Da-Lite Screen Co., Inc..

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bargaining units are: All employees in the tissue culture laboratory ( department 35) of the Respondent's Detroit place of business, excluding all other employees, guards, and supervisors as defined in the Act. All technical employees in departments 36, 42, and 43 of the Respondent's Detroit place of business, excluding production and maintenance employees, tissue culture laboratory employees, office clerical employees, salesmen, professional employees , guards and supervisors as defined in the Act, and all other employees. DIFCO LABORATORIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3200. Da-Lite Screen Company, Inc., and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO. Case No. 13-CA-6595. Septem- ber 2,1965 DECISION AND ORDER On March 31, 1965, Trial Examiner Leo F. Lightner issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respondent filed exceptions, and a supporting brief and a reply brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' . i In view of the 8(a) (1) findings affirmed herein , the Board finds it unnecessary to pass on the question of whether Foreman Schmidt 's interrogation of employee Rich was an un- lawful act of interrogation. 154 NLRB No. 76. DA-LITE SCREEN COMPANY, INC. 927 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, Da-Lite Screen Company, Inc., Warsaw, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 2 The telephone number for Region 13, appearing at the bottom of the Appendix at- tached to the Trial Examiner's Decision, is amended to read: Telephone No. 828-7597. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Leo F. Lightner in Warsaw, Indiana, on November 17 and 18, 1964, on the complaint of General Counsel, as amended, and the answer, as amended, of Da-Lite Screen Company, Inc., herein referred to as Respondent.] The issues litigated were whether the Respondent vio- lated Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. Briefs filed by the General Counsel and Respondent have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation, maintaining its principal office and place of business in the city of Warsaw, Indiana, where it is engaged in the manufacture of projection screens. During the calendar year preceding the issuance of the complaint, a representative period, Respondent shipped goods valued in excess of $50,000 directly to points outside the State of Indiana. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues The principal issues raised by the pleadings, as amended, and litigated at the hearing are whether the Respondent: (a) interfered with, restrained, and coerced its employ- ees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1), by interrogation of its employees concerning their union membership, activities, and desires, by various supervisors, being specifically, (1) Clyde Miller at various times in May, June, and July, 1964, (2) Albert Schmidt on July 21, 1964, (3) Harold Love on November 12, 1964, and (4) by interrogation of applicants for employment by Kenneth Ellison on September 14, 21 and 23, 1964; or (b) whether the discharge of William H. Clutter, on July 23, 1964, was discriminatorily motivated and an unfair labor practice in violation of Section 8(a) (3) and (1) of the Act. It is undisputed that William H. Clutter was discharged on July 23, 1964. Respondent generally denied the commission of any unfair labor practices, and asserts that the discharge was for cause. B. Background and sequence of events There is no dispute as to the sequence of events herein set forth. In the early part of May 1964, William H. Clutter, alleged discriminatee herein, initiated an-organizing 1 A charge was filed on July 30, 1964. The complaint herein issued on October 1, 1964. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign on behalf of the Union among the employees of Respondent. As a conse- quence of his conversations with James D. Hill, representative of the Union, he obtained and distributed membership application cards, pamphlets, pencils, and other paraphernalia bearing the Union's insignia. It is undisputed that these activities were a matter of knowledge of Respondent's supervisory personnel as early as June 1964. The first organizing meeting was held at Clutter's home on June 9, 1964. Another meeting was held at the Gilmore Hotel, in Warsaw, in the fourth week in June, and one or two meetings were held thereafter. Membership application forms were distributed and signatures obtained at the plant, before work, during luncheon, and other break periods, by Clutter It is undisputed that no demand for recognition was made and no petition for an election was filed with the Board in 1964, as a result of these activities. While Clutter was not employed by Respondent prior to July 1963, it is undisputed that the same Union undertook an unsuccessful organizing campaign at Respondent's plant in 1961. In the fall of 1961. an election held under Board auspices was set aside upon objections filed by the Union. In a subsequent election the Union was unsuccessful in its effort to obtain recognition. In the interim an unfair labor prac- tice charge, alleging a violation of Section 8(a)(3), was settled prior to decision sometime in the fall of 1961. In 1962 unfair labor practice charges filed by the Union were subsequently withdrawn or dismissed. The Union has never been certi- fied as collective-bargaining representative of Respondent's employees. While Georee H. Lenke, Jr., president of Respondent, asserted that organizing efforts were made, by unidentified unions in 1958 and 1960, the specifics of those efforts are not contained in this record. C. Supervisory personnel It is undisputed that the following-named persons occupied the positions indicated and at all times relevant were supervisors within the meaning of Section 2(11) of the Act: Clyde Miller, Jr., foreman of the paint department; Albert Schmidt,2 fore- man of the custom department, Harold Love, maintenance department foreman; Joseph Shepherd, assembly and subassembly department foreman; Peter Bochonok, toolroom foreman; and Kenneth C. Ellison, personnel manager. D. Interference, restraint, and coercion The evidence relative to acts and statements of Respondent's supervisory personnel, allegedly conduct violative of Section 8(a)(1) of the Act, is summarized under the name of the particular individual specified in the complaint, seriatim. Clyde Miller It is alleged that Miller interrogated employees at various times during May, June and July, 1964. William Clutter, alleged discrimmatee herein, first asserted that, sometime in June, Miller asked him how he was getting along. Clutter then related that the first conversation opened by Clutter's telling Miller, "that he (Miller) had his employees converted because I (Clutter) was unable to get any cards out of his department." According to Clutter this occurred in the latter part of June 1964. Clutter related that Miller "just shrugged his shoulders and walked off at that time." Clutter asserted that the next conversation with Miller, relative to Clutter's union activities, occurred about a week later near Clutter's work station. Clutter asserted that at that time Miller asked him how he was doing, how many cards he was getting signed. Clutter asserted "I didn't tell him nothing. That is what they were trying to find out, exactly how many cards I had signed." Clutter asserted this was all that happened at that time. Clutter stated that these were the only conversations he had with Miller relative to union activities. It is undisputed that Clutter's activity on behalf of the Union was openly conducted, and was known by the supervisory personnel, Clutter explained that after he had distributed a few cards one of them "happened to be presented to the foreman and then I noticed the cat was out of the bag. So, I just come out in the open with it." Clutter acknowledged that no company supervisor or officer made any effort to attempt to stop him from distributing membership cards and obtaining signatures, during nonwork time. While Clyde Miller appeared as a witness he was not questioned relative to this testimony of Clutter. Clutter's testimony, accordingly, stands undisputed. General Counsel urges, in his brief, that since acts of interrogation were undenied "the alleged conversations must be accepted by the Trial Examiner as ultimate fact." a Incorrectly identified in the complaint as Al Smith. DA-LITE SCREEN COMPANY, INC. 929 I disagree. Numerous court decisions hold that it is for the trier of fact to determine which portion of the evidence of each witness is or is not credible . Judge Learned Hand stated the rule thus: It is no reason for refusing to accept everything that a witness says because you do not believe all of it ; nothing is more common in all kinds of judicial decisions than to believe some and not all. [N L.R B. v. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2).] Clutter testified variously that he was interrogated by Miller two or three times, yet his testimony establishes that there was no interrogation on the first occasion and con- sequently interrogation could have happened only on one occasion . There is no corroboration of Clutter's testimony, and, more significantly , there is a complete absence of testimony of any interrogation by any supervisor , other than this one incident, prior to September 1964, long after the discharge of Clutter F or reasons explicated mf,a, I do not find this portion of Clutter's testimony credible, Clutter's demeanor was not impressive. Accordingly, I will recommend dismissal of the portion of paragraph VI of the complaint relative to alleged interrogation by Miller. Albert Schmidt It is alleged that on July 21, 1964, Schmidt interrogated an employee concerning his union membership, activities and desires Jackie Rich has been employed by Respondent for 2i/2 years and, in July 1964, worked in the custom department under foreman Albert Schmidt. Rich related that during work time on July 21, 1964, he had a conversation with Byron Ulrich, who is employed in the electrode department. Immediately following this conversation, Rich related that Schmidt inquired whether Ulrich was talking to Rich about the Union. Rich responded in the negative. Rich asserted that he added the statement that it would not do Ulrich any good to talk. Rich related that Schmidt then stated that Schmidt understood that Ulrich was one of the committeemen of the Union. Rich responded that he would not know anything about it. This was the entire con- versation. Ulrich, who related that at the time he testified he was working in the custom department and that his supervisor was Albert Schmidt, asserted that he was a union committeeman in both the 1964 and the 1961 union campaigns. Schmidt did not appear as a witness. Respondent's president, Lenke, asserted that no solicitation of any type was per- mitted in the plant during working hours. Lenke acknowledged that this rule had not been posted in the plant and that he had not informed the employees of it, nor did he know if they were informed of it by the foreman. On this evidence, I find that Respondent had not advised the employees of a no-solicitation rule. General Counsel urges the application of the Board's holding in the case of Joslin Dry Goods Company, 118 NLRB 555. In the Joslm case, unlike the instant case, the respondent undertook a vigorous campaign to defeat the efforts of the union therein, after receiving a request to bargain I find the Joslin case inapposite. Respondent correctly asserts that the Board has held that interrogation is not a per se violation of the Act. Blue Flash Express, Inc., 109 NLRB 591. In the Blue Flash case the Board held that interrogation of employees by an employer as to such matters as their union membership or union activities which, when viewed in the con- text in which the interrogation occurred, falls short of interference or coercion, is not unlawful. The facts in that case indicate that the employer sought to determine the accuracy of a union's representation of its majority status, and the employer placed certain safeguards around its inquiry Respondent's contention that an inquiry predicated on a desire to discover whether there had been a violation of a valid rule prohibiting solicitation 3 must fall absent any showing that the employees had knowledge of the existence of such a rule. In considering the validity of making and enforcing reasonable rules covering the conduct of the employees on company time, the Supreme Court has held that "work- ing time is for work." The Court further said, it is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose.4 By the same token an employer would appear to have a right to make inquiry to determine if union activities were being discussed during worktime.5 Nothing more 3 Western Foundry Company, 105 NLRB 714. 4 Republic Aviation Corporation v. N L.R.B., 324 U.S. 793, 803, footnote 10. 5 Cf John S. Swift Company, Inc., 124 NLRB 394, 399. 206-446-66-vol 154-60 930 uECISIONS OF NATIONAL LABOR RELATIONS BOARD can be said of the inquiry of Schmidt. In addition to my finding that Schmidt's in- quiry was within the realm of proper activity on the part of an employer, it was clearly an isolated incident, stands alone, and was no part of any campaign on the part of the employer in July 1962, when it occurred. I will for the reasons enumerated, recommend dismissal of the portion of paragraph VI of the complaint alleging conduct violative of the Act on the part of Albert Schmidt. Kenneth C. Ellison It is alleged that on three occasions, on September 14, 21, and 23, 1964, Ellison interrogated applicants for employment concerning their union membership, activities, and desires. Melvin Leroy Hughes, a toolroom employee of Respondent at the time he testified, related that he was interviewed by Ellison at the time he applied for employment, on approximately September 14, 1964. According to Hughes, Ellison inquired as to why he sought a job, explained the Company's rules, and then asked him what he thought of the Union. Hughes related that he responded "what I had seen of the Union wasn't very good." Hughes asserted that was all actually "what it amounted to." Hughes was hired. William D. Kemp never worked for Respondent, but related that he had a conver- sation with Ellison, when he applied for work on September 21, 1964. According to Kemp, Ellison inquired whether Kemp knew they were having trouble with employees passing out union cards. Kemp responded in the negative, asserting it was the first time he had been on Respondent's premises. Ellison then inquired whether Kemp knew any of Respondent's employees and he again responded in the negative. Kemp had been employed at Dalton Foundry immediately prior to the time of the application. Kemp asserted that Ellison inquired if they had had an election at Dalton, and he responded that they had voted in the Union. Then Ellison inquired as to why, and asked Kemp what he thought of the Union. Kemp responded the Union "is all right in some places and in other places it is not." Kemp was then advised to fill out an application. Subsequently, for reasons with which we are not here concerned, Kemp did not accept proffered employment. James A. Shotley was employed by Respondent from September 23 to October 7, 1964, in the machine shop, under foreman Max Martin. Shotley related a porticn of his interview with Ellison at the time he applied for a position with Respondent, on September 23, 1964. Shotley related that the interview was the usual interview except that Ellison asked him what he thought of a union, to which Shotley responded that he had no comment. Shotley asserted that Ellison advised him that the employees were trying to get a union in Respondent's plant and had been unsuccessful up to that time. Shotley was hired the same day and reported for work the following morning. While Ellison appeared as a witness he was not questioned about the testimony of Hughes, Kemp, and Shotley, and did not deny their assertions, which I find credible. General Counsel correctly asserts that the Board has consistently held that inter- rogation of applicants for employment relative to their union membership, activities, and desires is proscribed by Section 8(a) (1).s There is no claim that the prospective employees were assured, upon the inquiries made herein, that their response would make no difference to the Respondent Blue Flash Express, supra. Respondent urges that no threats or promises were made by Ellison during the interviews. Respondent urges that the witness Kent displayed bias toward the Respondent during his testimony and that Ellison's inquiry was only casual and noncoercive. Respondent has advanced no reason to justify Ellison's inferentially admitted inter- rogation of these job applicants relative to their union sympathies, activities, or desires. Respondent errs in asserting that interrogation is permissible absent threats or promises. I find, in the light of Board and court decisions, absent proper safe- guards and absent explanation, that such inquiries did constitute interference, restraint, and coercion and were violative of Section 8(a) (1) of the Act. Harold F. Love It is alleged that on November 12, 1964, Love interrogated an employee concern- ing his union membership, activities, and desires. Woodrow Wallen'has been employed by Respondent since April 1964. In Novem- ber 1964 he was employed in the maintenance department and his supervisor was Harold Love. Wallen related that on November 12, shortly after lunch hour, Love 9 Citing: Liberty Coach Company, Inc., 128 NLRB 160; L. B. Woods, et al., d/b/a Breckenridge Gasoline Company, 127 NLRB 1462; E. L. Dell, Jr., d/b/a Waycross Machine Shop, 123 NLRB 1331. 1 DA-LITE SCREEN COMPANY, INC. 931 approached him and inquired, "what is this about you signing a union card yester- day?" Wallen responded that he didn't sign a union card the prior day. Love then stated to Wallen, "Well, they can't give you any more than what you have already got now. They can't do you any more good." This was all that was said at the time, however, Wallen showed Love an unsigned union card which Wallen had in his possession. Wallen asserted that two other employees of the maintenance department were present at the time of the conversation. The record, however, is silent as to whether the two other employees overheard the conversation. While Harold Love appeared as a witness for Respondent he was not questioned relative to the testimony of Wallen, and did not deny it. Accordingly, I credit Wallen's testimony relative to this event. Numerous Board decisions have held that the interrogation of employees individu- ally about union activities do not fall within the Blue Flash, supra, rule and are vio- lative of Section 8(a)(1), where inquiries were not shown to be for the purpose of determining the extent of the union's representation, or for any legitimate purpose, and were not in all instances accompanied by assurances that there would be no reprisals. Orkin Exterminating Company, 136 NLRB 399. Accordingly, I find the interrogation of Wallen, by Love, on November 12, 1964, constituted interference, restraint, and coercion, and was violative of Section 8 (a) (1) of the Act. E. The discharge of William Clutter The facts surrounding the discharge of Clutter on July 23, 1964, are substantially undisputed. Clutter was initially employed by Respondent on July 25, 1963, as an assembler. At the time of his discharge, on July 23, 1964, he was employed in sub- assembly under Foreman Joe Shepherd. Max John Martin has been foreman of the machine shop for approximately 19 years, and employed by Respondent for more than 25 years. During worktime, about 2 p.m., on the afternoon of July 23, 1964, Martin went into the men's wash- room, next to the paint department, saw smoke coming up over the top of a partition, from one of the toilet stalls, looked in and saw an employee smoking. Harold Love, foreman of maintenance, who is in charge of that particular part of the building was standing outside the washroom door talking to Clyde Miller, paint department fore- man. Martin advised Love that someone was smoking in the washroom. Love went in, saw Clutter smoking a cigarette, and inquired if Clutter did not know that he was not supposed to smoke in the washroom. Clutter responded that he did not know. Love then told Clutter there was a "no-smoking" sign posted, at the entrance to the washroom, and Clutter responded that he did not see it. According to Clutter, Love took him out to the entrance of the washroom and pointed to the "no-smoking" sign. Love then left and Clutter returned to work. Shortly prior to 4 p.m., foreman Shepherd advised Clutter to go with him to Kenneth Ellison's office. Meanwhile, Love and Martin had reported the smoking incident to Ellison, personnel manager. According to Clutter the following conversation ensued. Ellison inquired, "You don't like your job here, do you." Clutter responded "I sure do." Ellison then said "You must not. You are breaking all the rules in the book," or something like that. Ellison then said "I guess I am just going to have to let you go. You were in the office, in Herb's [Stier] office sometime ago." Clutter then responded "Well, okay, if you want to pay me for the time I loss, [sic] why go ahead." Ellison then advised Clutter he was discharged and handed him two paychecks. Kenneth C. Ellison has been personnel manager for 21/2 years, and has been employed by Respondent for 29 years. He was formerly foreman in the assembly department. Ellison related that foremen Martin and Love had given him a written report relative to Clutter's having been observed smoking in the washroom. Ellison discussed this matter and an incident of June 11, set forth infra, with Superintendent Stier and it was determined to dismiss Clutter. The basis of the dismissal was smoking during working hours and the incident of the prior month. I credit Ellison.? 71 find no merit in General Counsel's contention that Ellison 's pretrial statement of the reason for the discharge of Clutter is at variance with his testimony . The pretrial statement asserted that Clutter was discharged for violating the safety rule against smoking during working hours. There can be no doubt that the smoking precipitated the discharge. It was not asserted as an exclusive or all encompassing reason, nor in fact was it the exclusive or all encompassing reason. Clutter, on the other hand , was extremely evasive as to whether he had been advised by Ellison, at the time of discharge, that the smoking had 'precipitated the discharge Clutter first asserted; when asked if Ellison had mentioned Clutter's smoking , "I don't remember him ever mentioning any thing." Clutter then stated "He just said , `caught smoking,' and that is it. He did not say by two foremen or one foreman. But, 'I 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well established, and I find it is undisputed that Respondent did not permit smoking in the plant proper during worktime, and did not permit smoking in the wash- rooms at any time. The evidence reflects that there were two men's washrooms in the plant. One washroom was adjacent to the custom department and the other, in which this episode occurred, was adjacent to the paint department. Both restrooms, for a substantial period of time, at least several years, had large signs reading "no-smoking" at the entrance to each. Inside the custom department washroom, the following notice was posted on the wall. Nov. 24, 1959 NOTICE'' THIS WASHROOM IS PLAINLY POSTED, "NO SMOKING." ANY PERSON CAUGHT SMOKING IN THIS AREA IS SUBJECT TO INSTANT DISMISSAL. SOME TIME AGO, A FIRE OCCURRED IN THE WOMEN'S WASH- ROOM ON THE EAST SIDE OF THE BUILDING, DUE WITHOUT DOUBT TO A CIGARETTE OR MATCH CARELESSLY DISCARDED. THE "NO SMOKING" RULES POSTED IN VARIOUS LOCALITIES IN THIS BUILDING ARE THERE FOR A REASON- BY IGNORING OR DISREGARDING THOSE RULES YOU MIGHT BE THE CAUSE FOR MUCH HARDSHIP AND LOSS OF WAGES TO YOUR FELLOW EMPLOY- EES, SHOULD A FIRE CAUSED BY THE TYPE OF OCCURRENCE DESCRIBED ABOVE SPREAD AND GET OUT OF HAND. THEREFORE-WHEN YOU SEE A "NO SMOKING" SIGN- PLEASE REFRAIN FROM SMOKING. AND, SHOULD YOU BE DETECTED SMOKING IN SUCH AN AREA, KNOW THAT YOU WILL BE SUBJECT TO INSTANT DISMISSAL. LET'S NOT GIVE FIRE A CHANCE TO PUT US OUT OF WORK! It is undisputed that a similar notice had been posted in the men 's washroom next to the paint department at some time prior to the vacation period which started on July 2, 1964, but was not so posted after the vacation period. Byron Ulrich, witness for the General Counsel, acknowledged that he had used both men's rooms at the plant. While asserting that he had seen other employees smoking, in both restrooms , at times prior to the July 1964 vacation period, Ulrich acknowledged he had not seen any smoking in the men's restrooms "since the doors have been taken off the closets." The evidence is that during the vacation period, which was the 2 weeks preceding Monday, July 20 , 1964, Respondent had removed the doors from the toilet partitions in both men 's rooms, inferentially to inhibit employees from smoking.8 Ulrich acknowledged that he had not seen anyone violat- ing the "no-smoking" rule since the doors were taken off. Edward Owens, also a witness for General Counsel , similarly acknowledged that he had not seen anyone smoking in the men's room , since vacation , explaining that the doors had been taken off the stalls. Owens was among numerous witnesses who realized that Love had come in there and had caught me." Later Clutter asserted "But, he never once, as far as my knowledge , ever mentioned smoking." Still later, asked if Ellison had told him that he had been caught smoking and this was the reason for his separation , Clutter responded "No, he never once said that " Clutter was then asked if Ellison had not mentioned smoking at all in the meeting and responded , "No, he never said nothing." Clutter then asserted that he could have been "shocked or just didn't hear him, because I have had warnings from what you would call company stooges, they said they will get something on it, don't worry. They will find something on it. And I was kind of in a shook to think a company of that size would do a thing like that." Clutter then acknowledged having made a pretrial statement on August 11, 1964, in which he acknowledged that Ellison, on July 23, 1964, had advised him "you were caught smoking in the restroom and they have had you in once before " Thereafter, Clutter asserted , "I do recall that now-he [Ellison] said you were caught smoking and I will have to let you go." Accordingly, I do not find Clutter a credible witness as to the statements made by Ellison at the time of Clutter's discharge. s Respondent's attitude relative to smoking in the men's rooms is well demonstrated by Ulrich's testimony. Having asserted that he had seen Foreman Shepherd come out of a toilet enclosure after he had seen smoke coming out of the same enclosure , Ulrich was asked if Shepherd had a cigarette with him at the time he came out. Ulrich re- sponded "You don't do those things." Ulrich then acknowledged the time he had seen Shepherd smoking was in early 1964 . The record establishes that Shepherd was not a foreman at that time. DA-LITE SCREEN COMPANY, INC. 933 testified that the "no-smoking" sign appeared at the entrance to the men's room, adja- cent to the paint department "all the time he worked there." Owens had been employed by Respondent for 6 years, and worked in the assembly department with Clutter. Clutter sought to defend his conduct, not by denying that he was in fact smoking in the restricted area on the day of his discharge, but, by asserting that other employees had smoked in the same area. Clutter acknowledged having used the restroom next to the custom department, where the notice, set forth supra, appeared. Clutter acknowledged that the "no-smoking" sign was on the wall at the entrance to the rest- room, next to the paint department, on July 23, 1964, and was shown to him by Love at that time. Asked if the sign was on that wall prior to July 23, Clutter evaded a direct answer and asserted "if there was one there, I didn't pay no attention." Clutter described the plastic-covered notice in the custom department men's room in the following language, "there had been a fire in the lady's restroom and they weren't going to allow anybody to smoke in there anymore. And if they were caught smok- ing, they would be reprimanded for it." Clutter, whose testimony I do not credit, denied that a similar notice had previously been posted in the restroom next to the paint department. General Counsel contends that the treatment of Clutter was discriminatory, in that it varied from the conduct of the Respondent toward other employees under similar circumstances in the past. I find to the contrary. George H. Lenke, Jr., president of Respondent related that he had been with the Respondent for a little over 11 years and was familiar with the policies of the Company relative to smoking. Lenke acknowledged that smoking was allowed in certain "safe" areas at break periods and lunch time, that this policy had been continuous ever since the plant had been in Warsaw. He described the "no-smoking" sign, at the entrance to the men's room adjacent to the paint department as 9 by 20 inches, on a red background with white lettering. Lenke related that an employee, Frank Smith, was observed smoking in a restricted area during working hours in July 1963 and was discharged. Smith's offense occurred in the beading department,9 on the night shift. Lenke related a similar occurrence in December 1961 when an employee was found smoking in the men's room. At that time the employee was dismissed by the foreman. However, because a Board election was pending within a week, and rather than risk an unfair labor practice charge which would stop the election, Lenke asserted that, on advice of counsel, the individual was given a 3-day layoff. The individual was identified as Mennex. There is no evidence of any other employee being discovered smoking in a "no smoking" area during worktime.10 I turn next to the events of June 11, 1964 alluded to above. Foreman Shepherd credibly testified that he had noted that Clutter was spending an inordinate amount of time, during working time, in the restroom. Shepherd acknowledged that he had been timing Clutter for about 10 working days and that most of the time Clutter did not return under 15 minutes, on such trips. Shepherd asserted that on the afternoon of June 11 Clutter had been absent 15 minutes. When Clutter returned Shepherd called him to his desk and asked Clutter "if we could do this, go and come and not spend any more time than the regular employees unless there was some reason for it." According to Shepherd, Clutter responded, "He said he would go and come as he pleased." 11 There can be little doubt that some heat generated during the exchange, since Shepherd told Clutter that Shepherd would take him to Ellison's office, the personnel department. Ellison was busy and they proceeded to the office of Superintendent 9 Incorrectly called "beating" in the record. 10I find of no consequence the recitation of Woodrow Wallen that on November 11, 1964, he had been working outside the building, behind the boilerroom. He had been in the boilerroom approximately 20 minutes and was smoking a cigarette when Ellison approached him and advised him that he was not allowed to smoke in the boilerroom, whereupon he extinguished the cigarette. Wallen acknowledged there is no "no smoking" sign in the boilerroom. Ellison acknowledged remembering the incident testified to by Wallen. Ellison explained that it was a cold day, that Wallen was wearing a heavy leather jacket and Ellison took for granted an assumption that Wallen had recently come in from the outside. Ellison acknowledged there were no "no smoking" signs in the boilerroom. u Clutter's version does not contain any substantial variance. Clutter asserted that Shepherd advised him that he was spending too much time in the restroom. Clutter asserted that he responded that he did not spend any excessive time in the restroom. Clutter asserted he further stated "I think we have a right to go to the restroom whenever we have to go." 934' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stier. Stier credibly related that Shepherd reported that Clutter had been insubordi- nate and asked Stier to listen to the story. Stier asserted that Shepherd related that Clutter had been spending too much time in the washroom and that in asking Clutter to discontinue this practice Clutter had become insubordinate. Stier asserted "that they both became angry and used heated words." Shepherd, apparently, had gone a little beyond the normal conversation of making a corrective measure. Knowing they were both a little warm or hot from the conversation, "I did try to get them to cool down so they could speak a little more rationally and not use heated words." According to Stier, Clutter felt he was being unduly criticized, "but he did mention that he might have been away from his work area an unreasonable length of time, but he didn't feel that it was subject to any severe criticism on our parts." Clutter then requested and was granted a private conference with Stier. During this subse- quent conversation Clutter advised Stier that some of the employees did not like Shepherd as a foreman. Stier acknowledged advising Clutter no foreman can satisfy everyone.12 Stier asked Clutter if,he had any other faults to find or anything that he thought was unfair in the organization. Stier then pointed out to Clutter that he was being requested to abide by company policies and not abuse privileges by being away from his work area unduly. Stier advised Clutter that he was to consider this a reprimand on Stier's part, and according to Stier, Clutter responded that he under- stood that he was being reprimanded.13 I find, from the credited testimony of Ellison and Stier that Clutter's insubordination, on June 11, 1964, was recorded in his person- nel file, at that time. This reprimand was the "earlier matter" referred to by Ellison at the time of Clutter's discharge on July 23, 1964. Respondent has issued a booklet, which is given to employees at the time of.their hiring and which provides a statement of company policy and "shop rules." Among the offenses listed are (a) insubordination or disobedience and (b) smoking in pro- hibited areas. Listed penalties for any combination of these offenses are (a) first offense-l-day layoff and (b) second offense-subject to discharge with approval of company officer. Two other events appear in the testimony of -Clutter which may appear to reflect some animus toward Clutter, by Shepherd, and are therefore next considered. Joseph Cozzie had been employed by Respondent approximately 15 months, in the assembly department under Foreman Shepherd, when he testified in November 1964. Cozzie related an incident which occurred about 2 weeks prior to his vacation, commencing July 3, 1964. Cozzie related that there were three or five employees present when "I heard and saw Joe Shepherd, he said he would like to spit on Mr. Clutter and he pointed his finger at Bill at that time " While General Counsel had initiated a series of questions to Cozzie with a question "Did you happen to witness a conversation at which Joe Shepherd was present about the Union?", there is no evidence as to the content of the conversation or whether the remark was in any way related to Clutter's acknowledged union activities. In view of the relation, in time, of this event to the episode of June 11, Shepherd's remark is at best ambiguous and of no probative value. It could not with certainty be found to relate to either the insubordination or the union activities of Clutter. Clutter related that he forgot to punch in•one morning in the latter part of June. At lunch time when he went to punch out he noticed that he had not punched in. Following customary procedure he approached Shepherd and asked him to okay the timecard. Shepherd responded that he did not know if Clutter was there that morn- ing or not. Clutter related that he had to go and get a couple of employees to prove he was there, and asserted that Shepherd knew that he was there. Edward Owens corroborated Clutter's recitation about this event. Shepherd did not testify relative to this incident. However, I credit Shepherd's testimony that he made no recom- mendation at the time of Clutter's discharge. Shepherd was called to Ellison's office and advised that Clutter was being discharged because Clutter had been caught smok- ing in the washroom. Shepherd was in no way involved in that incident. Accord- 12 Clutter asserted he advised Stier that 60 percent- of the men were dissatisfied with Shepherd as foreman and that "some of the men out there would even hire Somebody to blow his brains out." Clutter asserted that Stier responded "As long as we can keep 50 percent of them happy, we don't care about the other 50 percent" Stier did not recall using a percent as to how many people could be satisfied or how many people could not be satisfied . I find this recitation of no consequence, and without implied reference to prounion or antiunion connotation. Is Clutter's denial that he had any knowledge of- a reprimand on this occasion is not credited. DA-LITE SCREEN COMPANY, INC. 935 ingly, I find the events involving Shepherd related-by Cozzie, Clutter and Owens of no consequence, and have no probative value, in arriving at a determination of the, primary. question involved. F. Concluding findings The primary question requiring resolution is whether the Respondent was discrimi- natorily motivated in effectuating the discharge of Clutter. The Board and courts have repeatedly held that an employee may be discharged for a good reason, a bad reason, or no reason at all, provided only that a discrimi- natory motive or pretextuous reason was not the real reason for the discharge, or that the motive was not a mixed motive, in part discriminatory. General Counsel errs in asserting that the "no smoking" rule was discriminatorily applied. The evidence is to the contrary, as set forth supra. It is obvious from the testimony of General Counsel's witnesses alone, corroborated by Respondent's wit- nesses, that the doors on the toilet stalls were removed during the July 1964 vacation period. It may reasonably be inferred from the testimony of all the witnesses, except Clutter, that the employees recognized this alteration as an effort on the part of Respondent to put an end to the occasional practice of some unidentified employees violating the "no. smoking" prohibition. The record is replete with evidence of the volatile and potentially explosive conditions existing in several parts of Respondent's plant during working hours, particularly was this true in the paint department, adja- cent to the washroom in question. That Clutter was observed violating a long- established rule is undisputed. - General Counsel urges that the no smoking "notice" containing the language of instant dismissal for violation was not posted in the paint department men's room on July 23, 1964. There is evidence that such notices had been previously posted therein. Whether the notices were removed by management, during the painting which occurred during the vacation period, or by other employees, is obscure, and of no consequence. The record adequately demonstrates that all employees were cog- nizant of the fact that in posted areas the "no smoking" sign applied at all times, freetime and worktime. I have found it unnecessary to enumerate the testimony relative to smoking which was permitted in nonprohibited areas during freetime, breaktime, and lunchtime. Clutter's offense occurred, undisputedly, during worktime. General Counsel urges that the general plantwide proscription against smoking was not enforced, citing in support thereof the fact that Wallen was observed smoking during worktime on November 11. I find this incident of no consequence, since Wallen obviously had been working outside the building and was seen smoking in the boilerroom where no "no smoking" sign was posted. The record is obscure as to when Respondent's booklet containing "shop rules" was initially issued. There is no basis upon which to infer that Respondent's "notice" of November 24, 1959, relative to individuals caught smoking being subject to instant dismissal predated or postdated the adoption of the "shop rules." Since the penalty specified in the "notice" is more severe than the "shop rules" it would appear reason- able to find that the "notice" was a modification of the previously existing "shop rules. However, I find it unnecessary to resolve this question, since it is obvious that Clutter's offense was a second offense, the first offense having been insubordination on June 11, 1964. Considering next the elements, established by the evidence, which would support a finding of discriminatory motivation, the sole apparent element is that of "timing." While the undertaking of Clutter and the Union began in May 1964, the first activity in the plant and the first apparent knowledge of Respondent of the union activity appears to have been in the early part of June 1964. There is no evidence of obstructive tactics by Respondent to frustrate the efforts of Clutter and other employ- ees to obtain signatures of employees on authorization cards, during freetime in the plant. Insofar as this record reveals there is no evidence of any action by Respond- ent's supervisory personnel relative to the distribution, by Clutter, of pamphlets, pencils, and other union paraphernalia. Respondent's assertion that it has never previously been found to have committed an unfair labor practice stands undisputed. While "timing" alone may be said to raise some suspicion of Respondent's motive, in effectuating the discharge, suspicion has been repeatedly held inadequate to support a finding of the existence of the fact of discrimination. Section 7 of the Act enumerates the activity in which an employee may engage and Section 8(a) contains a proscription against interference, restraint, or coercive action in the exercise of those rights, or discriminatory conduct with regard to hire and tenure of employment. However, it is not the intent or purport of the Act to afford a union advocate any more protection for willful violation of "shop rules" than any other employee. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find the preponderance of the credible evidence, as found herein, does not establish that Respondent was discriminatorily motivated in discharging William H. Clutter. Accordingly I will recommend dismissal of the allegations of paragraph VIII and X of the complaint. Having found the interrogation of applicants for employment, by Ellison, in September 1964, and the interrogation of employee Wallen, by foreman Love, on November 12, 1964, constituted interference, restraint, and coercion, in violation of the provisions of Section 8(a)(1) of the Act, I will recommend that the customary order, in such cases, be issued. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that interrogation of applicants for employment, and an employee, interfered with , restrained , and coerced employees , I recommend that Respondent be ordered to cease and desist from in any like or related manner infring- ing upon rights guaranteed to its employees by 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. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile , Aerospace and Agricultural Imple- ment Workers of America, UAW-AFL--CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the conduct set forth in section D entitled "Interference, Restraint, and Coercion," to the extent therein found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent has not discriminated with respect to the hire and tenure of employ- ment, and terms and conditions of employment , of William H. Clutter within the meaning of Section 8(a) (3) and ( 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. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Da-Lite Screen Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating applicants for employment, or employees , concerning their union membership, activities, and desires, in a manner violative of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with , restraining , or coercing employ- ees in the exercise of their rights of self-organization , to form labor organizations, to join or assist International Union , United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, 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 and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DA-LITE SCREEN COMPANY, INC. 937 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant at Warsaw, Indiana, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by the Respondent's representative, be posted by the Respondent and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted, and including each of Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply therewith. It is further recommended that unless within 20 days from the date of the receipt of this Trial Examiner's Decision, the Respondent shall notify the said Regional Director, in writing, that they will comply with the foregoing Recommended Order,15 the Na- tional Labor Relations Board issue an Order requiring the Respondent to take the aforesaid action. It is further recommended that the allegations of paragraph VI of the complaint relating to alleged unlawful conduct on the part of Clyde Miller and Albert Schmidt, and the allegations of paragraphs VIII and X be dismissed. 14 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order". 15 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 therewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT interrogate applicants for employment, or employees , concern- ing their union membership , activities, and desires, in a manner violative of Sec- tion 8 (a)( I) of the Act. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist International Union , United Automobile, Aero- space and Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection , or to refrain from any and all 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DA-LITE SCREEN COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must be 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any question concerning this notice or com- pliance with its provisions.