Texas Aluminum Co., Inc.

TEXAS ALUMINUM Co., INC. 443 increased vacation and welfare benefits. However, this involved only a matter of computation by Koch, and not of itself sufficient to consti- tute him a confidential employee.3 In view of all the above factors, we find that Koch's status with the Employer has not changed since he first assumed the duties of per- sonnel clerk in 1957. We find therefore that he is not a confidential employee. 3In Triangle Publications, Incorporated, 118 NLRB 595 , relied upon by the Employer, the Board found that an employee who prepared data showing the effect of wage adjust- ments contemplated in labor contract negotiations was a confidential employee . However, in making this finding the Board relied also on the fact that this employee was present at conferences between the general manager and office manager which related to the interpre- tation of labor contracts , furnished information and advised as to past and future effect of contract terms , and discussed generally the application and carrying out of labor con- tracts from a fiscal viewpoint. These latter factors are not present here and make Koch's case distinguishable from the Board's finding in Triangle. Texas Aluminum Co., Inc. and United Steelworkers of America, AFL-CIO. Case No. 16-CA-1381. May 10, 1961 DECISION AND ORDER On December 16, 1960, Trial Examiner Reeves R. Hilton 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 copy of the Intermediate Report attached hereto. Thereafter, the, Respondent filed exceptions to the Intermediate Report and a brief in support thereof. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and the brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions. 1. In agreement with the Trial Examiner, we find that by main- taining and enforcing its broad no-solicitation rule the Respondent violated Section 8 (a) (1) of the Act. The Respondent's broad rule forbidding solicitation for member- ship in any organization on company property was presumptively ,an unreasonable impediment to self-organization and therefore unlawful in the absence of evidence that special circumstances made the rule necessary to maintain production or discipline.' 1 Republic Aviation Corporation v N L.R B., 324 U.S. 793; Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F . 2d 177 (CA. 5) 131 NLRB No. 69. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent produced evidence of the physical setup of the plant, the type and manner of operations, the privileges of employees, and the past labor strife in an attempt to establish that special circum- stances exist which warrant its broad no-solicitation rule. Thus, there was testimony that the Respondent's employees work in an open plant on three 8-hour shifts, that the production process is a continuous one and conducted as a chain operation, and that the employees' lunch, rest, and other breaks are not fixed but are taken at times when, within the discretion of the employee, a work break will not interfere with his own work or the work of others. It appears to be the Respondent's contention that, considering both the manner in which the plant is operated and the freedom which employees have in determining when they will take their breaks from work, employees taking breaks are likely to solicit others still at work and thereby interfere with pro- duction. However, the Respondent's rule is not limited to the prohibi- tion of an employee's solicitation of another while the latter is at work. Instead, the rule is equally applicable to those situations where both the solicited and the solicitor have taken breaks. We find that the circumstances relied upon by the Respondent do not show that for production or plant discipline a ban on solicitation as broad as that here in question was necessary. As to the Respondent's reliance upon past labor strife, we do not consider the fact that in 1953 or 1954 the Respondent had a strike which was accompanied by violence and friction among the employees a special circumstance justifying a blanket prohibition on solicitation within the plant. As we have found the Respondent's broad no-solicitation rule in- valid, we also find, as did the Trial Examiner, that the layoffs of em- ployees Gale, Potts, and Vick for breaches of this rule 2 violated Sec- tion 8(a) (3) and (1) of the Act.' ORDER Upon the entire record in this 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, Texas Aluminum Co., Inc., Rockwall, Texas, its officers, agents, successors, and assigns shall; 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization of its employees, by dis- criminating against its employees in regard to the hire or tenure of their employment. 2 As found by the Trial Examiner all the solicitations occurred during the work breaks or nonworking time of both the solicitor and solicited 3 National Steel & Shipbuilding Corporation , 126 NLRB 900. TEXAS ALUMINUM CO., INC. 445 (b) Maintaining or enforcing a rule broadly prohibiting its em- ployees from engaging in union solicitation on company property during their nonworking time. (c) In any like or related 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 representa- tives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Jimmy T. Gale, Dorris Potts, and Wilbur L. Vick for the loss of pay they may have suffered by reason of the Respond- ent's discrimination against them, in accordance with the recom- mendations set forth in the section of the Intermediate Report entitled "The Remedy." (b) Post at its plant in Rockwall, Texas, copies of the notice at- tached hereto marked "Appendix." 4 Copies of said notice to be fur- nished by the Regional Director for the Sixteenth Region, shall, after being signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding 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. (c) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. A 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 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 or activities on behalf of United Steelworkers of America, AFL-CIO, or any other 446 i DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization, by laying off any of our employees, or in any like or related manner discriminating against them in regard to their hire or tenure of employment. WE WILL NOT maintain or enforce any rule prohibiting employ- ees from engaging in union solicitation on company property during their nonworking time. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations , to join or assist United Steelworkers of America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any and all such activities. WE WILL make whole Jimmy T. Gale, Dorris Potts, and Wilbur L. Vick for any loss of pay they may have suffered as a result of the discrimination against them. TEXAS ALUMINUM CO., INC., 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 Upon charges filed by the United Steelworkers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, through the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint, dated July 26, 1960, against Texas Aluminum Co., Inc., herein called the Respondent or the Company, alleging that the Respondent has engaged in un- fair labor practices in violation of Section 8(a)(3) and (1) of the Labor Manage- ment Relations Act, as amended. In its answer the Respondent admits certain alle- gations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice a hearing was held on September 7, 1960, before the duly desig- nated Trial Examiner at Rockwall, Texas. All parties were present and represented by counsel and were afforded opportunuity to adduce evidence, to examine and cross- examine witnesses, to present oral argument, and to file briefs. Counsel waived oral argument and submitted briefs which I have considered. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS As appears in the pleadings, the Company, a Texas corporation, has its principal office and plant at Rockwall, Texas, where it is engaged in the manufacture and sale of aluminum products. In the 12-month period preceding the issuance of the com- plaint, the Company purchased goods and equipment valued in excess of $50,000 from places outside the State of Texas, and sold and shipped in interstate com- merce finished products valued at more than $50,000. I find the Company is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. TEXAS ALUMINUM CO., INC . 447 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. IH. THE UNFAIR LABOR PRACTICES A. The issues The principal issue is whether the Company violated Section 8(a)(1) of the Act by maintaining and enforcing rule 31 of its rules and regulations governing employment, which rule provides as follows: 31. Soliciting on company property to join or not to join any organization. 1st Offense-3 days off. 2nd Offense-Termination. The second question is whether the layoff of three employees pursuant to rule 31 was discriminatory and violative of Section 8(a)(3) and (1) of the Act. B. The Company's personnel; method of operations At all times material herein Richard W. Pickens was president of the Company; O. L. Mitchell, vice president in charge of operations; Martin C. Parks, plant super- intendent; J. Gordon Peterson, personnel director; Hal Goff, quality control super- intendent; Seely Summers, general foreman; and Herschel McCasland and Marion O'Dell, shift foremen. Pickens stated the Company conducts an aluminum extrusion plant, that is, the processing of hot aluminum through a die or configuration into various products for use in numerous manufacturing and commercial industries. The Company conducts its operations, in assemblyline fashion, in a rather large one-story building and em- ploys about 175 hourly rated employees on three 8-hour shifts. The employees, according to Mitchell, are expected to commence work at the start of their shift and to leave the plant promptly at the end thereof. It is undisputed, as related by Pickens and Mitchell, that the Company has no regular or fixed time for the lunch- eon period; employees were allowed 20 minutes for lunch, or for coffee or rest breaks. Pickens explained that efficiency was increased by giving employees the freedom to determine for themselves when they would take their work breaks. In line with this policy the employees made their own arrangements to relieve each other and about the only limitation placed upon the men was that they should use the vend- ing machine or restroom nearest their place of work. Again, there is no dispute that the Company maintained and enforced rule 31, as well as its other work rules, at the time in question and for some time prior thereto. It is also clear that the work rules, including rule 31, were posted at the plant and copies of the same were given to newly hired employees. There is no contention that rule 31 has been rescinded or modified. C. Organizational activities The Union commenced organizing in June 1960, and about June 10, Dorris A. Potts and William L. Vick signed union cards and attended the first organizational meeting for the employees which was held on June 12 at the Chris Cafe in Terrell, Texas, under the leadership of Hank Rabun, a representative of the Union. Jimmy T. Gale signed his union card around June 14 and, with Potts and Vick, attended the second union meeting which Rabun held on June 19 at the same place. At these meetings Rabun spoke on the subject of organization and instructed the employees that under the law they could solicit for the Union and pass out cards at the plant during work breaks, so long as they did not interfere with production. D. The disciplinary layoff of Gale, Potts, and Vick Gale has been employed for about a year and in June worked as billet sawyer on No. 2 press. His duties consisted of sawing 15-foot aluminum logs into prescribed lengths, which are then passed through a heater and placed into the press by the press operator and from there extruded through a die to a leadout table and then placed on a cooling table. Gale concluded this phase of the process by taking the extruded metal from the cooling table and sawing it into stated lengths Gale admitted that the press operation depended upon his supplying sufficient logs. In this respect, he stated he sawed the amount required by order, but he could saw enough logs to last the press operator from 45 to 60 minutes when running soft alloy and up to 4 hours when running hard alloy. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gale took his work breaks at irregular hours, when he was caught up with his work, and also relieved three men on the press when they took their breaks. During the period June 13 to 16, Gale distributed about 20 union cards to em- ployees. Gale stated that during his work breaks he solicited employees at the coffee and coke machines, around the water fountain and at the door near the press. In brief, Gale asked the employee what he thought of having a union at the plant and if his answer was favorable he would hand him a card and request that he sign it. While Gale explained the benefits of organization to the men he contacted, he did not argue with or try to pressure the individuals into signing a union card. Gale reported for work shortly before 11 o'clock the night of June 16, but before punching in, McCasland took him to Summers' office. Summers then took him to Parks' office where they met with Parks, Peterson, and Lloyd Harrison, a com- pany official. Parks asked Gale if he had been handing out union cards and he ad- mitted doing so. Parks remarked he did not know Gale was dissatisfied and Gale replied he was not dissatisfied, but he found it hard to make a living on a 5-day week and that the Union might be able to straighten out a few things at the plant. Parks said he had to give Gale a 3-day layoff under rule 31. Gale accepted the decision. He then asked if the rule applied to the parking lot and Parks answered, " It is on Company property." Gale went to Summers' office where Summers gave him a discipline slip stating he was being laid off for 3 days for violation of rule 31. At the end of his layoff Gale returned to work and was still employed at the time of the hearing. This was the only discipline slip received by Gale. Parks testified he had received information that Gale was soliciting on the time of other employees, so he brought him to his office, as described above. According to Parks, Gale admitted soliciting employees but claimed it occurred on the parking lot and he had given out only two cards. Parks conceded Gale was given a 3-day layoff. McCasland, Gale's immediate supervisor, said Welch Lee and Mike Craig, who worked on the No. 1 and No. 4 presses respectively, told him that Gale had solicited them to join the Union while they were in their respective work areas. McCasland reported the matter to Summers, apparently without talking to Gale. McCasland further stated on direct examination that on three or four occasions between June 13 and 16, he observed Gale in a work area other than his own, the finishing-saw room, and he asked Gale to return to his own area. However, on cross-examination, McCasland had no recollection as to when these instances occurred. In any event, McCasland admitted the visits did not interfere with Gale's work and he did not discipline Gale for his acts although he could have given him a discipline slip in accordance with the Company's rules and regulations. Potts has been employed for about 18 months as a billet sawyer. His duties and employment conditions are the same as those detailed by Gale. Between June 13 and 15, Potts distributed 20 to 30 union cards during his work breaks. He solicited employees in the same manner related by Gale and his solicitations took place at the vending machines, restrooms, and the timeclock, before punching in and after punching out his time. Around noon on June 16, Summers took Potts to the office where they met with Pickens and Parks. Pickens stated he heard Potts had been passing out union cards and Potts commented he did not know who had said it. Parks declared, "We know you have been passing out cards," and Potts admitted he had done so. Pickens said he had no alternative but to give him a 3-day layoff. Potts asserted he was protected under the law to pass out cards, so long as he did it on work breaks and did not interfere with other men's work. Pickens remarked there was no such law and instructed Summers to take Potts to his office. The meeting then ended. Potts went to Summers' office where Summers gave him a discipline slip stating he was being laid off for 3 days for violation of rule 31. Potts finished his shift that day and returned to work following his layoff. This was the only discipline slip received by Potts. Pickens simply testified he was present at the meeting with Potts, and Parks testi- fied substantially the same as Potts concerning the subject of the meeting. Vick has been employed for about 7 years and in June ran a stretcher in the ex- trusion department. Vick was not questioned concerning his job duties. Between June 11 and 23, Vick spoke to some 100 employees about joining the Union during his work breaks, the conversations taking place at the vending ma- chines, restrooms, water fountain, and at the roadway leading into the plant. On June 15, around noon, Summers took Vick to the office for a meeting with Pickens and Parks. Pickens remarked he did not believe Vick would attempt to or- TEXAS ALUMINUM CO., INC. 449 ganize a union after what he "went through the last time," referring to organizational efforts by another union in 1953 or 1954. Pickens then said he was going to lay off Vick for 6 days for passing out union cards. Vick denied he had handed out cards but admitted he had signed one. Pickens thereupon stated Vick would be laid off for 3 days for signing up. Vick was instructed to go to Peterson's office, which he did. Shortly thereafter, Summers came in and told Vick to go back to work, he was not being given any time off. On June 17, Vick posted a notice on the bulletin board informing the employees of the date and place of a union meeting. On June 18, Vick was taken to the office by Summers where he met Parks and Peterson. Parks said he was giving Vick a pink slip for posting the notice. Vick inquired if the slip was being given for display to the employees and Parks answered no, but he could show it to the "union men," if he wished. The same day Vick re- ceived a discipline slip from Summers stating he had posted an unauthorized notice in violation of rule 29, the penalty for the first offense being a warning. On June 22, at or near the water fountain, Vick asked Goff if he would like to sign a union card and Goff told him no. Vick said he had talked to nearly everyone in the plant about the Union except Goff, so he enquired what Goff thought of the Union. Goff said the Union was no good, that he had belonged to one for 16 years. He then left. The next day Vick was summoned to the office where he met Parks, Peterson, Summers, and O'Dell, his shift foreman. Parks handed Vick a discipline slip, signed by Summers, stating he had violated rule 31 and rule 23, leaving his assigned work area without permission, and that he was being laid off for 6 days; 3 days for viola- tion of rule 31 and 3 days for accumulation of three discipline slips. Peterson also handed Vick a letter in reference to his conversation with Goff. This letter states that while Vick may have technically violated rule 31, the Company assumed his remarks to Goff were made facetiously, so no penalty would be imposed. Vick returned to work after his 6-day layoff. He admitted he received a discipline slip in December 1959 for mishandling a dolly. Pickens said he had heard Vick was engaging in union activities during working hours, so he called him to the office on June 15 to ask if he was engaging in such conduct. Vick claimed he did not know what Pickens was talking about. Pickens admitted he reminded Vick of the Company's rules and regulations but denied he threatened Vick with a layoff of 3 days or 6 days. Parks testified substantially the same as Pickens. Parks conceded that on June 18 Vick was given a discipline slip for posting the union notice. Goff said that when Vick spoke to him about the Union he had to stop work to listen to him. Admittedly, Vick was in his working area and the water fountain was about 15 feet from the place of their conversation. Parks said when the Vick-Goff conversation was brought to his attention he de- cided to overlook the incident and merely caution Vick about the rules and regula- tions. Parks stated Vick was called to the meeting of June 23 for two reasons: (1) to give him the letter regarding his conversation with Goff and (2) to discuss his violation of rule 31. As already stated Peterson handed Vick the letter. Concerning the violation of rule 31, Parks said the violation was not based on the Goff matter, but on a report he had received that Vick had solicited Eddie Pipkins at the plant. Vick neither admitted nor denied the violation but he was given the disciplinary slip and penalty described above. Parks explained he cited rule 23 on the slip merely to remind Vick of the existence of the rule, not for disciplinary purposes. Except for some conflict as to whether Pickens threatened to lay off Vick at the meeting of June 15, which I do not consider material to the issues, there is no serious dispute as to the circumstances under which Vick was actually disciplined. Concluding Findings The record herein makes it abundantly clear that the Respondent has maintained and enforced rule 31, which prohibits employees, under certain penalties, from so- liciting membership in any organization on company property on their own time. The validity of a broad no-solicitation rule has been determined in a number of cases by the Board and the courts. In a recent decision on this subject the Board, 599198-62-vol. 131-30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Walton Manufacturing Company, 126 NLRB 697, after reviewing the applicable authorities, held as follows: Accordingly, we have here a no-solicitation and no-distribution rule applicable to employees during their nonworking time, which rule is presumptively invalid, in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline. As Respondent introduced no evidence to show such special circumstances, the rule is invalid. We find, therefore, in agreement with the Trial Examiner, that Respondent's promulga- tion of the rule was a violation of Section 8(a)(1). Counsel for the Company contends that rule 31, under the special circumstances herein, is a valid rule. The contention, as I see it, is that the physical setup of the plant, the type and manner of operations, the privileges enjoyed by the employees, and past labor strife make it plain that soliciting membership in any organization on company premises "could substantially interfere with the over-all production in the plant," all of which constitute special circumstances which justify the no- solicitation rule. Certainly there is nothing in the record indicating the Company's plant, products, or methods of operation are, or were, so novel or unique as to require special consideration insofar as its treatment of employees is concerned. It is true the employees were free to determine their own work breaks, but I cannot see how that policy warrants the implication that the men might engage in soliciting mem- bership in an organization, to the extent that the Company found it necessary to adopt the no-solicitation rule. Manifestly, the record affords no basis for such an implication. On the contrary, Pickens testified the liberal policy promoted greater efficiency among the employees, so the present contention that rule 31 was essential to maintain production or discipline is wholly inconsistent with that testimony. Nor is there any merit to the argument that past labor strife at the plant required the establishment of the rule. The evidence on this point merely shows that in 1953 or 1954 another union conducted an organizational campaign among the employees which resulted in a strike against the Company. As there is no evidence showing the existence of special circumstances justifying rule 31, I find that by maintaining and enforcing the rule the Company thereby violated Section 8(a) (1) of the Act. The Company contends that the discriminatees were soliciting on their own work- ing time or the time of other employees in a manner that interfered with production, therefore, the mild disciplinary penalties imposed upon them were reasonable and just. The credible and undisputed testimony of Gale, Potts, and Vick, considered in the light of the Company's policy in regard to work breaks, convinces me that their solicitations occurred during their work breaks, not when they were supposed to be at their jobs. Moreover, since the soliciting incidents all took place at the vending machines, restrooms, and water fountains, on company property outside the plant and before and after shift hours, it is reasonable to infer that the men solicited at these locations were also on their work breaks or during their nonworking hours. Admittedly, none of the company supervisors observed the discriminatees engaging in the conduct for which they were disciplined. In fact top management officials assessed the penalties on the basis of reports from supervisors who, in turn, had received complaints from employees concerning solicitations. Seemingly, the super- visors transmitted these complaints without any investigation and without even speak- ing to the discriminatees. While McCasland claimed employees Lee and Craig had complained that Gale had solicited them, and Parks had information Pipkins had been approached by Vick, none of these employees appeared as witnesses to testify whether the solicitations occurred while they were actually working or that the dis- criminatees interfered with their production, nor was any explanation offered by the Company for its failure to produce these individuals. I have no doubt, as found above, that Gale, Potts, and Vick solicited many em- ployees to join the Union, and I am equally certain that their solicitations did not affect production. Indeed, Pickens, Parks, and Assistant Leadman Billy F. Brazell testified that production did not suffer during June when the discriminatees were engaging in union activities. Likewise, McCasland asserted that although Gale went to other work areas on occasions, his visits did not interfere with his duties and he was neither warned nor disciplined for his actions Accordingly, I find that the activities of Gale, Potts, and Vick did not interfere with production. In an effort to show that the activities of Gale and Vick adversely affected pro- duction, Mitchell, on the basis of company records, stated that production efficiency for their entire shift declined during the period of their solicitations and increased after they had been disciplined. Counsel for the Company properly concedes the TEXAS ALUMINUM CO., INC. 451 bare percentage figures, and nothing more , are inconclusive insofar as they purport to prove plant production efficiency or inefficiency.' I attach no importance to Mitchell's testimony on this point. First, I find it incredible to believe that any alleged decline in the shift's production could be attributed solely to the activities of Gale and Vick, and secondly, the direct testimony of the discriminatees and company officials and supervisors completely refutes the idea that production suffered as a con- sequence of the solicitations of the discriminatees. I find that by enforcing rule 31 and imposing disciplinary punishment against Gale, Potts, and Vick, in the manner found above, the Company thereby discrimi- nated against them in regard to their hire or tenure of employment in violation of Section 8 (a) (3) and (1) of 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 Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the maintenance and enforcement of Respondent 's rule 31 constitutes interference, restraint, and coercion with the rights guaranteed its em- ployees, I recommend that the Respondent be ordered to discontinue maintaining and enforcing the rule forbidding employees , under specified penalties, from solicit- ing employees to join any organization , including a labor organization, on company property during their nonworking hours. The Respondent having laid off Jimmy T. Gale and Dorris Potts for 3 days and Wilbur L. Vick for 6 days, pursuant to rule 31 , I recommend that the Respondent be ordered to make whole each of the discriminatees for the loss of pay they have suffered by reason of the discrimination against them by payment to each of a sum of money equal to the amount each would have earned during the period of their layoffs, less their net earnings , if any, during these periods. It is also recommended that the Respondent be ordered to make available to the Board or its agents, upon request , payroll and other records to facilitate the checking of the amount of backpay due the discriminatees. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices reasonably may be anticipated . I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act Upon 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. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing rule 31 of its rules and regulations prohibiting employees from soliciting membership in any organization, including a labor or- ganization, on company property during nonworking hours under penalty of layoff or discharge, the Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 1 The testimony simply related percentage of efficiency for the following days, 120 per- cent being the maximum or perfect percentage : Percent Percent June 13----------------------- 70 June 20----------------------- 83 June 14----------------------- 92 June 21----------------------- 97 June 15----------------------- 61 June 22----------------------- 72 June 16----------------------- 53 June 23----------------------- 83 June 17----------------------- 51 June 24----------------------- 100 June 18----------------------- 58 June 25----------------------- 98 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By laying off Jimmy T. Gale, Dorris Potts, and Wilbur L. Vick pursuant to rule 31 , the Respondent has discriminated with respect to their hire or tenure of employment, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act and discouraging membership in and activities on behalf of the above-named Union, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Local Union 825, International Brotherhood of Operating Engi- neers, AFL-CIO [Carleton Brothers Company] and Peter A. Neuffer. Case No. 2-CC-581. May 10, 1961 DECISION AND ORDER On November 29, 1960, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the com- plaint be dismissed with respect to such allegations. These findings, conclusions, and recommendations are more fully set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ent and the General Counsel filed exceptions to the Intermediate Re- port and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committeed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner with the following modifications : (1) The Trial Examiner found, and we agree, that the Respondent violated Section 8(b) (4) (i) (B) of the Act by inducing and encour- aging employees, members of Respondent Union, to engage in a work stoppage on July 7, 1960, with an object of forcing or requiring Carle- ton, the prime contractor on the Hillcrest construction project, to cease doing business with Peter A. Neuffer and A. E. Kollman, two nonunion contractors engaged in operations at the same project. The 'We correct the Trial Examiner's apparently inadvertent error in footnote 4 of the Intermediate Report that it was Johnson , instead of Tobin, who "described himself as 'office manager.'" 131 NLRB No. 67.