The Deutsch Co.

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Deutsch Company, Electronic Components Division, a Corporation and United Steelworkers of America, AFL-CIO. Cases 21-CA-7240 and 21-CA-7262. May 31,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On March 17, 1967, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that 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 Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices, and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent has requested oral argument.[ 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, and the entire record in this case, including the exceptions and brief, and hereby adopts the findings,2 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 the Respondent, The Deutsch Company, Electronic Components Division, a Corporation, Banning, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. charge in Case 21-CA-7240, filed June 9, 1966, by United Steelworkers of America, AFL-CIO, hereinafter referred to as the Union, and a charge in Case 21-CA-7262, filed July 11, 1966, by the Union, a consolidated complaint was issued on July 22,1966. The complaint, as amended during the course of the hearing,' alleges in essence that The Deutsch Company, Electronic Components Division, a Corporation, hereinafter referred to as the Respondent or the Company, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent, in its answer, as amended during the course of the hearing,2 denies that it committed the unfair labor practices alleged. Pursuant to notice, a hearing was held on November 21 and 22, 1966, in San Bernardino, California. Within the time set therefor, briefs were submitted by counsel for the General Counsel and the Respondent. Upon the entire record herein and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent , a California corporation with a plant in Banning, California, is engaged in the production and sale of miniature electrical connectors used in the aerospace industry. In the course and conduct of its business operations , Respondent annually sells and ships from its said plant goods valued in excess of $50,000 directly to points located outside the State of California. As it has conceded , Respondent is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is conceded by Respondent, the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES There is little contradictory evidence with respect to matters material to the issues herein. For the most part the issues are related to Respondent's conduct in prohibiting the distribution of union authorization cards inside its plant. There is no controversy as to what conduct it engaged in, but rather the major issue is whether or not, in the circumstances of this case, the limitations imposed by Respondent on distribution and solicitation were unlawful. A. Summary of Events The facts set forth in the following summary of events are undisputed. Commencing on June 1, 1966, certain of Respondent's employees, particularly Daniel Salcido, George Pacheco, ' This request is hereby denied because the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 2 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's finding that Respondent's letter of July 14, 1966, was not violative of Section 8(a)(1) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner : Based upon a 165 NLRB No. 5 ' The complaint was amended by striking from paragraph 8(a) the word "promulgated." 2 The Respondent amended its answer to paragraph 8(a) of the complaint by alleging that the rule referred to in said paragraph was "promulgated" prior to the 6-month period preceding the first charge filed herein No issue was raised by this amendment inasmuch as the word "promulgated" was stricken from paragraph 8(a) of the complaint, as indicated hereinabove The answer was further amended to admit paragraph 3 of the complaint (alleging that the Union is a labor organization within the meaning of the Act) THE DEUTSCH COMPANY Robert Carrillo, Charles Callihan, and Mark Grim,' distributed union authorization cards to their fellow employees at various entrances to the plant, notably at the "north" or "airplane" gate and at the "east" gate. The north gate affords an entrance from a public street, whereas the east gate is between the Company's private parking lot and the so-called security area of the plant. Said employees distributed the authorization cards in the mornings, prior to the commencement of the workday. In some instances they did so within the security area; i.e., inside the gates. On most occasions they distributed the cards outside said gates; i.e., on the street side of the north gate or in the parking area outside the east gate. On July 8, Salcido and Callihan distributed authorization cards in the Company's lunchroom during the lunch break. Later that day, Salcido and Callihan were given 3-day disciplinary layoffs for doing so. On or about July 14, 1966, the Respondent sent a letter to its employees with a stamped postcard enclosed. The card was addressed to the National Labor Relations Board and contained the following: Re: Deutsch Electronic Components Division Gentlemen: Recently I signed a union representation card of the United Steelworkers of America because of misinformation or duress. I hereby revoke my authorization for all purposes. ................ SIGNATURE DATED ................ Commencing in 1962, the Respondent distributed to new employees a booklet referred to as the "welcome" booklet or manual. It contained, on page 15 thereof, the following paragraph: COLLECTIONS AND GIFTS: The solicitation of funds for any purpose, the sale of tickets for all purposes, the operation of lotteries and raffles, and the solicitation of membership in organizations during working hours on Company property are absolutely prohibited. B. The Issues Following are the issues raised on this proceeding: 1. Whether special circumstances are present in this case which would make it lawful for Respondent to maintain and enforce a rule prohibiting solicitation of signatures on union authorization cards and distribution of union literature during nonworking time in nonwork areas of its plant. 2. Whether, by maintaining and enforcing a rule prohibiting solicitation and distribution on behalf of the 3 The employees individually named in the complaint as objects of Respondent's unlawful conduct 4 While occasions may exist which would require drawing a distinction between a rule against solicitation and a rule against distribution, there are no factors in this case which require a consideration as to whether the distinction should be drawn. ' The evidence with respect thereto is summarized herembelow 141 Union at any time inside its plant, Respondent violated Section 8(a)(1) of the Act. 3. Whether, by interrogating employees as to whether they had engaged, or will engage, in such solicitation or distribution, threatening them with reprisals if they continued to do so, and engaging in other conduct designed to enforce such prohibitions, including the disciplinary layoff of two employees, Respondent violated Section 8(a)(1) and (3) of the Act. 4. Whether by statements contained in its aforesaid letter of July 14, 1966, sent to its employees, and by enclosing the aforementioned postcards, Respondent interfered with, restrained, or coerced its employees within the meaning of Section 8(a)(1) of the Act. C. Respondent's Conduct Re Solicitation and Distribution It is well established that an employer's prohibition of solicitation or distribution of literature on behalf of a union during nonworking time in nonwork plant areas is presumptively invalid. Stoddard-Quirk Manufacturing Co., 138 NLRB 615; Gale Products, Div. of Outboard Marine Corp., 142 NLRB 1246.4 The mere assertion of a necessity to curtail such activity (without proof thereof) is insufficient to rebut such a presumption. Korn Industries, Inc., 161 NLRB 866. The record is clear that the Respondent maintained and enforced a rule prohibiting solicitation and distribution on behalf of the Union during nonworking time and in nonwork areas of ' its plant, particularly inside entrance gates before the workday commenced and in the company lunchroom during the lunch breaks In chief, Respondent's defense is that the restraints it imposed on distribution and solicitation were not unlawful because they were justifiable in implementing its security measures. Security measures, according to Respondent's witness, were imposed in connection with Respondent's work on classified materials under the Department of Defense regulations and for internal security to prevent loss of valuable metals used in production. Considerable testimony was elicited from Robert E. Bonn , Chief, Facilities Division Office of Industrial Security, Defense Contract Administrative Service Region, Department of Defense, Los Angeles, as to the regulations of the Department of Defense and the security measures required of Respondent by the Department of Defense in its handling of classified materials. Testimony was also elicited from Respondent's security officers with respect to measures employed to protect classified material as well as measures to prevent the loss of the aforesaid valuable metals. All of their testimony, even when viewed in a light most favorable to Respondent, fails to reveal any justification for prohibiting solicitation and distribution on behalf of the Union in nonwork areas during nonworking time.6 In the main , security was maintained by the following measures : requirement of identification badges for admittance to the plant (the so-called security area),' the safekeeping of classified papers or classified materials, and a check by guards of lunchboxes, briefcases, and i No purpose would be served in detailing their testimony since none of it affords any reasonable basis for the prohibitions imposed by Respondent r The so-called security area apparently consisted of all of the company property other than the parking areas 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD packages carried by persons leaving the plant.8 While the aforesaid measures would appear to be reasonable in order to carry out Respondent's programs of defense security and internal security, there is nothing in the record which would furnish a basis for finding that the prohibition of soliciting and distributing literature on behalf of the Union in nonwork areas during nonworking time was reasonably justified in order to carry on the operation of said security measures.9 Employees Callihan, Salcido, Carrillo, Pacheco (called as witnesses by the General Counsel), Supervisors Jan Winterbourne, Peter Ostapow, Larry Pellerin, Kenneth Moyers, and Guard Isaac Gilpin (called by Respondent) testified as to the organizational activities of the employees and as to Respondent's conduct with regard thereto. There is virtually no material variation or contradiction in their testimony which is summarized hereinbelow and is credited unless otherwise indicated.'o According to Callihan's testimony, on June 1 he and fellow employees Salcido and Grim distributed authorization cards outside the north gate prior to the commencement of the workday without any incident. On June 2, Callihan distributed cards outside the east gate before the workday and a guard stated to him that he "could get in trouble doing that."'t Prior to the workday on June 3, Callihan and Grim distributed cards some few feet inside the east gate. Callihan testified that while they were doing so, Winterbourne, Respondent's assistant personnel manager and security officer, stated to him that he "could get in trouble doing this" and gave him a warning notice wich read as follows: It is forbidden to hand out Union literature within the Deutsch plant during working hours or rest periods. This decision is based upon the National Labor Relations Board Rules and Regulations. Continued infraction will lead to dismissal. Winterbourne apparently attempted to hand Grim a similar notice , but Grim refused to take it.12 However, it appears that Grim was aware of the contents of the notice. Callihan testified that he asked Winterbourne, "Are you telling me that I can't pass these out?" and Winterbourne replied that "he wasn't telling me that I couldn't pass them out; he was just saying that I would get in trouble." Winterbourne testified that he walked up to Grim and Callihan and stated to them, "We would prefer you passed that out on the other side of the gate," and that when Callihan asked if he was saying that they were not permitted to pass out the cards, he replied, "No I'm not," and added, "I'm saying we would like to have you pass it out on the other side of the gate." Callihan denied that he was told that he could pass out the cards on the outside of the gate. However, Callihan did admit that he said to Winterbourne, "We will just stay here." Winterbourne's testimony that he suggested they distribute the cards outside is credited, since it fits the pattern of Respondent's attitude with respect to the distribution of cards outside the gate, and Callihan's admission that he did say, "We will just stay here," indicates the likelihood that it was in reply to a suggestion that the cards be distributed somewhere else. In his testimony, Winterbourne attempted to justify a prohibition against distributing cards inside the gate on the ground that it caused congestion at the gate and interfered with the guard's duties in checking employees' badges. This ground was also advanced by Respondent in its brief. However, the record will not support a finding that such was the actual reason or the reason communicated to the employees for prohibiting the distribution of cards inside the gate. Respondent introduced into evidence pictures of traffic at the gate "typical" of the amount of traffic at the time in question, and Pellerin testified that during the incident he observed about 45 employees entering the gate in the space of 4 or 5 minutes. The guard, Gilpin, testified that the traffic varied from "two to half a dozen" coming in the gate and that "They'd crowd in and try to go on through." Neither the pictures nor the rate of 10 persons per minute indicates that a volume of traffic existed which would create the congestion suggested by Respondent's witnesses. This conclusion is buttressed by the fact that there was no mention at the time that congestion was the reason for the warning notices.13 Moreover, Winterbourne candidly admitted that "basically" his purpose in telling them to go outside the gate was because he was attempting to enforce the rule which prohibited passing out literature inside the plant. That this was the reason is clear from the very language of the warning notices. Therefore, it is concluded that the warning notices and the suggestion to Grim and Callihan that they distribute the cards outside the gate were for the purpose of maintaining and enforcing a rule against solicitation and distribution of literature on behalf of the Union in the plant even during nonworking hours in nonwork areas.14 It is further concluded that the restriction against distributing cards inside the gate was not imposed because of the traffic situation at the gate, and that the record will not support a finding that such a restriction was justified because of the traffic situation. Assuming, arguendo, that the amount of traffic at the gate did justify a prohibition against passing out cards just inside the gate, it would not 8 Lunchboxes and briefcases are checked periodically Written authorization from a supervisor is required in order to take out a package. 0 Respondent advanced , as additional reasons for the prohibition it imposed , interference with the guards at the gates in checking badges and the possibility of discovering union authorization cards in checking lunchboxes and briefcases. The validity of these two reasons is discussed herembelow in considering the testimony with respect to Respondent's conduct in maintaining and enforcing prohibitions against solicitation and distribution on behalf of the Union. 10 Whatever contradictions of any substance there are in the testimony are indicated and resolved hereinbelow. I This warning is considered herembelow in considering other conduct of Respondent with respect to distribution of cards outside the gates. iz Callihan testified that Winterbourne gave Gnm a notice However, Winterbourne testified, and his testimony is credited, that Grim refused to take it. It is not clear from Callihan's testimony whether Grim did or did not so refuse 13 Although Gilpin did, on cross -examination in answer to a leading question , reply affirmatively that he requested Callihan and Grim "to back up from the gate" because they were interfering with his "duties," it does not appear that he stated that reason to them Also, he testified he had been "instructed to tell them to not pass out the literature inside the gates " 14 "It is, of course, clear that whether the 'distribution' of union application cards be deemed to be solicitation or the distribution of literature, a rule promulgated by an employer prohibiting such activity during nonworking time in nonwork plant areas is presumptively invalid "Gale Products, supra, 1248. THE DEUTSCH COMPANY justify the broad prohibition which was set forth in the warning notices.15 Consequently, it is found that by the warning notices which Winterbourne gave to Callihan and attempted to give to Grim, Respondent maintained and enforced an unlawfully broad prohibition against solicitation and distribution of literature, on behalf of the Union, there being no showing that circumstances existed which justified the extension of such prohibition to nonwork plant areas on nonworking time.16 That the Company unlawfully maintained and enforced a rule prohibiting solicitation and distribution in nonwork areas on nonworking time is further evidenced by the uncontradicted testimony of Salcido. He testified that, on January 1 prior to the start of the workday, while crossing the "field" within the so-called security area, he handed an authorization card to a fellow employee, and that the guard "yelled" at him, "Hey, don't do that. You'll get fired for doing that." It further appears from his testimony that the guard would not permit him to distribute cards outside the east gate but required him to go to the gate leading from the street into the parking lot. Salcido, Carrillo, and Pacheco testified that on June 3, while they were distributing cards outside the north gate, George Stanley, then Responent's personnel manager, approached them and asked if they knew what they were doing. The guard at the gate had taken down their names from their badges and gave their names to Stanley. He wrote their names down on warning notices and gave the notices to each of the three. The warning notices contained the following statement: It is forbidden to distribute Union literature within the Deutsch plant. This decision is supported by the Rules and Regulations of the National Labor Relations Board.17 The solicitation of membership in organizations during working hours is expressly prohibited on page 15 of the Deutsch Indoctrination Manual given to employees when they are hired. Continued infraction will lead to dismissal. The above-quoted rule against distribution anywhere in the plant is unlawfully broad. While the rule against solicitation stated in the warning notice might be construed as lawful, the record discloses that it was unlawfully extended to nonworking time as well as to nonwork areas. While the record discloses that the warning notices given to Salcido, Carrillo, and Pacheco were subsequently withdrawn with apologies, the record also reveals that their withdrawal only indicated, and was only intended to indicate, that the Company did not extend the unlawful iS It should be noted that notices incorrectly stated that the rule prohibiting distribution of union literature within the plant during working hours and rest periods was based upon the Board's Rules and Regulations 18 It is noted that the Board, in the Gale Products case, supra, on p. 1248, also held that "as the distribution of union authorization or membership cards is distinguishable from handbilling and is a form of solicitation [citing Stoddard-Quirk Manufacturing Co , supra], a rule against the distribution of such cards is also presumptively invalid if applicable to nonworktime in work areas of the plant." " It is noted that this is an incorrect interpretation of the Rules and Regulations. 1s Such as the guard warning Callihan on June 2 that he "could get in trouble" distributing cards outside the east gate, and the 143 prohibition against the solicitation and distribution to the areas outside its gates . The employees did engage in a considerable amount of distribution of cards outside the gates without incident, and despite the few incidents's which did occur with respect to distribution outside the gates, it is concluded that the employees reasonably understood from such tolerance and from the indication of the reason for the withdrawal of the notices that the Company would permit distribution of the cards at said points. However, this does not minimize the finding that the Company unlawfully maintained and enforced a prohibition against such activities in the so-called security area of the Company's property and that the rules which were enunciated in the warning notices were not repealed by withdrawal of the notices. On June 3, shortly after Callihan had been given a warning notice for distributing cards inside the east gate, he was called into an office and was introduced by his supervisor, Peter Ostapaw, to George Stanley, then the personnel manager. Stanley asked Callihan if he "knew the difference between solicitation and passing out cards." When he did not reply, Stanley said there was a difference and that he was going to give him a warning notice. According to Ostapaw, a witness called by Respondent, Stanley also said to Callihan, "You know, it's against the Company policy to go to work and hand out literature or any solicitation of any kind and distribution of any kind on Deutsch property." Stanley then handed Callihan a warning notice which contained a statement similar to the above-quoted notices given to Salcido, Carrillo, and Pacheco. Callihan showed Stanley the notice that Winterbourne had given him. Nevertheless, Stanley asked him to sign the second warning notice, which Callihan refused to do. Callihan testified as follows as to what then occurred. A. Well, then he [Stanley] asked me what my intentions were, and I told him that I would keep passing out cards until I ran out of cards or got fired. And then he said, "whichever one comes first?" And I said, "That's right, because I have a right to do this." And then he told me, he said, "Well, if you're here doing this Monday morning, you won't be around no more. "19 It is concluded that Stanley's interview of Callihan is further evidence that Respondent maintained and enforced an unlawfully broad rule against solicitation and distribution. It is also concluded that Stanley's questioning of Callihan as to what his "intentions were" constituted unlawful interrogation as to what protected activities he planned to engage in, particularly in view of the fact that it fact that, on June 1, Salcido also was told by a guard that he could not pass out cards outside the east gate. is Stanley was not called as a witness . Ostapaw's testimony corroborates, in substance, that of Callihan except with respect to that portion of Callihan's testimony which is quoted According to Ostapaw's testimony, the interview concluded with Callihan's refusal to sign the second warning notice Although Ostapaw did not categorically deny the testimony quoted, he was asked if anything else was said to which he replied, "not to my knowledge " In view of Respondent's subsequent conduct in giving disciplinary layoffs to Callihan and Salcido for violating the prohibition against distribution of cards inside the plant, it is deemed likely that Stanley did threaten economic reprisals for failing to observe the prohibition and, therefore, the above-quoted testimony of Callihan is credited. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was accompanied by a threat of discharge if he did not abstain from protected activities which were prohibited by Respondent's unlawfully broad rule. Salcido was also called into an office for an interview with Stanley on June 3. According to Salcido's testimony, Stanley asked him if he still had the warning slip which Stanley had given him earlier that day. He replied that he had and, at Stanley's request, Salcido handed it to him. Salcido testified as follows as to what then occurred: ... And he told me, "Was today the first day that you passed out union literature?" And I says, "No, sir." And he says, "Was it yesterday?" And I says, "No, sir. It was June the 1st that I passed out union literature." And he asked me to sign the warning slip again, and I refused. And then he said that I had passed out union literature inside the gate and I said, "No, sir." And then he turned it over-I told him what had happened about the guard, and he turned it over and he wrote that down, that the guard had instructed me to go outside to the road. And he says, "Well, initial this." And I said, "I don't see no reason why I should initial it." A. [Continuing] He pointed to the union button and he said, "You tell the people that gave you that button that we're not fooling." He says, "We don't care about the National Labor Relations Board." He says, "If you're out there Monday morning, we're going to fire you." And he said, "It'll take at least three months before we get into court, and what will you be doing during this time?" He said, "You think it over." And then he said, "Larry Pellerin and Peter Ostapaw are my witnesses .... 1120 It is concluded that Stanley's interview of Salcido is additional evidence that Respondent maintained and enforced an unlawfully broad rule against solicitation and distribution. It is also concluded that, by Stanley's questioning of Salcido as to whether he had distributed union literature prior to that date, Respondent engaged in unlawful interrogation. Although this interrogation and the questioning of Callihan by Stanley as to what his intentions were about passing out cards were the only incidents in the record of interrogation' 21 in view of the circumstances in which the questioning occurred, particularly the threat of discharge if they repeated the "offense" of which they were unlawfully warned, a finding that Respondent engaged in unlawful interrogation in violation of Section 8(a)(1) of the Act appears to be warranted. 20 As previously indicated , Stanley was not called as a witness. Although both Pellenn and Ostapaw were called as witnesses (both of whom Salcido testified were present during his interview with Stanley), neither of them contradicted Salcido's testimony. Pellenn was not questioned with respect to the incident and Ostapaw testified that he did not recall being present. Since Salcido's testimony was not contradicted and is deemed plausible in light of the circumstances, it is credited. 21 There was another incident of interrogation to which Carrillo testified, but it was not unlawful Carrillo had complained to his immediate supervisor about the warning notice he had received and his supervisor asked him where he had been passing out the authorization cards, apparently only in order to judge whether Carrillo's complaint was justified Both Callihan and Salcido testified that during the Union's organizational campaign they observed a notice on the bulletin board which contained language similar to that contained in the warning notices. Their testimony is credited and indicates a further basis for finding that Respondent maintained and enforced an unlawfully broad prohibition against solicitation and distribution on behalf of the Union.22 General Counsel contends that Respondent engaged in unlawful surveillance and predicates this contention on the testimony of Salcido and Pacheco. Salcido testified that he, Callihan, and a representative of the Union approached the north gate ostensibly to distribute cards. His testimony as to what then happened is as follows: A. [Continuing] And George Stanley was inside the plant and he was coming out and we got there just about the same time, to the gate. When he saw us coming-drive through, I guess-he was some place where he saw us and he got to the gate just about the same time, and he just greeted us with, "Good morning," and just kept his head down. When he saw George Sirolli [the union representative], he didn't do nothing. He said a couple words to the guard, and then walked back in. Pacheco testified that while he and others were distributing cards outside the north gate, he observed Pellerin and Ostapaw looking at them around the corner of a building some 300 to 350 feet away. In view of the openness with which cards were distributed outside the gate, it appears inappropriate to conclude from Salcido's testimony that Stanley was engaged in unlawful surveillance and from Pacheco's testimony that Pellerin and Ostapaw were surreptitiously attempting to observe the distribution of union cards at a distance of 300 to 350 feet.23 Salcido, Carrillo, and Pacheco testified without contradiction that on June 3, after Stanley had given them the warning notices above mentioned while they were distributing cards outside the north gate, Stanley said to them, "I'd like to give you another warning. Don't bring those cards in here with you." Salcido and Callihan testified without contradiction that on July 8 they distributed authorization cards in the company lunchroom during the lunch break. All of the witnesses agreed that Salcido and Callihan were called into an office a short while thereafter and were given disciplinary layoffs to July 13 for distributing cards in the lunchroom. Respondent defends the disciplinary layoffs and its conduct in prohibiting cards being brought into the plant and being distributed inside the plant on the ground that it might inadvertently commit an unfair labor practice by a discovery of the cards in the course of the periodic checks 22 The Respondent introduced no evidence to contradict the above testimony but argues , in its brief, that the testimony with respect to the notice was vague as to its contents. While there is some merit in Respondent 's characterization of said testimony as vague, nevertheless, the testimony is sufficiently clear to permit an inference that the notice unlawfully prohibited distribution of union literature during nonworking time in nonwork areas. 23 Furthermore, the explanation in the record , that Pellerin and Ostapaw were walking up an incline which caused them to lean forward and thus seem to be peering around the corner of the building, appears to be plausible , since no reason appears to exist why they should have attempted to conceal their observation of Pacheco and his fellow employees distributing union cards outside the gate. THE DEUTSCH COMPANY by guards on employees' briefcases and lunchboxes. There is no merit to this defense. An inadvertent discovery of an authorization card in the possession of an employee would not be considered an unfair labor practice, and the prohibition against bringing cards into the plant and distributing them in nonwork areas during nonworking time is not justified as a means of avoiding the inadvertent discovery of cards. Consequently it is concluded that such a prohibition constituted unlawful maintenance and enforcement of a rule proscribing such protected activity in violation of Section 8(a)(1) of the Act. It is further concluded that the disciplinary layoffs of Callihan and Salcido for distributing the cards in the lunchroom during the lunch break in enforcement of said unlawful prohibition is violative of Section 8(a)(3) and (1) of the Act. The warning notices and other statements found to have been made to employees of action that Respondent would take against them if they persisted in violating Respondent's prohibition against solicitation and distribution of literature on behalf of the Union amply support a finding that Respondent violated Section 8(a)(1) of the Act by threats of economic reprisal for violations of its unlawfully broad rule proscribing solicitation and distribution. D. The Letter of July 14 As indicated above, on or about July 14, Respondent sent a letter to its employees with a stamped postcard enclosed. The card bore the address of the National Labor Relations Board and on its opposite side contained a statement which, if signed by any employee in the place designated, constituted a revocation of his union authorization card. The General Counsel contends that the letter, "among other things, intimated that employees who engaged in distribution of union authorization cards would suffer reprisals." An examination of the letter reveals that the only possible statement contained therein which could tend to support said contention is in the first paragraph which, in part, reads as follows: For almost two years the Steelworkers union has been outside our gates. Now they have bamboozled several short-time, misguided employees of Deutsch to act as their agents within the gates. These youngsters have been directed to bring the union inside the gates and into the lunch rooms. Last Friday [7-8-66] these would-be union organizers went so far as to force union authorization cards upon the employees in the lunchrooms. It is possible that General Counsel predicates his contention on the reference to "several short-time, misguided employees," particularly the word "short- time." It would require a rather strained construction to conclude that by the use of said word, Respondent intended to and did reasonably convey the impression that the employees to which it referred would only be employed for a short time because of their union activities. On the contrary, it appears reasonable to assume that the word "short-time," in its context, characterized the employees as having been in the employ of Respondent for a short time, or possibly it could also be reasonably construed as meaning temporary employees. In any event, the threat that General Counsel reads into the use of the word is too 145 thickly veiled and obscure to permit a finding that it was conveyed to the employees. It is alleged in the complaint that the letter conveyed the impression that it was unlawful to distribute union authorization cards within the plant area including the lunchroom during nonworking hours. This allegation is apparently predicated on the last two sentences above quoted. The thrust of the last sentence appears to be directed, not at the distribution of authorization cards in the lunchroom but rather at forcing the cards upon employees. Therefore, it does not appear appropriate to conclude that the allegation is sustained . In any event, it was found hereinabove that the Respondent did unlawfully maintain and enforce such a rule and the finding that it indicated such a rule in said letter would only be cumulative. It also alleged that the letter violated the Act by conveying the impression that the "Board would cause an employer to recognize a union that had obtained a majority of signed authorization cards from employees, even though that union might have illegally obtained the authorization cards." This allegation is apparently predicated on the following statement contained in the letter: If the union could coerce and intimidate the majority of the employees into signing these cards, the National Labor Relations Board might certify them as your agent even if you did not have an election. This appears to be a statement of opinion protected under Section 8(c) of the Act.24 It is alleged in the complaint that Respondent violated Section 8(a)(1) of the Act by soliciting employees to withdraw from the Union through its letter and enclosing the aforementioned postcards. The letter contained the following statement: If you have changed your mind, been misinformed, coerced, threatened, intimidated into signing an authorization card OR if you think someone may have sent in a card with your name on it, you can revoke that card by mailing the enclosed postcard. It is my opinion that, while it is not unlawful for an employer to inform his employees that they may withdraw their authorization cards if they have changed their minds, or if they were coerced or intimidated into signing, it is unlawful for an employer to attempt to assist them in revoking their cards by furnishing to them, without a demonstrated need or request therefor, addressed, stamped postcards which required no more than their signature to notify the Board of the revocation of their authorization cards. There is no showing that the employees required or requested such assistance of the Respondent. Therefore, it is concluded that Respondent, by distributing said cards to its employees, violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 24 It is noted that such a result might occur should the issue of coercion and intimidation not be raised. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY It having been found that Respondent engaged in certain unfair labor practices, it will be recommended that Respondent be ordered to cease and desist from such unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminated against Daniel V. Salcido and Charles P. Callihan by unlawfully laying them off for approximately 3 workdays during the period from July 8, 1966, to July 13, 1966, it will be recommended that Respondent make them whole for any loss of earnings they may have suffered because of said discrimination against them by payment to each of a sum equal to the amount each normally would have earned as wages during such period. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent interfered with, restrained, and coerced its employees within the meaning of Section 8(a)(1) of the Act by the following conduct: (a) Maintaining and enforcing an unlawfully broad rule prohibiting solicitation and distribution of literature on behalf of the Union during nonworking time in nonwork areas of its plant. (b) Issuing warning notices to employees for engaging in protected activities which were proscribed by its said unlawfully broad rule.25 (c) Threatening employees with economic reprisals for engaging in protected activities prohibited by said unlawfully broad rule. (d) Interrogating employees as to whether they engaged in, or would continue to engage in, protected activities prohibited by said unlawfully broad rule. (e) Posting a notice in the plant setting forth said unlawfully broad rule. (f) Unlawfully attempting to assist employees to revoke their union authorization cards. 2. Respondent violated Section 8(a)(3) and (1) of the Act by the disciplinary layoffs for approximately 3 days of Daniel V. Salcido and Charles P. Callihan in reprisal for their protected activities on behalf of the Union which were prohibited by the aforesaid unlawfully broad rule, thereby discouraging membership in the Union. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing an unlawfully broad rule prohibiting solicitation and distribution of literature on 25 Although three of the warning notices were withdrawn, as indicated above said withdrawals did not effectively negate the coercive impact thereof It was clearly indicated that the unlawfully broad rule enunciated in the notices was not repealed by virtue of their withdrawal, thereby coercively indicating that warning notices would be issued for engaging in protected activity prohibited by the unlawfully broad rule. 26 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 behalf of the Union during nonworking time in nonwork areas of its plant. (b) Issuing warning notices to employees for engaging in protected activities prohibited by its said unlawfully broad rule. (c) Threatening employees with economic reprisals for engaging in protected activities prohibited by its said unlawfully broad rule. (d) Interrogating employees as to whether they had engaged in, or would continue to engage in, protected activities prohibited by said unlawfully broad rule. (e) Posting a notice in its plant setting forth said unlawfully broad rule. (f) Unlawfully attempting to assist employees to revoke their union authorization cards. (g) Discouraging membership in the Union and exacting economic reprisals by laying off employees for engaging in protected activities which were prohibited by its aforesaid unlawfully broad rule against solicitation and distribution. (h) In any other like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join, form, or assist labor organizations, including the Union involved herein, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which it is deemed will effectuate the policies of the Act: (a) Make Daniel V. Salcido and Charles P. Callihan whole for any loss of earnings they may have suffered as a result of Respondent's discrimination against them as provided in the section of this Decision entitled "The Remedy." (b) Withdraw from personnel files of employees warning notices or notations of punitive personnel action for their having engaged in protected activity prohibited by its unlawfully broad rule against solicitation and distribution. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and all other records necessary to determine the amount of backpay due under the terms of this Recommended Order. (d) Post at its place of business in Banning, California, copies of the attached notice marked "Appendix."26 Copies of said notice, to be furnished by the Regional Director for Region 21, after being signed by an authorized representative of the Respondent, shall, be posted immediately upon receipt thereof and be maintained by it for a period of 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 such notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith .27 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 " t' 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 21, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " THE DEUTSCH COMPANY IT IS FURTHER RECOMMENDED that the complaint be dimissed insofar as its relates to the unfair labor practices alleged in the complaint which have not been found to have been sustained. 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 maintain and enforce an unlawfully broad rule prohibiting solicitation and distribution of literature on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization, during nonworking time in nonwork areas of our plant. WE WILL NOT issue warning notices to employees for engaging in protected activity prohibited by our unlawfully broad rule. WE WILL NOT unlawfully interrogate employees as to whether they had engaged, or would continue to engage, in protected activities prohibited by said unlawfully broad rule. WE WILL NOT post a notice in the plant setting forth said unlawfully broad rule. WE WILL NOT unlawfully attempt to assist employees to revoke their union authorization cards. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or exact economic reprisals, by laying off employees for engaging in protected activity which is prohibited by our aforesaid unlawfully broad rule against solicitation and distribution. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in 147 the exercise of the right to self-organization , to join, form, or assist United Steelworkers of America, AFL-CIO, or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make Daniel V. Salcido and Charles P. Callihan whole for any loss of earnings they may have suffered as a result of our discrimination against them. WE WILL withdraw from the personnel files of our employees warning notices and notations of punitive personnel action for their having engaged in protected activity prohibited by our unlawfully broad rule against solicitation and distribution. All our employees are free to become or remain, or refrain from becoming or remaining , members of United Steelworkers of America, AFL-CIO, or any other labor organization , except to the extent that such right may be affected by an agreement authorized by Section 8(a)(3) of the Act. Dated By THE DEUTSCH COMPANY, ELECTRONIC COMPONENTS DIVISION, A CORPORATION (Employer) (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, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5204.