Kimble Glass Co.

KIMBLE GLASS COMPANY 577 according to the shift he would have worked, had he not been laid off because he wore a "Don't be a Scab!" button. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONcLusIONs OF LAW 1. District No. 55, International Association of Machinists, A.F.L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire or tenure of employment of the em- ployees whose names are set forth in footnote 11, supra, the Respondent, Cater- pillar Tractor Co., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By promulgating a rule against the wearing of the button bearing the words "Don't be a Scab!" and by prohibiting its employees from the wearing of the de- scribed button, the Respondent, Caterpillar Tractor Co., has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed to them and each of them in Section 7 of the Act, in that it has interfered with the rights of employees to engage in concerted activity for the purpose of collective bargain- ing or other mutual aid or protection in contravention of Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted frompublication.] Kimble Glass Company and International Union of Electrical, Radio and Machine Workers, CIO. Case No. 9-CA-719. August 11,1955 DECISION AND ORDER On April 20, 1954, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the,copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermedi- ate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.a The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and brief, and the entire record in the case, and hereby adopts the Trial Examiner's conclusions and recom- mendations with the following modifications : 3 1. We agree with the Trial Examiner that the Respondent violated the Act by promulgating a rule prohibiting employees from wearing ' As the record and exceptions and brief adequately present the positions of the parties, we deny the Respondent's request for oral argument. 0 Although we may have some doubt as to the correctness of the Trial Examiner's rul- ings on the admissibility of certain evidence offered by the Respondent, we have consid- ered this evidence, much of which was cumulative, and find that it is insufficient to war- rant a determination contrary to that reached herein. s We have carefully examined the record and find no substantial basis for the Respond- ent's charge of bias and prejudice against the Trial Examiner. 113 NLRB No. 58. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union badges on company property and by discharging 21 named employees for disobeying this rule. In the recent Boeing Airplane case,' the Board reaffirmed the well- recognized principle that a rule prohibiting the wearing of union in- signia in the plant interferes with employees' organizational rights unless special circumstances make the rule necessary in order to main- tain discipline and uninterrupted production e The Respondent does not challenge the validity of this principle but contends that special circumstances existed which justified the adoption and enforcement of the no-badge rule. We do not agree with this contention. The evidence in the record establishes that for a number of years the Glass Bottle Blowers Association, AFL, has been the exclusive bargaining representative for the Respondent's approximately 1,500 production and maintenance employees. At the time the events here- inafter narrated occurred, the existing contract contained union- security and no-strike provisions. In July 1953, about 5 weeks before the expiration of this agreement, the International Union of Electri- cal, Radio and Machine Workers, CIO, began its campaign to organize the Respondent's employees. As part of this campaign, and shortly after its commencement, several employees appeared at work wearing badges with the inscription "IUE-CIO." At that time there was no plant rule against wearing union insignia, and, indeed, it had been the established practice for certain employees, members of the GBBA, to wear the union insignia of their organization. With the appearance of the rival union buttons, William Lewis, a GBBA executive board member, complained to Plant Manager Gatti that the wearing of the rival insignia was causing a tense and serious situation in the plant and that there was a strong possibility of violence. Although Gatti admittedly did not take Lewis' statement seriously, he nevertheless told him that he would investigate the matter and confer with him again if necessary. On August 14 the Respondent promulgated a rule, effective immediately, prohibiting the wearing of any union in- signia or badges on company property "at any time. Because 21 IUE adherents continued to wear their union badges, the Respondent, on August,19 and 20, discharged these employees. There can be no ques- tion that the inscription on the union badges was neither offensive nor inflammatory. The incidents, which the Respondent asserts justified the adoption of the rule, consist essentially of a series of warnings by GBBA offi- cials to the Respondent that violence and work stoppages would ensue unless the Respondent prohibited the wearing of the buttons by the rival union adherents. It was made clear to the Respondent that their opposition to the wearing of the buttons stemmed from their resent- 'Boeing Airplane Company, 103 NLRB 1025, enfd. with mod ., 216 F. 2d 269 ( C. A. 9). a Cf. Republic Aviation Corp . v. N. L. R. B.; 324 U. S. 793; Caterpillar Tractor Co., 113 NLRB 553. KIMBLE GLASS COMPANY 579 ment that another union was seeking to organize the plant. In addi= tion, the Respondent relies on various threats of violence and work stoppages by a number of employees, members of the GBBA.6 Thus, sometime between August 6 and 14, Lewis, a GBBA executive board member, reported that a machine operator had threatened personal violence if CIO buttons continued to be worn; and Clark, superin- tendent in the hot end department, reported that Fred Trimmer, a machine operator, and Royce Frazier, machine operator and union steward, had indicated to Clark that they would walk out if any employee wearing a CIO button was put on their machines. Also, employee Llewelyn Thiel told Ross, Gatti's administrative assistant, that if the buttons were not voluntarily taken off, they would be forcibly removed. Thiel, however, admitted at the hearing that he did not know whether he personally would have committed any violence. In a plant of approximately 1,500 or more employees, we do not believe that-the situation there prevailing, as indicated in the evidence the Trial Examiner received and the evidence he excluded, constituted the special circumstances contemplated by the Boeing principle which warranted depriving employees of their rights to wear union insignia in aid of their organizing campaign to supplant the GBBA.' In our opinion, "special circumstances" require more than an employer's submission to the demands of an incumbent union or its members to prevent adherents of a rival union from exercising their legitimate self-organizational rights. Indeed, it has long been the settled law that an employer cannot excuse his interference with employees' rights because of pressure exerted upon him by a union.' Yet, this appears to be precisely the case here. Instead of taking appropriate measures against the employees who threatened violence and a work stoppage, as would normally be expected, the Respondent took the course of least resistance and adopted the no-badge rule to the detri- ment of fellow employees seeking to exercise their legitimate rights.9 In fact, with respect to the threatened work stoppages we note that E Some of the proffered evidence excluded by the Trial Examiner dealt with similar statements by other employees it appeals that these statements were not brought to the Respondent's attention before the no-badge rule was adopted. 7 Contrary to our dissenting colleague's opinion, the facts found by the court in Boe- ing Airplane Co v. N L R. B, 216 F. 2d 269 (C. A. 9), are plainly distinguishable from those in the present case In that case, the court found an incendiary situation in the plant stemming from a history of violence and intimidation during a recent illegal strike. Moreover, we note that despite such history of violence and intimidation, the court di- rected the reinstatement of a union steward discharged by the employer for wearing a union steward button 81V. L. R. B. v. Hudson Motor Car Company, 128 F. 2d 528 (C A. 6) ; McQuay-Norris Manufacturing Co. v N. L. R. B, 116 F. 2d 748 (C. A. 7) ; N. L R. B. v. Puerto Rico Steamship Association, 211 F. 2d 274 (C. A. 1). 8 Although employee Thiel testified that he was told by management that he or any other employee would be disciplined and subject to discharge if he got into a fight, there is no evidence, nor does the Respondent assert, that the Respondent sought to calm the allegedly disturbed atmosphere by disciplining in any manner those who uttered threats of violence or work stoppage. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such work stoppages would have been in clear violation of the Re- spondent's contract with the GBBA.10 Moreover, threats of work stoppages cannot be considered like threats of violence in determining whether special circumstances exist for modifying the statutory rights of employees. Strike threats offer no justification for limiting em- ployee's organizational rights." While some circumstances may per- mit modification of employee rights in the interest of maintaining production," in our opinion, such circumstances are limited to those which interrupt the carrying on of production when employees are at work, not those which might affect production as a result of em- ployees' withholding their services in a labor dispute because the employer does not meet their demands. Our dissenting colleague, however, apparently treats threats to strike equally with threats of violence as justification for the proscription of the right to wear union buttons. Moreover, although the Respondent drafted a set of instructions to its supervisors concerning the rights of employees and instructed supervisors to warn employees that they would be subject to discharge if they engaged in acts of violence, it did not use plantwide publicity or the sanction of top management to inform all employees of these matters as it did in announcing the no-button rule. On the contrary, when on August 13, the day before the no-button rule was posted, the Respondent's personnel director observed some employees engag- ing in loud conversations and catcalls about other employees wearing "IUE-CIO" buttons, he did not condemn the shouting or caution em- ployees against participating in such disorder, but instead requested the IUE-CIO adherents to remove their buttons. Again, on August 20, when employees directed catcalls and derogatory remarks at a group of IUE-CIO advocates who were with the plant manager's administrative assistant, that official took no steps to stop such- mis- conduct. The plant manager, himself, when questioned by an em- ployee as to why a new rule was necessary in view of the existing rule against fighting, simply asserted that he could make any rule he saw fit. It is difficult to believe that the Respondent could not have main- tained complete order and efficiency by making clear to employees 15 The Trial Examiner excluded evidence offered by the Respondent to show that on an earlier occasion employees were not deterred by the no-strike clause in its contract with GBBA from engaging in a wildcat strike over a matter not relating to the wearing of union buttons . Even if we were to accept such evidence as relevant , we would not be persuaded to conclude that the disregard of the no-strike provision on one occasion justi- fied the Respondent in curtailing a statutory right particularly where there is no evidence that the Respondent had attempted to assert its rights under the contract and thus make clear to the employees that it would not tolerate such breaches of contract obligation in the future. n See cases cited in footnote 7, above ; N. L. R. B. v. Star Publishing Company, 97 F. 2d 465 (C. A. 9) ; The Englander Company, Inc., 108 NLRB 38; Wyandotte Chemicals Cor- poration, 108 NLRB 1406 - ' See Peyton Packing Company, Inc., 49 NLRB 828, 843; May Department Stores Com- pany, 59 NLRB 976, 980, enfd. 154 F. 2d 533 (C. A. 8), cert. denied 329 U. S. 725. KIMBLE GLASS COMPANY 581 that it would punish violation of rules against disorder and interrup- tion of production and by directing its managerial powers to that end rather than to banning union insignia. Disciplinary measures are cus- tomarily used not merely as punishment for infractions of rules but as a means of deterring misconduct. The Respondent also contends that it was not required to await an actual outbreak of violence before taking appropriate measures to .prevent it and therefore that it was privileged to adopt the no-badge rule as a means to that end. While an employer may not be required to wait for actual violence to occur in all circumstances, nevertheless, in balancing the rights of employees to engage in reasonable and legiti- mate union activities as against the rights of management to maintain discipline and avoid interruption to production, we believe that in the circumstances of this case it was incumbent upon the Respondent to attempt to enjoin the abusive conduct before it prohibited other- wise proper organizational activity and established as a condition of employment that employees abandon their statutory rights in order to forestall the misconduct. Whether all the facts and circumstances surrounding the promulgation of the no-button rule were such as to justify restricting the employees in the exercise of their statutory right to wear union buttons is the issue in the case which the Board is duty bound to decide. It is pointless to speak about substituting the Board's judgment for the Respondent's as to the selection of methods to cope with the situation. So, too, is it irrelevant to talk about the Respond- ent's good-faith motivation 13 which the dissent also adverts to. As we find that no such special circumstances existed in this case as would justify the no-badge rule, we find that the Respondent vio- lated Section 8 (a) (1) by its adoption. We further find that, as the 21 named employees were discharged for disobeying this invalid rule, they were discriminated against within the meaning of Section 8 (a) (3) and (1) of theAct.14 2. At the hearing, the General Counsel was permitted, with the Respondent's 'consent," to amend the complaint so as to allege that u See Republic Aviation Corp. v. N. L. R. B., 324 U. S 793; Radio Officers' Union etc. v. N. L. R. B., 347 U. S. 451; N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811 (C. A. 7). u Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793. As the 21 dischargees were privileged to refuse to obey the invalid no-badge rule, we find, contrary to the Respondent's contention, that it would not effectuate the policies of the Act to deny them reinstate- ment and back pay for such conduct. See Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1461. We agree with the Trial Examiner that a preponderance of the evidence establishes that Plant Manager Gatti, Personnel Director Anthony, and Assistant Foreman Chris- topher interfered with the rights of employees to solicit union membership on their own time. Although the Trial Examiner did not separately conclude that their conduct vio- lated Section 8 (a) (1) of the Act, it is clear from his other findings and recommended order that he intended to do so. 16 Although the Respondent consented to the specific amendment, it now challenges the legality of the Trial Examiner's finding based on this allegation on the ground that no proper charge covering this specific violation was filed within 6 months of the occurrence of the alleged violation . In view of our determination herein, we find it unnecessary to pass on this contention. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent discriminatorily applied a rule prohibiting the dis- tribution of union literature on two parking lots and a macadamized area adjacent to the plant property by preventing the IUE from dis- tributing literature while allowing the GBBA, the incumbent Union, to do so. The Trial Examiner found, and we agree, that the record does not support this allegation. However, although not alleged as a violation, the Trial Examiner found that Respondent unlawfully promulgated and invoked this no- distribution rule. We do not adopt the Trial Examiner's conclusions on this point. In our opinion, the present record does not warrant a finding that the promulgation of the no-distribution rule constituted a violation of Section 8 (a) (1). ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Kimble Glass Company, Columbus, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, CIO, or in any other labor organization of its employees, by discriminatorily discharging any of them or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (b) Threatening employees with reprisal for soliciting union mem- bership on their own time or for wearing union badges with the inscription "IUE-CIO" or any other union insignia while at work. (c) Promulgating or enforcing rules which prohibit employees from wearing union buttons, badges, or other union insignia while at work. .(d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be , affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : KIMBLE GLASS COMPANY 583 (a) Rescind the rule promulgated on August 14, 1953, which pro- hibits the wearing of any union insignia or badges on company property at any time. (b) Offer to the 21 employees listed in "Appendix A," attached hereto, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges and make all said employees whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its Columbus, Ohio, plant, copies of the notice attached hereto and marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director of the Ninth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing 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 material. (d) Preserve and upon request, make available to the Board or its agents, for examination or copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (e) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent adopted a no-distribu- tion rule in violation of Section 8 (a) (1) and (3) of the Act. MEMBER RODGERS, dissenting : I cannot agree with the majority that the Respondent, in the factual context of this case, violated the Act by unlawfully promulgating a rule prohibiting employees from wearing union badges on company property and by discharging 21 named employees for disobeying this rule. As the circumstances under which the no-badge rule was promul- gated were not fully developed in the Intermediate Report and are not sufficiently stated in the majority opinion , I shall summarize them here. 11 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 379288-56-vol. 113-38 584 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD For a number of years, GBBA has been the exclusive bargaining representative of the Respondent's approximately 1,500 employees. In July 1953, about 5 weeks before the expiration of the current con- tract, the IUE-CIO began organizing these employees, and shortly thereafter notified the Respondent of this fact. When it became ap- parent that a rival union campaign was on, Plant Manager Gatti in `consultation with the Respondent's attorneys drafted a set of instruc- tions to supervisors which recognized the employees' right to cam- paign in the plant during their nonworking hours to the extent that it did not interfere with production. These instructions were made applicable to the activities on behalf of both unions, without discrimi- nation. At about this time, several employees appeared at work wearing large badges containing the legend "IUE-CIO." On August 6, 1953, GBBA representative Lewis informed Plant Manager Gatti that the wearing of these badges in the plant was creating a serious and tense situation and would lead to violence and work stoppages, and that bitter feeling among the employees was running so high that he did not believe he could control the employees. Gatti checked on the situ- ation over a period of days and found that it was "more serious" than he had envisaged. From those personal observations and from reports made to him by supervisors and employees, Gatti concluded that a prohibition against wearing union buttons by adherents of either of the unions was necessary to prevent violence and an interruption of production. The following reports and observations contributed sub- stantially to Gatti's decision to issue the rule in question: On 2 or 3 occasions between August 6 and 14, Lewis called Gatti's attention to several disturbing incidents among employees in the plant which were occasioned by the wearing of the CIO badges. For ex- ample, a threat had been made by a machine operator that if the CIO badges continued to be worn "somebody is going to get a bar shoved through their stomachs." On August 10, Superintendent Clark of one of the departments told Gatti's administrative assistant that super- visors in his department had reported trouble brewing because of the appearance of badges in the plant, and that he had personally verified these reports by interviewing at least six employees. Clark also re- ported this information to Gatti, furnishing him with the names of -employees who had threatened to do violence or walk off the job. Clark reported that Machine Operator Trimmer had said, "I would throw it [this work] in the hole and go home" if any employee wearing the CIO badge was put on his machine. Machine Operator Frazier told his shift foreman, "I would go along with the other operators and -I would be one of the first to shut my machine down" if these badges are worn. BIMBLE GLASS COMPANY 585 Gatti thereupon directed Clark and other supervisors to warn em- ployees that they would be subject to discharge if they engaged in acts of violence. In this connection, the Trial Examiner erred in finding that management's witnesses admitted that no such disciplinary move was made. The record also shows that employee Thiel testified that he was told by Administrative Assistant Ross that if he -(Thiel) or any other employee got into a fight he would be disciplined and also subject to discharge. On August 12, GBBA Official Rodgers advised Gatti that the wear- ing of CIO badges was going to cause violence and a work stoppage and that if the badges were continued to be worn, "they were going to close the front end down." Rodgers also predicted that an outbreak of violence would result unless the badges were removed. Following these reports by Lewis and Rodgers, Plant Manager Gatti, on August 12, conferred with his assistant, as well as with Personnel Director Anthony, as to the measures to be adopted to guard against violence and work stoppages, and also discussed the problem with the Respond- ent's attorneys. On the evening of August 13, employees Oakes, Root, and Cupp (who were also officials in the GBBA locals) informed Gatti that a bad situation was developing in the plant and that they had just witnessed an act of violence in front of the gate house. The inci- dent involved a physical assault by an employee upon a CIO adherent because of resentment over the latter's attempt to force the employee's wife, also an employee, to take some union literature. Employees Root,` Cupp, and Oakes also informed Gatti that abusive language was being exchanged by employees, and that much bickering and un- rest prevailed. They felt that some action should be taken -by Gatti if he wanted to keep the plant going. Concerned over the safety of the employees, they stated that the already explosive situation would be aggravated when GBBA members began wearing GBBA badges of comparable size to those being worn by the CIO adherents, which the GBBA had ordered, and predicted that when this occurred, "Hell was going to break loose around there." They also warned Gatti that there would be another work stoppage, referring to a "wildcat" work stoppage that had occurred on July 17. Gatti expressed his neutrality and indicated that he contemplated promulgating a rule prohibiting the wearing of union badges which would apply equally to both unions. During this meeting, Personnel Director Anthony reported an incident which he had just witnessed in which six employees had caused a commotion in the plant by insisting on wearing their CIO badges. On August 12, employee Thiel complained to Gatti's administrative assistant that "those damned CIO buttons were causing most of the trouble, practically all of it, and if they weren't gotten out of the plant by God we would get them out." Thiel stated further that "some of the guys would be getting a flying wedge and just throw them all out of there if the situation kept up the way it was." At the hearing, Thiel 586 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD testified that "you can wave a red flag in front of a bull so long and you don't know what that bull is going to, do, and that's what would have happened if they had kept waving it in front of me. I don't know what I would have done in the end." - Faced with this situation, which was both serious and threatening, the Respondent, on August 14, posted the following notice setting forth the rule here involved : Effective at once and until further notice, the wearing of any union insignia or badge is prohibited on company property at any time. Trouble among our employees has already occurred. This rule is necessary in order to maintain harmonious relations in our plant and to prevent anything of a real serious nature from de- veloping. We are instructing our foreman [sic] to enforce this rule, and would sincerely appreciate voluntary cooperation of all of our employees in this matter. This rule was obviously a nondiscriminatory one. It was equally applicable to the wearing of CIO and GBBA insignia. It is undis- puted that 21 CIO adherents continued to wear their union insignia despite this rule and despite the urgent requests of management offi- cials to remove them so as to avoid violence in the plant. Indeed, on August 17-3 days after the rule had been posted-it was observed that a group of 12 to 15 employees were wearing CIO badges in defiance of the rule; when Plant Manager Gatti learned of this, he had the group assembled in the plant and urged them to take off the badges so that it would not be necessary to discharge them, and he explained to them why the Respondent felt that the rule was necessary. This cer- tainly was an indication that the Respondent had no other motivation than the safety of its employees and the desire to continue production.. With these factual circumstances in mind, the application of the law seems perfectly clear. In Republicy Aviation Corporation v. N. L. R. B., 324 U. S. 793, the United States Supreme Court stated: These cases bring here for review the action of the National Labor Relations Board in working out an adjustment between the un- disputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights- in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society. In Boeing Airplane Company, 103 NLRB 1025, the Board reaffirmed the established principle that a rule prohibiting the wearing of union- KIMBLE GLASS COMPANY 587 insignia in the plant interferes with employees ' organizational rights unless special circumstances make the rule necessary in order to main- tain discipline and uninterrupted production. The Ninth Circuit, in reviewing this decision, took special note of the fact that "With such extremely inflammable materials as the passions of the rival unions, the Teamsters and 751, the wearing of the streamers and shop buttons must be viewed as the spark which might in a second set everything mire again. No doctrine can give immunity to symbols and expressions which are incitements to crime or violent action in breach of peace." 17 [Emphasis supplied.] If ever there was a situation where special circumstances existed which warranted the promulgation of a rule designed to avert violence between adherents of rival unions, this is it. The record is abundantly clear that the Respondent was genuinely concerned over the repeated and persistent threats of violence and work stoppages provoked by the wearing of the union insignia . The promulgation of the rule prohibit- ing the wearing of these insignia under such circumstances was clearly calculated to avert, in the words of the Ninth Circuit, "the spark which might in a second set everything afire again." The majority state that the Respondent, instead of adopting the rule in question, should have taken appropriate measures against em- ployees who threatened violence or work stoppages, and the Trial Examiner suggested that the Respondent should have sought out all employees in the plant who might have made any threats and subjected them to individual reprimands and warnings . This line of reasoning wholly ignores the fact, well-recognized in the industrial world, that in a plant of some 1,700 employees, discipline cannot reasonably be maintained and enforced on any individual person-by-person basis. Nor should the Board, in this factual context, arrogate to itself the se- lection of alternative methods for coping with an explosive situation- a choice which those actually confronted with the situation, and there- fore closer to it, are far better suited to make. It seems to me, whatever other measures may have been open to the Respondent, that under the circumstances prevailing here it cannot be said that the no-badge rule was anything other than a reasonable ex- -ercise of the recognized responsibilities of management. It is my opinion, in such circumstances as are present here, that the employer has not only the right , but the duty to act, both in the inter- ests of the safety of all his employees and in the interests of the con- tinued effective operation of his enterprise . To hold otherwise is to hold that an employer must abandon his entire operation to chaos, lest whatever action he take be viewed with disfavor by the Members of this Board. 17 Boeing Airplane Company v . N L. R. B., 216 F 2d 269 (C. A. 9). 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Where, as here, circumstances clearly indicate that the promulga- tion of such a rule is necessary to maintain discipline and insure con- tinued production, that rule should be sustained by this Board. The Employer should not be held to 'have violated the law merely because a majority of the Members of this Board, in an ex post facto situa- tion, far removed from the exigencies of the problem, feel, in their judgment, that some other action or actions on the part of the em- ployer might possibly have been sufficient to cope with the situation. Such a holding, and it is implicit in the majority decision, represents nothing more than a substitution of the judgment of this Agency for the judgment of the Respondent. Aside from constituting poor pub- lic administration, such a decision establishes nothing as to what con- duct in these circumstances can reasonably be relied upon from one case to another as being within the law. Indeed it imparts an ele- ment of undue peril to the performance of even the most routine re- sponsibilities of management. Neither can I agree with the implication in the majority decision that the Respondent was obligated to await an outbreak of actual vio- lence before it acted to remove the cause. The Fourth Circuit an- swered this point of view in concise fashion in Maryland Drydock Company v. N. L. R. B., 183 F. 2d 538, as follows : The trouble here is that the Board has proceeded upon an errone- ous theory of law in holding that, because no actual disruption of discipline is shown, the company may not forbid the distribu- tion of literature the reasonable tendency of which is to cause its disruption.... To allow the finding of an unfair labor practice to stand against the company under the circumstances here would .... deny to the company the right to forbid on its premises con- duct which is manifestly destructive of discipline. Since I am convinced that the promulgation of this particular no- badge rule was nothing more than a reasonable exercise of the,neces- sary, responsibilities of management, and in no way a violation of the Act, I would dismiss the complaint in its entirety.18 CHAIRMAN FARMER and MEMBER LEEDOM took no part in the consid- eration of the above Decision and Order. ' The Trial Examiner relied on certain isolated statements of Plant Manager Gatti, Personnel Director Anthony, and Assistant Foreman Christopher , which purported to limit employees ' rights to engage in union solicitation in the plant , as evidence that the Respondent was illegally motivated in promulgating the no -badge rule. The majority adopted his findings, although he made no specific findings that these statements consti- tuted independent violations of Section 8 (a) (1). Considering the entire record in the case and particularly the content and circumstances under which these statements were made, I am persuaded that these statements amount to no more than requests to the employees in question not to interfere with other employees at work or to solicit in a manner which -would create disturbances in the plant . For this reason, I would 'find-that the statements in question do not establish illegal motivation or constitute violations of the Act. KIMBLE GLASS COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 589 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations-Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Union of Electrical, Radio and Machine Workers, CIO, or in any other labor organization of our employees, by discriminatorily discharg- ing any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT threaten employees with reprisal for soliciting union membership on their own time or for wearing union badges with the inscription "IUE-CIO" or any other union insignia while at work. WE WILL NOT promulgate or enforce rules which prohibit em- ployees from wearing union badges or other union insignia while at work. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL rescind the rule promulgated on August 14,1953, which prohibits the wearing of any union insignia or badges on company property at any time. WE WILL offer immediate and full reinstatement to the follow- ing named employees, to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. Thos. Mattingly Bill Whitt, Jr. William Messer Bill Moore Billy Copley Elmer Hicks Denver Scarberry Johnny Fitch Orville Bostic John Sorenson Elva Cordle Edward DeLong Rolin Hudson Ernest Wright Lacy Harvey Virgil Ross Joel K. Cossnear Ernest Stewart Kenneth Tackett Kennard Niner Donald Wells 590 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD , All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization , except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. KIMBLE GLASS COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Columbus, Ohio, on March 15, 16, and 17, 1954, before the duly designated Trial Examiner. In substance the complaint, as amended at the hearing, alleges and the answer denies that the Respondent : ( 1) In August 1953, to discourage membership in the Charging Union: (a) promulgated and invoked rules prohibiting union activity on nonworking time and the wearing of union buttons on company property; (b) threatened employees with discharge ; and (c ) discriminatorily discharged 21 named employees because they wore union buttons in the plant; and (2) by such conduct interfered -with, restrained, and coerced employees in the exercise of rights guaran- teed employees by Section 7 of the Act. The Respondent, in its answer, admitted having taken some of the action alleged , but alleged affirmative and legal reasons therefor. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross -examine witnesses, to introduce evidence perti- nent to the issues, to argue orally upon the record , and to file briefs and proposed findings and conclusions. General Counsel argued orally . A brief has been received from the Respondent. Disposition of the Respondent's motion to dismiss the complaint , made at the close of the hearing, is made by the following findings, conclusions , and recom- mendations. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Kimble Glass Company is an Ohio corporation and is a wholly owned subsidiary of Owens-Illinois Glass Company, also an Ohio corporation . Its principal office is in Toledo, Ohio, and its plant herein involved is located in Columbus, Ohio, where it is engaged in the manufacture , sale, and distribution of television picture tubes and allied products. During the year before issuance of the complaint the Respondent caused mate- rials and equipment used by it, and valued at more than $500,000, to be purchased and transported into the State of Ohio from and through other States of the United States. During the same period it produced , sold, and shipped from its Columbus plant products valued at more than $ 1,000,000 to points outside the State of Ohio. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio and Machine Workers, CIO, is a labor organization admitting to membership employees of the Respondent. KIMBLE GLASS COMPANY III. THE UNFAIR LABOR PRACTICES 591 A. The facts The issues here in dispute all arose in the summer of 1953 when a number of the Respondent's 1,500 production employees-all of whom were required by contract to be members of an AFL union-endeavored to organize in the Charging Union, a CIO affiliate. The effort began shortly before the expiration date of the union- shop contract, and was intensified since, in order to obtain the necessary percentage standard for filing of a petition with the Board, the Charging Union sought a con- siderable number of applications or authorizations. It appears that the Charging Union used the customary organizing methods: distribution. of literature, solicitation of signatures to cards, and the wearing of union buttons in the plant. That management did not wish to have its contractual relationship with the AFL union upset and that this wish provided a reasonable motive for taking sides seem to be premises well-supported by undisputed and credible evidence. The plant manager himself, Raymond Gatti, had been the eastern representative of the Amer- ican Flint Glass Workers Union, an AFL affiliate, for a period which he fixed as "1936 to 1940, in there." Marcus Clark, hot end superintendent, testified not only that he informed his superiors that individuals in his department were wearing CIO buttons, but also that he was "disturbed" and "concerned" by the CIO coming in to organize and that he did everything he could in an attempt to find out what the employees' reaction would be. That the officers of the AFL union, which for years had had a contract with the employer, were moved to open resentment by the invasion of the CIO-thus display- ing a reasonable motive for the coloration of testimony they gave on behalf of the Employer-is established by their candid statements. "I was worried about the plant," said W. J. Lewis, the director for Ohio of the Glass Bottle Blowers Associa- tion, which held the contract. "I think they [the Charging Union] have got all they can do to organize the unorganized," he also said. Bertie Louise Cupp, financial secretary of the women's local of the GBBA, admitted that she conveyed the idea to Gatti that they were not "going to stand for another union getting in there and attempting to organize. . , " And Cupp's testimony, on this point as well as others, was "adopted" by Julia Root, president of the women's local. Reviewing the incidents at issue chronologically, it appears that the first occurred about July 10, shortly after the Charging Union's organizing campaign began. On or about that date Assistant Foreman C. J. Christopher came up to a group of 3 or 4 employees, including Elva Cordle and William Messer, and told them that "anybody caught signing up CIO cards will be fired." I The evidence establishes that Christopher at the time was a supervisor within the meaning of the Act. Late in July or early in August several employees began wearing, while at work, buttons indicating their allegiance to the Charging Union. They bore the letters "IUE-CIO." The wearing of the buttons violated neither an existing rule nor prac- tice, since credible evidence establishes that at least the AFL stewards were until then accustomed to wearing distinguishing buttons. Nor has the Respondent claimed that the wearing of the buttons, or that the buttons themselves, created a working hazard, endangering the safety of the worker, or impeding his production. There is no dispute that in mid-August the Respondent posted a rule prohibiting the wearing of such buttons and that a few days later it discharged 21 employees who declined to be thus deprived of rights which they believed were protected by the Act. Gatti posted on August 14 the following plant bulletin: - Effective at once and until further. notice, the wearing of any union insignia or badge is prohibited on company property at any time. The quotes are from Messer's credible testimony, corroborated by that of Cordle. The finding is based not only upon the demeanor of the witnesses, but also upon the uncon- vincing denial of Christopher When asked directly by the Respondent's counsel whether or not he had uttered the threat attributed to him, Christopher, he said : "No, sir, I did not, without any qualification In fact, if I . . Interrupted by another question as to whether or not he knew of the CIO campaign on July 10, Christopher said that he did not, and was not aware of it until after July 19. On cross-examination he admitted talking to this group of employees in July, and when asked if he could remember what he said to them, he replied, "Word for word, no sir, nor in substance" He added, "I wouldn't know even the probable substance of it." [Emphasis supplied.] 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trouble among our employees has already occurred. This rule is necessary in order to maintain harmonious relations in our plant and to prevent anything of a real serious nature from developing. We are instructing our foreman [sic] to enforce this rule, and would sincerely appreciate voluntary cooperation of all of our employees in this matter. At the time of the shift change the night before the above notice was posted, ac- cording to his own testimony, Personnel Director Phillip, Anthony asked at least six employees to take off the CIO buttons. Anthony also told the employees that they were not allowed to "sign cards in the plant." 2 The day after the notice was posted Superintendent Clark, previously identified, approached employee Tackett at a time when the employee was not wearing his button, and asked him if he was "one of the guys wearing a CIO badge." Tackett admitted it. Clark asked him what he thought he had to gain? On August 17, according to the testimony of management witnesses, Gatti rounded up a considerable number of employees who continued to wear JUE buttons de- spite the posted order. Gatti then not only warned them that unless they took off the buttons they would be discharged, but also told them they could not sign up CIO cards on company property at any time-before work or during their breaks.4 After consulting among themselves the employees agreed to remove the buttons until they could obtain counsel of their Union. Having been advised that it was not illegal to wear buttons, several IUE sup- porters put them on again. And on August 19 management began discharging them. On that day and the next 21 employees were summarily discharged-after being given the flat choice of dismissal or taking off the buttons .5 The Respondent readily admits that the discharges were because the employees declined to remove their IUE buttons while in the plant. During the same material period the Respondent imposed and enforced another new rule: this relating to the handing out of union leaflets outside the plant gate. Although the details will be reviewed below, in substance the facts are that all distribution of such literature was prohibited in the two parking lots near the plant and in an area near but outside the plant entrance used by the workers. 2 This finding is based upon the credible testimony of employee Messer. Anthony's denial is not accepted as credible. The personnel manager himself testified that on the same occasion he ordered employee Cordle to accompany him to be interviewed by a plant guard for identification as one whom the guard reported as having seen engaging, on com- pany property, but before working hours, in "signing up union membership." Since the official took the direct action, by his own admission, to identify an employee whom he had been informed was soliciting on company property, and on his own time, his denial of cautioning others lacks any reasonable ground for belief. Anthony's claim, moreover, that he cautioned Cordle, ". . . as I did the rest of the group, to exercise great care in their solicitation so as to not bring about an incident that would lead to violence," limps visibly as an explanation since, in his preceding sentence, Anthony said : ". . . there was no indication that the incident was harmful to anyone, and . no one complained." O The finding rests upon Tackett's straightforward and credible testimony. Clark's de- mal of the remark is not credited. The superintendent readily admitted, on cross-exam- ination, having talked to at least a dozen employees at this time concerning their union activities, but said he could not identify them. He also admitted that Tackett was under his supervision, and that he could not remember either what he said to these dozen or what they said to him Furthermore, as found heretofore, Clark also testified that he was "concerned" about the CIO's effort to organize, and did everything he could to find out the employee's reaction to it. 4 Although Gatti at first denied telling employees they could not solicit on company prop- erty on their own time, his later attempt to explain just what he did say, when considered in the light of other undisputed facts, deprives his denial of reasonable belief. He claimed, in effect, that he merely told them they must not interfere with others who were working, although they themselves might be on their own time As noted before, Personnel Man- ager Anthony had already taken to task one employee, Cordle, for solicitating on company property before working hours A new rule had been suddenly set up proscribing even the wearing of a button on company property and, as described hereinafter, at the same time management prohibited the distribution of union literature even outside the plant enclosure, at any time 5 Thos Mattingly, Bill Moore, Denver Scarberry, John Sorenson, Rolin Hudson, Virgil Ross, Kenneth Tackett, Bill Whitt, Jr., Billy Copley, Johnny Fitch, Elva Cordle, Ernest Wright, Joel K. Cossnear, Kennard Niner, William Messer, Elmer Hicks, Orville Bostic, Edward DeLong, Lacy Harvey, Ernest Stewart, and Donald Wells. KIMBLE GLASS COMPANY 593 B. Conclusions General Counsel claims that the imposition of the button rule was restraint of employees' rights under the Act and that the dismissal of 21 employees because they would not abide by it was discrimination in order to discourage membership in and activity on behalf of the Charging Union. The Respondent denies interference and discrimination and affirmatively claims that both the rule and the discharges were necessary to prevent violence in the plant and consequent interruption of pro- duction. The Trial Examiner believes that the present Board adheres to the policy followed down through the years as enunciated in Armour & Company, 8 NLRB 1100, at 1111 and 1112. There the Board found that the discharge of a union steward for re- fusing to remove his steward's button was in violation of the Act, despite the em- ployer's assertion that the wearing of the button "was causing confusion and com- motion in the plant" and that "there was very likely to be trouble, friction, fights, and even riots." The Board specifically found that the order directing the removal of the button,was interference with rights accorded by the Act, that the employee was justified in refusing to comply with the order, and that the discharge was discrimi- natory and illegal. In the same case the Board also found: "... the evidence does not show any basis for the fear asserted by the Respondent regarding a serious disturbance in the plant." The credible evidence in the present case leads to a similar conclusion. In the first place, in this plant of 1,500 employees, no actual incidents of violence ,on company property or interruption of production are claimed by the Respondent. It is reasonable to believe that had any violent acts occurred, some management representative would at least have said he heard about one of them. The record is barren of the most rudimentary basis for "fear" that violence would occur-that of precedent. The Respondent did call, as its own witnesses, a number of GBBA officials-from an international representative on down-who blandly testified that they had threat- ened-unless the IUE adherents were required to remove their buttons-to take re- taliatory measures ranging from an actual strike (this despite a contractual no-strike clause) to forcibly taking the buttons from the persons of the wearers. According to Gatti such threats were brought to him by a GBBA official as early as August 6. That any fear was instilled in the plant manager on this occasion is a finding which his own testimony clearly prevents. For he said, "I must be truthful and admit that I didn't put too great of a stock in what he was telling me." No evidence indicates that any violence occurred in the plant between August 6 and August 14, when the rule was posted. As described in the preceding section, however, management pro- ceeded-to discourage the wearing-of the buttons even before posting-of the notice: particularly in the case of the personnel manager who asked at least six-employees to take them off on August 13. No incident happened between August 6 and 14 which reasonably might have altered Gatti's initial low estimate of the stock value of the union official's threat. Yet apparently he would have the Trial Examiner and the Board believe that when several GBBA officials voiced similar threats on August 13 he was forced to believe they would be carried out. Such a conclusion would be naive indeed, in view of the testimony of Howard Rodgers, secretary of the GBBA and a witness for the Em- ployer, concerning his final interview with Gatti before the latter posted the notice. Rodgers said that just before leaving the office he was asked by Gatti if he was "pretty sure there would be violence," and he had replied that he "could guarantee him that there would be violence unless the buttons were taken off." Contrary to the crisis which management witnesses declared was threatening plant peace and production, the actual facts depicit a situation more resembling one of cheerful collaboration. The GBBA officials were understandably concerned about the IUE campaign. As Lewis said on the witness stand, he thought the IUE had enough to do to organize the unorganized, and two other GBBA officials admitted that they made it clear to Gatti that they did not intend to stand for another union coming into the plant. Reasonably enough they desired the aid of management in curbing the organizing activities of the IUE. And they gained that end by the process commonly known as "doing it by mirrors." On the day before issuing the rule, ac- cording to Gatti's own testimony, (1) Rodgers came in promising violence; (2) he asked the union official "what in his mind was the thing we could do [to] prevent this violence"; and (3) Rodgers replied "prevent the wearing of these union buttons"; 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whereupon, according to Rodgers, he was asked if he was "pretty sure" there would otherwise be violence and he said he could "guarantee" it. Reasonably appraised, it would appear that had management entertained any real' fear of impending disaster, some move would have been made to warn or discipline those who said they would bring it about . Yet management witnesses admitted that no such disciplinary move was made. On the contrary, as noted above, both the per- sonnel manager and the superintendent as well as Gatti went instead to the button- wearers and, in effect; urged and threatened them that unless they took off the but- tons they would have to be discharged to prevent their being victims of violence. If the real desire of management had been to maintain peace and uninterrupted produc- tion, reason would have suggested, it appears to the Trial Examiner, that action be taken against those who threatened misconduct and not against the prospective vic- tims. Upon all the evidence, the Trial Examiner is persuaded that the Respondent pos- sessed a justifiable disinclination to have its peaceable relationship with the GBBA up- set by a heated campaign, a Board election, and the possibility of having to adjust itself to a new bargaining agent. The conclusion is supported not only by previous findings, but also by conduct of management officials when many of the 21 employees were discharged. One group was kept by management about an hour before being per- mitted to leave. They were asked by the officials why they were wearing the CIO buttons, and what was wrong with the AFL. The employees protested that there already was a rule in the plant against fighting and asked Gatti why this new rule was necessary. Gatti replied that he would make any rule he wanted to. Gatti also told them that when they were on company property no time was their own, and that there would be no signing up of cards on company property at any time. Even before the men were herded into the office , the officials displayed their real reason for the im- pending action . It is undisputed that Gatti himself approached one employee, not wearing a button, and asked him if he had one. The employee had a badge in his pocket and admitted he did have one, whereupon Gatti ordered him to come along with the rest. He was fired. Raymond Ross, Gatti's assistant, readily admitted that just before the group discharges "I toured the plant to determine whether or not there were any other employees displaying CIO buttons. .. As Ross accompanied the .group collected, also according to his own testimony , "we passed a group of women who made catcalls and derogatory remarks to this CIO group.. . So far as the record shows Ross took no action against the employees making the disturbance, but merely took the IUE adherents along to the office for discharge. Coincident with the posting of the rule and the discharges was another phase of the Respondent's effort to curb the organizing efforts of the IUE: the prohibition of distributing literature near the plant entrance. In broad terms, it is General Counsel's contention that the Respondent discrimina- torily prohibited such distribution by the Charging Union "at or about the entrance" to the plant. During the hearing he made it plain that by "discriminatorily " he meant, in part, that the Charging Union was prevented from such activity while the GBBA was permitted to engage in it . There is insufficient evidence to support the allega- tion of disparity of treatment. While it may have been that in an isolated case some guard may have turned his head aside when a GBBA representative was passing out handbills, it must be found that management 's instructions to the guards were in- tended to prevent both labor organizations from using the forbidden area, and that in general these instructions were carried out. Effectual, if not actual, discrimination, however, was caused by the very issuance of the order. In the existing situation-caused by the union-shop contract-the GBBA already enjoyed a favored position in contest with any other labor organiza- tion. All employees in the recognized unit were required to be members of it. Appeals for adherence to it were unnecessary until the IUE began its campaign. And any company action depriving employees of their legal right to receive information for possible consideration in exercising their legal right to choose another bargaining representative would, under the circumstances existing , effectively discriminate in favor of the union holding the contract and against the union seeking members. Three principal places are in question : two parking lots and an area near the entrance used by production employees while entering or leaving the plant. On the basis of all the evidence , the Trial Examiner cannot find that management was un- justified in preventing circularization in the parking lots. Gatti's testimony is not seriously challenged to the effect that parking facilities were inadequate for the large number of employees using them , and that particularly at shift-changing hours con- ditions were hazardous . No credible reason was advanced by management, how- ever, for preventing distribution on its property near the employees' entrance. The KIMBLE GLASS COMPANY 595 latter area is macadamized and is commonly used for disembarking employees or others coming to the plant by cab. That this space, running back about 35 feet from the public road to the guardhouse entrance, was company property is undisputed. But it appears to have been , and still is being, used by the public generally. It is open, unfenced. The public street which this area approaches is narrow-being but 23 feet from curb to curb, and is crowded with automobile traffic when employees enter and leave the plant. In the absence of any justifiable reason for barring dis- tribution in this area, and in view of foregoing findings that management had made it clear that it would permit no IUE activity on company property at any time, the Trial Examiner concludes and finds that establishing and invoking the rule prohibit- ing distribution here was in restraint of employees' rights under the Act and for the purpose of discouraging membership in the Charging Union. In summary, the Trial Examiner concludes and finds that the preponderance of credible evidence: (1) Does not support the Respondent's contentions as to the merits of its stated reasons for the discharge of the 21 employees, and for the inauguration and enforcement of the rules concerning button wearing in the plant and the dis- tribution of union literature outside the entrance to the plant; and (2) sustains the allegations of the complaint that such action was discriminatory, for the purpose of discouraging membership in the Charging Union, and constituted interference, re- straint, and coercion of employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce in the sev- eral States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirm- ative action which will effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of 21 employees, the Trial Examiner will recommend that the Respondent offer them immediate and full reinstatement to`their former or sub- stantially equivalent positions, without prejudice to their seniority and. other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to that which he would normally have earned from the date of such discrimination to the offer of reinstatement, less his net earnings during such period. The back pay is to be computed in the manner established by the Board in F. W. Woolworth Company (90 NLRB 289). It will also be recommended that the Re- spondent preserve and upon reasonable request make all pertinent records avail- able to the Board or its agents for the checking of amounts due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices may be anticipated. The remedy should be coextensive with the threat. It will therefore be recommended that the Respond- ent cease and desist from infringing in any manner upon the rights guaranteed em- ployees in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Union of Electrical, Radio and Machine Workers, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. ` 2. By discriminating in regard to the hire and tenure of employment of the 21 employees named in Appendix A, thereby discouraging membership in the above- named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] I