Northland Industrial Plastics Co.

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole any employees for their financial losses resulting from our changing for the worse the terms and conditions of employment stated in the preceding paragraph. LAwsoN PRINTERS, 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 provi- sions, they may communicate directly with the Board 's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3244. Northland Industrial Plastics Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case 7-CA-53341. June 21, 1966 DECISION AND ORDER On March 31, 1966, Trial Examiner Gordon J. Myatt issued his Decision 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 there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices and recommended that such allegation of the complaint be dismissed. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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 Zagoria]. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and 'We correct certain statements in the Trial Examiner 's report which are not supported by the record . However, these corrections do not affect our agreement with his ultimate findings herein : (a) The Trial Examiner stated that after the layoff of Boguth and Sie- benaller, Foreman Johnson cautioned the Koechles to be certain to punch in and out, whereas the testimony revealed that such warning was issued to Diana Koechle and Siebenaller ; (b) the Trial Examiner 's finding that the Koechles ' practice of leaving the plant without punching out was known to management is not supported by the record ; and (c ) the further finding that the employees met with Respondent 's top officials on September 20, whereas the record shows that this meeting occurred on September 21. 159 NLRB No. 71. - NORTHLAND INDUSTRIAL PLASTICS CO. 793 recommendations of the Trial Examiner, with the following modifications : 2 [The Board adopted the Trial Examiner's Recommended Order with the following modifications : R. Delete the period at the end of paragraph 1(d) of the Trial Examiner's Recommended Order and the fifth paragraph of the Appendix attached to the Trial Examiner's Decision and add the fol- lowing: ". .. , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." [2. Substitute the following paragraph for 2(a) ["(a) Make Edith Boguth, Karen Haworth, Brenda Parks, Patri- cia McNicol, Inge Godin, and Betty Maxwell whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the Trial Examiner's Decision under the section entitled `The Remedy,' as modified by the Board." [3. Delete the name Barbara Robinson from the fourth indented paragraph of the Appendix.] 2 Insofar as the Trial Examiner 's Recommended Order provides for backpay to the five discbargees from the afternoon of September 20 when they were suspended for the bal- ance of the day, we do not adopt the same. As the claimants walked out on the morn- ing of September 20, and were on strike when suspended and subsequently discharged, they are entitled to backpay only from September 21, the date on which they abandoned the strike and sought reinstatement . Since employee Robinson who had initially par- ticipated in the walkout returned to work on September 21, she is not entitled to backpay. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed by International Union, United Automobile , Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (hereinafter called the Union) on September 22, 1965, and subsequently amended on Septem- ber 27 and November 17, 1965, the General Counsel of the National Labor Rela- tions Board issued a complaint and notice of hearing dated November 24, 1965.1 The complaint alleged that Northland Industrial Plastics Co. (hereinafter called Respondent ) had violated Section 8(a)(1) and ( 3) of the Act in the following man- ner: by creating an impression of surveillance of employees engaged in union orga- nizational activities ; by threatening employees with discharge if they did not refrain from activity on behalf of the Union; by disparate enforcement of a plant rule against two employees resulting in a disciplinary layoff because of their union activi- ties; by promulgating and enforcing an invalid no-solicitation rule; by giving six employees a one-half day layoff for engaging in protected concerted activities; and by discharging and refusing to reinstate five employees for engaging in protected concerted activities . In its answer Respondent admitted certain allegations of the complaint , but denied the commission of any unfair labor practices. A hearing was held before Trial Examiner Gordon J. Myatt in Detroit, Michigan, on February 1 and 2, 1965, at which all parties were represented . During the 1 Unless otherwise noted, all dates herein refer to the year 1965 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of the hearing counsel for the General Counsel moved to amend the com- plaint by adding a new allegation of creating an impression of surveillance and by substituting different dates for certain dates alleged in the complaint . In addi- tion, counsel for the General Counsel moved to strike the name Norman Brennan from paragraph 10(f) of the complaint and substitute therefor the name Laurence Martin. The General Counsel's motions were granted, and the Respondent amended its answer accordingly to deny the commission of any unfair labor practices. Upon the entire record, including my observation of the witnesses and my evalu- ation of their testimony , and after due consideration of the Respondent 's 2 brief filed herein, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a Michigan corportion engaged in the manufacture , sale, and dis- tribution of custom-molded plastic products for the automotive industry . Respond- ent maintains its only office and place of business at 1955 Stephenson Highway, Troy, Michigan . During the year ending December 31 , 1964, Respondent manu- factured, sold, and distributed molded plastic products valued in excess of $100,000 to General Motors Corporation, Ford Motor Company, and Chrysler Corporation, each of which enterprises during the same period manufactured, sold, and distrib- uted, from their plants located in the State of Michigan , automobiles and related products valued in excess of $ 1 million to points located outside the State of Michigan. The Respondent admits, and I find, that it engaged in commerce and in activities affecting 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, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 'facts The Union began its organizing campaign at Respondent's plant on March 25, as a result of being contacted by Ernestine Correa, an employee of Respondent. The Union's International representative, Anthony- Czerwinski, distributed leaflets to the employees at the plant on that date. However, the Union's organizing cam- paign did not intensify until the latter part of July and the first part of August 1965. Czerwinski met with various groups of employees away from the plant on three occasions between July 29 and August 19. As a result of the Union's campaign the Respondent filed a representation peti- tion with the Board's Regional Office on August 3, 1965, in Case 7-RM-552. On August 10 the parties entered into an agreement for a stipulation for certification upon consent election. The election was conducted by the Regional Director on August 25, 1965, and the tally of ballots established that of 149 eligible voters, 41 voted for the Union, 72 voted against the Union, and 10 ballots were challenged. The Union filed timely objections, and the Regional Director subsequently issued a report and recommendation to the Board on December 6. The Respondent filed exceptions to the Regional Director's report, and the representation case is pres- ently pending before the Board. B. The events of August 2, 1965 On August 2, two employees, Edith Boguth and Bea Siebenaller , were in the plant lunchroom during their lunch period . They observed a sign posted on the bulletin board stating: "No soliciting on Company premises ." Upon reading the notice, Boguth and Siebenaller immediately left the plant without punching their timecards and drove to a public telephone approximately 3 miles away . They tele- 2 Counsel for General Counsel and the Charging Party did not file briefs in this case. NORTHLAND INDUSTRIAL PLASTICS CO. 795 phoned the Union's headquarters and reported the existence of the notice and returned to the plant approximately 5 minutes before their lunch period ended. When Boguth and Siebenaller returned to the plant, they were met in the vicinity of the timeclock by Robert M. Brown and Laurence Martin, president and vice president, respectively, of Respondent. Martin asked the employees if they had punched out when they left the plant. The employees replied that they had for- gotten to do so. Martin then instructed them to ieturn to their jobs. When Boguth approached her work station, she was instructed by her foreman, Brennan, to report to his office . Upon arriving in the office , Brennan informed Boguth that he had a problem and she replied, "Yes, I know, it is me." Brennan then told Boguth that he had to give her a week off. Boguth asked if she was fired, and Brennan replied that she was simply being given a week off. Brennan also informed Boguth that similar disciplinary action would be taken against other employees who did not punch out. With regard to Siebenaller, she had returned to her machine when her foreman, Bo Johnson, brought over another employee to learn the operation of the machine and instructed Siebenaller to report to another job assignment . Siebenaller replied that she was not feeling well and was considering going home for the day. John- son then told Siebenaller to go into the office. Upon arriving at the office Siebe- naller was met by Johnson and Martin. Siebenaller informed them that she had been scheduled to go into the hospital Wednesday and as she was not feeling well she was going home.3 Martin then instructed Johnson to give Siebenaller a warn- ing slip and he told Siebenaller that she was laid off for a week. The warning slip related to her failure to punch in or out during the lunch period. After the disciplinary action taken against Boguth and Siebenaller, and on the same day, the Respondent posted a notice on the plant bulletin board above the timeclock The notice read as follows: Notice 4 Due to repeated instances in which employees leave the plant premises with- out punching out, we have found it necessary to adopt the following policy. Effective this date: First offenders will be given a week off. Any subsequent violation will result in dismissal. (S) L. A. Martin The General Counsel contends that the Respondent's rule relating to punching- in or out upon leaving the plant premises was discriminatorily applied to Boguth and Siebenaller. He asserts that both Boguth and Siebenaller were the prime union adherents in the plant and that this fact was known to the Respondent. The Gen- eral Counsel further contends that although the plant rule was in effect prior to August 2, it had never been enforced nor had disciplinary action been taken against violators prior to August 2. The Respondent asserts that it was an established plant rule for employees to punch their timecards when leaving the premises during their lunch period. In this connection, Martin testified that in July several employees left the plant without punching their cards, and as a result the first sign noted herein was posted directly above the timeclock. Martin also testified that he and Brown were aware that Boguth and Siebenaller had not punched out because they were informed of this fact by a supervisor or a leader (Martin was unable to recall the name of the indi- vidual). For this reason, Respondent contends it decided to take disciplinary action against the two employees. Although it was freely conceded by all witnesses that the plant rule was in exist- ence prior to August 2, I find that it was observed more in the breach than in com- pliance. Martin acknowledged that several employees violated the rule in July and that no disciplinary action was taken against them. While Martin did not deny that other employees may have violated the rule he stated that he was not aware of it. Further, employees Diana and Douglas Koechle gave undisputed testimony that it 8 Siebenaller entered the hospital on Wednesday of that week and was incapacitated for the entire following week. 'This was the second such notice posted by Respondent. Some months prior to August 1965, the Respondent posted a notice in the vicinity of the timeclock instructing the employees to punch in or out if they left the plant . The notice stated, in substance, that if the employees did not abide by the instructions they would not be paid for their time until it had been verified by management. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was their practice to leave the plant during their lunch hour without punching out to go to a lunch stand down the road . They both stated that this practice was known to management, and that they frequently brought back items from the stand to their supervisor, Bo Johnson, Each of the above employees testified that they were never reprimanded for leaving the premises without punching-their timecards. After the Boguth and Siebenaller incident , however, Johnson cautioned the Koechles to be certain to punch in and out. I find, therefore , that prior to August 2, 1965, the Respondent had not enforced the plant rule on punching out, nor had it taken disciplinary action to correct violations thereof. I further find that the Respondent was aware that Boguth and Siebenaller were key union adherents in the plant. Both Boguth and Siebenaller' credibly testified that they were organizers for the Union among the employees . In addition , Boguth testified that it was her custom to wear a union button the size of a half dollar on her blouse-although she did not wear it on the day in question. Further evidence of the Repsondent's knowledge of Boguth 's union activities is derived from a conversation Boguth had with a super- visor, Ed Zych, on July 30. Boguth's unrefuted testimony was that she inquired of Zych why she was not scheduled to work on Saturday . Zych replied that "['he] didn't do things to cause trouble ." Boguth then asked him if it was because of the Union , and he again replied that "[he] didn't do things to cause trouble " In view of the foregoing , I find that the Respondent enforced the plant rule con- cerning punching in and out when leaving the premises against Boguth and Siebe- naller for the reason that they were engaged in activities in behalf of the Union. Admittedly , the employees had violated a known plant rule, but there is no evi- dence that disciplinary measures were ever taken against any other employee for a similar violation . It is no defense that valid ground existed for taking disciplinary action against the two employees in this instance , where the action taken is not predi- cated solely on the reason advanced , but for unlawful reasons as well. N.L R.B v. Symons Manufacturing Co, 328 F.2d 835, 837 (C.A. 7). I find, therefore, that the Respondent violated Section 8(a) (1) and ( 3) of the Act in imposing the disci- plinary layoffs upon Boguth and Siebenaller . Calandra Photo, Inc., 151 NLRB 660; Iowa Pork Company, Inc., 148 NLRB 1242. C. The no-solicitation rule As noted above , the sign concerning solicitation was posted by the Respondent in the lunchroom on August 2. The parties stipulated at the hearing that on August 10 representatives of the Respondent and the Union met at the Board's Regional Office to discuss the possibility of an election . During the course of this meeting the Respondent was advised by the Regional Office's representative that the sign concerning solicitation was in violation of the Board's law. Pursuant to this discussion the Respondent removed the first notice and substituted the following: NOTICE No soliciting will be tolerated during working hours-nor in any work areas-violation will result in immediate dismissal. (S) L. A. Martin The General Counsel contends that not only was the original notice unlawful, but the second notice was equally unlawful and contrary to existing Board law. Respondent, on the other hand, asserts that while the original notice may have been unlawful, once this fact was brought to its attention by the Board 's representatives, the notice was immediately replaced with one which , in Respondent's judgment, was lawful. Without a doubt the Respondent 's broad rule against solicitation , as set forth in the first notice, encompassed a prohibition against solicitation during nonworking time, and distribution of union literature during nonworking time in nonworking areas 5 (Although it was never articulated at the hearing , for purposes of this Decision, I view the rule on solicitation as encompassing both oral solicitation and distribution of literature.) However, the Respondent rescinded the first notice on August 11, once it was apprised of the illegality . Thus, the issue for decision here is whether the second notice concerning solicitation was unlawful , since in my judgment, it would serve no useful purpose to require the Respondent to correct a violation which it had already remedied voluntarily. 5 Southivire Companit, 145 NLRB 1329 , enfd. in pertinent part 352 F.2d 346 (CA. 5) ; Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 616-623. NORTHLAND INDUSTRIAL PLASTICS CO. 797 The General Counsel directs another thrust at the no-solicitation rule, however, in that it is his contention that the rule was precipitously promulgated and designed for no other reason than to impede and interfere with the union organizing cam- paign. In support of this contention the General Counsel relies heavily upon Wald Manufacturing, Inc., 152 NLRB 1270, and The Win. H. Block Company, 150 NLRB 341. A careful reading of the above cases leads me to conclude that they do not apply to the fact situation in the instant case. In the Ward case, the Board held that the rule "was adopted and promulgated for a discriminatory purpose." There the employer posted the rule 2 days after the union held its first meeting with the employees and 1 day after the representation petition was filed with the Board. The Board found that the precipitous promulgation and "the fact that the rule did not apply to all forms of solicitation and distribution" indicated that the motive for adopting the rule was discriminatory. In the instant case, there is no evidence that the rule did not apply generally. Moreover, it should be noted that the Union's organizing campaign commenced in March 1962 and did not intensify until after the rule was posted. The Block case is equally distinguishable on its facts. In that case the Board held that the Trial Examiner correctly looked to the purpose of the respondent's rule and that the record supported his finding "that the rule was not necessary to maintain production and discipline and that it was not promulgated in furtherance of an employer's legitimate interest of serving production, order, and discipline, but specifically for the purpose of defeating union organiza- tion . Here, there is no evidence that the solicitation rule was not neces- sary to maintain production and discipline, and in the absence of more, I am unwilling to draw an inference. Moreover, in the Block case there was strong evi- dence that the no-solicitation rule was unfairly enforced against employee solici- tation on behalf of the union. There is no such evidence in this case. Careful consideration of the second notice indicates that it was inartfully drafted, and the wording contained therein could easily be refined by one knowledgeable in this area of the law. However, the import of the notice is clear, and in my judg- ment, the Respondent was seeking to do no more than to prohibit soliciting during working hours in working areas. I find, therefore, that the second notice posted by the Respondent did not violate Section 8(a)(1). Montgomery Ward & Co., Inc., 154 NLRB 1672. As I have found that the first no-solicitation rule was unlawful but that Respond- ent voluntarily corrected this violation, I shall not recommend any remedial order for this aspect of the complaint. D. Surveillance of employees' union activities On August 3, Boguth and Siebenaller (both of whom were on disciplinary lay- off) appeared at the entrance of Respondent's plant shortly after 7 a.m. They were accompanied by Dean Spooner, another representative of the Union. These indi- viduals stood on the edge of the driveway leading from the public street to Respond- ent's parking lot. As employees drove into the driveway Spooner, Boguth, and Siebenaller walked across the drive and handed the employees union leaflets.6 At approximately 7:35 a.m. the group was joined by Czerwinski. When Czerwinski arrived, the leafletting activity was being observed by Brown, Martin, and several other management officials. Brown had a home movie camera in his hands. Czer- winski joined the others in handing out leaflets to the incoming employees, step- ping on the driveway, as did the others, to pass the leaflet through the window of the automobiles. As the distribution of the leaflets was taking place Brown aimed his movie camera and appeared to be taking pictures.? Czerwinski testified that he thumbed his nose at Brown when he observed the camera and suggested that he (Brown) take pictures of Czerwinski only and not of the employees. - On August 10, at the meeting in the Regional Office, a discussion came up con- cerning the photographing of the leaflet distribution. Czerwinski accused Brown of taking pictures to intimidate the employees and to interfere with the Union's campaign. Brown replied that he was taking pictures solely for his own 6 The parties estimated that the plant driveway was approximately 20 feet in width and ran 40 to 50 feet from the public street to the plant parking lot 7Brown testified that he had received a call at home from the plant conceining the dis- tribution of the leaflets early that morning. He grabbed his camera and rushed to the plant. However the camera contained no film as it was too early to purchase any from the stores. Therefore, Brown, by his own admission, pretended to take pictures but did not record any activity on film. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self-protection in the event that an accident occurred on the plant property as a result of the distribution of the leaflets. Brown stated that there 'had previously been an accident in the plant driveway and he was concerned about the Company's responsibility should another one occur during the time the leaflets were being passed out. Czerwinski agreed to stay on the edge of the drive during future dis- tributions and Brown agreed not to take any more photographs unless Czerwinski moved onto the driveway proper .8 On August 24, Czerwinski appeared at the plant again at approximately 7:35 a.m. and began distributing leaflets to incoming employees. By his own admission, Czerwinski stepped from the edge of the driveway onto the drive proper in order to hand out leaflets through the windows of the employees' automobiles. Brown was on the scene and photographed Czerwinski's activities with his movie camera.9 The Respondent asserts that its sole purpose in pretending to take motion pic- tures on August 3 and in taking motion pictures on August 24 was to protect itself from financial liability. Respondent claimed that there had previously been an automobile accident in its driveway as its employees were turning off the heavily traveled road bordering the driveway, and that it wished to protect itself in the event that a similar incident occurred. Thus, Repsondent's defense to the allega- tion was essentially that it wished to have pictorial evidence absolving it from liability in the event injury or damage occurred during the distribution of the leaf- lets. In support of its contention the Respondent relies upon General Engineering, Inc., etc., 131 NLRB 901. In that case the Trial Examiner found that the employer violated the Act by taking photographs at a time when the union was distributing literature to the employees, and the Board adopted this finding. There, as here, the employer claimed that the distribution of literature to incoming employees con- stituted a safety hazard as it backed up traffic entering the plant. The Trial Exam- iner, however, found it unnecessary to pass on the validity of Respondent's alleged motive as he found that Respondent's true motive was not "one of safeguarding the employees' safety." I fail to see therefore, how the above case can offer any sup- port to Respondent's contentions here. Respondent also relies upon Lock Joint Pipe Co., 141 NLRB 943 and Radio Industries, Inc., 101 NLRB 912. In the latter case, by respondent's own analysis the Board affirmed the Trial Examiner's finding that taking pictures of peaceful picket line activity was violative of the Act and taking pictures of picket line vio- lence was not violative. There is not the slightest intimation of violence in the activity described in the instant case. The former case is equally inapposite. There, the employer photographed employees engaged in mass picketing in order to obtain a State court injunction. The Trial Examiner found, and the Board affirmed, that photographing picket line misconduct was not unlawful. However, the Trial Exam- iner noted that photographing or pretending to photograph, organizational activi- ties such as the distribution of union literature by union representatives to employ- ees violated Section 8(a)(1). The General Counsel, on the other hand, asserts that the taking of photographs or motion pictures.is a per se violation as its inhibits and coerces the employees receiving the literature and interferes with their rights guaranteed by Section 7 of the Act. While I am not prepared to adopt a per se finding, I find that in the cir- cumstances of this case the pretention of taking motion pictures on August 3 and the actual taking of motion pictures on August 24 was in violation of the Act. The August 3 incident belies Respondent's contention that its motive was a valid and laudable one. If Respondent was concerned with protection from financial liabil- ity, it could hardly achieve this goal by pretending to take pictorial evidence with an unloaded camera. I find that an additional motive, if not the sole motive, was 9 The above is a synthesis of the testimony of both Brown and Czerwinski, and on this issue the parties are not in any major conflict. The Respondent offered into evidence the film depicting Czerwinski distributing leaflets an August 24. On objection by the General Counsel, I refused to allow the exhibit into evidence and placed it in the rejected exhibit file The film was part of a reel of ap- proximately 400 feet and consisted of 50 foot segments spliced together. Other than the portion depicting Czerwinski's activities, the reel consisted of personal home movies. As there is no substantial conflict between the testimony of Czerwinskl and Brown con- cerning the events of August 24, I am of the opinion that the film is of no probative value in assessing the merits of the Respondent's defense. Czerwinski, by his own admis- sion, constantly walW from the side of the driveway onto the driveway proper in order to hand out leaflets, and it is this factor which Respondent claims constituted a safety hazard causing it to be fearful of possible liability for injury or damage. NORTHLAND INDUSTRIAL PLASTICS CO. 799 to interfere with the employee's involvement in the union campaign and to make certain that the employees were aware that Respondent was recording on film evi- dence of their distributing or accepting union literature. It is entirely foreseeable and reasonable to conclude that the Respondent's activities in this regard had "a tendency to create fear and consternation" in the employees that the Respondent was recording their activities " for some present or future course of action involv- ing them." Tennessee Packers, Inc., 124 NLRB 1117, 1123. Moreover, it should be noted that the surveillance by motion picture camera began the day after the dis- ciplinary discharge of Boguth and Siebenaller and the day after the posting of the unlawful no-solicitation rule. I find, therefore, that the Respondent violated Section 8(a)(1) of the Act by engaging in "open" surveillance of the union activi- ties of its employees . General Engineering Inc., etc., supra ; Tennessee Packers, Inc., supra; The May Department Stores Company, et al., 59 NLRB 976. The amended complaint also alleges that the Respondent by its foreman, Bo Johnson, created an impression that it was engaging in surveillance of employees' union activities "on or about July 30, 1965." Siebenaller testified that after the third meeting of the employees with the Union on August 19, she had a discus- sion with Bo Johnson at the plant . Johnson told Siebenaller that he had heard that she had not attended the meeting , and when Siebenaller inquired as to how he knew this fact Johnson replied that he knew Siebenaller and others went to every meeting. Johnson was not called to testify concerning the conversation , although Respondent's counsel attempted to show on cross-examination that Johnson 's state- ments, if made , were in a jocular and a friendly vain. While the complaint alleges that the incident occurred "on or about July 30, 1965," Siebenaller testified that it occurred after August 19. Siebenaller testified in a convincing and forthright manner, and upon my observation of her on the wit- ness stand I find that the incident occurred in August. I further find that John- son's statements to Siebenaller were sufficent to create an impression of surveil- lance in violation of the Act . Respondent's argument that Johnson's statements were, at the very most, isolated and constituted a friendly inquiry is not persuasive. I do not believe that the statements can be separated from the series of events which took place at Respondent's plant during the union organizing campaign and given microscopic examination . Viewed in the context of Respondent's prior activ- ity, which I have found to be unlawful, and because the statements were made to an employee who had only recently been given a disciplinary layoff because of her activities on behalf of the Union, I find that Johnson's statements did in fact create an impression that the employer was engaging in surveillance of the employees union activities . I therefore find that Respondent has violated Section 8(a)(1) of the Act. E. Promises of benefit and threats of reprisal 1. By Garth Monroe Employee Ernestine Correa testified without contradiction that on August 18 she was,in the lunchroom, along with several other employees , awaiting her job assign- ment for that evening. Monroe assigned Correa the job of making boxes and tak- ing work off the machines; this job required Correa to move about throughout the entire shop. The job is described as working the "floor ." Correa testified that Monroe stated "Tina, you take the floor and if I catch you organizing, Pfffftttt." The latter sound was made in conjunction with a sweeping motion of Monroe's arm with his fist clinched and thumb extended . Experience indicates that this gesture accompanied by the particular sound is similar to the means used by a baseball umpire in "thumbing" a player out of the game . Correa testified that she under- stood the gesture and the sound to mean that she would be put out if she were caught organizing. Although Correa testified that this was the only instance in which she had a conversation with Monroe concerning the Union, I do not view the incident as being isolated. As in the case of Johnson , Monroe's statement and gesture must be considered in the total framework of the Respondent's activities directed against the employees and against the Union's organizing campaign . Therefore, I find that the Respondent violated Section 8 (a) (1) of the Act, by the statements of its Fore- man Monroe on August 18. 2. Activities of Laurence Martin Employees Karen Haworth and Patricia McNicol testified that on August 15 they encountered Martin as they were leaving the plant lunchroom. Martin told the 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees that he wanted them to stop talking about the Union. On August 20,10 the same employees met Martin as they were on their way to the paintroom. The employees, testified, in substance, that Martin told them to stop talking about the Union or he would find a way to get rid of them. Each employee indicated that Martin used vulgar language to emphasize his point. In addition to the above, McNicol testified that on August 15, after the warning by Martin, she was stand- ing at her machine beside Haworth and she asked Martin when they would get a raise. McNicol stated that Martin replied that "it all depends on which way the union goes." Martin testified on behalf of the Respondent, and denied having any discussion with Haworth or McNicol on August 15 or 20. He further testified that he did not recall any discussion with McNicol concerning raises but that from time to time employees made inquiries of him throughout the plant. He stated that his general approach was that he could not discuss the matter of raises during the union campaign. Thus, the issues are presented in sharp relief by the conflicting testimony of the witnesses. While I am aware that credibility issues frequently arise and are resolved in cases litigated under this Act, and indeed, in many other areas of the law, I am also painfully aware that there are no general rules or simple formulas for arriving at the focal point of the truth." I have observed the witnesses, weighed the inherent probabilities of their testi- mony, and I have carefully reviewed the record before me. Relying on this basis, imperfect though it may be, I credit the testimony of Haworth and McNicol and discredit the denials of Martin except in the single instance mentioned below. Haworth and McNicol testified unhestitatingly and were not evasive in their man- ner (Indeed, the same can be said of Martin.) However, these female employ- ees impressed me as being genuinely embarrassed at the prospect of having to repeat in public the vulgar language they attributed to Martin on August 20, and I am of the opinion that their testimony was not fabricated in this regard I find, therefore, that the warnings to the employees not to discuss the Union or face the prospect of discharge were made by Martin. I further find, that by these acts Respondent vio- lated Section 8(a)(1) of the Act. I do not find, however, that Martin told McNicol that a pay raise depended upon the outcome of the Union's campaign. My conclusions in this connection are, in part, based on the fact that McNicol, while testifying substantially as to the true state of events, tended to embellish and shade her statements in a manner which she deemed helpful to the Union's cause. This is not to imply that McNicol's statements in this regard were deliberate untruths, but rather, based on my obser- vation of the witness, the result of a misunderstanding or a "coloring" of the facts by a witness who heard, or thought she heard, what she wanted to hear. The piv- otal point in arriving at this conclusion is the fact that McNicol testified that Haworth was standing directly beside her when the statement was made by Martin. How- ever, Haworth's testimony as to the events which occurred in August never made mention of this alleged conversation. Therefore, I credit Martin's denial in this instance 12 and I recommend that the allegation in the complaint concerning this particular incident be dismissed. F. The walk-out of September 20, 1965 The evidence pertaining to the walk-out and subsequent picketing by six employ- ees beginning September 20 is not in serious dispute.13 On September 20, the six 10 Haworth testified that the second encounter with Martin occurred on August 20, but in her affidavit she indicated that the conversation took place on August 15 However, she was emphatic that the date indicated on the affidavit was incorrect. McNicol was not certain of the date, but stated that the conversation took place less than a n eek after the first encounter I find, therefore, that the conversation did take place on August 20 as indicated by Haworth. n In this connection, see the well written opinion of Judge Frank in N.L R.B. v. Dimon Coil Company, Inc., 201 F.2d 484 (C.A. 2). 11 The fact that I have discredited portions of Martin's testimony does not require that I discredit his testimony entirely. The maxim "falsus in uno, falsus in omnibus" does not apply, in my judgment in the circumstances of this case. Cf. N.L.R.B. v. Pittsbui gh S.S. Company, 337 U.S. 656; N.L.R.B. v. United Brotherhood of Carpeuiteis, Local 517, 230 F.2d 256, 259 (C.A. 1). 11 The six employees involved in the events of September 20 were Karen Haworth, Patricia McNicol, Betty Maxwell, Barbara Robinson, Inge Godin, and Brenda Parks, nee Rasnick. NORTHLAND INDUSTRIAL PLASTICS CO. S01 employees, noted below, reported to their work stations in the paint shop at 8 a.m. They found that the machines in the paint shop were not working and their fore- man, Dennis Duclos, was attempting to make repairs in order to get them opera- tional. The employees were forced to sit around idle during this time, and they began to discuss their dissatisfaction with the general working conditions in the paint shop. Machine failure was a common occurrence in the paint shop, and the employees frequently had to sit around waiting for repairs (however, employees were always paid for their idle time). In addition, the machines constantly sprayed paint all over the clothing of the employees when in operation, and the employer did not provide them with uniforms. Moreover, the blowers connected to the machines were frequently' in a faulty condition thereby creating an additional hazard. The more the employees discussed their working conditions and the failure of the Respondent to take corrective measures, the angrier they became. The employees finally decided to walk out of the plant in protest. When Duclos was apprised of the employees' decision, he urged them to remain, assuring them that the machines would be fixed as quickly as possible. The six employees left the plant at approxi- mately 9 a.m. and went to the home of Haworth. There the employees decided to construct picket signs stating the nature of their grievances 14 and to picket the plant. They returned to the plant at approximately 12 noon and began patrolling back and forth across the plant driveway.15 While picketing, the employees were approached by Martin who suggested that they talk over their grievances. The employees refused to discuss the matter with Martin. Martin told the employees that if they would discontinue the picketing the Respondent would consider it a day off and they could return to work the following day. He further told them that if they did not report to work by 8 a.m. the following morning, they were to consider themselves discharged. The following morning before the start of the 8 o'clock shift, five of the six employees resumed the picketing.16 Czerwinski, the union representative, came upon the scene, and advised the employees that there was nothing that the Union could do for them at this time. He further advised them to return to their jobs. Sometime between 8:05 and 8:10 a.m., the employees ceased picketing and attempted to return to their jobs. They were stopped in the driveway by Martin who informed them that they were discharged. That evening the five employees met with Brown and Martin at the plant office to discuss their walkout. In reply to Brown's query as to why they had engaged in the picketing, the employees explained the nature of their grievances. When the employees asked Brown if they could return to work, he told them that he would have to think the matter over and dis- cuss it with the plant foremen. The following morning several employees con- tacted Brown and he indicated that he was still thinking the matter over. Subse- quently, in response to a telephone inquiry by Parks, Brown stated that he would not allow the employees to return.17 1* The picket signs contained the following legends: "On Strike", "We Want to Work, Not Play"; "This Plant Unsafe" ; "We Want a Union"; "We Want Better Working Conditions." 1B Haworth and McNicol left at approximately 12.45 p m., but the other employees remained until the end of the day shift. 1e Robinson had abandoned the employees' protest by contacting Brown on the evening of September 20, and requesting that she be allowed to return to her job Brown agreed, and Robinson returned to her job sometime after 8 a.m, on September 21. 14 The above recital of events is a synthesis of the testimony of the witnesses for both the General Counsel and the Respondent. It should be noted at this point, that the Respondent attempted to establish that the six employees left their jobs on Septembei 20 solely for the purpose of going bowling. While the possibility of going bowling was dis- cussed by the employees, once they had decided to leave the plant, this thought was rejected and they engaged in the picketing described above Respondent's efforts to es- tablish this frivolous motivation (which I do not consider material in view of the facts herein) was through the testimony of employee Barbara Robinson Robinson, who aban- doned the protest at the end of the first day, was subpenaed by the General Counsel to appear as a witness and refused to do so. In fact, Robinson admitted that she told the Board agent serving the subpena that she was a minor and did not have to to tity in these proceedings. Nonetheless, Robinson voluntarily appeared and testified on behalf of the Respondent. In view of Robinson's obvious bias, and based on my observation of the witness as she was testifying, I place no credence in Robinson's testimony where it differs from the testimony of other employees relating to the walk-out 243-084-67-vol 159-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 21, Brown sent the five employees the following telegram: As the result of increased production requirements and our dire need for experienced help we are offering to past valued employees an opportunity for reemployment. Employment will include all benefits previously enjoyed. If you are interested please notify us and report for work at 8 o'clock a.m. Mon- day, December 27, 1965. Merry Christmas. In response to the telegram, Haworth and McNicol returned to their jobs sometime after December 27, and are presently employed by the Respondent. . Respondent defends against this aspect of the case by contending (1) that the employees seized upon the mechanical failure of the machines as an excuse to leave the plant for their own frivolous and personal reasons, and (2) that the employees were merely a dissident group disgruntled over the fact that the Union lost the election conducted on August 25. In support of this contention the Respondent asserts that the employees never expressed dissatisfaction over the working condi- tions prior to the walk-out. However, the employees credibly testified that they had repeatedly voiced their dissatisfaction over the failure of Respondent to provide uniforms and their concern about the lack of safe operation of the paint machines to Duclos, Respondent's foreman, and other management officials. Furthermore, the picket signs carried by the employees graphically brought to Respondent's atten- tion the purpose of the employees' protest. Even if this were not sufficient, the employees met with Respondent's top officials on the evening of September 20 and verbalized their grievances which led to the walk-out. Indeed, assuming arguendo, that the employees never protested their working conditions to the Respondent prior to the walk-out, their right to engage in concerted activities objecting to these condi- tions is nonetheless protected. As the Supreme Court stated in N.L.R.B. v. Wash- ington Aluminum Co., 370 U.S. 9 (at page 14): We cannot agree that employees necessarily lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of §7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. [Emphasis supplied.] Therefore, it is perfectly clear that the failure, if it did exist, to apprise the Respondent of the reason for the walk-out before the employees left the plant is of no consequence here, as the nature of the protest was graphically and verbally brought home to the Respondent during and after the picketing on September 20.18 Accordingly, I find that Respondent by its acts, recited above, violated Section 8 (a) (1) of the Act. I further find that the layoffs of the afternoon of September 20 and the subsequent discharges of September 21 were caused by the fact that Respondent believed the employees were discontented over the outcome of the union election, and were thus intended to discourage membership in and support of the Union by its employees . Such discriminatory motivation is prohibited under the statute, and I find that Respondent violated Section 8(a) (3) of The Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON -COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its operations 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 Respondent 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. Although I have found 'that Respondent discriminatorily laid off Boguth and Siebenaller for a period of 1 week because they were engaged in union activities, I shall not recommend reimbursement of losses suffered by Siebenaller. Siebenaller 18 See also : Delsea Iron Works, Inc, 136 NLRB 453, affd . 316 F.2d 231 ( C.A. 3) ; Amer- ican Art Clay Company, Inc., 142 NLRB 624 , vacate and set aside 328 F.2d 88 (C.A. 7). While the latter case was reversed by the Court of Appeals, there is no indication that the Board has adopted the views of the Seventh Circuit. NORTHLAND INDUSTRIAL PLASTICS CO. 803 informed Martin that she was ill and was leaving prior to the time that Martin told her she was suspended for a week. Siebenaller subsequently entered the hos- pital on August 4, and spent the following week and a half convalescing from her illness. In my judgment, it is impossible to determine from this record whether Siebenaller could have worked the day before she entered the hospital. Likewise, I shall not recommend that Respondent reinstate the discriminatorily discharged employees as Respondent sent telegrams to these employees offering them reemploy- ment on December 27. I shall recommend, however, that Respondent reimburse all of the discriminatees (with the exception of Siebenaller) for losses suffered as a result of the discrimination in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716,19 and post appropriate notices. Further, I shall recommend that the Respond- ent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of the backpay due under the terms of these recommendations. 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By photographing employees receiving or handing out union literature and by otherwise creating an impression . of surveillance, Respondent interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act. 4. By threatening employees with discharge of other reprisals if they did not refrain from engaging in activities on behalf of the Union, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 5. By promulgating, maintaining, and enforcing a rule from August 2 to 11, 1965, which prohibited employees from engaging in union solicitation at any time on company premises, Respondent interfered with,, restrained, and coerced employ- ees in violation of Section 8 (a) (1) of the Act. 6. By suspending Edith Boguth and Bea Siebenaller for the reason that they were engaging in activities on behalf, of the Union, thereby discouraging membership in the Union, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act - 7. By suspending Barbara Robinson, Karen Haworth, Brenda Parks, Patricia McNicol, Inge Godin, and Betty. Maxwell on September 20, 1965, and by subse- quently discharging the latter five employees on September 21, ,1965, thereby dis- couraging membership in the Union, Respondent engaged in - and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 8. By the. foregoing, and by the suspension and termination of the above employ- ees while they were engaging, in protected activities under Section, 7 of the Act, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. . 9. The aforesaid unfair labor practices are unfair labor practices 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 Northland Industrial Plastics Co., Troy, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending or otherwise discriminating, against employees because of their exercise of the right to self-organization or -to join a labor organization. "Reimbursement of losses for Boguth runs for the period of her suspension. Reim- bursement to the five dischargees runs' from the afternoon of September 20 when they were suspended for the balance of the day rather than the date of their discharge on September 21 and terminates on December 27-the date Respondent requested that the employees return to work. Reimbursement for Robinson, however, only runs for the period of her suspension on September 20. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Suspending, discharging, or otherwise discriminating against employees because of their exercise of the right to engage in concerted activity for the pur- pose of their mutual aid or protection as guaranteed in Section 7 of the Act. (c) Photographing or creating an impression of photographing employees hand- ing out or receiving the union literature , or otherwise creating an impression of surveillance of employees' activities on behalf of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor organization. (d) Threatening employees with discharge or other reprisals because of their activities on behalf of the Union , or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations , to joint or assist International Union , United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), AFL- CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activity for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make Edith Boguth, Karen Haworth , Brenda Parks, Patricia McNicol, Inge Godin, Betty Maxwell, and Barbara Robinson whole for any loss of pay they may have suffered by reason of the discrimination against them , in the manner set forth in this Decision under the section entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or 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 the amount of the backpay due under the terms of this Recommended Order. (c) Post at its plant in Troy, Michigan, copies of the attached notices marked "Appendix." 20 Copies of the said notice to be furnished by the Regional Director for Region 7, shall, after being duly signed by the Respondent's representative, be posted by Respondent 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 by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of receipt of this Decision , what steps the Respondent has taken to compiy herewith 21 I FURTHER RECOMMEND that the complaint be dismissed with respect to the allega- tions that the Respondent instituted , maintained, and enforced an unlawful no- solicitation rule on or after August 11, 1965 , and that such rule was instituted in an effort to stifle the Union's organizational efforts. I further recommend that the complaint be dismissed with respect to the allegation that the Respondent promised employees pay increases or other economic benefits in order to dissuade them from voting for the Union or engaging in other union or concerted activities. 20 In the event that this Recommended Order is 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 is 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." 21 In the event that this Recommended Order is 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." 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourge membership by any of our employees in Interna- tional Union, United Automobile, Aerospace and Agricultural Implement KOLMAR LABORATORIES, INC. 805 Workers of America (UAW), AFL-CIO, or in any other labor organization, by suspending or discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or in regard to any other term or condition of employment. WE WILL NOT suspend or discharge any of our employees because they engage in concerted activities for the purpose of their mutual aid or protection or to better their conditions of employment. We WILL NOT photograph or otherwise create an impression of surveillance of our employees when they are engaged in union activities. WE WILL make whole Edith Boguth, Karen Haworth, Brenda Parks, Patricia McNicol, Inge Godin, Betty Maxwell, and Barbara Robinson for any loss they may have suffered as a result of the discrimination against them. WE WILL NOT threaten employees with loss of their jobs or other reprisals if they engaged in activities on behalf of a union or in any like or related man- ner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. NORTHLAND INDUSTRIAL PLASTICS CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, 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 48226, Telephone 226-3244. Kolmar Laboratories, Inc. and International Union, Allied In- dustrial Workers of America, AFL-CIO. Case 30-CA-170. June 21, 1966 DECISION AND ORDER On March 10, 1966, Trial Examiner Louis Libbin 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 recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. 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 159 NLRB No. 74.