Smith Industries, Inc.

SMITH INDUSTRIES, INC. Smith Industries , Inc. and United Steelworkers of America, AFL-CIO. Case 23-CA-2362. May 10, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 23, 1967, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom 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 alleged violations and recommended dismissal of such allegations. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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. 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 recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent, Smith Industries, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER. Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at Houston, Texas, on October 26, 27, and 28, 1966,1 pursuant to due notice. The complaint, which was issued on June 29, on a charge dated April 21, All dates hereinafter refer to 1966 unless otherwise indicated 164 NLRB No. 77 499 alleged in substance, as amended, that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by various specified acts of interference, restraint, and coercion and discriminatorily discharging two employees. Respondent's answer denied the alleged unfair labor practices. The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a Texas corporation with its principal office and plant at Houston, Texas, where it is engaged in the manufacture, galvanizing, and sale of metal products. During the past year it sold and shipped more than $50,000 worth of products directly to points outside the State of Texas. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO (the Union herein), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues In May 1965 the Board conducted a representation election among Respondent's employees. The Union lost and thereafter withdrew its petition. In early 1966 the Union commenced another organizational campaign. The Board conducted another representation election on April 7, which the Union won. Thereafter Respondent filed objections to conduct affecting the election, which objections were rejected by the Board. Thereafter Respondent refused to bargain with the Union, for the purpose of testing the Board's ruling on the objections before the court of appeals. The unfair labor practices alleged herein allegedly occurred during the 2 months preceding and the month following the election of April 7. They do not include the refusal to bargain. The issues as framed by the pleadings are interference, restraint, and coercion by: (1) interrogating employees concerning union membership, activities, and desires; (2) threatening discharge or other reprisals because of union membership; and (3) maintaining, enforcing, and applying an unlawful no-solicitation rule; and discrimination by discharging two employees because of their union or concerted activities. B. Chronology of Events In May 1965, the Union lost a Board-conducted representation election and thereafter withdrew its petition. About a month later Charles Dipasquale, one of the alleged discriminatees, and Lester Sanders, manager of Respondent's galvanizing division, had a conversation concerning the election. In November 1965 Respondent published and distributed to all of its employees a printed 298-668 0-69-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee handbook containing, inter alga, specific rules of employee conduct. On January 30 Respondent issued a written warning notice to John Henry Williams, the other alleged discriminatee, because of drinking on the job or coming to work under the influence of alcohol. In early February, Sanders and Dipasquale had another conversation, concerning the Union's 1966 campaign. On February 18 Respondent discharged Williams for leaving his department without permission and drinking on the job, both violative of Respondent's written rules. In early March, Robert W. Watson, supervisor of Respondent's maintenance department, threatened Durrell Derbigney, one of his employees, with discharge for soliciting union authorization cards on company premises. On April 5, 2 days before the Board-conducted election, Respondent made campaign speeches to its assembled employees. During the course thereof, Dipasquale asked certain questions and made certain statements with respect to the Union. On April? the Union won the election. During the following week Respondent filed objections alleging conduct of the Union affecting the election. On April 12 Respondent issued a written warning notice to Dipasquale for soliciting union memberships and money on company premises in violation of the rules contained in its employee handbook. On April 14, the Board's Regional Director by letter acknowledged receipt of Respondent's objections to the election and requested Respondent to furnish certain information in support of its objections, including the names of employees and union representatives referred to in Respondent's objections 4 through 10. On April 15 Respondent discharged Dipasquale for harassing and threatening employees. On April 21 the Union filed the charge in this proceeding. On April 30, Respondent retained a private investigator in an attempt to obtain the information requested by the Regional Director. On May 4 and 5, said private investigator interviewed and took sworn statements from a number of Respondent's employees. C. Interference, Restraint, and Coercion 1. Interrogation and threats The complaint alleged that on or about February 15, and again on or about March 1, Sanders interrogated an employee about his union membership, activities, and desires. The only evidence in the record concerning these allegations is of conversations between Sanders and Dipasquale and between Sanders and Williams, both around February 1. Dipasquale and Williams are the two alleged discriminatees. Inasmuch as Williams was discharged on February 18, any such conversation with him necessarily occurred before that date. As background in connection with the alleged discrimination against Dipasquale, evidence of a conversation between him and Sanders occurring in June 1965, approximately 1 month after the Union lost the first election, was received. Dipasquale was a truckdriver employed in the galvanizing division, of which Sanders was the manager. The record establishes beyond dispute, and all parties concede, that Dipasquale was one of the most active supporters of the Union during both campaigns and that this was fully known by Respondent and substantially everyone in the plant. The record also establishes that Dipasquale and Sanders were friendly and on a first-name basis. About a month after the first election Sanders and Dipasquale met in the plant one day. Sanders told Dipasquale that while Respondent knew that he had worked hard for the Union, and Respondent could if it wanted make things so unpleasant for him that he might want to quit, Respondent did not operate that way. Sanders then said that he wanted himself and Dipasquale to be friends, and that while Dipasquale had worked hard for the Union, Sanders suggested that they now devote their efforts to working hard for the Company the coming year. Sanders asked Dipasquale how much his pay was. Thereupon the two men shook hands and parted on a friendly basis. Approximately 2 weeks after this conversation Dipasquale received a raise. According to Dipasquale, Sanders started the conversation by saying that it looked like the Union had lost and Respondent had won. Dipasquale agreed with and repeated that statement. Sanders then said that Respondent wanted no hard feelings with anybody, and that while it knew Dipasquale had been very active in the campaign and Respondent could fire him if it wanted to, he would only file charges with the Board, and Respondent was not that kind of company and wanted everybody to be friends and work for the good of the Company. Sanders, whom I credit, denied making any reference to discharging Dipasquale. It is undisputed that Sanders said that Respondent was not that kind of company and had no hard feelings against anybody. 'the aforesaid conversation, assuming arguendo Dipasquale's version, was not alleged as a violation of the Act but offered solely for the purposes of background in connection with Dipasquale's subsequent discharge in April. Around the first of February, during the second campaign, Sanders had another conversation with Dipasquale. The record establishes that Respondent's officials, particularly Sanders and Marion Faulkner, its personnel director, frequently talked to the employees about the campaign and the coming election. During these conversations they did not ask the employees whether they were for the Union or belonged to the Union or interrogate them about their union activities in any way. They consistently urged the employees to vote for Respondent, or "no," in the election, but uniformly advised them it was their choice and they were free to vote as they saw fit. This was corroborated by numerous employees called by both parties. Sanders met Dipasquale in the plant and opened the conversation by asking him what was going on, or what was the latest news on the campaign, stating that things seemed to be pretty quiet. Dipasquale replied by agreeing that things were pretty quiet. Sanders then said, "if it comes it comes and there is nothing that can be done about it." According to Dipasquale, Sanders stated that in the prior campaign the men discussed it more frequently but this time they seemed somewhat disinterested, and also said that whatever the employees wanted was up to them. Clearly Sanders was not interrogating Dipasquale in an attempt to ascertain whether he was for the Union, inasmuch as this was well known by Sanders and everybody in the plant and had been for over a year. It seems merely to have been a friendly conversation without any interrogation, threats, or coercion of any type. Viewing this conversation either as recalled by Sanders or by Dipasquale, I am satisfied and find that there was no unlawful interrogation in violation of Section 8(a)(1) of the Act. John Henry Williams testified that around the first of February he had a conversation with Sanders in the plant. The record establishes that Williams was active in both campaigns and that Respondent was fully aware of his SMITH INDUSTRIES, INC. activity on behalf of the Union. Sanders asked Williams how he was doing and what he thought about the outcome of the election this time. Williams replied that he thought it would come out as it did before. Sanders then stated, "No, I think you are going to win this time." Sanders, while frankly admitting that he frequently discussed the union campaign and coming election with most of the employees in his division, could not recall ever having spoken to Williams about it. Williams was employed in a different division. Sanders, whom I credit, denied ever interrogating any employee about his union activities, membership, or feelings. He frankly admitted urging most of his employees to vote for Respondent but always told each of them that the decision was theirs to make. Sanders had nothing to do with Williams' subsequent termination. Assuming the conversation occurred as testified to by Williams, a prediction by a management official that the Union was going to win the coming election could hardly be considered coercive. I am satisfied and find that Sanders did not interrogate Williams in violation of Section 8(a)(1) of the Act. The complaint alleged that on or about March 4, Robert Watson, supervisor of the maintenance department, interrogated an employee about, and threatened to discharge an employee because of, his union membership and activities. Watson was in charge of approximately 12 maintenance men who worked throughout the entire plant. His office and headquarters were located in a small building adjacent to the galvanizing division overlooking the parking area used by Respondent's employees. Durrell Derbigney was one of the maintenance men under Watson's supervision. Around the first of March Watson called Derbigney into the office and advised him that Watson had learned from two "reliable sources," other employees, that Derbigney had been handing out union authorization cards on Respondent's parking lot. Derbigney had been doing so,`but denied it. Watson said that in the prior election he had told the employees that he would not fire anyone "about the election," but that now if he heard again that Derbigney was handing out union cards on Respondent's premises Watson would fire him. According to Derbigney, Watson then stated that he had a lot to lose but Derbigney didn't have anything to lose. This latter remark, while not too clear, may have been a reference to Respondent's no-solicitation rule, which will be considered more fully hereinafter. Watson admitted that he had talked to Derbigney about passing out union literature on the parking lot during company time. According to Watson, he told all of his employees that he didn't want anyone campaigning for the Union and fooling around on company time, but that they could do anything they wanted to when they got off. Watson admitted that he told Derbigney that he would get fired if he passed out union literature on worktime. I credit Derbigney and find that Watson's threat concerned Derbigney's distribution of union literature on Respondent's parking lot at any time. In view of Respondent's no-solicitation rule, which prohibited all solicitation of union membership on company premises at any time, it seems entirely logical that Watson would have threatened discharge for a violation of that printed and established rule. As hereinafter found, the rule was an invalid and unlawful no-solicitation rule inasmuch as it prohibited union solicitation on an employee's own time, Famco, Inc , 158 NLRB 111, (1966), and cases cited therein 'Stoddard-Quirk Manufacturing Co , 138 NLRB 615 (1962) 501 which apparently included the distribution of union literature in nonworking areas. I am satisfied and find that Watson interrogated Derbigney about and threatened to discharge him because of his union activities in violation of Section 8(a)(1) of the Act 2. The no-solicitation rule The complaint alleged that on or about April 12 and thereafter, Respondent maintained and enforced a previously established broad unlawful no-solicitation rule, and threatened Dipasquale with discharge for violation of said rule. The record establishes that in November 1965, between the two elections, Respondent published, promulgated, and distributed to all of its employees a handbook containing certain rules of conduct. Those rules which subjected a violator to immediate termination were set forth on page 7 of said handbook. Rule 6 thereof prohibited "soliciting memberships or funds on company premises without written consent of management." That this rule encompassed soliciting union memberships was made clear by Respondent's written warning to Dipasquale on April 12 for soliciting union memberships on Respondent's parking lot in violation of said rule. It is now well settled that such a rule, prohibiting solicitation of union membership on company premises on an employee's own time, is unlawful and a violation of Section 8(a)(1) of the Act,2 and I so find. In substance, the Board has held that oral solicitations on company property during an employee's own time are appropriate and that the only valid limitation is a prohibition against such solicitations during working time. In the same decision, the Board also held that the appropriate limitations upon the distribution of union literature are that it must be during nonworking time in nonworking areas of the plant.3 On April 12 Sanders learned that Dipasquale had been passing out union membership cards on Respondent's parking lot prior to work Accordingly Sanders issued a written warning notice to Dipasquale advising him that Respondent had learned that he had been soliciting both union memberships and money on company premises in violation of rule 6 on page 7 of the employee handbook, and requesting Dipasquale to advise Respondent if it had been misinformed. Dipasquale thereupon admitted that he had been soliciting union membership cards on Respondent's parking lot that morning before work but denied soliciting any money. Sanders' testimony revealed that his reference to money was a conclusion derived from the solicitation of union memberships which would ultimately entail the payment of dues. In any event, Sanders admitted that he issued the written warning because Dipasquale had been soliciting union memberships on Respondent's parking lot during nonworking time in violation of Respondent's rule 6. It was undisputed that Dipasquale was doing so on his own time in a nonworking area. Inasmuch as Respondent's employee handbook specifically stated that a violation of the rules on page 7, which included rule 6, would subject an employee to immediate termination, it is clear that the warning notice referring to that rule specifically constituted a threat of discharge. It is of course self- evident, and well settled, that a threat of discharge for violating a rule, itself invalid because it prohibits lawful protected concerted activities, is in violation of Section 8(a)(1) of the Act,4 and I so find. Marion Manufacturing Company, 161 NLRB 1380 (1966). 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent's use of a private investigator The complaint alleged that on or about May 6, Clyde Wilson, Respondent's agent, interrogated employees concerning their union membership or activities. On April 7 the Union won the election. Thereafter Respondent filed objection to conduct of the Union allegedly affecting the election On April 14, the Regional Director by letter requested Respondent's counsel to furnish certain information in support of said objections, including the names of and other data with respect to the employees and union representatives referred to in objections 4 through 10, inclusive. The misconduct alleged in Respondent's objections consisted generally of coercion, threats, promises, and false representations by union representatives to employees to secure their votes for the Union. On or about April 30, Respondent's counsel retained Clyde Wilson, a private investigator, to ascertain the information requested by the Regional Director. Counsel for Respondent furnished Wilson with the names of certain employees who might have information with respect to said objections, and also laid down the ground rules under which employee interviews should be conducted. In general, these followed the criteria established by the Board in connection with interviewing employees in preparation of a respondent's defense or verification of a union's claimed majority status.5 While such interrogation otherwise might be in violation of Section 8(a)(1), the Board has recognized the necessity for conducting such interviews under such circumstances and hence has established certain rules designed to prevent unlawful interrogation and coercion of employees in connection with such investigations. In general, they consist of advising the employees to be interviewed that their participation is purely voluntary and that no reprisals of any kind will be taken against them, and questions dealing with an employee' s union membership, desires, state of mind, and other matters not specifically relevant to the matter under inquiry must not be undertaken. Counsel for Respondent advised Wilson that none of the employees should be questioned about their union feelings or how they voted in the election, and that the questioning should be limited strictly to the matters alleged in Respondent's objections concerning which the Regional Director had requested specific information. Necessarily, of course, the questioning dealt with what statements, promises, threats, and other actions, if any, had been made or taken by representatives of the Union, because those were the allegations contained in Respondent's objections. Wilson interviewed approximately 10 employees and took notarized statements from all of them, all of which were furnished to the Regional Director. In each instance Wilson or his agent advised the employees before any questions were asked that their participation or statement would be entirely voluntary and that he was not interested in their union membership or activities. The General Counsel called as witnesses three employees whom Wilson had interviewed and their notarized statements were received in evidence. They all testified that they had been informed of the purpose of the interview and that their participation therein was purely voluntary. Each agreed to give Wilson a statement. Their interviews s Johnnie's Poultry Co , 146 NLRB 770 (1964). 6 As the Court of Appeals for the District of Columbia recently observed "The line between proper preparation of a defense in a proceeding of this type and conduct prohibited by the Act is fine occurred on May 4 and 5. Willie Gipson was contacted by Wilson on May 4. Gipson in addition to his statement furnished Wilson with the names of two other employees, Elmer Holmes and John Frank Baker, who might have information concerning the incidents involved in the objections. They were interviewed the following day. The three were advised that no reprisals would be taken and that if they lost time from work as a result of going to Wilson's office to make their statements they would be compensated by Respondent for such lost time, which in fact occurred. Wilson had learned that a serious fight between two employees had occurred at the plant. He asked each of the employees interviewed about the fight. After Wilson ascertained that the fight had occurred after the representation election and had nothing to do with the Union, the subject was dropped and was not included in the written statements signed by the three employees. Their written statements covered the kinds of conduct alleged in Respondent's objections, but each disclosed that the Union in fact had not engaged in any of the misconduct alleged in Respondent's objections. Gipson's and Holmes' testimony and affidavits revealed that in addition to the fight at the plant the questions asked them dealt exclusively with the subject matter of the objections filed by Respondent. In response to such questions the interviewed employees inevitably disclosed the fact that they had attended union meetings where union representatives had made certain representations and statements. All of these interviews occurred after the election, when Respondent already knew that the majority of its employees had joined and voted for the Union. All three of the employees were able to read and write well and verified their sworn statements at the hearing. Contrary to the testimony of Gipson and Holmes and his own affidavit, Baker, whom I do not credit, testified that he was interrogated about his union membership, desires, activities, and how he voted in the election He admitted that he was informed that he did not have to give a statement and did so voluntarily. He also admitted that the subject of his attending union meetings had come up only in connection with the question of what representations the Union had made to him.6 He verified his sworn statement at the hearing herein, which, among other things, stated that he fully understood that he was not being questioned about how he voted in the election. Wilson testified that he was given explicit instructions by Respondent's counsel concerning the interviews and their subject matter, i.e., the conduct alleged in the objections, was told not to question employees about their union affiliation or desires, and followed such instructions carefully. Wilson was furnished with a copy of the objections to use in connection with the interviews. The record establishes, and I find, that Wilson's interviews were conducted in accordance with the criteria established by the Board in Johnnie's Poultry,7 pursuant to the instructions given him by Respondent's counsel, in an attempt to secure the information requested by the Regional Director. I find that the General Counsel has failed to sustain his burden of proving that Respondent's interrogation of employees through its agent Wilson was in violation of Section 8(a)(1) of the Act. indeed." Retail Clerks International Assn [Montgomery Ward & Co ] v NLRB , 373 F 2d 655, 64 LRRM 2108 (D C Circ 1967), and cases cited therein r Fn 5, supra SMITH INDUSTRIES, INC. 503 D. Discrimination in Hire, Tenure, Terms or Conditions of Employment 1. John Henry Williams The complaint, as amended by stipulation at the hearing, alleged that Respondent discharged John Henry Williams on February 18 because of his union or concerted activities. Williams was employed in Respondent's fastener or bolt division as an operator of a degreasing machine. He had been employed by Respondent on and off since 1951. As previously found, Williams was active in both union campaigns in 1965 and 1966, of which Respondent was aware. It has been found that Respondent engaged in no interference, restraint, or coercion or violations of Section 8(a)(1) of the Act prior to Williams' discharge. His foreman in the bolt division was Grady Williams (hereinafter referred to as Grady), no relation. The record reveals that from time to time Williams either reported for work under the influence of alcohol or drank on the job. On other occasions he left his bolt division building without permission to visit other parts of the plant. Each of these activities was specifically prohibited by rules 1, 2, and 11 in the employee handbook. Williams had been orally warned six or more times against each of these practices; i.e., leaving his division without permission and either coming to work under the influence of alcohol or drinking on the job. The General Counsel called several witnesses who testified, and the record including Respondent's witnesses establishes, that Respondent permitted employees to take coffee and Coke breaks in their own departments whenever their work tasks permitted. This practice did not include leaving the department or building in which they worked. Respondent had coffee and Coke machines available in the various departments. The maintenance employees, who worked all over the plant in the various buildings, could take their breaks wherever they happened to be when their workload permitted. However, the record further establishes, in part from the General Counsel's witnesses, that Respondent did not permit employees to leave their division building on personal business to visit other departments and buildings. The only exception was if an employee was dispatched on company business. Respondent's handbook rule specifically prohibited an employee leaving his regular work station without permission, and Grady had warned Williams about doing this on numerous occasions. On January 30, a Sunday, Williams was working alone in the plant, having been assigned to the job by Grady through the leadman. Grady had told the leadman to warn Williams not to come to work drinking. About 2 p.m. Grady visited the plant and noted a strong odor of alcohol on Williams' breath. Grady left and returned about 4:30 p.m. He again noted a strong fresh alcohol odor on Williams' breath and that he was definitely unsteady. Grady warned Williams against drinking while working, pointing out that he might injure himself, and also warned him that he would have to watch his step. The following day Grady issued a written warning notice to Williams, dated January 30, covering the incident. About 3 p.m. February 18 Williams left his job in the bolt division to visit other parts of the plant without permission. During the course of this absence he stopped to talk with Thurman Hightower, a fellow employee and friend, in the galvanizing division, which was in a building separate from the bolt division. Hightower was working in the galvanizing division approximately 30 or 40 feet from the receiving door, which was open. Williams went up to Hightower, asked if he had seen a certain maintenance man, and also.asked him to lend Williams some money. While they were standing there talking, N. S. Kendall, Respondent's vice president, passed by on his way from the clock alley to the bolt division. He noted Williams outside of his own building in conversation with Hightower. Kendall proceeded to the bolt division, where he asked Grady if Williams had been given permission to leave his division. Having received a negative reply, Kendall informed Grady that he had seen Williams in the galvanizing division building engaging in conversation with an employee. Grady proceeded to the rear half of the bolt division where Williams worked and ascertained that he was not in the building. About 5 minutes later, Williams returned to the bolt division. Grady met him at the door and asked where he had been or what he had been doing. Williams replied that he had gone over to the galvanizing division to check on a ride and borrow some money. Grady asked Williams if he had secured permission. Williams admitted that he had not. Grady smelled a strong fresh odor of alcohol on Williams' breath and accused him of drinking again. Williams replied that he had not been drinking, but had been the night before. After Williams returned to work, Grady discussed the entire incident, including the fact that Kendall had called Williams' absence from his department to Grady's attention, with Jack Pye, manager of the bolt division, who recommended that under the circumstances Grady fire Williams. Grady testified that although in the past he had only warned Williams about such absences Grady felt that when Respondent's vice president (its second highest official) called attention to such delinquencies on the part of Grady's employees, the matter was serious enough to warrant severe and immediate action. Grady's reaction under the circumstances would appear entirely natural. He also believed Williams guilty of a double violation, the other being drinking on the job. Grady then summoned Williams, told him of the discussion with Pye, and advised Williams he was fired. Williams pleaded for his job on the grounds that he had a large family and needed the work. Grady told Williams to check back with Grady in about a week because he might know of a job in another plant which needed help where the superintendent was a personal friend. Grady spoke to his friend concerning Williams but Williams did not apply for work at the other plant. Unlike certain other officials of Respondent, Grady was unaware of Williams' interest in and activity on behalf of the Union. Williams' termination notice, drafted and signed by Grady February 18, stated that Williams was discharged for leaving his department without permission during working hours and drinking on the job, in spite of prior warnings against both While many of General Counsel's witnesses testified that surreptitious drinking was more or less prevalent on the premises during the night shift and breaks and the employee parking lot was frequently littered with empty bottles and beer cans, it is undisputed that Respondent's rules strictly prohibited drinking on the job, and that Grady personally was strongly opposed thereto. About 2 years prior to Williams' discharge, Grady closed down his entire division during working hours to call a meeting of all his employees at which he threatened to discharge any employee found drinking on the job, because Grady had found a bottle of liquor in the restroom Williams was present at that meeting. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams, whom I do not credit, testified that about 3 p.m. Littleton, his leadman, sent him to the maintenance department to get a maintenance man to disassemble a degreasing machine in the bolt division prior to a cleaning operation thereon. Williams said that while he and the maintenance man were walking outside from the maintenance department to the bolt division, they passed in front of the receiving door of the galvanizing division, at which point Hightower called to Williams to come over. Williams said that early that morning he had asked Hightower to lend him $5 and Hightower had said he would give it to him later. According to Williams, Hightower started to hand him a $5 bill. At that point, Kendall walked by so Hightower kept his hand in his pocket until Kendall had proceeded out of sight. Thereupon Hightower gave Williams the $5 bill and Williams returned to his own building where he met Grady at the door. Grady asked him where he had been and he replied that he had gone to get a maintenance man. After Grady told him that Kendall had seen Williams talking with Hightower in the galvanizing division, Williams then admitted that he had been doing so. Contrary to Grady's testimony, Williams said he told Grady he had borrowed $5 from Hightower, showing Grady the $5 bill. Williams admitted that Grady then accused him of drinking and referred to the incident of January 30 when Grady had found Williams on the job either drinking or under the influence of alcohol. Williams denied that he had been drinking on February 18 but admitted that on January 30 he had had the traditional "two beers" before coming to work. Williams' testimony was contradicted in several material respects not only by Grady but by Hightower, Williams' friend. Williams, although one of the oldest employees in point of service, was unable to identify the maintenance man whom he said was accompanying him and had proceeded on to the bolt division after Williams stopped to talk to Hightower. Grady testified that it was the function of the leadman to call the maintenance department whenever a maintenance man was needed, and that Williams had not been sent to get any maintenance man. In addition , when Grady checked his department after being advised by Kendall that he had seen Williams in the galvanizing division, there was no maintenance man present. Williams first denied ever having received any warnings or reprimands about drinking or leaving his department without permission, including the January 30 written notice issued by Grady Later on cross-examination Williams admitted having been warned twice about leaving the department without permission. Williams denied even receiving Respondent's termination notice dated February 18. According to Williams, Grady did not fire him on February 18 but laid him off for a week as discipline for being away from the department without permission and drinking on the job. Williams said Grady informed him 10 days later that he was permanently terminated upon orders of Respondent's higher officials. Williams admitted that Grady offered to help him get a job in another plant. Williams' friend Hightower said that he was working in the galvanizing division at his regular job some 30 or 40 feet inside the receiving door when Williams came to him, looking for a maintenance man, and asked to borrow some money. Hightower flatly -denied that he had called to Williams, earlier agreed to lend him money, loaned him $5 or any amount, and that Williams owed him any money. Hightower testified that he replied that he did not have any money and could not lend Williams any. Hightower said that he had occasionally loaned Williams from 25 cents to a dollar when they met socially, but had never loaned him any money while at work. According to Hightower and contrary to Williams, Williams was not on his way back to the bolt division with a maintenance man. While Respondent was aware of Williams' activities on behalf of the Union, it is clear that Respondent had good cause for discharging Williams. I am satisfied and find that the General Counsel has failed to sustain his burden of proving that Respondent discriminatorily discharged Williams because of his union or concerted activities. 2. Charles Dipasquale The complaint alleged that Respondent discharged Charles Dipasquale on April 15 because of his union or concerted activities. Dipasquale was employed as a truckdriver in the galvanizing division and was one of the Union's most active adherents and supporters during both campaigns, of which Respondent was fully aware. As hereinabove found, he had conversations with Sanders, manager of the galvanizing division, in June 1965 concerning the prior election and in February 1966 concerning the union organizational campaign and coming election, neither of which were in violation of the Act. It has also been found that on April 12, after the election, Sanders issued a written warning notice to Dipasquale for soliciting union memberships and money on company premises in violation of Respondent's rule 6, which warning constituted a threat of discharge in violation of the Act because the rule invalidly prohibited the solicitation of union membership by an employee on company premises on his own time. The General Counsel contended that Dipasquale's solicitation of union memberships in violation of Respondent's rule was one of Respondent's reasons for discharging him, but there is no evidence in the record to support this contention. On April 7 the Union won the Board-conducted election. On the morning of April 14, before the commencement of work at 7 a.m., four men who worked at Respondent's plant were in a restaurant called Ollie's Cafe a short distance from the plant. Three of them, Emory Muckleroy, Keith Underwood, and Jake Singleton, were employees of Respondent's tysco division. The fourth, Terry Wise, worked for Respondent through Peekload, Inc., a supplier of manpower. All of them were friends. Dipasquale, with some union membership cards in his hand, approached the booth in which the four were seated and asked them to join the Union. None of them were personally acquainted with Dipasquale, but knew that he worked for Respondent as a truckdriver. Dipasquale was wearing a uniform shirt supplied by Respondent, with Respondent's name and his first name, Charles, over the pocket. Dipasquale asked the men if they were going to attend the union meeting Tuesday night, asked them to sign the membership cards and join the Union, and handed them the cards. Either during the course of the conversation or just prior to approaching the booth, Dipasquale drew a small road map indicating the location of the union hall vis-a-vis a well- known nearby highway on the back of the membership card handed to Muckleroy. Muckleroy and Underwood had been employed by Respondent for approximately 2 months and 2 weeks, respectively, although each had previously worked at Respondent's plant through Peekload. Muckleroy replied that he was not going to join the Union and had not been an SMITH INDUSTRIES, INC. 505 employee long enough to vote in the election. Wise handed his card back, stating that he was not an employee of Respondent. Underwood took his card and tore it in half in front of Dipasquale. Thereupon Dipasquale told the three employees that if they did not join the Union they would not have a job in 3 months. They did not reply and this terminated the incident. The foregoing findings are based upon the credited testimony of Muckleroy, as corroborated by the signed statements of Underwood and Wise, who were not called as witnesses but whose statements were received in -evidence, and Muckleroy's signed statement notarized May 13.8 The union membership card torn by Underwood and the one given Muckleroy with the road map drawn by Dipasquale were received in evidence. Underwood and Muckleroy reported this incident to their foreman who in turn reported it to Faulkner, Respondent's personnel director. Faulkner interviewed the three employees and Wise the same day and took signed statements from all of them except Singleton, who advised Faulkner that he knew little or nothing about the incident. Muckleroy and Underwood gave Faulkner the union membership cards they had received from Dipasquale. Faulkner then discussed the incident with Kendall and Sanders. Kendall and Faulkner in turn discussed it with Respondent's attorney, because they knew Dipasquale was very active in the Union and realized unfair labor practice charges might be filed. Nevertheless they decided to discharge Dipasquale for threatening employees with loss of jobs unless they joined the Union. Respondent's counsel thereupon notified the Union's business representative of the incident, advising him that Respondent would give Dipasquale until 2 p.m. the following day to decide whether to resign or be terminated. At 2 p.m. the following day, Sanders summoned Dipasquale, advised him that he was fired for harassing and threatening other employees, and handed him his termination notice stating the same thing. Faulkner who was present made no statement. Dipasquale made no reply. He had previously been informed of Respondent's intention by the Union's business representative. Dipasquale, whom I do not credit, denied that he made any threats to employees that they would lose their jobs if they did not join the Union. Dipasquale testified as the General Counsel's first witness. His testimony was somewhat different and contradictory when subsequently recalled for rebuttal after hearing and seeing Muckleroy's testimony and Respondent's other evidence concerning the incident in Ollie's Cafe. During his original direct testimony, Dipasquale had no recollection whatsoever of any incident having occurred at Ollie's Cafe as a result of which he was discharged, although it was later stipulated that Respondent notified the Union's business representative of Respondent's reasons and decision to terminate Dipasquale and the Union conveyed this information to Dipasquale before his discharge. Dipasquale admittedly said nothing in reply to Sanders when he advised Dipasquale why he was fired. Dipasquale testified that he occasionally stopped at Ollie's Cafe and sometimes solicited employees he met there to join the Union, but could not recall having done so on that occasion On cross-examination, after an attempt to refresh his recollection, he admitted that he might have talked to some employees from the tysco division in Ollie's Cafe that morning. Although he had said he could not remember the incident, he then testified that he presented union membership cards to the men and asked them to sign. He'admitted that he probably asked the employees if they were going to the union meeting the next Tuesday, and that he had occasionally drawn maps on the back of membership cards to show people how to get to the union hall. He denied that any employee tore up a membership card in front of him. He stated unequivocally that he had never told any employee anything concerning his job or whether he would or would not have a job because of the Union. When recalled in rebuttal, Dipasquale stated that his recollection of the incident had been refreshed by seeing Muckleroy on the stand. Dipasquale admitted that he had drawn the map on the back of the membership card identified by Muckleroy. He then testified, contrary to his original denial , that he could not recall if he had ever said that if they didn't join the Union they would not have a fob in 3 months, but admitted discussing the subject of 3 months. Respondent's rules provided that new employees serve a probationary period of 90 days, which applied to both Muckleroy and Underwood since neither of them had been employed that long. According to Dipasquale, he was discussing the 90-day probationary period, pointing out to them that the Union would attempt to change this through negotiations with Respondent and thus offer greater security to new employees. He admitted approaching the table with the cards , asking the men to attend the union meeting, and that Muckleroy had replied that he hadn't been an employee long enough to vote in the election. Dipasquale then advised them that although they were new employees everyone had a right to join the Union, and that they should know that Respondent could fire them within 90 days because of the probationary period. He again changed his direct testimony and stated that he could not remember whether a membership card had been torn up. Muckleroy, whom I credit, testified on cross- examination that he was fully familiar with the 90-day probationary period for new employees, and that Dipasquale had not talked about the 90-day probationary period or said anything about the Union trying to obtain better security for new employees. Considerable testimony from both sides was received concerning a plant meeting of Respondent's galvanizing division employees held on April 5 during the course of which Kendall and Faulkner addressed the employees, in general urging them to vote for Respondent but telling them that it was their choice. During the meeting, pursuant to Respondent's request for questions, Dipasquale asked several questions and made several statements with respect to the Union. Respondent's statements at this meeting were not alleged as, or offered as proof of, any unfair labor practice in violation of the Act, but merely as background in connection with Dipasquale's discharge 10 days later. Suffice it to say that this evidence served to establish but one thing, which was otherwise well established; namely, that Respondent was fully aware of Dipasquale's active and leading participation in support of the Union. While Respondent's warning notice to Dipasquale on April 12 for soliciting union memberships on company premises in violation of its rule 6 was in violation of the Act, there is no evidence whatsoever that this was a cause or reason for or had any connection with Dipasquale's tl Respondent was unable to locate Underwood, Wise, and Singleton, all of whom had left Respondent's employ On May 13 Muckleroy advised Respondent that he was quitting and leaving town, so Respondent had him notarize his statement that day 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination . That incident was closed by the issuance of the warning notice. It is clear that Respondent had good cause for discharging Dipasquale on April 15 because of his threatening fellow employees with loss of employment unless they joined the Union. The Board and the courts have held that such threats by employees to other employees of loss of jobs unless they join a union are outside the area of protected concerted or union activity, and hence a discharge for engaging in such conduct is not in violation of the Act.9 A preponderance of the reliable, probative, and substantial evidence in the entire record convinces me, and I find, that the General Counsel has failed to sustain his burden of proving that Respondent discriminatorily discharged Dipasquale because of his union or concerted activities in violation of the Act Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following- CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. Respondent has not, as alleged in the complaint, discriminated against its employees within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Smith Industries , Inc., Houston , Texas , its officers, agents, successors , and assigns , shall: 1. Cease and desist from (a) Coercively interrogating its employees concerning their union membership or activities (b) Threatening employees with discharge or other reprisals because of their union activities. (c) Publishing, maintaining in effect , enforcing, or: applying any rule or regulation prohibiting its employees during nonworking time from soliciting their fellow employees to join or support United Steelworkers of America , AFL-CIO , or any other labor organization. (d) Threatening employees with discharge or other reprisal for soliciting their fellow employees to join or support United Steelworkers of America, AFL-CIO, or any other labor organization during nonworking time, under Respondent's aforesaid invalid rule or otherwise. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Forthwith rescind its existing rule against solicitation as published in its employee handbook to the extent that it prohibits employees from soliciting membership in a labor organization during nonworking time on its premises. (b) Post at its plant in Houston, Texas, copies of the attached notice marked "Appendix."10 Copies of said notice, to be furnished by the Regional Director for Region 23, shall, after being duly signed by 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 to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith. I I IT IS FURTHER ORDERED that the additional allegations in the complaint of interference, restraint, and coercion, and the allegations of discrimination. not hereinabove found be and hereby are dismissed. 0 Continental Woven Label Company, Incorporated, 160 NLRB 1430 (1966), and cases cited therein 10 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 " i i In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 23, in writing , within 10 days from the date of this Order, what steps 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 coercively interrogate our employees concerning their union membership or activities. WE WILL NOT threaten our employees with discharge or other reprisals because of their union activities WE WILL NOT publish , maintain in effect, enforce, or apply any rule or regulation prohibiting our employees during nonworking time from soliciting their fellow employees' to join or support United Steelworkers of America, AFL-CIO , or any other labor organization. WE WILL NOT threaten employees with discharge or other reprisals for soliciting their fellow employees to join or support United Steelworkers of America, AFL-CIO , or any other labor organization during nonworking time, under our aforesaid invalid rule or otherwise. SMITH INDUSTRIES, INC. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE hereby rescind our existing rule 6 as published on page 7 of our employee handbook to the extent that it prohibits our employees from soliciting membership in a labor organization during nonworking time on our premises. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above- named Union or any other labor organization. 507 SMITH INDUSTRIES, 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611.