Armstrong Tire and Rubber Co.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,representation cases.' We therefore overrule the conclusion of the Regional Director that the Safety Committee was company dominated. There remains the question whether the Employer's reference to the Safety Committee during the period prior to the election con- stitutes sufficient basis for setting aside the election . We do not agree that it was. The Safety Committee not being found to be an 8 (a) (2) organization was in no different position than any incumbent labor organization. It is not a violation of the Act for an employer to urge employees to use the services of such labor organization. The Safety Committee was not on the ballot, and there is no evidence that the Employer promised the employees any benefits if they preferred the Safety Committee to any other union a In view of the foregoing, we hereby overrule the Regional Director's recommendation that the election be set aside. As a majority of the employees have voted against representation by the Petitioner, we shall, accordingly, certify the results of the election. [The Board certified that a majority of valid ballots was not cast for Textile Workers Union of America, AFL-CIO, and that this union is not the exclusive representative of the employees in this unit.] MEMBER M1mr ocx took no part in the consideration of the above Supplemental Decision and Certification of Results of Election. 7 Nathan Warren d Sons, Inc.. 119 NLRB 292, footnote 11 The Board, however, in consolidated hearings involving violations of Section 8 (a) (2) of the Act and objections to an election has set elections aside on the basis of findings in the unfair labor practice cases that unions were illegally assisted or company dominated . Majestic Metal Specialties, Inc., 92 NLRB 1854. However, the instant case is not a consolidated hearing but relates , solely to a representation proceeding. See Section 9 (c) (2) of the Act. B Cf. Precision Sheet Metal, Inc., 115 NLRB 949, where the Board held that where an employer proposed to establish its own labor relations committee accompanied by a state- ment that such committee will cost the employees nothing and that they had everything to gain by it, the Board set the election aside on the ground that the statement implied the employer would act more favorably through such a committee than through a union. Armstrong Tire and Rubber Company, Test Fleet Branch rand Louie E. Wright. Case No. 39-CA-580. November 8, 1957 DECISION AND ORDER On January 20, 1957, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the -Intermediate Report and a supporting brief. 119 NLRB No, 52. ARMSTRONG TIRE AND RUBBER COMPANY 383 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire 'record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We agree with the Trial Examiner's findings that the Respondent violated Section 8 (a) (1) of the Act by enforcing a rule forbidding union solicitation during driver rest stops. In doing so we recognize, as the Respondent contends, that safety of operation is a legitimate concern of an employer, and may, under some circumstances, justify the promulgation of rules which would impinge upon the normal exercise of rights" of self-organization. However, the burden rests upon an employer to establish that safety conditions actually require an invasion of the normal exercise by his employees of self-organi- zational rights during nonworking time. In this case, however, the evidence does not convince us that it was necessary to impose a rule interfering with the normal right of employees to discuss unioni- zation during nonworking periods. Thus, the evidence presented by the Respondent in support of its position consisted of the testimony of its manager, Haidet, that prior to September 1954, when the rule was promulgated, the accident rate had doubled during a period of union agitation, and that after the rule had been initiated the acci- dent rate had "improved a lot"; plus testimony to the effect that the Respondent's trucks were overloaded, were driven at high speeds, and were frequently equipped with experimental or worn tires. Haidet's generalized statements, however, were not supported in the record by the accident reports for the periods .before and after the initiation of the no-solicitation rule, which reports the Respondent required of its drivers. Moreover, there is little evidence in the record demonstrating that there was sufficient conflict among the drivers on the road to impair materially their ability to perform their duties safely. Assuming that, as the Respondent asserts, its operation may involve an element of hazard,' we nevertheless find the evidence insufficient to establish that the effect of nonapplication of the no- solicitation rule to the drivers' rest stop is in fact to increase the hazardous nature of the work involved. Accordingly, we hold that the evidence presented does not justify the restrictive rule against union solicitation which the Respondent promulgated and enforced. ' In considering the possibility of hazard in the Respondent 's operations , we must also assume that the Respondent observed the traffic laws of the State of Texas , including re- quirements imposed upon the operation of vehicles upon the public highways which prevent exposure of the public to excessive risk. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER . Upon the.entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board. hereby orders that the Respondent, Armstrong Tire and Rubber Company, Test Fleet Branch, San Antonio, Texas, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Local Union 657, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating. in regard to their hire or tenure of employment, or any term of condition of employment. (b) Enforcing a rule forbidding, without its manager's permis- sion, union membership solicitation by its employees during their nonworking time at scheduled rest stops and during required stops made for the purpose of waiting out any accumulated time on their shift. (c) Discriminatorily prohibiting William E. Condrin, or any other employee, from talking to their fellow employees because of their union and concerted activities and for the purpose of impeding the self- organizational efforts of its employees. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities except to the extent 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. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Rescind immediately its no-solicitation rule insofar as it for- bids, without its manager's permission, union membership solicitation by its employees during their nonworking time at scheduled rest stops and during required stops made for the purpose of waiting out any accumulated time on their shift. (b) Offer to Louie E. Wright immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report en- ARMSTRONG TIRE AND RUBBER COMPANY 38 titled "The Remedy," for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. (d) Post at its garage at San Antonio, Texas, copies of the notice attached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for the period of sixty (60) consecutive days there- after 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 with any other material. (e) Notify the Regional Director for the Sixteenth 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 dismissed insofar as it alleged that the Respondent engaged in unfair labor practices because of the content of the leaflet it distributed to its employees on April 16, 1956, and by Manager Haidet's conversation with employee Chambers on or about August 10, 1956. 2 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." APPENDIX A NOTICE TO ALL EMPLOYEES 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, we hereby notify our employees that : WE WILL NOT discourage membership in Local Union 657, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, or in any other labor organization of our employees, by discharging or refusing to re- instate any of our employees, or in any other manner discriminat- ing in regard to their hire or tenure of employment, or any term or condition of employment. WE, WILL NOT enforce a rule forbidding, without our manager's permission, union membership solicitation by our employees during their nonworking time at scheduled rest stops and during 476321-58-vol. 119-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required stops made for the purpose of waiting out any accumu- lated time on their shift. WE WILL NOT discriminatorily prohibit William E. Condrin, or any other employee, from talking to their fellow employees be- cause of their union and concerted activities and for the purpose of impeding the self-organizational efforts of our employees. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form, join, or assist the aforesaid labor organiza- tion, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted 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 hereby rescind our no-solicitation rule insofar as it for- bids, without our manager's permission, union membership so- licitation by our employees during their nonworking time at scheduled rest stops and during required stops made for the purpose of waiting out any accumulated time on their shift. WE WILL offer to Louie E. Wright immediate and full rein- statement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate against any employee because of mem- bership in, or activity on behalf of, any labor organization. ARMSTRONG TIRE AND RUBBER COMPANY, TEST FLEET BRANCH, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Louie E. Wright, an individual , the General Counsel of the National Labor Relations Board, herein called the General Counsel and ARMSTRONG TIRE AND RUBBER COMPANY 387 the Board, respectively, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued his complaint, dated September 18, 1956, against Armstrong Tire and Rubber Company, Test Fleet Branch, herein called the Respondent. With respect to the unfair labor practices, the complaint, as amended, alleges, in substance, that: (1) Respondent's manager threatened employee Louie E. Wright with discharge for passing out or soliciting union membership or authorization cards at a nonwork rest stop, interrogated an employee as to union talk and as to the number of employees for the Union, and threatened loss of employee benefits and the possibility of moving the Test Fleet Branch to a different location if the Union came in; (2) the Respondent threatened employees with discharge or other reprisals if they "made the mistake of signing union cards"; (3) Respondent discriminated against employee Condrin by prohibiting him from talking to any other employees on his own time, because of his union membership and activities, and to impede employee self-organization; (4) Respondent discharged and refused to reinstate employee Louie E. Wright because of his union membership and activities; and (5) by the foregoing conduct, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. In its duly filed answer, as subsequently amended, the Respondent denies the commission of any unfair labor practices. Pursuant to due notice, a hearing was held in San Antonio, Texas, from November 27 to 29, 1956, inclusive. All parties were represented at the hearing, and afforded full oportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Respondent's motion to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, is disposed of in accordance with the findings of fact and conclusions of law made below. Subsequent to the hearing, the General Counsel and the Respondent filed briefs, which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT I Respondent is, and has been at all times material hereto, a Delaware corporation, having its principal office and manufacturing plant in the city of Natchez, Mississippi, and maintaining a Tire Test Fleet Branch in the city of San Antonio, Texas, for the purpose of testing tires manufactured by Respondent outside the State of Texas. In the course and conduct of its business operations, of which the Tire Test Fleet Branch is an integral part, during the 12-month period preceding the issuance of the complaint herein, which period is representative of all times material hereto, the Respondent purchased raw materials and equipment valued in excess of $1,000,000, of which 80 percent was shipped in interstate commerce to its manu- facturing plant from points outside the State of Mississippi. During the same period, Respondent sold products valued in excess of $2,000,000, of which 80 percent was shipped in interstate commerce from its Natchez, Mississippi, plant to points outside the State of Mississippi. Also, during the same period, the Respondent, at its San Antonio, Texas, Tire Test Fleet Branch, furnished goods or services to enterprises which produced or handled goods destined for out-of-State shipment valued in excess of $100,000. Upon the basis of the above-admitted facts, I find that the Respondent is, and at all times relevant hereto was, engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 657, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO, herein called the Teamsters, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and introduction This is the third unfair labor practice proceeding involving the Respondent at its Test Fleet Branch in San Antonio, Texas; 1 The findings in this section are based on the allegations in the complaint and admissions In Respondent's answer. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a Decision and Order 2 issued on February 18, 1955, the Board found that during the organizational drive of the Rubber Workers Union 3 in the spring and summer of 1953, the Respondent (1) interferred with the self-organizational rights of its employees in violation of Section 8 (a) (1) of the Act by the conduct of Manager Haidet in threatening the employees with loss of certain benefits, with discharge and the closing or removal of the fleet if the employees went union, and in promising economic benefits if the employees voted against the Union, and by the conduct of Road Supervisor Scharmen in making similar threats of economic reprisals; and (2) violated Section 8 (a) (3) of the Act by the conduct of Manager Haidet in discharging employee Erwin A. Albrecht, a test car driver, on July 22, 1953, because of his union membership and activities. The Board's Order was. enforced by the Court of Appeals for the Fifth Circuit on December 21, 1955 (228 F. 2d 159). Thereafter, in January 1956, Respondent reinstated Albrecht in compliance with the court decree. In a Decision and Order issued on March 17, 1955 (111 NLRB 998), the Board found that the record did not support the allegations of a complaint, issued against Respondent, that Respondent circulated and assisted in the circulation of antiunion petition in June 1954, that Manager Haidet made coercive statements to employees in February and June 1954, and that Haidet discriminatorily discharged employee George C. Phillips in June 1954. The present proceeding arose because of incidents and conduct which occurred in April, May, and August 1956, during an organizational drive on behalf of the Teamsters' Union. At issue are the legality of (1) Manager Haidet's enforcement of a non-solicitation rule; (2) the content of a letter mailed by Haidet to the employees; (3) the incident involving Manager Haidet's instructions to employee Condrin not to talk to employees; (4) Haidet's conversation with employee Cham- bers; and (5) Haidet's discharge of employee Louie E. Wright. These events. occurred in the setting of Manager Haidet's knowledge of the efforts of some employees to organize in the Teamsters' Union and of his announcements to the. employees that the "company does not want a union at the test fleet." B. Interference, restraint, and coercion 1. The enforcement of the no-solicitation rule 4 Employees, designated as test drivers, drive automobiles and trucks for the Respondent over prescribed routes on public roads for the purpose of testing; tires and gasoline. At specific intervals these employees make scheduled rest stops of from 10 to 15 minutes duration. During these rest stops the employees are required to make a tire pressure check, unless they are using tubeless tires. This. check takes only a few minutes of their time. During the balance of the rest period, the employees have no work to perform and are admittedly free to do anything they want; they generally sit or walk around, talk, and go for coffee. In addition to the rest periods, the test truckdrivers also have a nonscheduled last stop on the return trip, about 21 miles north of San Antonio. This stop is made by the truckdrivers for the purpose of "killing" or "waiting out" any accumulated time on their shift so that they will arrive at the garage in San Antonio at the prescribed time. The time spent at this stop may vary from 5 to 45 minutes. When they are ready to leave, the drivers line themselves up so as to arrive at the garage in proper order. Although some of the drivers voluntarily utilize some of their time at this stop to clean their trucks, make out part of their reports, or to make up any mileage shortage, Manager Haidet admitted that there are no required duties to be performed at this stop, as the employees have 15 minutes after arriv- ing at the garage for the purpose of cleaning their trucks and making out their reports. Thus, Haidet testified that the truckdrivers "have nothing to do that they are supposed to do except kill time and get lined up and come into the garage," and that "most drivers at all times have time to kill" at this stop. The employees generally get together in groups and engage in "bull" sessions. In addi- tion to the foregoing stops, all employees are also required to stop for a 30-minute lunch period. The employees are paid for all time spent on their route except for the lunch period. 2111 NLRB 708' (Case No. 39-CA-359). 3 United Rubber Cork, Linoleum and Plastic Workers of America, CIO. 4 The factual findings in this section are not disputed. ARMSTRONG TIRE AND RUBBER COMPANY 389 Since September 1954 the Respondent has had in force the following no-solici- tation rule: 24. The circulation of petitions, the passing out of membership cards, and any other solicitation on Company time without the permission of the Manager. The penalty for a violation of this rule was a warning notice for the first offense, and discharge for the second offense. These rules were publicized and the drivers admittedly were aware of them. Louie E. Wright, alleged in the complaint to have been discriminatorily dis- charged , was a test truckdriver and the most active union protagonist . On April 6, 1956, during the period when the test truckdrivers were stopping for 15 to 20 minutes at the last stop, 21 miles north of San Antonio, Wright gave a Teamsters' Union application card to Troy Eason , a fellow employee , with the comment that Eason take the card home, think about it and sign it if he so desired. Eason said, `'alright," and took the card. Eason later reported to Manager Haidet that Wright had given him a Teamsters ' card at this last stop, because Eason was very much opposed to having a union at the Respondent for fear that it would result in the Respondent closing down . On April 12, 1956 , Manager Haidet issued a warning notice to Wright for having violated Rule No. 24. The notice, after reciting the rule, stated that "the offense committed was your passing out membership card on company time without permission." At the same time, Haidet threatened to dis- charge Wright if he committed this offense again. It is conceded that Respondent regarded "company time" as all time for which the employees were being paid and enforced its no-solicitation rule at all times while the employees were on the road, with the exception of the one-half hour nonpaid lunch period. Thus, during the hearing the Respondent 's counsel stated on the record to a witness , testifying for the General Counsel, "that at your so- called rest stops you are not free to engage in any union activities or otherwise solicitations." And in his brief, he concedes that "there is, then, no question as to the scope of the rule." The Board has long held , with court approval, that prohibiting union solicita- tion by employees during their nonworking time deprives employees of rights guaranteed by the Act in violation of Section 8 (a) (1), whether or not such nonworking time is paid for by the Employer.5 As the Court of Appeals for the Fifth Circuit so aptly stated in Olin Industries case: The argument that since the employees were paid during these lunch and rest periods they actually constituted company time and were subject to company rules is without support or foundation. We think the Board has properly approached this problem of solicitation on company property on the basis of the distinction between actual working and nonworking time, rather than on the basis of the immaterial distinction between paid and unpaid time. [Cita- tion of cases.] . . . Any other rule might seriously impair the right of employees to organize col- lectively under the Act by placing a premium on attempts by employers to allocate wages or salaries and company time over the entire workweek, so as to prohibit employees from discussing union activities or soliciting union mem- bership at practically every convenient time. Clearly the Act does not require enforcement of such a harsh rule of silence upon employees. There is equally no merit to Respondent's contention that its prohibition of solici- tation at these stops was a reasonable restraint in the interest of employee safety and efficiency of operation of the vehicles . The general purpose of all rest periods is to promote safety and efficiency. I find that by enforcing its no-solicitation rule so as to forbid , without its man- ager's permission, union membership solicitition by its employees during their non- working time at scheduled rest stops and at the required stop for the purpose of waiting out any accumulated time on their shift , and by issuing a warning notice to Louie E . Wright for violating this rule at the latter stop, the Respondent inter- fered with , restrained, and coerced its employees in the exercise of their statutory rights and thereby violated Section 8 (a) (1) of the Act. 6 See e. g., Olin Industries, Inc. v. N. L . R. B., 191 F. 2d 613 , 617 (C . A. 5), cert . denied 343 U . S. 919 ; V. L. R. B. v. Monarch Machine Tool Co., 210 F. 2d 183 ( C. A. 6), cert. denied 347 U. S. 967 (unscheduled paid lunch periods) ; I. F. Sales Company, 82 NLRB 137, 138 , enfd. 188 F. 2d 931 ( C. A. 6). 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent's letter of April 16, 1956 On April 16, 1956, Respondent mailed to its employees a letter, signed by Mana- ger Haidet, indicating Respondent's views on the efforts of the employees to organize in the Teamsters' Union. The letter, appearing in full as Appendix B, attached to this report, stated that the "company doesn't want a union at the test fleet," that the employees of the fleet have demonstrated in two past elections that they do not want a union either, that another election could not be held until October 6, 1956, that signing a card is a serious matter and not just a step in the direction of securing an election, that wages and other benefits have been excellent without a union, and that unionization often results in strikes with consequent loss of pay and even pos- sible loss of employment in the event of replacement of economic strikers. The General Counsel points to the following statements in the letter as constituting unlawful interference, restraint, and coercion: In 1953 a lot of of our men made the mistake of signing union cards And don't think the union will keep your card secret. Back in 1953 the or- ganizers told the men that their cards would be kept secret and next thing the signers knew the cards were in evidence in a Labor Board Hearing THINK CAREFULLY-DON'T MAKE A MISTAKE. The General Counsel concedes in his brief that if the letter was considered by itself, these statements "would probably constitute nothing more than the permissive expressions of opinion under Section 8 (c)" of the Act. However, he contends that these statements must be considered in the light of Manager Haidet's conduct in 1953 when he was found to have violated the Act by threats of reprisals and promises of benefits and by discharging an employee for his union activities, as previously de- scribed in this report. So considered, the General Counsel contends, these state- ments constitute a thinly veiled threat of economic reprisals for signing a union card. The background events, to which the General Counsel refers, occurred about 3 years before the mailing of this letter. The Respondent has since complied with the court's decree enforcing the Board's Order based on the 1953 conduct. Under all these circumstances, and considering the statements in the context in which they were made, I do not feel that the record warrants the inference which the General Counsel seeks to have me draw. I find that the letter in its entirety contains no more than a privileged expression of the Respondent's views, arguments, or opinions protected by Section 8 (c) of the Act. I will accordingly recommend the dismissal of this allegation of the complaint. 3. The Condrin incident The complaint alleges that Respondent unlawfully discriminated against W. E. Con- drin by prohibiting him from talking to other employees during his nonworking time. William E. Condrin had been continuously employed by the Respondent as a test car driver for approximately 10 years. Respondent, through Manager Haidet and its supervisors, was admittedly aware of the fact that Condrin was an active union protagonist. He was on the employee organizing committee during the organizing campaign of the Rubber Workers Union, and had testified on behalf of the General Counsel in the two prior unfair labor practice hearings. In 1956 he was active in soliciting employees to join the Teamsters' Union. Test car drivers were permitted to punch in 5 minutes before they were required to commence work, thus allowing them a 5-minute period of nonworking time. On May 1, 1956, the day in question, Condrin was on the afternoon shift which com- menced at 1:45, with the permissible punch-in time at 1:40. Condrin testified that on that day he punched in at 1:40, his usual punch-in time on the afternoon shift, and then walked out to the back of the driveway near the street where one of the incoming test cars from the preceding shift was parked. There he talked to Erwin 1. Albrecht, the incoming test driver and another known union adherent. Accord- ing to Condrin's undisputed testimony, he told Albrecht that he had some signed union cards and asked Albrecht if he would go by Condrin's house and get the cards and take them to the Teamsters, and that Albrecht replied by telling Condrin to bring the cards down and put them in Albrecht's car out in the shed. While this conversation was in progress, Albrecht continued the wiping off of his car which he was getting ready to turn over to the next driver. Condrin further testified as fol- ARMSTRONG TIRE AND RUBBER COMPANY 391 lows: While talking to Albrecht, Condrin observed Manager Haidet walking towards them lightly and on his tiptoes; Condrin thereupon turned around and looked straight at Haidet, whereupon Haidet approached him in a normal manner. Haidet then told Condrin that he did not want him to talk to any driver at any time after he punched in. As Haidet turned around and started to walk away, he stopped and in a raised voice stated, "I mean that." Condrin's conversation with Albrecht had taken about 1 minute when Haidet spoke to Condrin. R. R. Scharmen, Respondent's road supervisor of the test fleet, testified that on 2 consecutive days in the spring of 1956, he noticed Condrin walk over and talk to Albrecht before Condrin had punched in, and reported this to Ray Wilson, Respond- ent's shop foreman. Wilson testified that Scharmen also expressed the view that Haidet should be informed about it, and that he accordingly reported the incident to Haidet. Manager Haidet testified that: after receiving this report from Wilson, he decided to watch Condrin closer; on the day in question he saw Condrin walk out to where Albrecht's car was parked and talk to Albrecht; he walked up and told Condrin, "I don't want you bothering these men before you are punched in . I want you to get away right away and I mean it"; and Condrin walked away. Haidet was emphatic in his testimony that this occurred 8 to 10 minutes before Condrin was due to punch in. It thus appears that the only serious discrepancy between Condrin's and Haidet's version relates to whether this incident occurred after or before Condrin had punched in. As my findings would be the same whether or not Condrin had already punched in at that time, I deem it unnecessary to resolve this issue. Haidet admitted that it was a natural and ordinary occurrence for oncoming drivers to speak to offcoming drivers, to carry their lunches to the car, put coats in the car and take care of other usual and normal amenities. He further admitted that no employee, except Condrin, was similarly prohibited from conversing with his fellow employees. Haidet testified that he would not have said anything to Condrin about talking to offgoing drivers if he had not made a practice of bothering them while they were working. Yet, there is no evidence that Condrin bothered any drivers while they were working. Haidet admitted that no drivers had ever com- plained about being bothered by Condrin while at work, and that he did not know of any instance of Condrin interfering with their work. In fact, Haidet admitted that Condrin never talked to any employee other than Albrecht. As previously pointed out, Albrecht was the employee who had been discriminatorily discharged by Haidet in 1953 and had been reinstated in January 1956 pursuant to a decree of the court enforcing the Board's Order. Haidet admittedly was aware of Condrin's extensive union activities. After some prodding, he admitted on cross-examination that whenever Condrin and Albrecht were talking, he assumed that they were talking about the Union. Haidet admittedly was opposed to having a union at Respondent's Test Fleet Branch. He finally admitted that his purpose in prohibiting Condrin, from talking to the offcoming drivers was, at least in part, to break up the union talk be- tween Condrin and Albrecht. The foregoing factors, when coupled with the other unfair labor practices com- mitted by Haidet, as herein found, manifests a clear discriminatory purpose in singling out Condrin and prohibiting him from talking to his fellow employees because of his union and concerted activities and to impede the self-organizational efforts of the employees. Under these circumstances, I find that Haidet's conduct in imposing a rule of silence upon Condrin alone, was violative of Section 8 (a) (1) of the Act, whether or not the rule applied to the time before or after he punched in.6 Delta Finishing Company, 111 NLRB 659, 661. 4. The Chambers incident The complaint alleges that about August 10, 1956, Manager Haidet interrogated an employee as to how much union talk was going on and as to how many em- ployees were for the Union; stated that if the Union came in, the employees might lose some of the benefits such as their sick leave, insurance, and pension plans; and also stated that the company could move the Test Fleet Branch to a different location, if it desired. In support of this allegation, A. B. Chambers, called as a witness for the General Counsel, testified on direct examination, as follows: 6I find it unnecessary to determine whether such conduct also violated Section 8 (a) (3) of the Act, as the complaint alleges and the General Counsel contends . For, in either event, I would recommend the same .remedy. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About August 10, 1956, he was sitting on a desk near the time clock during work- ing hours when Manager Haidet approached him. Chambers had heard considerable talk about the Union, pro and con, and saw an opportunity to get some information from the highest man in authority there. Chambers asked Haidet whether, "if this plant goes union" we would "still have our six-day sick leave and our insurance and what other benefits the Company is giving us now." Haidet replied that he did not know just exactly what they would get if it went union, that "possibly there would be some changes made," that we may get those benefits and we may not, and that anything we got would have to be bargained for. As there had been some talk about moving the plant, Chambers asked Haidet if Armstrong was "intending to move this plant from this location or out of Texas?" Haidet replied that it was possible that it could be moved, told him they were considering a ranch or an oval-shaped track, and discussed various locations and plans under consideration. Chambers stated that Armstrong "has got enough money to move this thing out of this country if they desire to." Haider agreed that Armstrong could move it any- where they took a notion to. Near the end of the conversation, Haidet stated in a joking manner that "he would like to know how many is for and against the Union" or "how much talk there is going on about the Union." Chambers replied in a joking way, "wouldn't you like to know." On cross-examination by Respondent's counsel, Chambers agreed that Haidet had stated, in response to his question about the possible loss of benefits, that Haidet did not know what would be in the union contract and that those matters would be the subject of bargaining. Chambers was emphatic that it was he who had brought up the subject of the fleet moving and that Haidet discussed with him tentative plans the Company had for moving off the road to a ranch location in the vicinity of San Antonio and that one of the reasons given for contemplating such a move was to avoid trouble the fleet had been having with a specific officer about the speed limits.7 Haidet's version does not differ substantially from that of Chambers'. Haidet testified that, in response to Chambers' question about the possible loss of employee benefits if the union came in, he stated that he could not answer that, that "if this should go union, everything that you do get or everything you might lose, everything would have to be bargained for" and that "I don't have any idea what might happen." Chambers stated that "Armstrong is a big company" and "if they wanted to move this place, they could move it, couldn't they?" Haidet replied that he supposed they could. He then pointed out, as an example, that "right now we are thinking of moving to another spot" and have "investigated possibilities of buying a ranch, building a track to test our tires on," and discussed various locations under consideration. He also discussed with Chambers the reasons for wanting to move, that they had been having trouble with radar checking speed limits and with one particular officer, and that the Company was asking for higher speeds. Haidet testified that his question about how many had signed union cards occurred at a subsequent conversation. On that occasion Chambers had called Haidet over and related that employee Condrin had stated that some "bigwigs" from Akron were coming down and would really organize the place. Haidet replied that he was not too worried about them and that he did not think they could do it. Haidet 7 When Chambers testified that all of Iaidet's statements were made in response to Chambers' questions, the General Counsel claimed surprise because of an alleged contrary version given by Chambers in his sworn affidavit submitted to the General Counsel on Oc- tober 11, 1956. The General Counsel was thereupon permitted to cross-examine Chambers. The General Counsel also attempted to refresh Chambers' recollection by showing Cham- bers his sworn affidavit. The General Counsel then offered Chambers' affidavit in evidence, not for impeachment purposes, but as the document used to refresh Chambers' recollection and as affirmative evidence. I sustained Respondent's objection that the affidavit was not admissible-for such purposes. The General Counsel now urges in his brief that I reconsider my ruling, and contends that the affidavit is admissible as past recollection recorded among other bases. "It is universally maintained by the Courts that prior self-contradictions are not to be treated as having any substantive or independent testimonial value." II•'igmore On Evidence, Third Edition, p. 688, sec. 1018. A "writing used to refresh recollection is not part of the testimony." Ibid., sec. 763. "When a paper is used merely to revive a present recollection, the oral utterances prompted by the revived recollection is alone the testimony ; the writing becomes no part of the testimony and therefore cannot be put in or read as such." Ibid., sec. 800. Nor does the record disclose a proper foundation for qualifying the affidavit as a past recollection recorded. Ibid., sec.' 746 and if. Upon the basis of the foregoing authority, I adhere to my ruling that the affidavit is not admis- sible for the purposes for which it was offered. ARMSTRONG _TIRE. AND RUBBER COMPANY 393 then turned to Chambers and said, "I wonder how many card signers they do have." As Haidet started to walk away, Chambers replied, "wouldn't you like to know." Even accepting Chambers' version of the conversation, I find nothing unlawful in Haidet's statements. Chambers initiated the conversation, and all of Haidet's statements were made in response to Chambers' questions. Haidet did not say that the Respondent would discontinue existing employee benefits, prior to bargain- ing, if the Union became the bargaining agent, as was the situation where the Board found a violation of Section 8 (a) (1) in The Rein Company case, 114 NLRB 694, 697. He merely informed Chambers, in substance, that any possible changes in existing employee benefits would depend on the outcome of collective bargaining and the resulting terms of the contract agreed upon by the parties. This did not constitute a threat of reprisal but a permissible explanation of the give and take involved in the collective-bargaining process. Haidet's discussion of the plans under consideration by Respondent for moving the test fleet was not related to union activities but to legitimate business considerations and hence did not constitute a threat of reprisal. Nor did Haidet's rhetorical question, made in a joking manner, as to how much talk was going on about the Union or how many were for the Union, constitute unlawful interrogation. Under the circumstances, it did not tend to interfere with, restrain, or coerce the employees in the exercise of their statutory rights, the test adopted by the Board 8 as the basis for a finding of unlawful inter- rogation. Accordingly, I will recommend dismissal of the allegation concerning Haidet's statements to Chambers. C. The discriminatory discharge of Louie E. Wright Louie E. Wright was employed by Respondent as a test driver continuously from March 1953 until his discharge on April 24, 1956, when he was driving a test truck. The Respondent contends that he was discharged for falsely reporting to Shop Foreman Wilson that the headlight on his truck had been damaged by hitting a cow when in fact it was caused by a fellow employee accidentally backing his truck into Wright's truck. The General Counsel contends that this incident was seized upon as a pretext to cloak Respondent's discriminatory motive in discharging Wright for union activities and to impede employee efforts to organize in the Teamsters' Union. 1. The accident involving Wright's truck On April 18 or 20, 1956, Wright had returned from his test run about 6 a. m. and had driven his truck up on the ramp near the gasoline pumps to take his turn in gassing up the truck. Earl Ingle, a fellow test truckdriver, was in his truck ahead of Wright, and accidentally backed his truck into Wright's truck, breaking the sealed beam light and damaging the lamp on the right front headlight of Wright's truck, Wright testified as follows with respect to what next occurred: Wright got out of his truck, walked up to Ingle, and asked Ingle if he knew that he had accidentally broken the headlight on Wright's truck. Ingle replied that he knew he had hit something but did not know what. Wright then asked Ingle if he was going to tell them about it and get it fixed. Ingle made an obscene remark and said he was not going to tell them anything. Wright expressed sorrow over the attitude Ingle was taking and stated that he hated to "stool" on Ingle by telling that he broke the headlight and that he thought Ingle would be man enough to admit it himself. Wright then turned around and called out to Shop Foreman Wilson to come out and look at his truck. Wilson came to Wright's truck and asked him what happened. Ingle was standing nearby but made no comment. Wright then said in a loud blustering tone and in a "joking sort of way" that he "must have hit a cow" or that it "looks like I ran into a cow" and that he had a broken headlight. Wilson replied that, if that was all the damage that was done, Wright should drive the truck into the garage to have it fixed and to go home and forget about it. Wright then drove his truck into the garage where the mechanic repaired the damage. Ingle testified as follows with respect to this incident: After he had backed into Wright's truck, he pulled up to the farthest gas pump and then called the mechanic to fix a broken spring which had caused the gas throttle to freeze. After the mechanic left, Wright came up to Ingle's truck, told Ingle that there was no 8 Blue Flash Express, Inc., 109 NLRB 591, 593; Grober Manufacturing Company, Inc., 111 NLRB 167, 168. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD damage to his truck but that Wright's truck had a broken headlight, and said, "I have told them I hit a cow , what are you going to say?" Ingle replied that he was going to tell them the truth ., Ingle denied having any conversation with Wright near the latter's truck and testified that he did not see Foreman Wilson at the as island that morning. With respect to this incident , Foreman Wilson testified as follows: On the morning in question, Wright called out to him to "come here I want to show you something." When Wilson came out , Wright was standing close to his truck. Wilson asked what had happened . Wright then shook his headlight and said "I hit a cow." Wilson then told Wright to "gas up and bring it on here in the shop and we will fix it." Wilson denied that Wright was talking in a joking manner. Employee. Condrin - testified that he was' looking out of the shop window when Foreman Wilson went out to look at Wright's truck; that he saw Ingle walk up, facing Wright; and "pretty soon" he heard Wright say "Ha! Ha! Ha!, I guess I must have hit a cow." Employees Earl Cogdell and Troy Eason , Respondent's witnesses , testified that they heard Wright tell Wilson that "I hit a cow." Cogdell also testified at one point that he did not see Ingle anywhere when Wright was talking to Wilson and , at another point, that Ingle was with the mechanic at pump No. 1 and that Wright's truck was at pump No. 3. Another Respondent witness, Silas Ben Smith , testified that Ingle never walked back to Wright 's truck, but that Wright had walked up to Ingle's truck and spoke to Ingle. He did not know what they said. Upon consideration of all the foregoing testimony and from my observation of the demeanor of the witnesses , I credit the testimony of Wright and find that, in sub- stance, he had the conversations with Ingle and Wilson to which he testified. Moreover, Wright's version of his conversation with Ingle is more inherently plaus- ible. For, there would be no reason for'-Wright reporting about hitting a cow before ascertaining whether Ingle would report the accident . And my resolution of the issues in this case would be the same whether Wright told Wilson he "must have hit a cow" or "looks like I ran into a cow ," as he testified , or whether he merely stated, "I hit a cow," as Respondent's witnesses testified. 2. The discharge of Wright 9 On April 24, 1956, Manager Haidet called Wright into his office , and stated that he had heard that Wright had been involved in an accident and that there had been a headlight broken on his truck . Wright admitted that that was so. When Haidet stated that he heard Wright had hit a cow, Wright replied that that was not correct, and explained how the accident happened by Ingle backing into his truck. During the course of the conversation Haidet told Wright that Ingle had come into his office and reported the accident. Haidet asked-Wright why he had reported hitting a cow. Wright stated that he had not made out any written report but had merely told Ray Wilson that he must have hit a cow after Ingle, who was standing there, would not tell Wilson what had happened , for the reason that he did not want to be in the embarrassing position of "stooling" on Ingle. Haidet told Wright that he had made a false report of an accident and that he would have to discharge him for it. Haidet then discharged Wright, effective as of the next morning. 3. The Respondent's defense Respondent contends that Wright was discharged because he had reported to Foreman Wilson that the headlight on his truck had been damaged by hitting a cow rather than by Ingle's truck backing into his truck . . If this were in fact the true motivating cause for the discharge , it is of course a complete and valid defense. Manager Haidet's true motivating cause in discharging Wright is at issue. It is conceded that the damage to the headlight was of a very minor nature and cost only a few `dollars to repair.1° The record shows that breakage of a sealed beam headlight is a frequent occurrence among the drivers, and that no employee report, either written or oral , is required of such accidents . Haidet admitted that the accident involving Wright's truck was of a minor nature. The record shows that the Respondent is not concerned as to the cause of the breakage of a sealed beam headlight. Haidet admitted that it would have been proper for Wright to have asked the mechanic to fix the headlight , without informing him or anyone 9 The findings in this section are based on the mutually consistent testimony of Wright and Manager Haidet. 'o The mechanic , who made the repairs , testified that he replaced a broken sealed beam and spent about 1 hour in straightening the outside rim and the inside of the headlight. ARMSTRONG TIRE AND RUBBER COMPANY 395 else as to how the damage occurred. The record also shows that the damage caused to a car or truck from hitting a cow or deer is much more extensive than was caused to Wright's truck. Foreman Wilson admitted that the,damage in Wright's case was a minor thing and he did not give it too much thought.' After considerable prod- ding on cross-examination, Wilson admitted that, from his experience with the damage caused by hitting a cow, "deep down in my heart I couldn't possibly have believed" that he hit a cow but that "it was such a minor thing" that he did not worry about it or give it a serious thought. Wilson further testified that later he "read between the lines" and reported the incident to Mr. Haidet because he wanted Haidet to know that "Wright had not given a true story." Wilson testified that he told Mr. Haidet that "Wright was supposed to have hit a cow last night and knocked out a headlight" and that "if it was a cow it must have had an iron rib." He admitted that he is not required to make reports to Haidet about such minor items as the damage to Wright's truck. He further admitted that he was not interested in finding out just how the damage to the head- light had occurred. Wilson admitted that he was "almost positive" that his report to Mr. Haidet was made before Ingle had reported the matter to Haidet. On the other hand, Manager Haidet testified that Wilson had not reported the incident to Haidet at all but that, on the day after Ingle's report, Haidet asked Wilson why he had not reported Wright's accident and that Wilson stated that "the thing was so small" that he "just forgot all about it." In fact, Haidet admitted that Wilson does not have to report such minor things as the Wright incident and that there was no cause for Wilson to report it until Haidet asked him about it. Moreover, al- though Haidet testified that he had not known anything about the Wright incident until Ingle had reported the matter to him, Ingle testified that when he reported the matter, Haidet stated that he had heard a different story and that he thought Wright had hit a cow. Haidet testified that he had been instructed to consult Respondent's attorney be- fore discharging anyone active in the Union; that, after Ingle had reported the incident to him, he telephoned to Respondent's attorney, told him that "Wright had falsely reported an accident to me" and that he wanted to know if he could lawfully dis- charge him; and that the attorney advised Haidet to investigate the matter and, if the investigation disclosed that Wright had stated that he had hit a cow, to call Wright into the office and if Wright did not have an adequate explanation for having made such a statement, it was lawful to discharge him. Thereafter Haidet spoke to several drivers who verified that Wright had made the statement about hitting a cow, and then called Wright into his office where he discharged him, as previously described. Haidet admitted that Wright had not made a false report about the accident to Haidet, and that he would not have discharged Wright if his investigation had disclosed that Wright had told Wilson in a joking manner that he must have hit a cow. He testified that Wright's explanation, that he did not want to "stool" on Ingle, was not a satisfactory explanation for stating that he hit a ccw. However, he admitted that there was no possible explanation which Wright could have given to satisfy Haidet; and that, despite his attorney's advice, he had decided to discharge Wright before making any investigation and before listening to Wright's explanation. In view of the foregoing inconsistencies and contradictions, and from my observa- tion of his demeanor while testifying, I do not regard Haidet as a credible witness. Upon consideration of all the foregoing factors, and upon the basis of the entire record considered as a whole, I am convinced and find that Wright's statement to Foreman Wilson that he hit a cow was not the true motivating cause for his discharge but was seized upon by Haidet as a pretext to cloak another motive. 4. Conclusions From the very first attempt in 1953 to organize a union among the Respondent's employees, Wright was, and continued to be, the most active union protagonist. He was an active member of the employee organizing committee for the Rubber Workers Union, and testified in behalf of the General Counsel in the unfair labor practice hearing in January 1954. On one occasion in 1954 when Wright asked Haidet whether the drivers whom he contemplated taking over from another fleet, which was shutting down, would be accorded seniority over the present drivers, Haidet admittedly "got mad," upbraided Wright, and warned him "to keep your nose out of my business and be careful." After the Rubber Workers Union lost the first election, Wright continued to promote the union cause, talked to employees about the benefits of a union, pointed out that the employees would have better wages and working conditions under a union, and was successful in obtaining a number of employee signatures to union authorization cards. Until the switch to the Teamsters' Union in 1956, Wright talked to about 90 percent of Respondent's 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD test car and truckdrivers. His widespread union interests and activities were ad- mittedly well known to Manager Haidet, Road Supervisor Scharmen, and Shop Foreman Wilson. In April 1956 Wright took the initiative in switching the employee organizational efforts to the Teamsters. On April 6 he went to the office of the Teamsters Local 657 and advised them that the Rubber Workers Union had no objection to employee efforts to organize in the Teamsters' Union. He left with some union authorization cards for the purpose of soliciting employee signatures. That afternoon Wright drove a test truck on the afternoon shift. At one of the rest stops he went to get coffee with two fellow drivers and told them about his visit to the Teamsters' Union and that he had some Teamsters' cards to hand out. One of the employees offered to sign one but no fountain pen was available. At the last stop, 21 miles north of San Antonio, where the truckdrivers stopped for the purpose of waiting out their accumulated time, Wright gave a Teamsters' card to Troy Eason, as previously described. As previously found, Troy Eason informed Manager Haidet about Wright giving him a Teamsters' authorization card at their last stop on April 6. Thereafter, on April 12, Haidet gave Wright a warning notice for having solicited Troy Eason at that last stop on April 6, as previously found. At the same time, Haidet also threatened to discharge Wright if he did it again during any time for which he was being paid, pursuant to Respondent's no-solicitation rule. As previously found, Respondent's conduct in this respect violated Section 8 (a) (1) of the Act. Thereafter, Wright continued to solicit employees and to talk about the benefits of a union. From April 6 until the date of his discharge on April 24, Wright solicited about half a dozen employee signatures but was unsuccessful in obtaining any. Throughout this period Haidet made clear to the employees his opposition to having a union at' the Respondent's Test Fleet Branch. On April 6 Haidet had become aware of Wright's efforts to organize the employees in the Teamsters. He lost no time in informing the employees of his continued opposition to the em- ployees' self-organizational efforts by his letter mailed to the employees on April 16. On April 18 or 20 Ingle, a fellow truckdriver, backed into Wright's truck, caus- ing minor damage to a headlight. When Ingle refused to report the accident, Wright told Foreman Wilson in a joking manner that he hit a cow, because he did not want to "stool" on Ingle. Wilson knew, from the little damage to Wright's truck, that Wright had not hit a cow and at first regarded the incident as too minor to warrant any further attention. Despite the fact that Wright's statement was obviously made to cover up an embarrassing situation about a minor accident of a kind which was a frequent occurrence among Respondent's drivers and as to which there was no requirement of any kind of a report, Wilson, according to his testi- mony, later informed Haidet of his belief that Wright had not hit a cow. Wilson, Ingle, and Haidet gave conflicting versions at the hearing as to when and how Haidet first learned of this incident. Aware that Wright was completely innocent in the accident, Haidet went through the motions of an investigation and of giving Wright an opportunity to explain, with his mind firmly fixed in advance to discharge Wright regardless of what the investigation might disclose or of Wright's explana- tion. Haidet then discharged Wright for the asserted reason that he had made a false. report of the accident, although such an offense was not listed on the Respond- ent's Rules of Conduct and Discipline, distributed to the employees. Contrasted with the treatment of Wright in this respect, is that accorded by Haidet to two ad- mittedly known antiunion employees discharged by Haidet for fighting on company property. Although this is an offense which is listed on the Respondent's Rules of Conduct and Discipline as carrying the penalty of discharge for the first offense, Haidet admitted that he first tried to stop them from fighting, that he warned them that if they did it again he would have to enforce the rules and discharge them, and that, not until they started fighting again after Haidet had left, did Haidet dis- charge them. Upon the basis of the entire record, I am convinced, and find, that Haidet seized upon the Wright incident as a pretext for ridding himself of the most persistent and outstanding union protagonist and to impede the latest employee efforts to organize in the Teamsters. By such conduct, the Respondent has discriminated in regard to the hire and tenure of employment of Louie E. Wright, thereby discouraging mem- bership in the Teamsters' Union, in violation of Section 8 (a) (3) and (1) of the Act. ARMSTRONG TIRE AND RUBBER COMPANY 397 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I have found that the Respondent violated the Act by enforcing a no-solicitation rule so as to forbid, without its manager's permission, union membership solicitation by employees during their nonworking time at scheduled rest stops and during required stops made for the purpose of waiting out any accumulated time on their shift. Accordingly, I will recommend that the Respondent rescind immediately its rule to that extent." Having found that the Respondent discriminated in regard to the hire and tenure of employment of Louie E. Wright, I will recommend that the Respondent offer to him immediate and full reinstatement to his former or a substantially equivalent position,12 without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the Re- spondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings 13 during said periods. Said loss of pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 291, 294. I will also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. The unfair labor practices committed by the Respondent are of a character which strike at the roots of employee rights safeguarded by the Act. As these unfair labor practices are persuasively related to other unfair labor practice proscribed by the Act, a danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the remedial order is coextensive with the threat. In order there- fore to make effective the interdependent guarantees of Section 7 of the Act and to prevent a recurrence of unfair labor practices, I will recommend that the Re- spondent cease and desist from infringing in any manner upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Teamsters is a labor organization within the meaning of Section 2 (5) Of the Act. 3. By discriminating in regard to the hire and tenure of employment of Louie E. Wright, thereby discouraging membership in the Teamsters, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (3) of the Act. 11 See, e. g., J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 472; Delta Finishing Company, 111 NLRB 659, 664; Cranston Print Works Company, 115 NLRB 537; Republic Aviation Corporation v. N. L. R'. B., 324 U. S. 793, enf. 51 NLRB 1186, 1189. 'The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 45 NLRB 827. is Crossett Lumber Company, 8 NLRB 440, 497-498. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By the foregoing conduct; by enforcing a no-solicitation rule so as to forbid, without its manager's permission, union membership solicitation by its employees during their nonworking time at scheduled rest stops and at required stops made for the purpose of waiting out any accumulated time on their shift; by issuing a warning notice to Louie E. Wright for violating this rule at the latter stop; and by discriminatorily prohibiting William E. Condrin from talking to his fellow em- ployees because of his union and concerted activities and for the purpose of impeding the self-organizational efforts of its employees, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged, and is engaging, in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices because of the con- tent of the leaflet distributed to its employees on April 16, 1956, and by Manager Haidet's conversation with employee Chambers on or about August 10, 1956. [Recommendations omitted from publication.] APPENDIX B To Our Employees: APRIL 16, 1956. This union business is starting again. You all know how we stand on this matter. The company doesn't want .a union at the test fleet, and the men at the fleet have demonstrated that they don't want one either. This has been going on for about three years now. In 1953 a lot of our men made the mistake of signing union cards, but in June of that year our fleet em- ployees overwhelmingly voted the union down. Then in 1954 this same Teamsters union that is around here now tried to get cards signed. They must have been unsuccessful because we never heard any more about it. Last October 6 we had another election. Again our employees showed that they didn't want a union by a big vote. Now it is starting again. I don't know what the story the organizers are spreading, but you should know that no matter how many cards they sign up, there can't be another election for a year after the last one, that is until after October 6, 1956. We hope that everyone will think carefully if they are asked to sign a card. You may be told that these cards are only to get an election, but, as our old hands know very well, the union considers that these cards make the union your agent. And don't think you can get the card back if you sign one, and then change your mind. And don't think the union will keep your card secret. Back in 1953 the organizers told the men that their cards would be kept secret, and the next thing the signers knew their cards were in evidence in a Labor Board hearing. You have a good job here at the fleet. You know the high wages we pay, and the good benefits we have. You know that there is no other place in the San Antonio area where the employees have better conditions, and we are far ahead of most places, union or non-union. You have never had to pay one cent to a union. You have never had to join a union to work at the fleet, and you never will. Before you get involved in this thing you should ask the union one question CAN THEY GUARANTEE YOU THAT THERE WONT BE A STRIKE? These union men often make big promises, but how can they fulfill these promises. Suppose the company does not see fit to go along with what the union proposes. The union has but one answer-YOU GO ON STRIKE. In other words you pay initiation fees, dues, and other contributions to the union and then have to strike to try to get what the union promised. We all know the strife, hatred and bitterness that strikes cause and remember that men on strike receive no pay, not even unemployment compensation. Not only that, the company is perfectly free to replace economic strikers with new employees. Strikers often find that they have no job when the strike is over. THINK CAREFULLY-DON'T MAKE A MISTAKE (Signed) H. A. HAmcT, Manager, Armstrong Tire Test Fleet.