Poray, Inc.

PORAY, INC. 617 Moreover, although there is no such evidence here, a rule relieving the purchaser of all liability despite its contractual commitment invites chicanery because an agreement as that present here may readily be accompanied by a side agreement of different import. Furthermore, the purchaser has already received the estimated amount of this liability. The equities, it would seem, favor the innocent victims of the unfair labor practices in such an instance.5 Otherwise, all a seller has to do is misrepresent the nature of the unfair labor practices he has committed; the purchaser ostensibly accepts and relies upon this misrepresentation; and liability ends as of that moment. Finally, can it be categorically stated that the added Respondents are not "par- ticipating" in these unfair labor practices within the meaning of Rule 65(d) where the matter was an express matter of negotiation, contract, and financial arrangement between the Respondents? Is the failure and refusal to reinstate a discriminatee any less an unfair labor practice than the initial discharge, bearing in mind that due notice and an opportunity to litigate have been afforded? Why in logic is "par- ticipating" subject to a cutoff date when unremedied unfair labor practices are present? Certainly, the element of due process has been met in the present case. See Swetland v. Curry, 188 F. 2d 891 (C.A. 6). And, the same court that decided the Birdsall case appears now to have relaxed its approach thereto. N.L.R.B. v. McFarland & Hullinger, 306 F. 2d 219 (C.A. 10). Accordingly, in view of all the foregoing considerations, I find that Wyle, McCool, and Ogelsby are properly joinable herein as Respondents and so recommend. CONCLUSION OF LAW Wyle Laboratories, Ogelsby Corp., d/b/a Liberty Electronics Corp., and McCool Corporation, d/b/a Flight Electronic Supply Corp., are employers within the mean- ing of Section 2 (2) of the Act and are parties Respondent herein. RECOMMENDATIONS It is hereby recommended that the original Order in this case be made applicable to the added Respondents with the exception of McCool which was dissolved on November 1, 1962. It is further recommended that the added Respondents, in the event the rescission has not been fully carried out, be ordered to reinstate the com- plainants and that both the added and the original Respondents jointly and severally make the complainants whole, in the manner previously ordered by the Board. It appearing that the added Respondents may presently have 20 percent less posi- tions than there are employees to be reinstated, those not reinstated in accordance with an objective nondiscriminatory plan are to be placed on a preferential hiring list, with backpay to be tolled from the date of reinstatement, or placement on such list. 5 This is not Intended in any way to pas's upon any private litigation between the seller and the purchaser or, more specifically, on the issue of contribution between them. Poray, Inc. and Metal Processors' Union, Local No. 16, AFL- CIO. Case No. 13-CA-5065. July 12, 1963 DECISION AND ORDER On March 29, 1963, Trial Examiner Frederick U. Reel 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 attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that those allegations of the complaint be 143 NLRB No. 66. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dismissed. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 entire record in this case, including the Intermediate Report, the exceptions, and the brief, and finds that certain exceptions of Respondent are meritorious. Accordingly, the Board hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, only to the ex- tent consistent herewith.' 1. We disagree with the Trial Examiner's conclusion that employee Jasinski was discriminatorily recalled to his former employment in violation of Section 8(a) (4) of the Act. Jasinski was laid off for economic reasons in June 1962 and recalled in September 1962. The General Counsel contended that the Respondent discriminated against Jasinski by its failure to recall him as of July 10, 1962, at which time Jasinski visited the Respondent's plant seeking reemployment and assertedly saw two men at his work station who had not worked for Respondent prior to his being laid off. Inasmuch as the documentary evidence submitted by the General Counsel revealed that Jasinski's department was shut down on that date, the Trial Examiner concluded that the General Counsel had failed to show discrimination as of that time. Based, upon his own examination of the same documents, how- ever, the Trial Examiner concluded that Ortiz, another employee with less seniority, had been recalled before Jasinski and that there was discrimination, therefore, as of the time of Ortiz' return. Respondent excepts to the finding on the grounds that the issue of the return of Ortiz was not raised or litigated at the hearing and that the General Counsel at no time contended either that Ortiz was recalled prior to Jasinski or that Ortiz was selected over Jasinski for a discriminatory reason. We find merit in this exception. A review of the record demonstrates that the conclusion drawn by the Trial Examiner was based upon a set of unlitigated facts separate and apart from those upon which the General Counsel had premised the allegation. Ac- cordingly, we shall dismiss that portion of the complaint alleging a violation of the Act as to Jasinski. 2. We also disagree with the Trial Examiner's conclusion that em- ployee Zajac was discharged in violation of Section 8 (a) (3) and (4) of i Inasmuch as no exceptions were filed to the Trial Examiner's finding that the dis- charge of Anna Persa was not violative of the Act , that finding Is adopted pro forma PORAY, INC. 619 the Act. The General Counsel contended and the Trial Examiner found that the Respondent discriminatorily applied a valid company rule which prohibited smoking in the plant under penalty of discharge if violations thereof occurred three times within a calendar year. Zajac admittedly had violated the rule and had received, two prior written warning notices. The Trial Examiner found that known violations of the no-smoking rule were widespread and that the rule was unfairly applied to Zajac, relying upon the testimony of seven employees that they continued to smoke after the inception of the "triple warning system" in March 1962. He further found that several of these employees were seen smoking by their foremen and were "merely" warned not to get caught smoking but were not given written notices. However, the record shows that only two of the seven worked in the same plant as Zajac, and these two testified that they smoked only in the washrooms, where they were careful to hide the fact of their smoking, and were never caught smoking by any responsible official of the Respondent. The other five employees, who worked in a plant other than the one in which Zajac was employed, smoked in a lunch area where smoking apparently was not forbidden during the lunch period. In addition, contrary to the Trial Examiner, the record is not clear whether the warnings that were given in the other plant not to get caught smoking came at times when the particular employees were smoking, or, if they were, whether they were smoking illegally. Therefore, while Zajac was the only employee discharged pursuant to the rule, it is difficult to say that he was a victim of discrimination in the absence of evidence that other employees were treated differently. The Trial Examiner also found that Zajac was known by the Re- spondent to be active in union affairs and that there was evidence of union animus on the part of Respondent. He concluded that the no- smoking rule was discriminatorily applied to Zajac for these reasons and because of his testimony in the prior proceeding. The Trial Examiner relied on the fact that Zajac had become chief steward of the Union just several days prior to his discharge and that the Re- spondent had knowledge that he had assumed that post. However, there is no evidence of hostility manifested toward Zajac either during that short period or during the previous year when Zajac was a regular steward who frequently met with his foreman to discuss matters fall- ing within the scope of his duties. Further, the record is similarly lacking in evidence of hostility toward other employee-union officials at the times material herein. Finally, the Trial Examiner's finding that the Respondent mani- fested animus toward the Union is not supported by the factors relied upon. Thus, the first two items, i.e., the existence of an earlier settle- 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment agreement and consent decree and the fact that the General Counsel authorized contempt proceedings based on an alleged viola- tion of that decree, in and of themselves, lack evidentiary value as a matter of law. The fact that union literature issued to the employees contained invective against the Respondent does not support the in- ference the Trial Examiner has attempted to draw. Evidence of the Union's employer animus is not evidence of the Employer's antiunion motivation. The existence of disputes between the Respondent and the Union over checkoff moneys being held by Respondent and over Respondent's failure to post certain notices in its plant as requested by the Union are not shown by the record to have been attributable to union animus. The only item of probative value is the reference by the Respondent's secretary to the Union as "trespassers" and "inter- lopers" and her characterization on the witness stand of a strike-bound plant as a "cancer." However, on the entire record, this is not suffi- cient to sustain the finding of a violation of the Act vis-a-vis Zajac. Contrary to the Trial Examiner, therefore, we find that the Gen- eral Counsel has failed to show by a preponderance of the evidence that Zajac was discharged in violation of Section 8(a) (3) and (4) of the Act, and, accordingly, we shall dismiss that portion of the complaint. 3. Finally, we are unable to agree with the Trial Examiner's con- clusion that two speeches delivered to employees by the president and vice president of Respondent on September 7, 1962, violated Section 8(a) (1) of the Act. Both speeches were given after working hours in answer to a handbill distributed by the Union for the purpose of calling a meeting to discuss possible strike action. In his speech the vice president warned the employees that in view of Respondent's economic condition 2 a strike would "automatically" result in the permanent closing of the Respondent's plant. In addi- tion, he told the employees that the plant was a job shop working on goods belonging to its customers rather than to the Respondent and that the customers would remove their dies in case of a strike. The president's speech, when read in its entirety,3 was in a similar vein. We find that these speeches were not coercive or intimidatory and that 8 The Trial Examiner concluded that the first portion of the vice president's testimony was an accurate statement of what he told the employees. He further found, however, that the second portion, the part dealing with the Respondent's indebtedness, was merely an explanation given at the hearing as to why he delivered the speech. Respondent ex- cepts to this finding, and we find the exception meritorious. A review of the vice presi- dent's testimony offers no basis for the division made by the Trial Examiner. 8 That portion of the president's speech not included in the Intermediate Report nor commented upon by the Trial Examiner is contained within the parentheses: And now they are threatening with a strike and the factory will be closed for good. (And that comes from you people Our firm is a job shop and it belongs to other companies, Motorola, G.E., RCA, and others. If you go on strike, these people will remove their dies and other forms and these orders will never come back. You can be sure. They are fooling you by telling you that you have nothing to lose.) Our organization, once it is closed, will be closed forever. PORAY, INC. 621 they did not exceed the bounds of Section 8 (c) of the Act 4 Accord- ingly, we shall dismiss that portion of the complaint alleging that the Respondent violated Section 8 (a) (1) of the Act by these speeches. [The Board dismissed the complaint.] 4 Member Brown believes that the remarks of both officials were coercive and would affirm the findings of the Trial Examiner on this particular aspect of the case. Collins A Askman Corp., 143 NLRB 15. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case, heard before Trial Examiner Frederick U. Reel , at Chicago, Illinois, on January 21 through 23, 1963 , arose out of a charge filed August 13, 1962,1 a complaint dated November 20, and an answer dated December 3. The complaint alleged and the answer denied that Respondent discharged three employees for union activity and for giving testimony under the Act, and also that Respondent on Sep- tember 7 threatened its employees with reprisals if they went on strike . After the hearing, briefs were received from General Counsel and from Respondent , and have been fully considered. Upon the entire record,2 including my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, herein sometimes called the Company, is engaged at Chicago in the manufacture of products for the radio and television industry and other customers, and annually produces and ships over $500,000 worth of goods to points outside the State. The pleadings established, and I find, that Respondent is engaged in activities affecting commerce within the meaning of the Act . The parties stipulated, and I find, that the Charging Party, herein called the Union, is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A previous unfair labor practice proceeding involving these parties arose in 1961 , and led to several days of hearing in October 1961 , at which a number of em- ployees, including the three whose later discharge forms the primary subject of this proceeding, gave testimony in support of the General Counsel's contention that Respondent had violated the Act. The prior proceeding culminated in a consent order of the Board and consent decree of the Seventh Circuit , entered March 16 and April 16, 1962, respectively. Briefly paraphrased, the order and decree directed Respondent to cease and desist from violating Section 8(a)(1), (3 ), and (5) of the Act, to bargain collectively with the Charging Union , to reinstate seven employees with backpay, and to post notices . The three allegedly discriminatory discharges and the allegedly unlawful speeches of September 7 with which the instant case is concerned all occurred after the entry of the decree in the prior case , but under N.L.R.B. v. John S. Swift Company, Inc., 302 F. 2d 342 (C.A. 7), General Counsel was within his discretion in issuing a new complaint instead of instituting contempt proceedings . Turning, therefore , to the question whether the preponderance of the evidence sustains the allegations of the complaint in this case , we shall consider them in chronological order. ' Unless otherwise noted, all dates referred to herein occurred in 1962. 2A motion received from counsel for Respondent to correct certain errors in the tran- script is hereby granted, and the transcript has been corrected accordingly . I have noted numerous other errors in the transcript but regard them as immaterial as the sense of the matter is clear See, for example , the expression "and tie union animus," at page 246, line 1, and page 249, line 15 , which , of course, should read "anti-union animus." Respondent's motion, filed promptly after the receipt of briefs, to strike certain por- tions of General Counsel's brief as "improper , misleading and prejudicial" is hereby denied, although I agree with Respondent's reading of the record Even prior to the receipt of Respondent's motion, I had noted the inaccuracy of which it complains , and the state- ments in question were therefore neither misleading nor prejudicial. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The discharge of Anna Persa Anna Persa testified against the Company on October 9, 1961. On or about May 1, 1962, in accordance with her usual custom, she asked her foreman for permission to take her vacation, which on this occasion she wanted to take from Monday, May 28, to Friday, June 11. Permission was promptly granted. On Thursday, May 24, however, Persa's foreman said to her that she could not go on vacation because "things have changed." The next day she again asked the foreman whether she could go on her vacation or not, and, according to her testimony, he replied that it was up to her. The foreman testified that she said she was going on vacation as scheduled, and he told her she would be laid off if she did. Persa left on vacation as she had planned, and on her return was told that she was "laid off," a term which Respondent regarded in her case as synonymous with "permanently separated." She was unable to collect unemployment compensation because she had "refused to work." Respondent introduced evidence that between the time Persa first broached her vacation plans and the Thursday preceding her planned departure, an increased pro- duction schedule was received from one of its principal customers, which resulted in increasing the amount of work to be done in Persa's section, at least during the first week she planned to be on vacation. Persa's foreman testified that some reassign- ment of personnel was necessitated by Persa's absence, although he was not so pressed that he had to recall any employees on layoff status. The payroll records show that the total hours worked in Persa's section was substantially less in the first 2 weeks she was away than in the preceding weeks. On these facts, and crediting, as I do, the foreman's testimony that Persa knew on May 25 that she would be let go if she took her vacation then, I am constrained to recommend that the complaint as to her should be dismissed. At most the evi- dence gives rise to a suspicion that the foreman dealt harshly with her because of her union membership and her testimony, some 7 months before, which tended to involve him in the commission of unfair labor practices. The record does not show that she was given different treatment from that meted out to other employees who were absent without permission. The canceling of her vacation on its very eve, after she had received permission well in advance and had laid plans which (as she testi- fied) involved others as well as herself, was unquestionably a serious disappointment, and may even have been unnecessary as a matter of business operations, but it would be the sheerest unsupported speculation to find that management would have treated her differently (either with respect to the cancellation or to the penalty given her for being absent) but for her union activity and testimony. B. The layoff and delayed recall of Stanley lasinski Jasinski, who had testified in support of the complaint in October 1961, was one of a large number laid off for economic reasons on June 25, 1962. He was recalled the following September, but quit almost immediately thereafter to accept employ- ment elsewhere. The violation alleged in his case is a discriminatory refusal to recall him at an earlier date. According to Jasinski, he returned to the plant on July 10 in an unsuccessful effort to get back to work. He testified that on that occasion he saw two new people at work in his place. On Monday, September 10, he again sought work at the plant and the foreman again told him no work was available. On September 12 he re- ceived a telegram from the Company telling him to report on September 13. He did so, but quit the same day as he found a better job. Respondent introduced testimony tending to establish that Jasinski was laid off and recalled on a basis of seniority, that he was a "helper" in the shear department, that certain remodeling in that department following the shutdown of June 25 re- duced the need for helpers there, and that Jasinski lacked certain skills necessary to becoming a regular operator rather than a helper. The documentary evidence introduced by General Counsel did not tend to support Jasinski's testimony that men junior to him were employed at his job on July 10 Ac- cording to the payrolls, the shear department at the time of the layoff consisted of six or seven men, whose hourly rates of pay ranged from $1.90 to $1 45, with Jasinski at $1.55 being the next to lowest paid.3 The payroll dated July 20, covering the week of July 9 through July 15, indicates that the shear department was still shut down. The next payroll introduced in evidence is dated September 21, and covers 3 Two weeks before the layoff the number dropped from seven to six with the dis- appearance from the payroll of one Ortiz, junior man of the seven and one of two paid $1.45. PORAY, INC. 623 the week of September 10 through September 16. It shows only three men em- ployed in the shear department, including two senior to Jasinski, and one man junior to him, employed at $1.45. This man was Ortiz, who had been off the payroll for 2 weeks (the record does not indicate whether he was sick, laid off, on vacation, or absent for some other reason ) at the time of the layoff. As Ortiz worked 40 hours in the week beginning Monday, September 10, it seems fair to infer that he was re- called before Jasinski, who was told to report on Thursday, September 13. The record does not indicate , however, on what date Ortiz was recalled.4 Ortiz was not a witness in the prior proceeding. In the light of the foregoing facts, I find that Jasinski was not discriminated against on July 10, but that at some later date Ortiz was recalled ahead of Jasinski although the latter was the senior in employment . The record establishes that Jasinski gave testimony under the Act against the Company in October 1961, and the record in the earlier proceeding discloses that Ortiz was not a witness . In these circumstances, and in the absence of any other suggestion in the record for Respondent' s deviation from its avowed seniority policy, it seems reasonable to find, and I do, that Jasinski would have been recalled before Ortiz but for the fact that Jasinski gave testimony under the Act. This constitutes discrimination against Jasinski violative of Section 8(a)(4) and (1) of the Act. Cf. N.LR.B. v. Deena Products Company, 195 F. 2d 330, 335 (C.A. 7), cert. denied 344 U.S. 827. C. The discharge of John Zajac 1. Zajac thrice violates the no-smoking rule and is discharged Zajac, who had testified against the Company at the prior proceeding , and who was openly active in union affairs ,5 was discharged August 10, 1962, allegedly for smoking. The company rules forbade smoking, and also provided that if an em- ployee received three warning notices in 1 year, he would be discharged. The record is clear that Zajac violated the no-smoking rule and received three notices for having done so, one in March, one in June, and one in August when he was discharged.6 General Counsel contends, however, that the rule was discriminatorily applied against Zajac because of his having testified against the Company and because of his union activities. 2. Employee testimony concerning nonenforcement of the no-smoking rule According to Zajac, employees commonly smoked in the plant washroom, and on the last occasion when he was apprehended by his foreman, Blaha, two other em- ployees were also smoking in the same room. Ratko Matic, a former employee of the Company, testified that he and other employees regularly smoked in the plant, that his foreman gave them "breaks" for that purpose , and that his foreman, Fred- ericks, himself smoked in the plant. Matic testified that he attended a meeting of employees in the plant on September 7 at which Company Vice President Golterman spoke , and that Matic and other employees smoked at this meeting . Anna Persa testified that up to the time of her discharge, she and other female employees would smoke in their washroom , notwithstanding the "no-smoking" sign there . Chester Bauer, who left the Company's employ in July, testified that up to that time he smoked in the washroom and observed others doing so. Henry Klepczynski, who is presently in the Company's employ, testified that he smoked in the washroom, and that his foreman, Frosheiser, had merely warned him not to get caught. Ruben Rodriguez, a present employee, testified that he and other employees smoked in the washroom almost every hour, that his foreman, "Jim," had not only seen him, but had also smoked there, and that the foreman had warned him in connection with smoking "to watch out for" the company president. According to employee Roman Bielecki, the employees continued to smoke in the washroom after the no-smoking signs were posted in April 1962. Employee Peter Sawickij, a chief steward in the Union, testified that he smoked in the plant every day, and that on one occasion his * A list of union duets deductions introduced in evidence by Respondent indicates that Ortiz was employed the entire month of August 5 Zajac became a union steward in November 1961 , and became chief steward a few days before his discharge the following August. There is evidence, which I credit, that the Company knew of this promotion at the time he was discharged u At the time of the March episode, Zajac was discharged for smoking, but the Union made representations on his behalf and the matter was eventually settled by his receiving a warning notice and a week's suspension 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman, Pilip, saw him smoking in the washroom and told him "no smoking" but gave no written warning. 3. The testimony of Respondent's witnesses concerning the no-smoking rule Respondent introduced evidence that several serious fires had occurred at the plant, and that "several" employees (one of whom was identified by name) had been discharged for smoking prior to the October 1961 hearing. Mrs. Dunai, now a com- pany official, who had been associated with the firm since 1933, testified that the no-smoking rule had been in effect in all the years of her employment. Asked why it was not enforced, she testified: "Perhaps for the same reasons that a traffic policeman doesn't issue everyone a ticket that speeds on the highway. He just doesn't get caught." Foreman Blaha testified that when he saw Zajac smoking in the washroom on the last occasion, the two men with Zajac were not smoking. Golter- man, called as a witness for Respondent, was not asked to, and did not, deny that smoking went on during the course of his September 7 talk to the employees. None of the foremen who were identified as having "winked at," or connived in, violations. of the no-smoking rule were called to refute that testimony. 4. The evidence of the warning notices Every warning notice issued at the plant from the time the warning notice system was put into effect in March 1962 until within 2 weeks of the hearing in January 1963, was introduced into evidence. Putting aside the 3 notices to Zajac and 8 undated notices (discussed below), the record shows there were 10 such notices issued prior to Zajac's discharge, and 8 thereafter. None of the first 10 related to smoking, or, in other words, of the first 13 dated warning notices, only the 3 given Zajac were for smoking. Of the next eight, all issued after the filing of the charge alleged discrim- inatory use of warning slips, three (all issued by Blaha) dealt with smoking. Of the eight undated notices, all signed by Blaha, seven were for smoking. At first Blaha identified the notices as having been given in November, and then quickly corrected himself to state that they were issued in March 1962. On cross-examina- tion he adhered to this view, fixing the time as early in March 1962, over a period of 10 days. Reminded of his first statement that he had said they were given in November, and that he had corrected himself, he said that he was now sure they were issued in March. He also admitted, however, that in September 1962 he told Labor Board representatives that Zajac was the only employee he could recall having received warning notices for smoking. He testified that he "didn't recall [the March notices] at that time." Later, on redirect examination, he testified that the warning notice system did not come into effect until after he issued the undated notices. But then, asked to explain why Zajac's smoking in March was originally punished by discharge (see footnote 6, supra) and the other smokers were merely warned, Blaha could give no explanation and admitted it was peculiar. Finally, still on redirect, Blaha testified that the undated notices were given in November after all (only 2 months before the hearing!) and not in March.7 5. Concluding findings with respect to Zajac's discharge On the foregoing facts, I find that Zajac was a victim of discriminatory ap- plication of the no-smoking rule. Uncontradicted testimony shows that the rule was constantly, widely, and openly violated, but-so far as this record shows-up to the time of Zajac's discharge, not a single warning notice was given any employee for this offense except those given Zajac, and he received three. In making this finding, I am following Blaha's ultimate testimony that he gave the undated notices in No- vember, not in March. The case stands little better for Respondent if they were given in March, because in that case the severity of the penalty originally given Zajac at that time shows a readiness to discriminate against him. The sole conflict in testimony is whether Blaha saw two other men smoking when he caught Zajac on the last occasion. As to this episode, I credit Zajac's testimony that the men had been smoking, but-notwithstanding Blaha's poor performance on the witness stand 7 Blaha excepted from that generalization the notice to John Cirigos as he had left be- fore November. The evidence shows that Cirigos was hired September 14, 1961, that he was not on the payroll for May, June, or July 1962, that he was not on the seniority lists dated August 27 and December 23, 1962, or on the union dues deduction list for August 1962, but that he did work 15 hours during the week of September 10, 1962 Under these circumstances, and in the light of Blaha's highly confused testimony, I cannot find that the warning to Cirigos was issued before, or contemporaneous with, the warnings to Zajac. PORAY, INC. 625 with respect to the undated notices-I credit his testimony that he did not see them smoking. The fact is, therefore, that up until Zajac's discharge the no-smoking rule was currently being enforced only as to him. The issuance of warning notices for smoking thereafter is of little avail to Respondent in this case , as it may be viewed as an attempt to "make a record" after the filing of a charge on August 13, alleging, inter alia, discrimination against Zajac and in the use of warning notices. To be sure, Zajac did violate a valid rule, and this violation precipitated his discharge. But under settled law, an employer may not successfully urge that an employee was discharged for violation of a rule, if invocation of the rule against the employee was itself dis- criminatory. See, e.g., N.L.R.B. v. State Center Warehouse and Cold Storage Com- pany, 193 F. 2d 156, 158 (C.A. 9); N.L.R.B. v. Condenser Corporation of America, 128 F. 2d 67,76 (C.A. 3)-both dealing with "no-smoking" rules; N.L.R.B. v. Kohler Company, 220 F. 2d 3, 9 (C.A. 7). And granting the analogy to traffic law violators is applicable, the question here is whether the policeman had a special motive for catching only one violator (and that one repeatedly) when violations were wide- spread. Compare the settled rule that where a disproportionate number of union adherents are involved in an otherwise economically motivated layoff, the Board may reasonably infer discrimination in the selection for layoff. The question remains whether the discrimination against Zajac resulted from either his union activity or from his having testified against the Company at the prior proceeding. Zajac was not the only union adherent or the only witness adverse to the Company who smoked. On the other hand, he was particularly prominent in the Union, having been a steward throughout the period in question and a chief steward the last few days of his employment. The record leaves no room for doubt that considerable animosity exists between the Company and the Union. Such hostility might fairly be inferred from the prior proceeding, and from the contempt proceeding which (so the instant record shows) has been authorized, and from the invective which the Union in its literature (here in evidence) leveled at the company president. The record before me further discloses that the Union had such difficulties in collecting checked-off dues that it was led to invoke the threat of criminal proceedings by the State, and that the Union also had considerable diffi- culty in getting its notices posted in the plant . Finally, it is undisputed that Mrs. Dunai, a company official, referred to the Union as "interlopers and trespassers," and she characterized either a strike or a unionized plant as evidencing a "cancer." In sum, I find that Zajac was singled out as a violator of the no-smoking rule, that the rule was discriminatorily applied to him, and that no other reason appears on this record for such discriminatory application other than his prominance in the Union to which the Company was hostile, and his having given testimony against the Company.8 I therefore find his discharge violative of Section 8(a)(3), (4), and (1) of the Act. D. The speeches of September 7 On September 7, at a time when the Union was openly contemplating calling a strike, Respondent called together its employees after working hours and, dividing them into groups, spoke to them about the consequences of a strike. Company President Poranski addressed one group in Polish; Vice President Golterman ad- dressed the other in English. The complaint alleges that those speeches contained threats of reprisal if the em- ployees struck.9 The testimony is in some conflict, as several employees understood their employer to threaten to close the plant if the employees struck, while other testimony keyed those threats to the observation that in the event of a strike the firm's customers could be expected to withdraw their dies and transfer their business else- where. I accept the testimony of Golterman and Mrs. Dunai as accurately reflecting the contents of the speeches. Golterman testified: On the point of the strike, I pointed out to them our plant was a contract manu- facturing plant. That a strike shutting down our office or our plant would automatically put us out of business. 8 The fact that others also gave testimony and also smoked and were not given notices does not dispel the case with respect to Zajac. See, e g., N.L R B. v. 1V. C. Nabors, d/b/a W C. Nabors Company, 196 F. 2d 272, 276 (CA. 5), cert denied 344 US. 865 9 The contract contained a no-strike clause, but a strike would not have been vulnerable under that clause in the light of Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 , 279-2'84, as among the grounds the Union set forth in urging the men to strike was certain conduct herein found to constitute unfair labor practices. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I stressed to them that I was in no way threatening them, that this was not going to be a move on our part, but, that from our experience, and we have had this happen many times through competitors of ours, have been on strike and we have had dies shipped in to us in the same way. And, in this particular instance, if we had been shut down, it would have automatically put us out of business as we have quite an indebtedness and we could not stand to be without any income or without any business. And, I particularly stressed we were not-threatening, we wanted them to know the facts. If the strike did go over, we would go out of business, because of their action, not because of ours. Mrs. Dunai, testifying from the notes Poranski used as the basis for his speech, quoted him as making an observation similar to Golterman's concerning customer removal of dies, and also as saying: "And now they are threatening with a strike, the factory will be closed for good . . . . Our organization once it is closed, will be closed forever." The state of the law as to whether statements such as those quoted above are per- missible expressions of "views, argument, or opinion" or impermissible threats may be fairly characterized as confused. Thus, in Neco Electrical Products Corporation, 124 NLRB 481, the Trial Examiner found somewhat similar statements to be un- lawful; the Board reversed, holding them lawful; and the Court of Appeals for the District of Columbia Circuit reversed the Board, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R.B., 289 F. 2d 757, 762-763. Pre- cisely the reverse order of events prevailed with respect to somewhat similar state- ments in Haynes Stellite Company, Division of Union Carbide Corporation, 136 NLRB 95. There the Trial Examiner held the statements lawful; the Board reversed, holding them unlawful; and the Board decision was again reversed, this time by the Sixth Circuit, sub nom. Union Carbide Corp. v. N.L R B., 310 F. 2d 844. In both cases, the statements in question were made in the midst of an organizing campaign, rather than, as here, with reference to an immediate strike threat I find that Poranski's and Golterman's speeches constituted threats, rather than mere expressions of opinion, insofar as they stated that a strike would result in the permanent closing of the plant. It may be that their references to the prospect of customers' withdrawing dies was privileged, but the reference to their own future action falls in a different category. As the First Circuit recently put it in a different context: ". . . in order not to be a threat, a prediction must relate to an event over which the speaker has no control." N.L R.B. v. Teamsters Local 901, 52 LRRM 2605, 2606 (March 11, 1963). In this connection it should be noted that neither Poranski nor Golterman in their speeches attributed the potential future shutdown to financial inability to operate; Golterman's testimony shows that his explanation to that effect was given at the hearing (". . . if we had been shut down, it would have automatically put us out of business as we have quite an indebtedness"), and not to the employes. Cf. United Fireworks Mfg. Co., Inc. v. N.L.R.B., 252 F. 2d 428, 430 (C.A. 6). A threat to shut the plant permanently if the employees resort to concerted action is, prima facie, a threat to penalize them for engaging in activity protected by the Act. This is a fortiori the case where, as here, the concerted action contemplated would be in response to unfair labor practices already committed. It may be that if the employer in the course of his remarks to the employees explains the economic circumstances which underlie his statement that a strike will result in a permanent closing of the business, the prima facie case would be rebutted, and the statement would be privileged under Section 8(c). In that event, at any rate, some inquiry would be possible into whether the employer's statement was made in good faith or was merely a threat intended to deter concerted action protected by the statute. But in the instant case the employees were not confronted with any such explication (other than the assertion that the plant would lose customers), and even at the hear- ing Golterman offered only a generalized claim of financial inability to withstand a strike. To sustain Respondent here would, in my view, invite grave consequences tending to inhibit activity Congress expressly protected. Nothing is easier than for an em- ployer, faced with a strike, to defeat this statutorily protected activity by a bare statement that he will permanently shut down. It is not too much to require that he document this "prediction" or be charged with interference with a protected right. The employer may advise the men as to his legal rights , but a fair balance of his economic rights with their statutory right precludes permitting such conclusory threats as were uttered here. I find, therefore, that the speeches of September 7, in- sofar as they threatened permanent closing of the plant if the employees struck, violated Section 8 (a) (1) of the Act. PORAY, INC. 627 CONCLUSIONS OF LAW 1. By discriminatorily invoking its no-smoking rule against John Zajac, and thereby discharging him, because of his union activities and because he gave testimony under the Act, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act. 2. By failing to recall Stanley Jasinski from layoff in accordance with his seniority because he gave testimony under the Act, Respondent has engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a) (1) and (4) and Section 2(6) and (7) of the Act. 3. By threatening to close its plant permanently in the event of a strike, Respond- ent engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from the unfair labor prac- tices found herein,10 that it make Jasinski whole for any sums he lost as a result of the discrimination against him, and that it reinstate Zajac with backpay. The amounts due Jasinski and Zajac should be computed in accordance with the formulae set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Jasinski's backpay will run from the date Ortiz was recalled until the time Jasinski was recalled. I shall also recommend the posting of an appropriate notice. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Poray, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because he has given testimony under the National Labor Relations Act, as amended, or because of his activity on behalf of Metal Processors' Union, Local No. 16, AFL-CIO. (b) Threatening to close its plant permanently if its employees engage in a strike. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to reinstate John Zajac to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him and Stanley Jasinski whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any losses suffered as a result of the discrimina- tion against them. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this order. (c) Post at its plants in Chicago, Illinois, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by authorized representatives of Poray, Inc., be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that the said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Poray, Inc., has taken to comply herewith.12 1° A broad cease-and-desist order is unnecessary as such an order is contained in the outstanding court decree against Respondent. 11 In the event that this Recommended Order be adopted by the Board, the words "As Ordered by" shall be substituted for the words "As Recommended by a Trial Examiner of" in the notice. In the further event that the Board's Order be enforced by a doeree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order of" shall be Inserted immediately following "As Ordered by " i2 In the event that this Recommended Order be adopted by the Board. this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent-has taken to comply herewith." 717-672-64-vol. 143-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board and in order to conduct our labor relations as required by the National Labor Rela- tions Act, we notify our employees that: WE WILL NOT discharge or take any other action against any employee be- cause he has given testimony under the National Labor Relations Act or be- cause he is a member of, or active in, Metal Processors ' Union, Local No. 16, AFL-CIO. WE WILL NOT threaten to close our plant permanently if our employees en- gage in a lawful strike. WE WILL offer immediately to John Zajac the job he last held, or a job like it, without loss of any rights or privileges he had in such job. WE WILL give John Zajac whatever backpay he lost as a result of being dis- charged, and we will give Stanley Jasinski whatever backpay he lost as a result of not being recalled in accordance with seniority after his layoff in June 1962. PORAY, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office , Midland Building, 176 West Adams Street, Chicago, Illinois, _ 60603, Telephone No. Central 6-9660, if they have any questions concerning this notice or compliance with its provisions. Acme Boot Company, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Cases Nos. 26-CA- 1291, 26-CA-1331, 26-CA-1353, 26-CA-1360, 26-CA-1366, 26- CA-1393, 26-CA-1421, 26-CA-1422, and 26-CA-1427. July 16, 1963 DECISION AND ORDER On April 17, 1963, Trial Examiner C. W. Whittemore 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. 1 Respondent's request for oral argument is hereby denied as, in our opinion , the record, exceptions, and briefs adequately present the Issues and the positions of the parties. 143 NLRB No. 68.