ing union leaflets on company property during nonworktime on October 23. Finally, Respondent's antiunion sentiments were revealed with unmistak- able clarity in Junkins' comment, while directing Smith's discharge, that firing Smith would "stop some of the shit in the shop about the union .... " Respondent, in rebuttal of the General Counsel's prima facie case, contends that it discharged Smith solely because of his poor absenteeism and tardi- ness record. While Smith's attendance record was poor throughout his 2-1/2-year tenure with Re- spondent, we find no merit in this asserted defense. Thus, in late July 1978, Smith had decided to quit and seek other employment. Junkins, in an action contrary to Respondent's established policy, 4 convinced Smith to obtain a leave of ab- sence rather than to quit. On Smith's last day prior to taking the leave of absence, Junkins told Smith that he was a "good man" and that Junkins "hated" to lose him. Several weeks later, Smith called Junkins about the possibility of returning to work for Respondent. Junkins invited Smith to return, and he began work on August 23, 1978. Smith's absenteeism and tardiness problems contin- ued subsequent to his return. Respondent, howev- er, took no disciplinary action against him for more than 2 months. ' According to a document given to new leadmen during the early months of 1978, Respondent's leave of absence policy limited the grant- ig of such lease to employees with good attendance records 799 DECISIONS ()F NATIONAL LABOR RELATIONS BOARD Approximately a week prior to his termination, on November 1, Smith again was absent from work. On November 2, he received a warning notice and Porras, his supervisor, told Smith that Junkins was of the opinion that employees were to come to work on time and be present each day, and that he, Porras, would terminate Smith the next time Smith was late or absent. Smith was 10 minutes late on November 7, and received another warning notice. The next day, Junkins and Porras had a discussion regarding Smith. This discussion ended with Junkins direct- ing Smith's termination, saying that this "would stop some of the shit in the shop about the union, and besides he has been missing too many days anyway." (Emphasis supplied.) Smith was dis- charged by Porras about mid-day on November 8. When Smith asked the reason for his termination, Porras was noncommittal. Thus, despite Smith's attendance history, Re- spondent, contrary to its policy, convinced him to take a leave of absence rather than to quit in July 1978, and rehired him several weeks later.5 Al- though Smith's absenteeism and tardiness problems continued subsequent to his return in late August, Respondent did not discipline him until November 2. Significantly, Porras' warning on that date came very soon after Respondent prevented Smith from distributing leaflets in late October and its learning of Smith's membership on the steering committee. Further, Porras' noncommittal answer to Smith's request for an explanation of his discharge, espe- cially in light of Smith's attendance record, sug- gests that this record was not the reason for his ter- mination. Finally, Junkins' statement to Porras clearly indicates that Smith's union activity moti- vated his discharge, and that his poor attendance was merely an afterthought or makeweight consid- eration. Under all these circumstances, we are not persuaded by Respondent's contention that Smith would have been discharged on November 8 had he not engaged in union activities. Therefore, we find that Respondent has failed to rebut the Gener- al Counsel's prima facie case,6 and we conclude, in agreement with the Administrative Law Judge, that Respondent violated Section 8(a)(3) and (1) of the Act by terminating Smith. 2. The General Counsel excepts to the Adminis- trative Law Judge's failure to find that Respondent violated Section 8(a)(l) of the Act through a state- ment made by Gaydos, the supervisor of the assem- bly department. We find merit in this exception. The record conains no evidence that. in rehiring Smith, Respondent was giving him another or final opportunity t improve his attendance ; For a general discussioln of the burden of going forward once a prima faiil case of unlawful discrimilation has been established se Wright Line. a DLvision of Wright Line. Inc., 251 NLRB No 15( (1980). During October and November 1978, Gaydos engaged in break period conversations with lead- men on the night shift. On several occasions the group discussed the benefits then enjoyed by the employees as compared to those contractually available through the Union. During one such con- versation, Leadman Diels asked Gaydos, "What kind of bargaining do you do when a union comes into a shop?" Gaydos responded, "You start from ground zero." Diels asked if this meant that a com- pany starts "at minimum wage," to which Gaydos responded, "You bargain from minimum wage up." Diels asked, "What about our benefits?" Gaydos then said, "You have to bargain for them too. You don't have them until you have a contract signed. So actually you start with nothing until you actual- ly had a contract that was okayed and voted in and the whole bit." The Administrative Law Judge found that Gaydos' remarks, while a technical vio- lation of Section 8(a)(1) of the Act, were "so in- nocuous and so readily comprehended and catego- rized as such by the leadmen . . . as to warrant no remedial action." It is well established that "bargaining from ground zero" or "bargaining from scratch" state- ments by employer representatives violate Section 8(a)(l) of the Act if, in context, they reasonably could be understood by employees as a threat of loss of existing benefits and leave employees with the impression that what they may ultimately re- ceive depends upon what the union can induce the employer to restore. On the other hand, such state- ments are not violative of the Act when other communications make it clear that any reduction in wages or benefits will occur only as a result of the normal give and take of negotiations. TRW-United Greenfield Division, 245 NLRB No. 147 (1979); Stumpf Motor Company, Inc., 208 NLRB 431 (1974). In our view, Gaydos' remarks clearly con- veyed to employees a threat of loss of existing benefits. In this regard, Gaydos' statements were unaccompanied by any assurances that such losses, if any, would be the result of the normal give and take of collective bargaining and not of employer retaliation. In addition, these comments were made in the context of a preelection campaign replete with numerous unfair labor practices committed by Respondent, including its declarations of an antici- patory refusal to bargain with the Union. See Buckeye Tempo Gamble-Skogmo, Inc., 240 NLRB 723 (1979). Therefore, we find that Gaydos' state- ments violated Section 8(a)(1) of the Act, and that issuance of a remedial order for this violation is fully warranted. 80) TAYI.OR-DLUNN MFG CO. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Taylor-Dunn Manufacturing Company, Anaheim, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph l(h): "(h) Threatening employees with the loss of ex- isting wages and benefits during collective bargain- ing and declaring or implying the futility of the collective-bargaining process by expressing an an- ticipatory refusal to sign a collective-bargaining agreement with the chosen collective-bargaining representative of its employees." 2. Substitute the following for paragraph 1(j): "(j) Misstating the law pertaining to union fines and assessments and employees' obligations under contractual dues-checkoff provisions." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise dis- criminate against employees because of their interest in, or activity on behalf of, Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW, or any other labor organization. WE WILL NOT grant benefits to employees. including a benefit in the form of the elimina- tion of minus bonus hours in the computation of incentive bonus pay, when said benefits are timed or effectuated for the purpose of unlaw- fully influencing employees in the choice of a collective-bargaining representative. WE WILL NOT promulgate, maintain, or en- force rules prohibiting employees from solicit- ing for the Union, or any labor organization, during nonworking time on company proper- ty. WE WILL. NOT promulgate, maintain, or en- force rules prohibiting employees from distrib- uting Union literature during nonworking time in nonworking areas of company property. WE WILL NOT enforce a rule prohibiting the posting of any material or matter on company bulletin boards or property in a manner which imposes a greater restriction on the posting by employees of union-related material or matter than is imposed on other types of material or matter. WE WILL NOT impliedly threaten employees with loss of employment if they select the Union, or other labor organization, as their collective-bargaining representative. WE WILL NOT unlawfully promise benefits in the form of wage increases as an induce- ment to employees to vote against the Union, or any other labor organization. WE WIl.i NOT threaten employees with the loss of existing wages and benefits during col- lective bargaining, or declare or imply the fu- tility of the collective-bargaining process by expressing an anticipatory refusal to sign a col- lective-bargaining agreement with the chosen collective-bargaining representative of our em- ployees. WE WILL NOT inform employees that we would not bargain collectively with the Union, or any other labor organization, over the in- clusion of a union-security or dues-checkoff provision in any collective-bargaining agree- ment with said labor organization. WE WILL NOT misstate the law pertaining to union fines or assessments and employees' obli- gations under contractual dues-checkoff provi- sions. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Dale E. Smith immediate and full reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of wages he may have suffered by reason of our discrimination against him, with interest. TAYLOR-DUNN COMPANY MANUFACTURING DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Santa Ana, California, on October 30 and 31, 1979, pursuant to an amended com- plaint and amended notice of hearing issued on July 30, 1979, by the Regional Director for Region 21 of the Na- tional Labor Relations Board. The amended complaint 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was based upon an initial charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called the Union, on December 18, 1 9 7 8 ;t and a first amended charge filed by the Union on March 28, 1979. The amended complaint alleges violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amend- ed, hereinafter called the Act. The parties were provided full opportunity to examine and cross-examine witnesses, introduce relevant evidence, and file briefs with me. Counsel timely filed briefs. Upon the basis of the entire record, my observation of the witnesses, and the briefs of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times materiel herein, Respondent has been a California corporation engaged in the manufacture of electric vehicles at a facility located in Anaheim, Califor- nia. In the course and conduct of its business operations at its Anaheim plant, Respondent, during the 12-month period ending September 30, purchased and received goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. It is conceded, and I find, upon the foregoing facts, that at all times material herein Respondent has been an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that all times materi- al herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALI.EGED UNFAIR LABOR PRAC'ITICES A. The Issues The principal issues in this proceeding are whether Respondent (1) unlawfully terminated the employment of Richard Diels and Dale Smith because they had engaged in union or protected concerted activities; (2) maintained and enforced rules prohibiting employees from engaging in union activities and distributing literature relating to the union activity of employees during nonworking time and in nonworking areas of the plant facility; (3) granted benefits, misstated applicable law, expressed an anticipa- tory refusal to bargain over topics of vital interest to the conditions of employment of unit employees and con- veyed to employees the futility of selecting a union to represent them; and (4) promised benefits and threatened employees with a reduction in wages and loss of existing fringe benefits, all for the purpose and object of interfer- ing with, restraining, and coercing employees in the ex- ercise of rights guaranteed in Section 7 of the Act. Unless otherwise specified, all dates herein refer to the calendar year 1978. B. Pertinent Facts 1. Background facts At material times the following named individuals have served in the position set forth opposite their re- spective names and have been supervisors within the meaning of the Act: David (Bob) Junkins, director of production; Albert Porras, supervisor of the paint depart- ment; Andrew Gaydos, supervisor of assembly depart- ment; Charles Holliday, weld shop supervisor; Milan Ar- delean, supervisory assistant, weld shop; and Norman Hall, night production manager. At pertinent times Respondent operated a day shift which commenced at 6:30 a.m. and terminated at 3 p.m. This shift was followed by the swing or night shift which commenced at 3:30 p.m. and operated until 2 a.m. Dale Smith worked in the employ of Respondent from May 5, 1976, until November 8. At the time of his termi- nation, he was employed as a chipper and grinder in the printing department under the direct supervision of Albert Porras. Porras is Smith's wife's sister's husband. Richard Diels was employed by Respondent from August 3, 1977, to December 7. Diels worked as a pro- duction welder until February 1978 when he was pro- moted to leadman on the swing shift. As a leadman, Diels reported directly to Milan Ardelean and, until a few days prior to his discharge, Diels also reported through Ardelean to Andrew Gaydos. On or ahout De- cember 4, Norman Hall succeeded Gaydos and played a deciding role in the termination of Diels 3 days later. In the summer of 1978, the Union commenced an or- ganizing campaign among the Respondent's employees, culminating in a Board election conducted on December 19. In the meantime in late September, Smith decided to lend his overt support to the unionization effort, and he manifested his support by attending organizational meet- ings, conversing on union topics with employees on his free time, soliciting signatures on authorization cards, and distributing the Union's leaflets. 2 Smith taped a union authorization card to his locker. Approximately 2 weeks prior to his termination, Smith also proffered a blank authorization card to Production Manager Junkins. Then, in late October Smith distributed a leaflet notify- ing employees of a scheduled union meeting and, at ap- proximately the same point in time, he distributed an- other leaflet on which were listed the names of 24 em- ployees then comprising the union steering committee. Smith's name was among them. A letter containing an identical list of names was dispatched by the Union to Respondent. Richard Diels first became aware of the effort of the Union to organize employees in June or July. He gave no active support to the effort until November 9 when he attended a meeting and signed a steering committee card identifying himself with the steering committee. The following day he told Gaydos and Ardelean that he had signed the card. Later he received a pledge card and some literature from the Union. He distributed pledge I Dale Smith testified that he opposed the Union until late September and communicated his opposition to Porras. Porras testified to the con- trary. It is unnecessary to resolve this conflict. 802 TAYLOR-DUNN MFG. CO cards and solicited signatures. Moreover, on five or six occasions, including November 22 and 23, he distributed union literature, usually at the entry gate to the plant. In- cluded in the literature distributed, were two separate leaflets on which he and two night shift welders, whose work Diels directed, were listed as members of the steer- ing committee. In this literature, Dale Smith was also listed as a steering committee member. Diels also distrib- uted shirt pocket protectors bearing a U.A.W. insignia to employees, and to Milan Ardelean, who told him it was not a good idea to wear it in the shop. On or about July 1, 1976, Respondent issued to its em- ployees a document entitled, company Benefits, Policies and Plant Rules-Hourly Employees. Included within the section entitled, Safety and Plant Rules are the fol- lowing provisions: Listed below are violations of Taylor-Dunn Man- ufacturing Plant and Safety Rules. m. Vending, soliciting, or collecting contributions for any purpose whatsoever on Company time on the premises, unless authorized by Management. n. Distributing written or printed matter of any de- scription on Company premises unless approved by Management. o. Posting or removal of any matter on bulletin boards or Company property at any time unless spe- cifically authorized by Management. In a document distributed to supervisory personnel during times pertinent herein, the following provisions appear: LEAVE OF ABSENCE Leave of absence should be held to a minimum but may be granted for good cause. A leave of absence may only be granted to an em- ployee who has completed their [sic] probationary period and has had a good attendance record. 2. The alleged proscribed conduct a. The prohibition against union activities and distribution of literature After becoming active in support of the Union, Smith taped a union authorization card to his locker on the plant premises. On or about October 6, he observed that the card had been removed and he asked Porras if he knew who had removed it. Porras said that he had done so at the direction of Junkins. Porras added, "there is not supposed to be anything taped to company property." Smith credibly testified, in substance, that early in his employment he posted three pictures in his general work area, and he taped a fourth picture to his locker. Three of the four pictures remained posted throughout the entire course of his employment. On or about October 23, Smith stood near the door of the guard shack inside company property and distributed a union leaflet. The guard requested one of the leaflets and read it. Thereupon he placed a phone call saying, "They are down here handing out papers about the Union." After he hung up, the guard said to Smith, "Would you please get off the property." Smith credibly testified that during the course of his employment he sold candy bars, raffle tickets, and handicap buttons for the special Olympics on company property. He testified that Junkins purchased a button from him. He did not caution Smith about selling them on company premises." b. The promise of benefits On October 20, over the signature of its treasurer Re- spondent distributed a three-page letter addressed to all of its employees. The letter contained the following lead paragraphs: For many years, Taylor-Dunn Manufacturing Com- pany has taken great pride in being an employee oriented company. We have attempted to build a good working atmosphere coupled with fair and competitive wage rates and fringe benefits. Many of the things offered at Taylor-Dunn are a result of employee participation in suggestions for improve- ment. During the past two to three months, we have been developing a rather comprehensive program of job descriptions and pay grades for the hourly employ- ee. This program will be completed and announced by January 1, 1979. Some additional decisions have been made regarding pay policies and fringe bene- fits as a result of suggestions and comments from the Labor Relations Committee. The letter then outlined improvements in sick leave, va- cations, wages, and group hospital and medical coverage, effective January 1, 1979. Additionally, the letter defined a pay period change beneficial to the employees and treated with the incentive program in the following manner: The direct production incentive is being reviewed which will result in higher incentive earnings for the direct production people which in turn will result in higher incentive bonus for indirect produc- tion employees. The letter ended with the following paragraph: We recognize that the rapid growth of the company during the past two to three years has created the need for changing our personnel policies and proce- dures, as well as other internal systems. As stated earlier, review and updating the personnel policies has been in process for the past two to three months and will be complete by January 1, 1979. We appre- :' he foregoing is based upon the credited testimony of Dale Smith I have also considered the testimony of Albert Porras and credit it only to the extent that it is consistent ith the foregoing findings Safeti and Plant Rules, pars m. n. and o remained in full force and effect at all pertinent times DFLCISIONS OF NATIONAL LABOR RELATIONS BOARD ciate your patience and understanding, and look for- ward to your future with the company. Also on October 20, Respondent distributed a separate letter to its production supervisors, leadmen, and direct incentive employees. The letter dealt exclusively with the incentive system and noted that in the past year dis- content had been voiced with respect to the current in- centive system and "its inequity." The letter noted that management was aware of the discontent and had under- taken a review of the system, which had included meet- ings with top management and supervision wherein em- ployee feelings and thoughts on the system had been voiced. The letter then described four changes for imme- diate implementation, as well as three other areas of po- tential modification requiring a "vast amount of planning and system changes." Subsequently, on December 8, Respondent dispatched a letter over the signature of its president and vice presi- dent to all of the shop employees. In the letter, it was announced that computation of incentive earnings for the previous 3-month period had been completed and the in- centive earnings would be distributed as normally sched- uled on December 15. Contained in the letter were the following observations: We will be distributing an average bonus of $292 per employee to 140 employees. This more than doubles the distribution of an average bonus of $133 per em- ployee for the quarter of June. July and August. There are two reasons for this increase. For one, we have reduced our employee turnover and more of our people stayed on the job to become eligible. With this reduction in turnover, our productivity increased. Secondly, there has been considerable dissatisfaction with our treatment of "minus bonus hours" by our employees and management as well. We told you back last summer that we planned to revise our in- centive system to eliminate the flaws in it. We have not completed our study and revision because this is very complex, but you will note in our incentive figures to be distributed next week that we have eliminated the penalties of minus bonus hours, such as "down" time and "set-up" time because these in the main were not the fault of our employees. No reference to the "minor bonus hours" factor in com- puting incentive earnings had been contained in either communication distributed by Respondent on October 20. c. The preelection communications In the month preceding the December 19 Board elec- tion, Respondent distributed to its shop employees four seperate letters dated November 17, December 5, 8, and 15, respectively. Each was over the signature of Re- spondent's president and vice president. Topical focus was given the November 17 letter by its opening paragraph stating: We want to write to you about two important items at this time. The first relates to the coming union election. The second relates to several problem areas in our operation which affect our shop em- ployees. The letter then called attention to the pendency of the December 19 Board election and stated the intention of management during the ensuing 4 weeks to discuss "every important issue involved." In relevant part, the letter then proceeded as follows: We have over four weeks before you "vote on whether or not you want to be represented by the United Auto Workers Union, which has probably been responsible for more strikes, more lost time from work and more lost productivity in plants it represents than any other union in the country During these coming four weeks we will discuss every important issue involved and we will present all the facts so that you will be well informed. In this letter we will touch on several overriding issues, so that you will know where the manage- ment of Taylor-Dunn stands and what it is deter- mined to do. In the final analysis the choice is yours, but we, too, have our options and our minds are irrevocably made up. The union cards you have signed have brought about the election. How you vote on December 19th will be a brand new choice. We will be urging you to vote "NO" and we'll tell you why. The most important question you need answered is "what can we lose if we vote the UA W in as our bargaining agent?" Our answer is that you have every- thing to lose, your job security and a good place to work. Those of you who have been with us for a while know how Taylon-Dunn operates, and that you now have good relations with your company, good wages and good benefits and, most important, total job security. We don't lay people off for lack of work if you've been here any length of time and we still are a growing company. We know that we have certain problems of concern to all of us, but we are in the process of solving them. What can you expect if the UAW wins the elec- tion? We know the UAW will ask for everything: the union shop, dues check-off, super seniority for union stewards, higher wages and benefits. We don't believe in forcing our people to join any union to work at Taylor-Dunn. The UAW can ask for the union shop and check-off, but we have the final say. We tell you now we will never compel our employees to join any union, pay initiation fees and union dues and subject them to union discipline, fines and assessments in order to work here. We are and will be at total war with the UA W. As proof of how we feel, we have just fired one of our supervisors who was supporting the UAW behind our backs. He lied to us because he was part of our manage- 804 TAYLOR-DUNN MFG CO. ment which is totally committed to keeping the UAW out. We are certain that the Autoworkers would destroy your job security and your company's ability to com- pete. We will not permit this to happen. We recom- mend that you tell the UAW to get lost. It is just a myth that the UAW can get our employees higher wages and benefits without getting our employees involved in strikes, bitterness, loss of jobs and the destruction of good relations. We also want to touch on several problem areas in our operation which we, at the management level, have been studying and trying to resolve over the past several months. We know that we will be accused by the United Auto Workers of solving these problems at this time to discourage you from supporting this union at this time. All we can say is that we have been planning this for the past several months and without any union activities we would be doing exactly the same thing. We want to stabilize employment here and make this the best place to work possible. The first problem of importance to you that we will try to solve is our incentive plan. We know that many of our shop employees have been dissatisfied with the plan, which in recent months has produced less earnings to you than previously. We will be revising the administration of our in- centive plan as rapidly as possible and we will be having personel meetings with all of our employees affected by the incentive plan to explain the revised program, so you will know exactly where you stand. The next important problem affecting you has to do with the administration of our wage rate structure. We have heard very legitimate complaints that some of our employees, especially the new ones, don't know exactly what the wage ranges are for their specific job classifications and they don't know how they can move from the bottom to the top of their re- spective ranges. Again, we in very short order will clarify our policy, inform each and every employee regarding it and give every one of you a written statement of how our wage rate administration affects you per- sonally. Our policy will be designed to move the employees up the ladder on a time basis and each one of you will know exactly when you will be re- viewed, when you can expect your increases and how long it takes to get to the top. In the process we will upgrade our rates based on the most recent competitive rates in this area and take into account the most recent increases in cost of living. Just remember this. If the UA W is voted in byv you, we know it will completely destroy your job ecurity here. This we cannot and will not permit to happen. The December 5 letter contained the following: As we stated to you in our last letter regarding the union election, we intend to discuss all important issues involved, and to keep you fully informed In this letter, we want to discuss primarily our new wage structure which we have been in the process of updating and revising for many months, and con- cerning which we wrote to you in October when we announced our comprehensive program of de- veloping job descriptions, pay rates and wage in- creases which would go into effect on January 1st. The UAW further claims that you should give yourself an early Christmas present by voting yes on December 19th. Our only answer to that is that if you do that, you will in fact destroy your job se- curity, the very thing which you should treasure most at Christmas time, as well as for a long time to follow. The reference in the same handout that the union will get you whatever you deserve at the bargaining table is pure hogwash because the union has noth- ing whatever to give and the union has no power to force Taylor-Dunn to agree to anything unless it wants to. Only Taylor-Dunn is in a position to satis- fy your needs and give you job security with good competitive wages and benefits. We told you recently that "we are and will be at total war with the UAW." Apparently some of this has been misunderstood by some of our employees. We are not at war with our employees and never will be, but we are at war with the United Auto Workers which has been responsible for more strikes, more lost time without pay from work, and more lost productivity in plants it represents than any other union in the country. As an indication of how the United Auto Workers Union operates, we call to your attention the delib- erate slowdown in the Assembly Department which has resulted in the lowest productivity we have ever had there. This is no accident, and we are con- vinced that this was engineered deliberately in that particular department by the UAW and some mem- bers of the union steering committee. This is just a sample of UAW's policy of destroying productivity in plants it represents and we are telling each and every one of you that we cannot and will not toler- ate this. We are not intimidated by the UAW and if we have proof of deliberate slowdowns on the part of any employees, we will take immediate steps to discharge all those responsible. This is what we meant and still mean in declaring all out war on the UAW. because we are certain that this union would destroy your job security and our ability to compete. To repeat, we cannot and will not permit this to happen, and we expect that X(05 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the vast majority of our shop employees will agree with us on December 19th. We now want to bring you up to date on the real purpose of this letter, which is to tell you how we will meet the commitments we made to you this last summer regarding a very comprehensive program of job descriptions, pay rates and wage increases which we had programmed to go into effect Janu- ary 1, 1979. This program started long before the UAW filed its petition for an election with the Na- tional Labor Relations Board. Each and every one of you will be told personally by your supervisors within the next several days on the details of our new wage program and particularly what each employee can expect by way of pay increases on January 1, 1979 and thereafter under a fully automatic progession and pay increase policy. When our supervisors finish talking to you, each of you will know what your job description is, what your rate range for your job is, the amount of in- crease and your new rate as of January 1, 1979, and the amounts and dates of increases thereafter. The cornerstone on this wage policy is our review of area rates and cost of living twice yearly, January Ist and July Ist of each year, at which time we will update our wages accordingly. This will be done automatically, and this is our total commitment to our employees. We started the above policy last July 1, 1979 when we discontinued our long standing merit review program and granted a general pay increase amounting to 12.8 percent. On January 1, 1979, the pay rates in the plant will be increased by 8.2 per- cent on the average. Another automatic review and increase is programmed for July 1, 1979. Contained in the December 8 communication, as found above, was a discussion of the incentive program and an announcement of a scheduled distribution on December 15 of an averege bonus twice the amount of that paid employees the previous quarter. Moreover, as above found, the letter also referred to the "considerable dissat- isfaction" among employees and management with the present treatment being accorded "minus bonus hours." Further, following a discussion of an anticipated revision in the incentive system and a discussion of fringe benefits as contained in a recently redesigned and distributed em- ployee booklet, the letter closed with the following state- ment: We firmly believe that the United Auto Workers would be an absolutely destructive outside source if this union represents our employees. Our future and your job security is at stake. We know what we have to do to protect the future of Taylor-Dunn against the UAW which doesn't give a damn about our ability to compete successfully. We are confi- dent that you know that the only way you can pro- tect your job security is to vote NO on December 19th. The letter of December 15 contained the following statements: This will be our final letter to our employees before the union election is conducted by the Na- tional Labor Relations Board on Tuesday, Decem- ber 19th in our plant. We want to cover only the most important facts and issues here. First of all, the ballot is secret and only you will know how you vote. Whatever union cards our employees signed previously are not binding and do not count. The third and biggest lie by the UAW is that a "signed UA W contract would guarantee answers." In other words, the UAW is guaranteeing that it will win the election, get a signed contract, and will make good on all its promises. That's a guarantee that is absolutely worthless because UA W has nothing to give-only Taylor-Dunn is in that position. Now we will give you an absolute guarantee and that's one guarantee we can deliver. We cannot guarantee that Taylor-Dunn will win the election- only you, our employees control that, but we can and do guarantee that UA W will never get any signed contract from us. If we lose, we will negotiate. What can the UAW do for you at the bargaining table? Simply ask for higher wages and benefits. You should know by now that the final decision on what kind of con- tract we will sign is up to Taylor-Dunn. We have the absolute right under the law to refuse to grant any union demands if we decide they are not in our com- pany's and our employees' best interests. We are positive that the union will demand a union shop and deduction of monthly union dues and initiation fees. A union shop and check off, if we agree to it, would require that all our employees join and be members of the UAW and have their initiation fee and their monthly dues taken out of their paychecks in order to work here. This would force us to fire anyone who refuses to become a member of the union. If we were to lose the elec- tion, the union shop and check off would certainly be one of the key issues for negotiation. We are tell- ing you now that we will flatly reject this demand. We doubt that the union has told you that labor negotiations is a tough process, with the union having the right to make any demand it wants and the company assessing its position on how much it can afford to stay competitive and profitable and then taking a stand at that point. The same holds true on issues such as union shop and check off. We know that UA W will never sign a contract based on our last offer. Our last offer will be based on current wages and benefits, already the highest in our industry which has no unions, and a flat rejection of a union shop and other items which the UA W always in- sists on, which are vital to UA W's interests but worth- less to employees. 806 TAYLOR-DUNN MFG. CO. You know what we have done on wages, benefits and incentives and you know of our commitments for semi-annual adjustments and automatic wage progres- sion in the future. That's an absolute commitment without any union representation, which we have nmade to you in writing. 7This i a binding contract compared with L.4 W's worthless campaign promises. We know we cannot live with the UAW since its philosophy of reducing productivity of its members would eventually break us. We will fight this all the way down the line. When negotiations end, the union and the em- ployees would either have to accept Taylor-Dunn's last offer or strike. There are no other choices. Be- cause we will never agree to the UAW's demands, the union's choice will have to be to strike, and with it bitterness, lost wages, and loss of jobs by our employees who go on strike. We don't want this to happen any more than you do, but you should also know that if there is a strike because some of you and the union so decide after we have disagreed at the bargaining table, we will not close our plant but will stay open. Each of you will be welcome to work if there is a strike-we will have jobs for you. For those who were to choose to strike, we have the right permanently to replace any striking employees and we will do that without fail. d. Verbal threats to reduce wages and benefits During break periods in the months of October and November, Gaydos engaged in conversations with the leadmen on the night shift, including Diels. The conver- sations covered a wide range of topics, including the comparable level of wages and benefits presently en- joyed by employees as compared with those contractual- ly available through the Union. On one occasion, Diels asked Gaydos, "What kind of bargaining do you do when a union comes into a shop?" Gaydos responded, "You start from ground zero." Diels asked if this meant that a company starts "at minimum wage," and Gaydos responded, "You bargain from minimum wage up." Diels then asked, "What about our benefits?" Gaydos respond- ed, "You have to bargain for them, too. You don't have them until you have a contract signed. So actually you start with nothing until you actually had a contract that was okayed and voted in and the whole bit." 4 e. The termination of Smith (1) The setting As found, Smith entered Respondent's employ on May 5, 1976. Smith had heard through his brother-in-law, Albert Porras, about a job opening at the plant for which T 'he firegoing is based upon the credited testimony (lf Richard Diels I credit the testimony of Andrew Gasdos to the effect that a discussion of comparable benefits transpired between him and employee o the night shift I further credit (adoC testimorie ny the effect that there was some exchange of iews ithl respect to the level at which the Conapanly would commence bargaining ith the Uinion ctlccrning wages aid hene- fits However. I am corrnlllced by my oibservation of (ialydol as lie tsli- fied at the hearing before me concerning Ihis topic. hat he had no recall or recollection of tlie details of the dliscussilonl aid the specifics of his comments aitil t1%ss',er% he considered himself qualified. He spoke with Bob Jun- kins who inquired if Smith could be on the job "every- day." In substance, Smith told Junkins that his son had been born with multiple birth defects, and that, while no extraordinary complications beyond those implicit in the congenital condition of his son were then present, surgi- cal procedures were contemplated with hospital and care demands which could not be accurately predicted. Jun- kins told Smith he would try him on the job, and Smith was hired. 5 Smith was recognized by management throughout the course of his employment as a good worker. However, Smith estimated that during 1976 he was absent on 15 or 20 occasions due primarily to his child's medical condi- tion. In 1976 and 1977 Smith's infant was hospitalized for approximately 4 months and had 38 major operations. In 1977, Smith missed work on a substantial number of oc- casions. On November 21 he was issued his first warning notice for tardiness. As 1977 drew to a close, he was absent from work on December 19, and he lost days of work in the early part of January 1978. Thus, he was absent 4 entire days on January 6, 10, 11, and 19. On this latter date, he was issued a final warning notice for ex- cessive absences. On January 30 he called in sick with pneumonia and was absent during the following 9-day period. Between February 27 and July 30, Smith missed 6 complete days of work and portions of 26 other days. His absences in this latter respect ranged from a loss of a quarter hour of time to 6-3/4 quarter hours. On March 2 he was issued a second written warning notice for tardi- ness and again on June 20 he was issued a written warn- ing for tardiness. This notice, like the previous notice of March 2, was identified as a second notice. In the period between the March 2 notice and the June 20 notice, Smith had been absent portions of 10 working days and had missed 4 full days of work. On June 28 Smith missed 1 hour of work, and on the following day he was absent 15 minutes during the day. Then, on July 14 he was placed on leave-of-absence for an 8-hour period, and on July 24 he was absent a full day. This resulted in the is- suance of a third notice for absences. The notation on the notice contained the following, "Didn't come to work on Monday 7/24/78. Had personal business to take care of." At approximately this point in time, Smith reached a voluntary decision to seek employment elsewhere, and on July 31 he applied for and was granted a leave-of-ab- sence. On his last day of work prior to his leave-of-ab- sence, he was complimented by Junkins who called him "a good mall" whom he hated to lose. 6 I he credited testimony of Dale Smith establhshes the foregoing. Jun- kils was no longer in he employ of the Company a he time of the hearing, and it is asserted that he W as ulnavailable to Respondent as a it- ness 11n an;1)y rcl. the General Counsel does not urge adverse inferences arising from JunkinC fat ilure to testify and none are drawn with respect to this or an5 other facet of his case wherein his lestimony may have been pertllcll 'i e 1`i rcgoiig i hbased upion he credncid and undisputed testllmlns) of Dale Sililh, supp<orted b. documenta r eidence of record. and a tlip- ulaton of the piries as to the qualit f Snith.s work 'while he Was on the Ioh X807 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During his leave-of-absence, Smith worked for another enterprise but decided to return to work with the Com- pany. He contacted Junkins by telephone and was invit- ed to return to work. He did so on August 23. He re- sumed his former position as a chipper and grinder on the day shift, under the supervision of his brother-in-law, Albert Porras. On Thursday, August 24, Friday, August 25, and Monday, August 28, Smith was absent from work. On Thursday, August 31, he missed I hour of work, and on the following day he missed a quarter hour of work. Smith was absent again on September 7, and he had not notified supervision of his intended absence. A notation was entered in his file "went to court-no reason given." Subsequently, during the entire period September 25 through October 3, Smith was absent from work due to a nonindustrial injury. The basis of his absence was sup- ported by a physician's statement. He was released from doctor's care on October 4. Thereafter, he was docked a quarter hour on October 10, 2 hours on October 13, and missed the entire day of work on October 17. The fol- lowing day, he lost 4-1/4 hours of work, and on October 20 he was docked a quarter hour. Then, on October 24 he called in sick and missed that day of work and the following day. He did not call in the second day. He was docked 2 hours on Friday, October 27. During relevant periods of his supervision of Smith, Porras followed the routine practice of speaking with Smith whenever he issued a warning notice to him. In addition, in the early phases of Smith's tenure, during the year 1977, Porras would chide Smith on the order of every 3 months, informing Smith that his absences were excessive and he was needed on the job. In the calendar year 1978, Porras spoke more frequently with Smith, and did so not only at work but on approximately five occa- sions at his home. He would tell Smith that his attend- ance and tardiness record was poor. In carrying out his supervisory responsibilities, Porras would make a person- al determination as to the validity of Smith's absences and would periodically issue warning notices to him. On the other hand, Smith's persistence in missing work would suggest to Porras the futility of the warning notice approach, and he would abstain for a period of time. In July or August 1978, Porras was beginning to experience adverse reactions from other employees under his supervision due to his failure to take stringent action against Smith. At that point in time, Porras gave some thought to terminating Smith because his tardiness and absenteeism had worsened. He took no action. (2) The November 2 warning notice On November I Smith was absent from work. When he returned to work the following day, he was ap- proached by Porras at his work bench and presented with a warning notice. Porras asked Smith to fill it out and sign it. Smith did so, but he asked Porras why he was being written up. Porras replied, "that is the way it is . . ." Porras issued the warning, feeling that Smith's explanation was not a valid one. The notation on the notice was: "Didn't come to work. Went to welfare office to get assistance for medical & food for my family." 7 Porras told Smith that Junkins, his boss, was of the opinion that the employees were supposed to come to work on time and be present each day. Porras told Smith that he would terminate Smith the next time he was late or absent. (3) The November 7 warning notice During the night of November 6 and the early morn- ing of November 7, Smith's wife and daughter were ill and he had spent a sleepless night. At approximately 5:30 a.m., Smith contacted his mother to request her assis- tence in attending to his wife and daughter so that he could report to work. She did not arrive at the Smith's residence soon enough for Smith to report in a timely fashion to work. He was 10 minutes late. Leadman Gear- hart presented him with a warning notice and asked him to fill it in and sign it. Smith did so, and he then asked Gearhart for a copy of the notice. Gearhart told Smith he would look into the matter. Notations on the face of the notice were to the effect that Smith's daughter had been ill and had spent a sleepless night running a 104 degree temperature. Later in the workday, Gearhart told Smith he had spoken to Junkins who had said that em- ployees did not receive copies of the notices. Smith worked the balance of the day. He reported to work on time the following morning, Wednesday, November 8. He asked Porras to obtain a copy of the warning notice which had been issued to him the previous day. During the course of the day, William Wade, a supervisor, walked into Junkins' office while Junkins was speaking to Porras. Junkins observed Wade, and in Wade's pres- ence, told Porras to tell Smith he was going to be fired. Junkins added this would "stop some of the U.A.W. shit in the shop," and he stated that Smith had been "missing too many days" anyway. Porras indicated his assent. At approximetely 1:30 p.m., Porras called Smith to his office and presented him with his previous warning notices and his paycheck. In doing so, Porras told Smith to obtain his personal belongings and he would walk him to the ti- meclock. Smith asked the reason for his discharge, and Porras was noncommittal." 7 Porres testified he felt that Smith's wife could have accomplished the purposes implicit in the visit to the welfare office. However, the record suggests that Porras did not articulate this thought to Smith. s The foregoing is based upon the credited testimony of Dale Smith, William Wade, documentary evidence of record, and a stipulation of the parties. I credit the testimony of Albert Porras only to the extent that it is consistent with the foregoing findings. As I observed him testify before me at the hearing, Porras impressed me as a witness perplexed and trou- bled by his conflicting relationship as a supervisor of the Company and brother-in-law to Smith. In much of this testimony relating to Smith's poor attendance and lack of punctuality, the warning notices and the attendant oral dialogue relating thereto, Porras was not forthcoming Rather, he impressed me as ambivalent, lacking in precise recollection, and purposely evasive. Many of his responses were elicited as a conse- quence of leading questions posed by Respondent's counsel. Moreover. Porras lacked a clear and accurate recollection of the events of Novem- ber 7 and 8 which preceded and accompanied Smith's termination. I do not credit Porras' testimony to the effect that he had reached a final and voluntary decision to terminate Smith prior to November 8. Nor do I credit the inference present in Porras' testimony to the effect that Junkins played no decisional role in Smith's termination. On the other hand, I do not credit Smith's testimony to the effect that prior to receiving his warn- ing notice on December 7 he asked Porras why he was being written up Continued 808 TAYLOR-DUNN MFG. CO. In the meantime, during the workday on November 7, Gearhart had notified the employees that a meeting would be held in the company cafeteria the following day at 2 p.m. Smith spoke with Porras and, in substance, asked Porras if the meeting related to the union activities which were going on at the time and whether the meet- ing would serve as a forum for offering employees bene- fits to persuade them not to bring a union into the shop. Porras said that this was possible. Then, a few days after his termination on November 8, Smith spoke with Porras at his home, and Porras told Smith that if it had been up to him he would not have terminated Smith. Porras stated that the boss had told him to fire Smith, so he had done so.9 Porras denied that Smith's involvement in union activities played any role i his termination. f. The termination of Diels (1) Background After becoming leadman in February 1978, Diels worked with seven or eight production welders. He re- ceived compliments and words of encouragement from Junkins concerning his work, and Gaydos was similarly complimentary. On July 1, Holliday became supervisor of the weld shop with responsibility over the welding operations on both the day and night shifts. Holliday actively super- vised the welding work on the day shift and through Milan Ardelean exercised supervisory responsibility over the night shift. For a period of approximately 4 months, from February until July, Ardelean and Diels had each worked as leadmen. When Ardelean became supervisory assistant in July, he instructed Diels with respect to his concept of proper leadman procedures. This instruction encompassed a procedure for maintaining uniformity in the welding and fabrication of parts, the checking of jobs in progress, and follow up procedures. After July, Arde- lean formed the impression that Diels was not sufficient- ly diligent in checking the work of the production weld- ers and was excessively absent from the weld shop area over which he had authority. Bad welds were detected in small parts handled by welders under Diels' direction. and Porras responded, "that's the way it is now." Smith conceded that he did not talk to Porras on December 8, after the warning notice had been issued In crediting the testimony of William Wade regarding Junkins' remarks to Porras in Junkins' office on November 8, prior to Smith's termination. I have evaluated Porras' estimony denying the remarks attributed to Junkins and the fact that Wade was terminated by Respondent for his ac- tivities in support of the Union organizing effort while a supervisor As I observed Porras testify regarding the incident in Junkins' office, his de- meanor and manner of response detracted fatally from the credibility of his denials Wade's testimony, in general, and regarding the Junkins- Porras exchange specifically, was credible and his outward demeanor conveyed no overtone of antagonism towsards the Company. I am unable to conclude that his support of the Union vWhile in the employ of the Company would cause him to perjure himself in support of Smith's inter- ests, or to take vengeance against the Company 9 The foregoing is based upon the credited testimony of Dale Smith. I do not credit the denials interposed by Albert I'orras. As I viesw the record, Porras' entire course of conduct towards Smith was one of for- bearance and protective indulgence entirely consistent with a reluctance on Porras' part to voluntarily initiate dire discipline against Smith More- over. the entire record reveals that Porras and Smith engaged in work- related conversations at their respective homes during their mutual visits When Holliday assumed his duty as supervisor in the weld shop on July 1, he immediately observed a lack of discipline in the shop on the night shift. He concluded that the welders were not sufficiently attentive to their duties and there was excessive rework. Holliday con- veyed this to Ardelean and instructed him to straighten out the night shift. Ardelean stated that he felt that Diels was deficient as a leadman. From July until approximate- ly October, Holliday adjusted his work schedule to over- lap by approximately 4 hours the night shift. t (2) The first warning notice On July 27, Diels received a first warning notice citing violations for defective work and attitude. The notice, which was signed by Holliday, contained the following remarks: Allows people under him to create re-work, must watch jobs closer, and see that all people under him understand job. Shows favoritism to his friends, needs to show more leadership. Must control the people and the jobs. The warning notice arose from an incident involving Mark Smith, a probationary employee. Diels assigned Smith to weld a front fork assembly and did the initial set up for him. Diels then welded one assembly and had Smith weld another. Smith accomplished this in accord- ance with instructions, and Diels left to make his rounds in the shop. When he returned 15 or 20 minutes later, Smith had done 10 parts incorrectly. Diels stated that Smith had not followed his instructions, and Smith an- swered, in substance, that he felt that he was improving the part by welding it as he did. Diels told him to pro- ceed to produce the necessary parts and to do so in ac- cordance with his earlier instructions. Diels reported the incident to Ardelean. The following day when Diels reported to work, Ar- delean told him that Holliday wished to speak with him. Diels went to Holliday's office and found Holliday sit- ting at his desk. Holliday presented him with a written warning notice and asked him to sign it. Diels protested, stating that he had done nothing wrong and should not be written up. Holliday answered that the welding job had been performed wrong by a probationany employee with limited experience, and Diels should have given him better instructions. Holliday also cautioned Diels about showing favoritism to his friends in making work assignments, an assertion which Diels denied. Holliday told Diels that the writeup would probably go no further than his own desk. Smith, the probationary employee, was terminated that day. tO The fregoing is based upon a composite of the credited testimony of Milan Ardelcan,. Charles ttolliday, and Richard Diels. I have also con- sidered the testimony of Andre"; Gaydos and Albert Porras ' The foregoing is based upon a composite of the credited testimony of Richard Diels and Charles Holliday. I have also considered the testi- monly of Milan Ardelean X809 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) The second warning notice On August 19, Diels received a second warning notice charging him with carelessness arising from an alleged failure on Diels' part to more carefully observe the work of employee Neal Breslin in performing a welding as- signment involving approximatey 20 treadles. The assign- ment to Breslin arose in the latter part of the shift and, in assigning the task to Breslin, Diels performed the first weld for him. He then had Breslin do the welding task, and he made an error in the process. Diels warned Bres- lin against a repetition of this error and told him how to rectify it if it occurred again. Breslin expressed his un- derstanding and at that point, in accordance with prior arrangements with Ardelean, Diels went to another part of the plant to instruct another employee in certain pro- cedures. When Diels returned, he observed that Breslin had improperly welded 20 parts, making the very error against which Diels had warned him. The shift was drawing to a close, and, in substance, Diels told Breslin that they would correct the errors the following day. The next day Gaydos presented Diels with the second warning notice covering the Breslin welding errors. In substance, Diels protested the notice, stating that Arde- lean was responsible for directing Breslin's work when these errors occurred. Gaydos told Diels that the shop was his responsibility and the errors were attributable to him. Diels also expressed concern that this was his second writeup and that a third writeup could lead to his termination. Gaydos responded that this was not neces- sarily true. Breslin was terminated as a result of this inci- dent. 1 2 (3) Interim events In the fall of 1978, Diels gave some thought to leaving Respondent's employ. He considered the 25-cent-per- hour differential between his leadman pay and the com- pensation of the top welders whom he supervised to be inadequate to offset his responsibilities as a leadman. He informed Gaydos that he had found another job and ex- plained the reason for his desire to leave. Gaydos told him that he could not increase his hourly compensation but that he had a future with the Company and his tenure with the Company was secure. Diels decided to remain. On November 28, Holliday prepared and dispatched a handwritten memorandum to Junkins commenting ad- versely upon the level of discipline on the night shift and attributing responsibility to Diels. Holliday cited Diels' asserted willingness to depart from production schedules in order to favor the wishes of two of the welders, Acrey and Smith, with the result that production sched- ules elsewhere in the plant were disrupted. The memo- randum also cited alleged absenteeism and loafing on the job on the part of welders under Diels' direction. It a2The credited testimony of Richard Diels and documentary evidence of record supports the foregoing. I have also considered that testimony of Charles Holliday. His testimony upports the conclusion that Breslin as terminated for this incident :' The credited and undisputed testimony of Richard Diels supports the foregoing. Diels also testified that on one or two occasions prior to becoming leadman he had expressed to supervision his tentative desires to find another job. treated also with Diels' asserted abdication of leadman responsibilities. In a followup to this memorandum, Holliday convened a meeting with Diels. Ardelean was also present. The principal consideration which had motivated Holliday to write the memoradum and to meet with Diels was the decision of Diels to disregard Holliday's production schedule by granting the request of Acrey and Smith to work on new orders rather than on orders on which the day shift had performed some work.14 Holliday warned Diels that he would not tolerate disruption of his pro- duction schedules calculated to assure continuity in the fow of production. Diels answered that the day shift was too slow, and he wanted his welders to make money. Moreover, Diels stated, in substance, that there was a disagreement among supervisors as to production procedures and asserted that while Holliday wanted things done one way, his predecessor, Gaydos, had de- sired a different approach. Holliday answered that while production was not "all that bad" it could he improved upon in that employees were not on the job and it was a leadman's responsibility to keep them working. Diels re- sponded that the night shift was out producing the day shift, and there was a disagreement between Holliday end Diels as to whether this were true. Holliday made special reference to the absenteeism among the segment of the night crew working on Model B frames and ex- pressed the opinion that Diels was more interested in the crew members than in the Company itself. As the con- versation continued, Diels expressed a reluctance to comply with the production procedures defined by Hol- liday, and Holliday and Diels continued to disagree with respect to the comparative productivity of the day and night shifts. Finally, Holliday stated that Diels was just not "getting the message," and he told Diels that since he could not conform to company standards, he was of- fering Diels a transfer to the special weld department on the day shift the following Monday.' 5 Diels stated that Holliday was attempting to harass him into resigning be- cause of his activities in support of the Union. Holliday denied this and stated that he did not care what organi- zation Diels belonged to and that he was not attempting to terminate Diels but merely offering him a transfer. He underscored the necessity that Diels adhere to his proce- dures governing production on the night shift and the su- pervision of night-shift personnel. In response, Diels indi- cated his willingness to abide by Holliday's directives and stated that he did not want to transfer to special weld but desired to be given time to comply with Holli- day's directives. Holliday agreed to withdraw the trans- (4 This technique results in a direct monetary benefit to the employees so favored because of the impact of the production incentive wage ar- rangement. i, The special weld department is a department which operates only on the day shift and has a complement of two employees and a eadman Better than average welding capabilities are required. At the time in question. the special weld assignment was the highest paying rank-and- file job in the weld shop The special weld department was physically separated from the balance of the weld shop. 810 TAYLOR-DUNN MFG. CO. fer. The meeting ended on a conciliatory note, and Diels thanked Holliday for counseling him.' The following morning. Holliday found that the night shift under Diels' direction had not completed some pro- duction work which had been commenced by the day shift but had moved to a new order. This had been done in direct conflict with specific instructions which Holli- day had given Diels regarding the order of completion of this production work. Holliday reported this to Jun- kins and included a reference to it in his written report to Junkins concerning his meeting with Diels. I 7 Holliday then arranged a meeting between Diels, Norman Hall, the newly designated night production manager, Junkins, and himself. During the meeting, the duties of a leadman were outlined and Diels was told of the necessity of following the chain of command in the transmission of orders. He was told that it was essential for orders from his superiors to be transferred through him to the employees working under his direction. Jun- kins stated that the line of communications was bad and the night shift was falling apart. Diels defended the pro- duction on the night shift, and Junkins stated that it ap- pears that Diels had an attitude problem. A constructive discussion as to what was expected of Diels in his role as a leadmen resulted. Diels used the discussion as an op- portunity to point up the apparent disparity in proce- dures and expectations as between supervisors under whom he had worked. The meeting ended on a harmoni- ous note. (4) The events of December 7 and 8 At the plant on the afternoon of December 7, prior to the beginning of the afternoon shift, Dies and other em- ployees distributed union leaflets containing an updated listing of the membership of the steering committee. In- cluded in the list of 36 names was Diels' name and 6 welders with whom Dies worked on the night shift. Dies presented a leaflet to Ardelean. After distributing the leaflets outside of the plant, Diels reported to work. At the outset of the shift, Arde- 1' The foregoing is based primarily upon the credited testimony of Charles Holliday I have also considered the testimony of Richard Diels and credit it only to the extent that it is consistent with the foregoing findings I have also considered the report of this meeting prepared by Holliday as a course of business report to his superior. David Junkins, director of production. the day following the meeting. This document was received in evidence under Rule 803(6) of the Federal Rules of Evi- dence. Specifically, I am unable to credit the testimony of Dieis which suggests that Holliday's treatment of the production and disciplinary topics was substantively terse and punctuated ith evasive and subliminal comments. Further. I reject Diels' testimony to the effect that during the course of the interview. Holliday made references to future meetings with Junkins, and ended the meeting with a decision to consult later with Junkins Rather. I credit Holliday's testimony that the mceing ended on a conciliatory note, that he proffered Diels a clear-cut opportunity to im- prove his leadman performance, and addressed the matter of Diels' in- volvement in the union organizing campaign directly and not in an csa- sive or disguised manner 11 The credited testimony of Charles Holliday and documentary evi- dence of record supports the foregoing. 6" The testimony of Charles Holliday. Richard Diels. and Normlan Hall supports the foregoing I credit Diels' testimony only to extent that it is consistent with the foregoing findings I do not credit Diels' testimo- ny which infers that Junkins conceded. in substance., that complainlts cn- cerning Diels' perfirmance as a leadmain were limited solel. to "lack of communications in the sseld shop" lean spent approximately 5 minutes going over the "hot list"-a list of new jobs and jobs in progress which were to be accomplished during the shift. Ardelean then went to an area in the plant approximately 25 feet away from the weld shop for the purpose of assisting a new employ- ee in the performance of his tasks. Ardelean was away from the weld shop more than 90 minutes. Upon return- ing to the weld shop, he stopped at the work station of Tom Blaine, a night-shift welder working under the di- rection of Diels. Two boxes of ball bearings were in Blaine's work stall in plain view, and Ardelean looked at the work order and the blueprint applicable to a frame on which Blaine was performing welding work. Arde- lean showed the ball bearings to Blaine and noted that Blaine was not complying with the blueprint requirement that a ball bearing be welded to the frame. This incident occurred some 2 hours after the beginning of the night shift, and Blaine had improperly welded 21 frames. Ar- delean called the error to the attention of Blaine and asked if he had studied the blueprint. Blaine responded that Diels had instructed him to weld the frame in the manner in which he had been doing it. Blaine also told Ardelean that two frames had been welded by the day shift and in the manner in which Diels had instructed him. The work had been commenced by the day shift and all of the frames stacked at Blaine's work station had been done in a uniform manner. Ardelean instructed Blaine to stop welding, and he called Diels. In the meantime, Diels had assigned the work to the various welders and had made his rounds in the weld shop. At approximately the point in time when Ardelean stopped Blaine from working, Diels observed Ardelean speaking with Blaine. They were looking at the blue- print. Diels proceeded to make further rounds in the shop and in due course was approached by Blaine, who had a blueprint in his hand. Blaine asked Diels if the frame should not have had a ball bearing welded to it. Diels asked him if he could see the print. Diels looked at the blueprint and observed that it required a bearing to be welded to the frame and he recalled that the two frames which had been welded by the day-shift person- nel had not been welded in compliance with the blue- print. In assigning the work to Blaine earlier in the shift, Diels had not checked the blueprint or work order but had relied on his practice of having night-shift welders conform their welds to carryover work accomplished by day shift welders. After speaking with Blaine, Diels went to Ardelean and commented that the frame had been improperly welded. Ardelean agreed and asked Diels if he had looked at the blueprint. Diels stated that he had not. He suggested, however, that the parts could probably be re- worked. Ardelean told him to leave the frames as they were and he would speak to Hall, the night production supervisor. Ardelean went to Hall and informed him of what had transpired. Hall told Ardelean to find Diels and report back to the office. Ardelean left and reported back in approximately 20 minutes, stating he could not find Diels. Ardelean and Hall then looked for Diels and located him approximately 30 minutes later. Hall told Ardelean to bring Diels to the office. Hall went back to 18 I I DECISIONS OF NATIONAL LABOR RELATIONS BOARD his office, and Ardelean contacted Diels and they went together to Hall's office. These events occurred just prior to the first break and overlapped the break period on the night shift. Hall was alone in his office when Dies and Ardelean entered. A blank warning notice was on his desk. Arde- lean asked Diels in Hall's presence whether he had checked the blueprint prior to assigning Blaine the frame work and giving him permission to proceed. Dies stated that he had not. However, he asserted that two frames had been welded by the day shift, and he had followed policy in instructing Blaine to proceed to weld the frames in a fashion identical to the manner in which they had been welded by the day shift. At this point in time, Hall sent Ardelean back to the weld shop. Diels and Hall continued their discussion. After Ardelean left, Hall and Diels conversed for ap- proximately 90 minutes. Diels insisted that it had been unnecessary for him to check the blueprints prior to per- mitting Blaine to proceed with his welding assignment. Hall stated that it was necessary, and Diels and Hall en- gaged in a lengthy dialogue with respect to the practice in this respect. Diels asserted that he had been told by Holliday that work commenced on the day shift would be checked for quality control and that it would be un- necessary for the night shift to run a further check on work carried over from the day shift and continued on the night shift. Hall disagreed and an extensive dialogue on the subject ensued. During the course of the discus- sion, Hall noted that Dies had permitted 21 parts to be improperly welded and that as the leadman, he was re- sponsible for this error. Diels challenged this and noted that, in any event, the faulty frames could be reworked and salvaged. As the discussion developed, Hall attempt- ed unsuccessfully to persuade Dies to accept his views as to the manner in which carryover work should be checked and assigned on the night shift. Hall reached a decision to give Dies a third warning notice and pro- ceeded to prepare it. Diels asked him not to issue the notice, stating that this would result in his termination. Hall completed the warning notice, informing Diels that, so far as he was concerned, this would require his termi- nation. He advised Diels that he could consult with Jun- kins the next day and if Junkins overruled his decision, he would abide by it. Hall took this action knowing that on December 4 Junkins had reached a decision to give Diels a further opportunity to prove himself as a lead- man. He knew that Junkins, on this occasion, had ex- pressed confidence in Dies' ability to serve in a leadman capacity. Hall issued the warning notice and reached a decision to terminate Dies because he became convinced as a result of their discussion that Dies would not con- form to his own concept of procedures essential to the proper functioning of the night shift and the assignment of carryover work. The warning notice which Hall issued to Dies con- tained the notation: Richard didn't check 18-105-10 steering lever shaft, until 21 was welded wrong. As a lead he should re- check all jobs. Hall noted the violation under the category "defective work" and made a handwritten entry on the face of the notice indicating it was a third warning notice. Hall and Diels affixed their respective signatures, and Dies ini- tialed the handwritten notation specifying the notice to be a third warning. Diets performed no further duties that evening but did not leeve the plant immediately. He remained on the premises for approximately 1 hour in order to permit Hall to obtain his check from the safe. Diets was given his check, and he left the premises during the course of the night shift. The following morning, Hall reported the incident to Junkins and when Holliday reported to work Junkins in- formed him of the events of the previous evening relat- ing to Diels. Junkins and Holliday discussed the matter and the decision was reached to terminate Dies. (5) The aftermath Four months later, Diels applied for a B welder posi- tion (special welder) on the day shift, and he was hired. At the time of the hearing, he was employed as a pro- duction welder in Respondent's operation. In the meantime, on December 8, Jose Mendoza, the welder on the day shift who had improperly welded the first two frames which were on hand when Blaine com- menced his welding duties on the night shift on Decem- ber 7 was given a written warning notice for defective work and the entry on that notice read as follows: Did not check print and welder made two parts leaving off bearing (#18-105- 10, steering lever shaft). Night shift welded these the same as day shift resulting in 23 pcs., that had to be re-worked. The warning notice issued by Hollidey specified this to be a first warning notice. Mendoza was not terminated, and Hall testified that he did not make a termination rec- ommendation because he had no knowledge of Mendo- za's past record. i 9 ID The foregoing findings are based upon a composite of the credited testimony of Norman Hall, Milan Ardelean, Richard Diels, and Charles Holliday, as well as documentary evidence of record. I do not credit the testimony of Diets to the effect that he reworked approximately six parts after speaking initially to Ardelean and prior to being summoned to Hall's office by Ardelean. The testimony of Ardelean and Hall lends no credence to this aspect of Dies' testimony, and I do not credit it. Nor do I credit the inference reasonably to be drawn from Diels' testimony to the effect that when he entered Hall's office for the termination inter- view, Hall had in front of him a warning notice which had been complet- ed for presentation to him. While I credit Diels' testimony in finding that Hall had a notice form in front of him when he commenced his conversa- tion with Diets, the testimony of Hall, which I credit, establishes to my satisfaction that the warning notice entries were made after a lengthy dia- logue with Diels, and not prior to the meeting. Moreover, I am unable to credit Diels' testimony to the effect that, in presenting him with the warning notice, Hall indicated that this notice did not necessarily mean that Diets was terminated but that the decision was Junkins' to make I credit Hall's testimony to the effect that he intended the notice to signal Dies' termination, and he so informed Diets during the meeting. I do find, as Hall testified, Junkins had the authority to override Hall's deci- sion and Hall so informed Dies. On the other hand, I do not credit Hall's testimony to the effect that he brought Diets back to the office with him when he went in search of Diets after Ardelean was unable to locate him. The testimony of Diets Continued 812 TAYLOR-DUNN MFG CO. Kinney Acrey, who worked as welder under Diels on December 7, "20 testified that before Diels left the plant he told Acrey that he thought he was going to be sent home. Later during the shift, Acrey asked Ardelean if Diels was going to be terminated, and Ardelean said that he did not know. Acrey told Ardelean that Diels was an excellent leadman. Acrey testified that Ardelean agreed. However, Acrey was not definitive as to precisely what Ardelean said in this regard. Further, Acrey testified that on December 21 he spoke with Hall concerning Diels' termination and Hall stated that Diels had been done an injustice because he had been given a leadman position too early. A discussion ensued with respect to the manner in which Diels had run the shop without direct supervision, and Hall had agreed, in substance, that this posed a difficult problem for Diels. Acrey further testi- fied that Hall had stated that Diels would be a "hard guy to replace." (6) Policy considerations Charles Holliday became supervisor of the weld shop on July 1. He had around-the-clock responsibility and au- thority over the operations and personnel of the weld shop. In the period of time encompassing the last 6 months of calendar year 1978, there existed no quality- control department and the responsibility for controlling the quality of parts welded in the department resided with the leadman. Holliday testified that in making a welding assignment to a welder under his direction, the leadman had the responsibility to consult the blueprint and to assume that the welding work on any given part conformed to the blueprint contained along with the work order in a packet to be found at the work station of the welder. Holliday further testified that the duty and responsibilty residing with the leadman to check the blueprint remained operative regardless of whether work was commenced on the part of the day shift or the night shift. Holliday also testified that if a blueprint covering the work assignment could not be found, the welding work was to be deferred. Holliday also testified that Ar- delean, the night-weld supervisor, has responsibility for checking overall quality of production and to make spot checks, but this authority and responsibility does not dis- place that residing with the leadman to take specific re- sponsibility for quality control with respect to specific welding assignments on his shift. Ardelean testified that when he became supervisor as- sistant in the weld shop on the night shift, he instructed Diels as the leadman to instruct the welder how to weld the part, to go from work station to work station, and to check the job in progress. He testified also that "every welder [was] to do the same parts the same as the first one." On December 8 and at all prior relevant times, the practice in the weld shop was to inspect the first part and Ardelean is to the contrary Nor do I credit Hall's estimonial recol- lection that Ardelean remained in the office for approximately 20 minutes while the dialogue between Diels and Hall developed I credit Ardelean and Diels in finding that Ardelean was present in Hall's office only at the beginning stages of the intervlc: e2 At the time of the hearing herein, Acrey was employed as a lead- man in the welding shop on the day shift. welded and to conform thereto all subsequent parts cov- ered by the same job order. This procedure was fol- lowed in instances wherein the day shift welded the ini- tial part, and work on the job order was carried over to the night shift. 2 On December 8 Respondent had no fixed, immutable policy of terminating employees upon receipt of three warning notices. The policy pursued in this regard was discretionary with management and supervision and was enforced or waived pursuant to pragmatic managerial and supervisory judgments relating to a specific employ- ee or set of circumstances. 22 Conclusions 1. The rules governing solicitations, distribution, and postings It is well established that a rule which might reason- ably be interpreted by an employee as prohibiting union solicitation on company property during nonworking time violates Section 8(a)(1) of the Act. Wipo, Inc., 199 NLRB 649 (1972); Paceco, a Division of Fruehauf Corpo- ration, 237 NLRB 399 (1978), enfd. in pertinent part 601 F.2d 180 (5th Cir. 1979). Rule (m) which prohibits "vending, soliciting, or collecting contributions for any purpose whatsoever on Company time on the premises, unless authorized by Management" contains language broad enough to extend the prohibition to break times, and areas of the plant premises such as the lunchroom and parking lot. Cf. Southern Electronics Co., Inc., 175 NLRB 69, 72 (1969). At a minimum, the rule is ambigu- ous, and where ambiguities appear in employee work rules promulgated by an employer, it is well established that the ambiguity must be resolved against the promul- gator of the rule rather than the employees who are re- quired to obey it. See, e.g., The Times Publishing Compa- ny, 231 NLRB 207 (1977). Further, there is no evidence that Respondent has maintained the no-solicitation rule for any legitimate business reason. Thus, I conclude that Respondent's maintenance of the rule impinged on its employees' rights under Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. The mere mainte- nance of the rule itself serves to inhibit employees from engaging in otherwise protected organizational activity, and the fact that Respondent may not have vigorously enforced the rule does not insulate it from the proscrip- tions of the Act. See Farah Manufacturing Company, 187 NLRB 601, 602 (1970); Paceco, a Division of Freuhauf Corporation, supra. In a similar vein, I conclude and find that Rule (n) which prohibits "distributing written or printed matter of any description on Company premises unless approved by Management" is overbroad and fa- cially invalid since its reach is not limited to working time or to the working areas of the plant. In the absence of any showing by Respondent that special circum- 21 he credited testimony of Richard Diels and Kinney Acrey. ealu- ated in light of the content of relevant portions of the October and No- 'ember issues of T/D Times, entered in eidence as General Counsel's exhibit,, supports the foregoing findings 22 he foregoing finding is based upon a consideration of the testimo- ny of William Wade, Albert Porras, Charles Holliday, and Andreu Gaydos I have also considered the testimony of Thomas Irvine. 813 DECISIONS ()OF NATIONAL LABOR RELATIONS BOARD stances warranted so broad a prohibition as that con- tained in the instant rule, I conclude that the promulga- tion and maintenance of the rule violated Section 8(a)(I) of the Act. Moreover, as the evidence establishes the rule was enforced to prevent Dale Smith from distribut- ing union leaflets on company property during his non- working time on October 23, 1 find the application of the rule by Respondent in violation of Section 8(a)(1) of the Act. See Southern Electric Co., Inc., supra. Moreover, in further agreement with the General Counsel, and in close analogy to the Board's Decision in Challenge Cook Brothers of' Ohio, Inc., 153 NLRB 92 (1965), by removing a union authorization card which Dale Smith had taped to his locker in the plant, and by admonishing Smith not to tape material to his locker, while, at the same time permitting other nonunion mate- rial to remain affixed to his locker, Respondent gave dis- parate application to Rule (o) which proscribes "posting or removal of any matter on bulletin boards or Company property at any time unless specifically authorized by Management." I conclude and find that Respondent's act of ordering removal of the union card, was motivated by hostility towards the organizational activities of its em- ployees, and interfered with, restrained, and coerced those employees in violation of Section 8(a)(1) of the Act. 2. The minus bonus hours benefit The General Counsel correctly contends that on De- cember 8, 11 days prior to the Board representation elec- tion, Respondent, through the device of a letter to all employees, over the signature of its highest management officials, declared for the first time its decision to elimi- nate minus bonus hours in calculating the incentive bonus pay to be received by employees under a revised incentive system. The substantial, favorable financial impact of the decision to eliminate minor bonus hours in calculating employee bonuses was to be realized on De- cember 15, 4 days prior to the scheduled election. The record establishes to my satisfaction that the concept of improving the incentive program through the elimination of flaws in calculating the incentive bonus for production employees, antedated the organizational efforts herein. However, nowhere in the communications to employees prior to December 8 was mention made of any plan to eliminate minus bonus hours from the incentive bonus formula. While it is clear that under the Act an employer may proceed in the face of a scheduled union election to implement decisions regarding improved benefits which were achieved prior to the advent of a union, or the scheduling of a Board election, an employer may not time the bestowal-either through acceleration or defer- ral-in a manner calculated or designed to dissuade its employees from voting in favor of a union in a pending Board election. While the matter is not free from doubt, the record establishes that the plan of management to im- prove the incentive program was in germinal form only prior to the advent of the Union. The record also estab- lishes that management's study of the incentive program, and contemplated revisions thereto, had not been fully formulated by December 8 when the minus bonus hours announcement was disseminated. In the total context of this record, I conclude and find that the timing of this announcement in the relation to the December 19 elec- tion was motivated by anti-union hostilities also manifest- ed elsewhere in Respondent's conduct. I therefore find that Respondent violated Section 8(a)(1) of the Act by and throuqh this announcement. See, e.g., J. P. Stevens & Co.. Inc., 244 NLRB 407 (1979); cf., Essex International, Inc., 216 NLRB 575, 576 (1975); Shelby Williams of 7en- nessee, Inc., 165 NLRB 737, 740-741 (1967). 3. The preelection communications The General Counsel contends that the content of written communications distributed to unit employees on November 17, December 5, 8, and 15, respectively, con- sidered in context, one with the other, exceeded the per- missible limits of Section 8(c) of the Act, coerced em- ployees in their selection of a collective-bargaining repre- sentative, and otherwise threatened, restrained, and co- erced them in violation of Section 8(a)(1) of the Act. It is the General Counsel's view that these violations arose in four principal categories, i.e., (1) implied threats of loss of employment if the employees selected the Union as their collective-bargaining representative in the up- coming December 19 election; (2) a promise of increased wage benefits as an inducement to vote against the Union in the election; (3) a declaration, implied in nature, of the futility of the collective-bargaining process, in- cluding expressions of an anticipatory refusal to sign a collective-bargaining agreement and to bargain collec- tively with the Union over the inclusion of union-secu- rity or dues-checkoff provisions in any collective-bar- gaining agreement with the Union; and, (4) misstatements of law pertaining to union dues, fines, assessments, and dues checkoff. The record supports the General Counsel. The message conveyed to each employee through the device of the four letters distributed in the weeks preced- ing the election is carefully premised upon the compel- ling and underlying thesis that selection of the Union would destroy job security and result inevitably in strikes and loss of employment. The emphasis given the verbal depiction of the Union as "an absolutely destructive force . . . which has been responsible for more strikes, more lost time without pay from work, and more lost productivity in plants it represents than any other union in the country" stands out in the communications as a bare assertion unaccompanied by a citation of or refer- ence to objective facts. Moreover, these statements are carefully blended with the concept that a rejection of the Union would remove all obstacles to job security and harmonious and beneficial employment relations. A counter thesis is then interjected declaring the futility of the collective-bargaining process. Thus, in the December 15 letter to all shop employees, the "guarantee" is held out "that UAW will never get any signed contract from us." Although declaring a willingness to negotiate should the Union prevail in the election, juxtaposed are state- ments reasonably to be interpreted as nothing less than a thinly veiled but nonetheless anticipatory refusal to engage in meaningful collective bargaining with the Union over union security, dues checkoff, and wages and benefits different from those prevailing in the plant at the 814 TAYLOR-DUNN MFG. CO. time the negotiations commenced. These themes, which were given final articulation just 4 days prior to the elec- tion, had been preceded a week earlier by an announce- ment trumpeting an 8.2-percent average pay increase to go into effect on January 1, following the December 19 election. This announcement-accompanied by reference to the elimination of minus bonus hours in the computa- tion of incentive bonuses-also announced a program for automatically adjusting wage rates to comply with area rates and cost-of-living changes. Although the announce- ment asserted that the January I wage increase was being granted pursuant to an established policy and prac- tice first implemented on January 1, 1978, the record contains no proof supporting the existence of such a practice. The sum total of these considerations is suffi- cient to bring the instant matter within the controlling effect of N L.R.B. v. Gissel Packing Co.. Inc., 395 US 575, 618 (1969); Four Winds Industries, Inc., 211 NLRB 542 (1974), enfd. 530 F.2d 75 (9th Cir. 1976); Tommys Spanish oods. Inc., 187 NLRB 235 (1970), enfd. 463 F.2d 116 (9th Cir. 1972); El Rancho Market, 235 NLRB 468, 470, 471 (1978); Allegheny Mining Corporation, 167 NLRB 81, 83 (1967), and cases cited therein. Moreover, the General Counsel correctly contends that by virtue of statements contained in the November 17 and December 15 letters, Respondent, (I) misstated the statute, as well as the legal effect of the decisional precedent deriving therefrom, as they apply to union se- curity; and (2) advanced a carefully drafted misrepresen- tation of the law as it applies to the topic of dues check- off. In agreement with the General Counsel, I find that Respondent accomplishes this by suggesting, in the first instance, that a union-security provision would require employees to pay fines and assessments in order to con- tinue their employment with Respondent; and, in the second instance, by asserting that the topic of dues checkoff is a mandatory rather than voluntary subject of collective bargaining, and that the failure of an employee to accede to contractual dues-checkoff requirements would result in that employee's termination. These state- ments violated Section 8(a)(1) of the Act. See Dayton Food Fair Stores. Inc., 165 NLRB 14, 20 (1976), enfd. 399 F.2d 153 (6th Cir. 1968); Tommy's Spanish Foods, Inc., supra. 4. The verbal threat to reduce wages and benefits On the other hand, I find no violation of the Act aris- ing from the responses and assertions of Supervisor Gaydos to Diels and other leadmen regarding the bar- gaining approach to be used in negotiating wages and benefits with the Union, should it prevail as the chosen collective-bargaining representative of the employees. Although these statements bordered upon impermissible conduct, I conclude from the totality of the circum- stances that the utterances were nothing more than in- nocuous curbstone opinions of a shop supervisor with no actual collective-bargaining authority or gloss of such authority. The record establishes that Gaydos articulated his views during the course of conversations with close subordinates. The evidence also establishes that Diels ini- tiated the exchange of views containing the statements and views challenged by the General Counsel as viola- tive of Section 8(a)( 1). There is, however, not the slight- est suggestion that Gaydos embarked upon this dialogue with intent or purpose of implanting concepts to be transmitted to other rank-and-file complement directed by the leadmen who heard his observation. In stating his opinions during the course of friendly conversation, Gaydos did not duplicate, in my view, the "bargaining from scratch" admonitions which the Board has uniform- ly held to be serious and impermissible. Cf. Coach and Equipment Sales Corp., 228 NLRB 440 (1977); Madison Kipp Company, 240 NLRB 879 (1979); Tufts Brothers In- corporated, 235 NLRB 808 (1978). The precise time-rela- tionship between Gaydos' statements and the distribution of the preelection letters to employees, which com- menced in mid-November, is not revealed by the record evidence, but, in any event, there is nothing but surmise to suggest that Gaydos had been given any authoritative mandate from his superiors to speak on the topic of col- lective bargaining or wages and benefits. In the total cir- cumstances, Gaydos' conduct constitutes nothing but a technical transgression of the Act, so innocuous and so readily comprehended and categorized as such by the leadmen who may have heard his speculations as to war- rant no remedial action. 5. The termination of Dale Smith I find that the evidence preponderates in favor of a finding that Respondent was motivated, in part, in termi- nating Dale Smith by his involvement in union activities. and the underlying hostilities of management to the effort of the Union to organize the employees. This case presents a virtual textbook example of an ac- quiescent employer willing over an extended period, and until the spectre of a union enters the picture, to coun- tenance aberrant or deficient punctuality and attendance on the part of an otherwise acceptable employee. No de- tailed explanation is here required to support the conclu- sion, which I reach, that Smith's attendance record and lack of attention to punctuality in reporting for work fully justified his termination, absent the intrusion of union considerations. 23 However, the credible evidence establishes that Junkins, Respondent's director of produc- tion, intervened in the days prior to Smith's termination to stiffen Porras' resolve in dealing with Smith's errant attendance. Smith failed to conform, and his termination solely for that reason would not have transgressed any provision of the statute. However, in the context of the opposition of management to the unionizing of its oper- ation, and closely in advance of a letter writing cam- paign and other conduct here found to have violated Section 8(a)(1) of the Act, Junkins made the operative decision which resulted in Smith's termination. The evi- dence establishes that in directing Porras to carry out the decision, Junkins issued instructions which disclosed an improper, antiunion purpose in ending Smith's employ- ment in the unit. It is not essential to precisely determine whether Junkins caused Smith's discharge solely because :' Disparate application of a purported policy or procedure relating to warning notices is not significant here for the process was used by super- Ision as a edge to serve its own purposes and its application swas dis- cretinonary 815 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Smith's own involvement in the organizing effort, or whether he also terminated Smith, a member of the union steering committee, comprised of employee adher- ents, to achieve a chilling effect on other unit employees disposed to support the Union, for a violation of Section 8(a)(3) results in either event. The latter effect was clear- ly included, along with the former as objectives of Jun- kins' decision, and I conclude, therefore, that the termi- nation of Smith violated Section 8(a)(1) and (3) of the Act. Cf. Maryland Cup Corporation, 178 NLRB 389 (1969). 6. The termination of Diels I find that the termination of Richard Diels was ac- complished on December 8 under suspicious circum- stances but did not violate Section 8(a)(1) or (3) of the Act. The record establishes, and I find, that Diels received three written warning notices involving shortcomings and deficiencies in performance of the instructive, over- sight and directive elements of his responsibilities as lead- man in the weld shop on the night shift. The record es- tablishes also, to my satisfaction, that prior to December 7, his superiors, Holliday, Hall, and Junkins had formu- lated adverse opinions concerning Diels' performance of his leadman duties, particularly his failure to give con- tinuity to his oversight responsibilities, and regarding his avowed propensity to favor certain crew members in the assignment of work tasks. Moreover, Diels and Hall har- bored irreconcilable and conflicting views as to the manner in which work carried over from the day shift should be checked for compliance to blueprint specifice- tions. These factors attended the December 7 interview which resulted in Diels' termination, confirmed by Jun- kins on December 8. In my view of the record, there exists no sound basis for concluding that the three warning notices given Diels on July 27, August 19, and December 7, respectively, were unwarranted or baseless. They were, I conclude, fully justified by the contemporaneous circumstances and Diels' conduct. They related in no manner to Diels' in- volvement in union or concerted activities, and only the last one-the December 7 warning notice-issued after Diels became active in and identified with the organiza- tional effort. The Generel Counsel contends that Diels became ex- pendable and vulnerable to termination only after his ac- tivities in support of the Union became intense and overt, and after the avowed union affinity of a large segment of the welding crew, affiliated with Diels on the night shift, became indelibly etched in the mind of management. Ex- tension of this logic to support a finding of discrimina- tion flounders, however, for several reasons. Initially, Diels was only one of 36 employees identified with the union steering committee, and there was nothing unique or prominent in his involvement with union matters as would have differentiated him from other rank-and-file employees. He was not alone in distributing union leaf- lets, and night crew employees in the weld shop had joined the steering committee earlier than Diels, suggest- ing he was not a "ram rod" or a motivating force. Fur- ther, Diels' performance as a leadman had been a marred one prior to any involvement on his part in union mat- ters, and the criticism and corrective counseling with re- spect to his performance as a leadman which followed his overt identification with organizational activities, had been soundly based and legitimate when viewed from the vantage point of management and supervision. Although Diels professed to detect in these counseling sessions sub- liminal warnings and harassment arising from his Union activities, the credited testimony and record generally supports the finding, which I make, that the criticism of Diels' performance as leadman which surfaced at the meetings in late November and early December did not relate to his interest or activity in the Union, but to his relegation of authority to assign work, modify produc- tion schedules, and countenance loafing in order to serve his own ends and favor a select group of crew members. Moreover, in addition to counseling, Diels had been given a further chance to improve his performence as leadman, and an offer of an alternative, high-level, well- paying welding job in the unit.24 Aside from the timing which attended the termination of Diels, a known union adherent, the General Counsel's case finds principal support, in my view, from the evi- dence revealing no fixed policy mandating termination after three written warning notices, and from the addi- tional evidence establishing a widespread practice in the shop on and before December 7 of limiting quality con- trol to the first unit welded, and of conforming subse- quent welds to the initial unit given quality control clear- ance. But on the first score, a high degree of discretion resided with supervision; and on the second, Hall, who terminated Diels, held a view irreconcilable with existing practice to which Diels' conformed. Nonetheless, the evidence convinces me, and I find, that it was not a rigid application of either of these factors which resulted in Hall's decision to terminate Diels, and in Junkins' deci- sion to support Hall in his action. Rather, I find that Hall was motivated in terminating Diels by his perception of Diels as a leadman stubbornly committed to his own pro- cedures in assigning work tasks and overseeing subordi- nate welders; a leadman unwilling to conform to the concepts and procedures which he, Hall, was bent upon enforcing in his newly assigned capacity as night produc- tion manager; and a subordinate indisposed to attend in a diligent fashion to the several facets of his leadman re- sponsibilities and to apply mature discretion, tempered by attentive awareness of the realities of the workplace. Thus, the evidence is clear that the interview which led to Hall's action terminating Diels' consumed some 90 minutes of dialogue and was punctuated by Hall's efforts to instruct Diels as to his point of view of assigning and overseeing work, and to an attempt at achieving a con- cession on Diels' part of the propriety of that point of view. Moreover, the testimony of Hall, which I credit, establishes that Hall embarked upon the interview with no fixed notion or premeditated intent to effectuate 24 The General Counsel seems to suggest the presence of sophistry be- cause he job was on the day shift and would have diffused Diels' proun- ion influence i the weld shop at night but, of course, the Union had al- ready established a solid following in that segment of Respondent's work complement. 816 TAYLOR-DUNN MFG. CO. Diels' termination, out of hand, but, rather, became con- vinced of the necessity for such action through an assess- ment of Diels' attitude and divergent notions as to his role and responsibilities as a leadman. It would be anomalous to assume that Hall was unaffected by Holli- day's previous input and views relating to Diels' defi- ciencies as a leadman, and I find he was cognizant of those views when he reached his decision to end Diels' tenure and felt reinforced by them. Hall credibly denied that union considerations played any part in his decision, and there is no suggestion beyond pure conjecture that the union leaflet which Diels distributed on December 7 ever came to the attention of Hall. Moreover, I find no evidence to support the conclusion that Hall was placed in his position as night-shift foreman with instructions from his superiors to eradicate Diels' influence among the welders in the night shift by accomplishing his trans- fer or termination. On the other hand, the "good cause" justification for Diels' separation appears apparent. Thus, the evidence is clear that on the night of December 7, there was on hand at Blaine's work station a supply of ball bearings, a job order, and a blueprint which Diels did not compre- hend as being relevant or important in assigning and in- structing Blaine in the performance of his welding tasks pertinent to the inquiry here. It is clear from the credited evidence also, that Ardelean, a former leadman and Diels' immediate superior, discerned immediately the rel- evance of these blueprints and saw the necessity, in the prevailing circumstance, including the supply of ball bearings at Blaine's work station, to immediately check the blueprint and to determine why the bearings had not been welded to the two frames which had been carried over from the day shift. The record evidence, in my opinion, combines to render reasonable the judgment reached by Hall that Diels' performance was deficient, imbued with neglect, lacked mature judgment, and war- ranted his termination. Junkins ratification of Hall's deci- sion in no substantive manner implies an infusion into the incident of antiunion bias, for although it is clear that management opposed the Union, and Junkins had acted to chill union support by terminating Smith, nowhere is it suggested that Junkins had earlier intruded his judg- ment to orchestrate Diels' termination because of his sup- port for the Union. Junkins was not the moving force in the termination, and his acquiescence in permitting Hall's decision to stand does not serve to supply the discrimina- tory motivation essential to sustain an 8(a)(3) violation. On the record before me, I conclude that, although Jun- kins may have welcomed Diels' dismissal he did not cause it. He merely ratified a separation previously deter- mined on grounds having no basis in antiunion sentiment. Diels was merely one of 36 employees associated with the steering committee, and it may not be presumed, absent more compelling evidence than I find present here, that his involvement took on special significance merely because he was in a leadman position. The timing of the termination in relation to the election and Diels' union activities gives pause to this determination, but the proof does not preponderate in favor of the General Counsel, and I shall recommend dismissal of this allega- tion of the complaint. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCIUSIONS 01 LAW 1. Taylor-Dunn Manufacturing Company is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing rules prohibiting em- ployees from engaging in union activities in the form of solicitations during the nonworking time of its employees and distribution of written or printed matter in nonwork- ing areas of its facilities during the nonworking time of its employees; by prohibiting employees from affixing a union authorization card to their lockers in the plant fa- cility while permitting other, nonunion material to remain affixed; by accelerating the announcement of a decision to grant employees a benefit in the form of minus bonus hours in calculating their incentive bonus pay, so as to achieve publicity and dissemination prior to the scheduled Board election; by impliedly threatening loss of employment if the employees selected the Union as their collective-bargaining representative; by promis- ing increased wage benefits as an inducement to employ- ees to vote against the Union in the scheduled Board election; by expressing an anticipatory refusal to bargain collectively with the Union if the employees select it as their collective-bargaining representative; by expressing an anticipatory refusal to bargain collectively with the Union over the inclusion of either union-security or dues-checkoff provisions in any collective-bargaining agreement; by expressing an anticipatory refusal to sign a collective-bargaining agreement with the Union if the employees select the Union as their collective-bargaining representative; by misstating the law as it applies to dues checkoff, fines, assessments, and union discipline, all for the purpose of influencing the employees' choice of a collective-bargaining representative, Respondent re- strained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By terminating the employment of Dale E. Smith because of his support for, and his activities on behalf of the Union, and for the purpose also of discouraging the union activities of other employees, Respondent engaged in conduct in violation of Section 8(a)(1) and (3) of the Act. 5. Respondent did not violate the Act in terminating the employment of Richard Diels. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THF. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease 817 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has maintained and en- forced a rule prohibiting employees from soliciting for the Union during nonworking time at the plant facility; and having further found that Respondent has main- tained and enforced a rule prohibiting its employees from distributing union literature during nonworking time in nonworking areas of the facility, I shall specifically order Respondent to cease and desist from promulgating, main- taining, or enforcing said rules. Having found that Respondent has enforced a rule prohibiting the posting of any matter on its bulletin boards or on its property in a manner which imposes a greater restriction on the posting of union-related materi- al than on materials which do not relate to union activi- ties or interests, I shall specifically order Respondent to cease and desist from enforcing said rule in a manner which conduces to, accomplishes, or effectuates this un- lawful distinction. Having found that Respondent has terminated the em- ployment of Dale E. Smith in violation of Section 8(a)(1) and (3) of the Act, I shall order Respondent to offer him immediate and full reinstatement to his former position of employment or, if said position is no longer available, to a substantially equivalent position, without prejudice to any seniority or other rights and privileges which he may have been entitled. I shall also recommend that Re- spondent make Dale E. Smith whole for any loss of earnings he may have suffered by reason of the discrimi- nation against him. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon in ac- cordance with the policy of the Board, set forth in Flor- ida Steel Corporation, 231 NLRB 651 (1977).25 Because the violations of the Act herein found to have been perpetrated by Respondent go to the heart of the Act, a broad cease-and-desist order shall be recommend- ed. Upon the foregoing findings of fact, and conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER2 6 The Respondent, Taylor-Dunn Manufacturing Compa- ny, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees because of their interest in, or activity on behalf of, International Union, United Automobile, Aero- spece and Agricultural Implement Workers of America, UAW, or any other labor organization. (b) Granting benefits to employees, including a benefit in the form of the elimination of minus bonus hours in z~ See, generally. Isis Plumbing & Heating Co., 138 NLR8 716 (1962). 26 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. the computation of incentive bonus pay, when said bene- fits are timed or effectuated for the purpose of unlawful- ly influencing employees in the choice of a collective- bargaining representative. (c) Promulgating, maintaining, or enforcing rules pro- hibiting employees from soliciting for the Union, or any other labor organization, during nonworking time on company property. (d) Promulgating, maintaining, or enforcing rules pro- hibiting employees from distributing union literature during nonworking times in nonworking areas of compa- ny property. (e) Enforcing a rule prohibiting the posting of any ma- terial or matter on company bulletin boards or property in a manner which imposes a greater restriction on the posting by employees of union-related material or matter than is imposed on other types of material or matter. (f) Impliedly threatening employees with a loss of em- ployment if they select the Union, or other labor organi- zation, as their collective-bargaining representative. (g) Unlawfully promising benefits in the form of wage increases as an inducement to employees to vote against the Union, or any other labor organization, in a Board election. (h) Declaring or implying the futility of the collective- bargaining process by expressing an anticipatory refusal to sign a collective-bargaining agreement with the chosen collective-bargaining representative of its em- ployees. (i) Informing employees that Respondent would not bargain collectively with the Union, or any other labor organization, over the inclusion of a union-security or dues-checkoff provision in any collective-bargaining agreement with said organization or organizations. (j) Misstating the law pertaining to union dues, fines, assessments, and dues checkoff. (k) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to engage in self organization, to bargain collectively through representatives of their choosing, to act together for collective bargaining or mutual aid or protection, or to refrain from any or all such activities. 2. Take the following action necessary to effectuate the purposes of the Act: (a) Post at its Anahiem, California, plant facility copies of the attached notice marked, "Appendix." 2 7 Copies of said notice, on forms to be provided by the Regional Di- rector for Region 22, after being duly signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. :' 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- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 818 TAYI.()R-DUNN MFG CO. (b) Offer Dale E. Smith immediate and full reinstate- ment to his former position of employment or. if that po- sition is no longer available, to a substantially equivalent position of employment, without prejudice to his senior- ity or other rights and privileges, and make him whole for any loss of wages he may have suffered by reason of the discrimination against him, in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (c) 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 re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 819