State Chemical Co.

STATE CHEMICAL COMPANY 455 State Chemical Company and Teamsters Local Union No. 577, Southern Conference of Teamsters, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 16-CA-2732 June 30, 1967 DECISION AND ORDER BY' CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 14, 1967, Trial Examiner John M. Dyer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that the Respondent had not engaged in certain other unfair labor practices al- leged in the complaint, and recommended that such allegations be dismissed, as set forth in the attached Decision. Thereafter, the Respondent filed excep- tions and a brief in support thereof, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 fords that no prejudicial error was committed. The rulings are hereby afffirmed. The Board has considered the Trial Examiner's Decision, the Respondent's ex- ceptions, briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as modified herein. 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by threatening employee Madden with discharge because of his union activities and by interrogating other employees concerning their union member- ship. 2. The Trial Examiner also found, and we agree, that the Respondent discharged employee Madden to discourage membership in the Union, and thereby violated Section 8(a)(3) and (1) of the Act.' 3. We agree with the Trial Examiner's finding that the Respondent discriminatorily promulgated and enforced a no-solicitation rule against union or- ganizing- in the plant in violation of Section 8(a)(1) of the Act. However, in reaching this conclusion, we rely solely on the ground that the record evidence establishes that the rule in question was promulgated and enforced for a discriminatory pur- pose. The record shows that the Respondent has al- ways permitted solicitations of various kinds to be conducted in the plant during working hours, in- cluding commercial solicitations and solicitations for such things as baseball and football pools, and has not prohibited its employees from talking about any subject during their working time. The rule in question was first promulgated on July 13, 1967, while an election proceeding was pending, in the form of an oral instruction given by Plant Manager Carter to employee Alexander, who was then the leading union adherent in the plant. Carter directed Alexander not to engage in any talk or solicitation for or against the Union during working time; and, 2 days later at an employee meeting, Carter ex- tended that rule to all employees. One week later, Carter again warned Alexander about soliciting for the Union; and, on July 22, the Respondent again instructed all - employees that there was to be no talking about the Union. At the hearing, the Respondent contended that the purpose of its rule was not to prohibit union solicitation as such, but only to prohibit harassment of any kind. The Trial Examiner, however, rejected that defense, finding that in fact the rule was directed solely at union talk and solicitation, which Respondent equated with harassment, and we agree. Although a rule prohibiting union solicitation which is limited to employees' worktime is presumed to be valid, the presumption of validity may be rebutted by a showing that the rule was adopted for a discriminatory purpose.2 In the in- stant case, we are satisfied that the General Coun- sel made out a prima facie case rebutting the pre- sumption of validity by proving the following: (1) the ban was promulgated at a time of intensive union activity and was specifically directed in the first instance at a known union adherent; (2) the Respondent permitted solicitaions of other kinds during worktime; and (3) the Respondent was hostile to union organizational efforts, as reflected by its conduct hereinabove found violative of Sec- tion 8(a)(1) and (3). Under these circumstances, it was incumbent upon the Respondent to show that the rule, although limited to union talk and solicita- tion, was nevertheless required in order to maintain production or discipline. This the Respondent did 1 In so finding, we do not adopt the Trial Examiner's observations relat- ing to certain remarks made by Respondent's counsel about an affidavit during the course of the hearing, as we consider these remarks too equivo- cal to require the interpretation placed on them by the Examiner. Although we do not draw the Trial Examiner's inference from such re- marks, we are nevertheless satisfied from the Examiner's credibility evaluations based on other considerations, as well as from our own careful review of the record, that the Examiner's subsidiary and ultimate findings of fact with regard to the discharge of Madden are amply supported. 2 See Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d 177 (C.A. 5). 166 NLRB No. 60 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not do. We find, therefore, that the Respondent's promulgation and enforcement of the rule prohibit- ing only solicitations and discussions relating to the Union was motivated, not by a purpose to maintain production and discipline, but by a purpose to inter- fere with the employees' right of self-organization, and thus violated Section 8(a)(1) of the Act.3 ORDER Pursuant to Section 10(c) of the National Rela- tions Act, as amended, the `National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that the Respondent, State Chemical Company, Amarillo, Texas, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. Substitute for paragraph 1(b) of the Trial Ex- aminer's Recommended Order the following para- graph: "(b) Promulgating and enforcing any rule prohibiting union solicitation on company time, while permitting other types of solicitation on com- pany time, where the purpose thereof is to interfere with union organization." 2. Substitute for the second indented paragraph of the notice attached to the Trial Examiner's Deci- sion, the following paragraph: WE WILL NOT promulgate or enforce any rule against union solicitation on company time, while permitting other types of solicita- tion on company time, where the purpose of such rule is to interfere with union organiza- tion. 3. Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, renumber- ing the present paragraph 2(b) and all succeeding paragraphs: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application, in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 4. Add the following immediately below the signature line at the bottom of the notice attached to the Trial Examiner's Decision: Note: We will notify the above-named em- ployee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Before JOHN M. DYER, Trial Examiner: Following an 8(a)(1) and (3) charge filed July 7, 1966,1 by Teamsters Local Union No. 577, Southern Conference of Team- sters, affilated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), the General Counsel on August 23, issued a complaint alleging that State Chemical Company (herein variously called Respondent, State Chemical, or the Company) violated Section 8(a)(3) by discharging Lanny E. Madden on June 28, and vio- lated Section 8(a)(1) during June and July by various acts and statements of General Manager James H. Carter and Warehouse Supervisor C. V. Burns. Respondent ad- mitted the requisite commerce allegations and the super- visory status of its general manager and warehouse super- visor and that it discharged Lanny Madden on June 28, but denied that it had violated the Act. During the hear- ing, held before me on October 13 and November 14 and 15, all parties were accorded full opportunity to examine and cross-examine witnesses and briefs filed by Respond- ent and the General Counsel have been received and considered. On the complete record in this case, and on my evalua- tion of the reliability of the witnesses based both on the evidence received and my observation of their demeanor, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION Respondent is a Texas corporation engaged in the manufacture and distribution of chemicals with its prin- cipal office, warehouse, and plant in Amarillo, Texas (the only installation involved in this proceeding), from which it annually ships products valued in excess of $50,000 directly to customers located outside the State of Texas and annually receives materials valued in excess of $50,000 directly from points outside the State of Texas. Respondent admits, and I find, that Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Issues James H. Carter is Respondent's general manager and sales manager, being responsible for the sales division, the manufacturing division, and the distribution division which encompasses the warehouse and trucking system. Under Carter are Assistant Manager R. Roby, Warehouse Superintendent Venus Burns, and Plant Maintenance Man Frank Wilson. The Company has ap- proximately 12 office employees, 8 salesmen, and 10 to 15 employees in the warehouse and manufacturing divi- sions. The main warehouse is about half a block long and 3 See Wm. H. Block, 150 NLRB 341, Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527, Serv-Air, Inc., 161 NLRB 382. ' All dates herein occurred in 1966 unless specifically noted otherwise STATE CHEMICAL COMPANY 457 about a quarter of a block wide, consisting of three levels. Raw materials are stocked in the basement and orders are put together on the main level where terminal facilities and the office are located. The laundry and drycleaning supplies and other departments such as notions are on the upper level. Lanny Madden started with Respondent as a city delivery boy and thereafter worked part time in the smelter for several years. Later Madden became a salesman and was on the road except for weekends. He testified that since his small daughter remained upset because she didn't understand why he was continuously away from home, he decided he could no longer be a salesman and asked General Manager Carter to relieve him of the job. Carter placed Madden in the warehouse as a stock and inventory clerk where he remained for 2-1/2 years until his discharge. He continued to be paid at his salesman's rate of $400 per month or $1.78 per hour, which exceeded the hourly rate paid other stock clerks in the warehouse. Madden requested but did not receive any raises as a stock clerk, usually being given the answer that he would have to wait until the other clerks were brought nearer his rate. Madden's warehouse job consisted of filling orders, checking the amount of stock on hand, and noting it on in- ventory cards. The purchasing agent , relying on the in- ventory cards kept by the stock clerks, would requisition additional supplies and materials which he thought were needed to maintain a proper inventory. Madden was told when he made a mistake in counting the inventory and on occasion was kidded about being late to work but never received a reprimand or warning about his work 2 or habits and was never threatened with disciplinary action. Madden testified that he had received praise for his work from Warehouse Superintendent Burns and General Manager Carter and Carter acknowledged that Madden had been a "very, very good employee," but stated that his work deteriorated in the year prior to his discharge. In May, Madden asked Carter for a raise and was given Carter's "usual" reply to wait until the end of the fiscal year and they would see what could be done. After the fiscal year closed, Madden asked again and was told by Carter that he was paid more than the other clerks and they couldn't give him a raise until the rates were closer. Carter suggested that Madden might transfer to the office and eventually work back to being a salesman in Amaril- lo. Madden did not pursue the possibility of an office job. In June some prounion sentiment was expressed and prounion talk was led by Madden and employee B. L. Alexander who held a meeting answering employees' questions and getting some eight employees to sign union cards. Madden testified that he spoke to most of the em- ployees in the warehouse and production units about the Union before the meeting and continued to talk about it with them until his discharge. The principal question here is whether Madden was discharged for an assertedly poor attitude toward his work or because of his union organizing activities. Other issues are whether: (1) Supervisor Bums warned an em- ployee he would be discharged for supporting the Union; and (2) General Manager Carter (a) threatened that em- ployees would lose benefits if the Union came into the plant and that Respondent would never sign a contract with the Union, and (b) illegally interrogated employees about their union membership and discriminatorily promulgated and enforced a rule prohibiting union solicitation. B. Madden's Discharge 1. Madden testified that shortly after starting work under Warehouse Superintendent Venus Burns, they discussed unions and Burns said that if they heard him talking about it they would fire him. In the ensuing 2-1/2 years they occasionally discussed the "pros" and "cons" of unionism with Madden saying he favored unions. Approximately 1 week before his discharge, Madden and Burns were in the shipping clerk's office after a truckdriver for another company left. Burns said, "You know, old Paul has got it made." Madden asked how and Burns replied that he worked for a good company, that if State Chemical was like that, if they were union, he wouldn't even have to pick up a box, Madden agreed and added that they might not have to worry about it much longer because "we've got it in the mill." Burns told him he had better not let them hear him talking about it or they would fire him. Burns testified not only that he had not talked about the Union with Madden until his discharge but that he never talked to Madden until then. Burns said that after his discharge Madden said to him that if it doesn' t go union now it never will, and that he told Madden he couldn't talk about it and didn't want to hear about it. Burns also denied hearing anything about the Union or knowing of any union organization at Respondent until a stranger ased him about it around July 6. Bums' testimony is self-contradictory in that his testimony of Madden's June statement indicates union or- ganization attempts at Respondent and contradicts his statement about his first knowledge coming in July. By his testimony Burns contradicts General Manager Carter who stated he told his supervisors about the Union's or- ganizational efforts during the third week of June, follow- ing his receipt of the Union's bargaining request, by showing them the Union's letter. Burns also testified that he didn't have to have any instructions about the union campaign since he had been through it before. Burns' con- tradictory statements lead me to discredit his denials of Madden's testimony. I credit Madden, finding him the more credible witness, and find and conclude that around June 22, Respondent, by Burns, violated Section 8(a)(1) of the Act by warning an employee that he would be discharged if Respondent determined he was supporting the Union. 2. On the following day, Madden in response to a question by Supervisor Darrel Goodin, told him how he thought the Union could help the men at State Chemical. Goodin remarked that if the Company went union the men could sit around on their hands and do nothing. On another occasion during the 2 weeks before his discharge, Madden was discussing the Union with another employee when Goodin stopped and listened to their conversation for awhile, shook his head, said it wouldn't work, and went on. Neither of these undenied incidents was alleged as 8(a)(1) violations but were offered to show (as does 1, above) Respondent's union animus and that its super- visors knew of Madden's union activities prior to his discharge. 2 Employees punch timecards and are only paid for time "on the clock." 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. On June 28, while returning from his coffee break, Madden was called to the office by General Manager Carter who asked where he had been the day before and why Madden hadn't notified anyone he would be absent in the afternoon. Madden said he and his wife were hav- ing family problems and he,had called Warehouse Su- perintendent Burns about being off. Carter then asked Madden where he had been on a previous evening when Supervisor Wilson was looking for him. Madden said he had contacted Wilson about taking off. Carter said that Madden's work performance was insufficient and they were going to relieve him of his duties. To Madden's query why, Carter replied he had caused the Company to have an overstock of Ajax scouring powder and of squeegee handles. Carter denied his request for another chance saying he had received enough chances. When Madden asked if he could work a couple of weeks longer since his wife was planning to go to California, Carter said no but that he could finish out the day. Madden said in that case he would prefer to leave immediately and Carter's assistant, Roby, who had been present during the interview, left the office and shortly returned with Mad- den's check. Carter stated that several things concerning Madden had come to his attention and he decided to talk to Mad- den about them. He called Madden in and told him that his inventory checking was inaccurate and pointed out two mistakes regarding overstocking of Ajax and squeegee handles and that Madden had left the plant once without giving a reason as to why he wouldn't be back and on a second occasion without telling anyone he was leaving. Further he said Madden had only worked 2 full 48-hour workweeks in the previous 6 months and asked if Madden could do better and correct these problems. He testified that Madden replied that he didn't know whether he could or not, that he had a lot of personal problems. Because this answer indicated to him that Madden didn't have a proper attitude and predicated solely on this answer, he decided to discharge Madden and did so. Both Carter and Roby deny that Madden asked for a second chance and Carter maintained he knew nothing of Mad- den's union interests until after the discharge when he received the charge in this case. For reasons I will discuss below, I do not fully credit Carter. I believe, and hereafter find, that Carter had de- cided to fire Madden because Madden was instrumental in starting union organization in the plant and that Carter decided to use the alleged work deficiencies as a pretext for this discharge, but after reflection it was decided that the assigned reasons appeared insubstantial and Mad- den's attitude was thereafter given as the operative reason for the discharge. Acknowledging that all employees make some mistakes, Carter said he had in the past mentioned to Madden some errors he had made, but said that prior to his discharge interview he had never called Madden to his office to discuss any of the problems he mentioned in this conversation, or warned Madden about his attitude. He testified there was an indication that he needed to sit down and talk to Madden about several things and that where a man was making one error or mistake they looked around to see if there were other things that needed discussion. He said that it took about a week to 3 Though leading questions may be proper after a friendly witness has undergone examination under Federal Rules of Civil Procedure, rule investigate the mistakes Madden had made prior to discussing them in the discharging interview. During examination by the General Counsel, Carter was asked if, subsequent to discussion with his counsel, he had written the reasons for which he was going to discharge Madden so there would be no mistake about it and he responded no. Later during this examination Carter acknowledged that he had given a sworn affidavit to a Board agent dated July 29, but protested he had read it hurriedly, although admitting he had initialed cor- rections on the two and one-half page typewritten docu- ment. This document (G.C. Exh. 6), after reciting the various problems discussed with Madden, continues as follows: I asked him how these errors came about as well as the absences. He replied he had personal problems. I asked him again and got no response. I asked him if he thought he could do better and he replied he didn't know. I took it that he didn't know if he was going to do any better on the job or not. The conver- sation dropped and I told him I had no choice but to let him go. It is common knowledge that frarely fire anyone. I called Mr. Cosmic has [sic] part' of consideration as to a future action. I wrote down exactly what I was going to say so there would be no misunderstanding and that I understood what his mistakes had been. I can say that if Madden had done a better selling job in his attitude to do better I might not have let him go. During examination by Respondent's counsel, Carter agreed that Attorney Cosmic had told him, "You run your business the way you want to run it, but if you are going to let anybody go or something, be sure and check with me." In response to further leading questions,3 Carter testified in essence that he did call his counsel be- fore talking to Madden. One point concerning Carter's affidavit disturbs me and it is not something said by Carter but a gratuitous statement by Respondent's counsel during General Counsel's examination of Carter concerning the affidavit. Carter was asked on what date it was reported to him that Madden left work without notifying any of his super- visors and replied that he believed it was June 17, the date on which Madden had left. Cosmic at that point in- terjected the following comment. "That's what he be- lieves. If the affidavit says anything different, it speaks for itself. We don't care what it says." I do not know whether counsel was speaking for Respondent and the witness or using the word "we" in the editorial sense in this remark about not caring what was contained in a duly sworn statement freely given to a Government agent in the course of an investigation of a case. If, as Respondent's counsel apparently feels, there is no compunction for his client to tell the truth in giving a sworn statement to a Government investigator before trial, what compunction is there for the client to tell the truth when sworn to do so during trial? If counsel speaks for Respondent and its principal witness then what cre- dence can I place in the witness? Counsel's statement does cause me to consider closely the veracity of Respond- ent's witness Carter and Carter has caused me to have further doubts by, characterizing this typewritten affidavit containing his initialed corrections as prepared in a hur- 43(b), they do not help to establish rehability or credibility and the use of them is weighed by me in making such resolutions. STATE CHEMICAL COMPANY 459 ried manner and saying he read it hurriedly in apparently attempting to explain inconsistencies. I am constrained to believe that the version of the discharge given by Carter in his affidavit more nearly comports with the facts than does his oral testimony which in areas was vague and evasive and that Carter had determined to discharge Madden and so informed Respondent's counsel prior to the discharge. This deci- sion may not have been irreversible, but a week's prior in- vestigation of mistakes and a written speech concerning them practically guaranteed Madden's dismissal. The mistakes or problems consisted of the following: 1. Inaccurate inventory checking as illustrated by an overstocking of Ajax powder and brass squeegee handles. The mistake on the Ajax occurred approximately 2 years prior to the discharge. The Company lost' nothing on the transaction as the product did not deteriorate and the normal inventory supply was again achieved in a few months. Madden was not warned concerning repetition of the mistake at the time but was only kidded about it. It is not clear when the mistake on the squeegee handles was discovered. An entry apparently showing an addi- tional order of 3 dozen more squeegee handles on June 27 could indicate that the mistake was not discovered until that date by the purchasing agent and, if so, it could not have entered into the decision to investigate Madden or to talk to him. Madden was not told what the mistake was. General Counsel's Exhibit 4, the inventory card, does not of itself solve the difficulty. It appears to show a count of articles followed in most cases by an order in dozens. An April entry shows a count of 16, followed by an April figure of 2 dozen, followed by a June 7 count of 51, followed by a June 27 order of 3 dozen. Carter was unable to explain the exhibit on the stand but agreed that General Counsel's interpretation of it, which in fact com- ports with his affidavit, establishes that the mistake was the April entry of 16. This is shown by the addition of 2 dozen and the subsequent June count of 51 handles. But the error must not have caused Respondent any difficulty or overstocking, since, on June 27, Respondent's purchasing agent ordered 3 dozen more handles. Brass handles have no shelf life and do not deteriorate so no loss was suffered. These two errors, one 2 years old and the other illus- trating at best a discovered counting error that caused Respondent no inconvenience or loss, are at best trivial. Carter thought a third inventory mistake was pointed out to Madden but could not remember it. I can only con- clude that these inventory trivialities were all that was ferreted out in a week's investigation prior to the discharge interview. 2. Not giving Burns a reason why he did not return to work after lunch and leaving the plant at 4:04 p.m. (56 minutes early) without telling a supervisor. Concerning the first occurrence, Madden credibly testified that at noon on June 27, he telephoned the plant and spoke to Burns saying he was having personal problems with his wife, asked to be off, and received per- mission from Burns who said he hoped everything would turn out and he would see Madden the next morning. Although Burns testified, he was not questioned by Respondent about this occurrence. Carter, when asked about this, subsequently did not deny that an adequate reason, which was accepted by Burns, was in fact given to Burns. The line of testimony then retreated to a published rule that employees are sup- posed to call and notify the office staff when they will be absent. Madden explained that after one occasion when the office didn't inform Burns that an employee wouldn't be in, Burns told those under his supervision that they were to talk to him so he would know whether they would be at work,. Carter said that he accepted notification to Burns as sufficient and that Madden might have broken a procedural rather than a substantive rule. Carter stated that Madden had taken off at 4:04 p.m. one day without notifying anyone. Madden testified that he remembered punching out early on one occasion after telling Supervisor Wilson, in Burns' absence, that he had to pick up his daughter. Wilson testified that he recalled that occasion and was shown a card and testified that Madden punched out at 4:10 p.m. on that occasion. Wil- son further testified that on Friday, June 17, Madden punched out at 4:04 p.m., but had not told him he was leaving and that while looking for Madden he ran into Carter and asked about Madden. Carter recalled this occurrence on June 17, and stated he did not write anything about it ; that he does not record such reports unless they seem to be pertinent. If this event had been anything but trivial, Carter cer- tainly wouldn't have allowed 11 days to pass before calling it to Madden's attention or requiring an explana- tion from him, or at least making some note of it. Indeed Carter testified that he didn't believe he ever denied an employee time off. This event might possibly have been one of the things Carter thought needed to be brought to Madden's attention, but certainly the June 27 incident could not have been one of the indications Carter spoke of as illustrating the need for a conference between Mad- den and himself. 3. Madden had not worked a full 48-hour week except twice in 6 months. Carter in testifying about this point stated it was not too relevant, that he would like everybody to work 48-hour weeks, but that it was not a policy he could enforce. He stated that every 2 or 3 months and sometimes more of- ten, the office manager would do a compilation of timecards to see if employees were setting a lateness pat- tern and where felt appropriate he might impose some disciplinary measures, but had no recollection of discharging employees for such an infraction and that the discharge interview was the first time this topic was ever mentioned to Madden . But, as Carter said, this was not one of the two or three things that initiated his investiga- tion of Madden but was added in along with everything else. Carter did not testify as to what prompted the in- vestigation, but from his statements it was not the 48- hour workweeks, nor could it have been the June 27 af- ternoon off, and probably was not the squeegee handles as the purchasing agent probably discovered that error when he placed a new order on June 27. What is left is the 2-year-old Ajax order error and the June 17 punch out. Unspoken, but what I believe and find the cause to be, is Madden's union activities. Certainly the other things are so trivial individually or collectively that the elaborate, production here engaged in, the checking with Respond- ent's counsel and writing these errors out, would not have been indulged in without Madden 's union activities prompting this scenario. I think it is probable that Madden's attitude at the time was not optimum for an employee , considering that he ap- parently was having some domestic difficulties, had 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recently been told by Carter that he could not get a raise, and then was called into the office and in the presence of a witness deprecated over "nit-picking" minutiae. It is en- tirely conceivable that under such circumstances Mad- den's attitude was not the best that could be expected. But it is not credible that an employee who had given 8 years' good service, who had been kept at a higher rate than other clerks, was good at detail inventory, and had been a "very, very good employee" according to Carter, would be fired in the middle of the day during a work- week, because it was company policy "to make a better hand." This action couldn't bring about such a result or in any way contribute to make Madden or any other em- ployee better as employees. Management does not rely on one answer to one question to determine the qualities of an employee without regard to that employee's previ- ous service unless there is a deeper motivation and here that unspoken motive is to demonstrate to Madden and to other employees the dangers of being a union proponent. In any event I credit Madden in that he asked for another chance or at the least be permitted to work for a few weeks longer. I find and conclude that Carter knew or at least had well-founded suspicions that Madden was an active proponent in the attempted organization of Respondent's plant. Considering the smallness of the plant, the open- ness of the union activity, and that several supervisors knew of Madden's actions, that conclusion is inescapable. I further find and conclude that Respondent's asserted reasons for discharge are pretextual and that Respondent violated Section 8(a)(3) and (1) in discharging Lanny Madden. C. Section 8(a)(1) Allegations Allegation 7(b) of the complaint is concerned with two speeches of Plant Manager Carter to employees around July 7 and 19. Allegations 7(d) and (e) relate only to the latter talk. Essentially Carter is charged with interrogat- ing employees about their union membership activities and desires and threatening employees with loss of economic benefits if they supported the Union and that Respondent would not sign a contract with the Union. Carter testified that at two formal meetings with em- ployees he gave two talks which had been cleared with Respondent's counsel. Among other things he admits he said that the Company would use all legal means available to fight off the union organization and that he asked the employees if they belonged to a union, but says he im- mediately withdrew the question thinking the employees might take it to mean he was asking whether they had joined this Union. General Counsel's witness, employee Jackson, testified that at one meeting, after Carter told the em- ployees that all Hoffa had ever done for his union was to buy some Florida swampland and sell it to his union members, employee Whitehead asked Carter if the em- ployees would get to keep their profit-sharing plan if the Union came in, and Carter said probably not. After Carter said he didn't know the answer to another question he read something and then asked employee Billy Joe Passmore if he had ever belonged to the Union. Passmore said no and Carter asked if anyone else had belonged to a union and then withdrew the question. Passmore, a witness for Respondent, testified that at a meeting Carter asked him and all the men in turn around the table whether they belonged to a union. Passmore re- membered that Carter was asked whether employees would lose the profit-sharing plan if the Union came in and that Carter replied he didn't know. Passmore testified that Carter said a local company, Amarillo Hardware, was still negotiating with the Union and that it took time to agree to and draw up a contract. Jackson testified that either at the first or second meet- ing Carter said he had asked a man from Amarillo Hard- ware if they had signed a contract and was told no and Carter said that State Chemical would not either. On cross-examination Jackson was queried about an interview with Respondent's counsel prior to the hearing and said he tried to answer counsel's questions truthfully. He admitted he answered negatively to questions regard- ing whether Carter told him, or anyone in his presence, anything about losing profit-sharing or other benefits or not signing a contract. Jackson's testimony raises questions of whether Jackson was not telling Respond- ent's counsel the truth, whether he was differentiating between having a conversation and hearing a speech at a meeting, or not telling the truth at the hearing. - Carter denied threatening that profit-sharing or other benefits would be taken from the employees or that the Company would not sign a contract. Carter explained that during a question and answer period he was asked what would happen after the election and answered that they would have to negotiate with the Union if it won and that at Amarillo Hardware the Union had won but they were still negotiating a contract after 2 years. Carter stated that after asking and withdrawing the question about whether the employees belonged to the Union, he said he had belonged to a union and that if the Union would do any good for the employees he would be glad to bring it in, but that he didn't think the Union would help them. Considering these allegations, General Counsel produced only the imprecise testimony of Uris Jackson. I believe that Carter did tell the employees that following an election victory the Union was still negotiating for a contract with Amarillo Hardware after 2 years. Ap- parently this is an undisputed fact and though the state- ment might carry an implication that negotiations might take that long if the Union won at Respondent, this is not equivalent to a threat that Respondent would not sign a contract with the Union. I reject Jackson's contradictory testimony on this point. The testimony adduced will not support a finding of a threat of loss of benefits. The testimony concerning loss of the profit-sharing plan was contradictory and I cannot place full credence on Jackson's testimony. In the context of the speech I be- lieve that the answer most probably given indicated that retention of the plan depended on the outcome of collec- tive-bargaining sessions if the Union organized the plant. I therefore find and conclude that General Counsel has not proved allegations 7(b) or (e). As to unlawful interrogation, it is obvious from Carter, from Respondent's witness Passmore, and from General Counsel's witness Jackson, that Carter did ask the em- ployees whether they were members of the Union. Carter did not state why he asked this question or wanted this in- formation. The question apparently was asked after Carter told the employees Respondent would use every legal means to fight the Union. Interrogation in the face of open hostility to the Union following the discharge of the leading union proponent and the assignment of trivial reasons for his discharge, would have the natural con- sequence of inducing fear of reprisal in the employees if STATE CHEMICAL COMPANY 461 they answered the question truthfully. Here Passmore, one of Respondent's witnesses who apparently had helped promote the Union and was a member of it, responded no to Carter's question. Although Carter ap- pears to claim- he was trying to make another unspoken point in asking the question, I find and conclude that this question was coercive interrogation and as such violated Section 8(a)(1) of the Act. Paragraph 7(c) of the complaint alleges that on or about July 13, 21, and 22, Plant Manager Carter discriminatori- ly promulgated and enforced a rule prohibiting solicita- tions for union membership or support during employees' worktime by orally advising employees of such a rule and warning them of penalties for violating it. In essence this allegation concerns restrictions placed on employee B. L. Alexander who was Madden's union coproponent. Respondent stated at the hearing that it does not have any no-solicitation rule and that employees are allowed to sol- icit during working time, but that it draws a line at harass- ment of its employees. The General Counsel says the Company has, in essence, an illegal no-solicitation rule as shown by Alexander's testimony, in that he was restricted from talking about the Union. Alexander, at the time of the hearing, had been in Respondent's employ approximately 6 months, starting in production, moving to the warehouse, and finally being made a city delivery driver. Around July 13 or 14, Carter called him into the office and said he heard that Alex- ander was talking about the Union on company time, this was unlawful and he didn't want it to happen again, and Alexander could talk about it on his own time or on his breaks and at lunch period. About 2 days later in the cof- fee room, apparently in the presence of other employees, Alexander asked Carter about employee Whitehead talk- ing against the Union on company time. Carter said that Whitehead had the Company's interests at heart and could say what he pleased, when he pleased. About 20 minutes later Carter came by Alexander's work station and said he would see to it that Whitehead didn't say any more about the Union. There is no evidence of who the other employees in the coffee room were besides Carroll Cross, whether they heard the complete conversation or not, or whether they learned of the restriction on anti- union talk given to Whitehead. About a week later, Alexander was called to Carter's office and after being questioned about another topic was told he was being warned for the second time for talking about the Union on company time. Alexander replied he wouldn't accept it since he had not been talking about the Union. Alexander testified there were two more meetings with Carter and in the third Carter told him he was still talking about the Union and he denied it. Carter said he had a witness and would produce him, and a few days later Alexander was called to the office and employee Waddell Wyatt was present. Carter said he had his witness but Wyatt remained quiet. Carter said he had a complaint from the employee that Alexander was bothering him on company time and Alexander denied it. During Respondent counsel's prehearing interview with Alexander, he admitted that during July Carter called him in the office, told him he was bothering an em- ployee on company time, and warned him not to do it again, that it was against the law. Alexander stated that the fourth conversation took place sometime around the date of the first hearing which would be mid-October. Alexander stated that he had not talked about the Union with Wyatt since he had been made a city delivery driver, which would mean that any conversation with Wyatt would have occurred in July or August. Carter testified that on the first occasion he told Alex- ander he had received a complaint that Alexander was harassing an employee and he wanted no more of it. Carter explained that employee Sorrel was an individual who didn't like anyone to talk to him, took no coffee breaks, considering them a waste of the employer's time, and that Sorrel had complained to him that people had been to see him wanting him to sign a union card and that he didn't want to be bothered with it. Carter stated that Sorrel used the term union but that he considered it harassment and so advised Alexander. Assistant Manager Richard Roby stated he was present at the first meeting between Alexander and Carter and that Carter told Alexander he could talk on his own time and that Carter did not explain to Alexander what he meant by harassment. Carter testified that several weeks later he had a com- plaint from Waddell Wyatt that Alexander had been talk- ing to Wyatt and another individual before they punched in and kept it up throughout the day. He talked to Alex- ander a few days later concerning this complaint and Alexander asked for confrontation. On the following day he had Wyatt present and told Alexander that this was the man who said he had been harassing him during work hours. He told Alexander he was running the Company and that Alexander would have to mind his business and get his work done. Testimony was offered that since Alexander was on the city delivery job, his truck was loaded early so that he had to leave the plant before the regular coffee break time and was therefore denied an opportunity of having his breaktime at the plant when he could talk to other em- ployees about the Union, particularly since he had been warned to talk union only on his own time and at cof- feebreaks. Additional testimony was offered that the man whom he replaced was usually in the plant four times out of six for coffeebreaks during the week whereas Alex- ander was there only once or twice since becoming a city delivery driver. Alexander stated that at one point he told Warehouse Superintendent Burns that he knew why he was being loaded out early and Burns replied it was not his doing but that of the front office. Burns was not questioned about this conversation. Thereafter a scheduled Board election was canceled by telegram and in a meeting with employees in the coffee room, Carter read the telegram to the employees and told them it was time to drop the subject, quit wasting time and go to work, and quit talking for or against the Union. Carter testified that there was no rule that employees could not talk to one another. He states that Wyatt com- plained about union talk and he termed it harassment in discussing it with Alexander. Carter could not think of any other conversation ever reported to him that he con- sidered harassment. The essential question here is whether Carter has made talking about a union synonymous with "harassment" Carter admitted that Sorrel is a somewhat unique in- dividual. It seems to me that if employees were free to talk and that Carter had a complaint from Sorrel, he would have explained Sorrel's desire to be left alone to Alexander and not obfuscated the incident by talking about harassment. But here, as Roby corroborates, Alex- ander was told not to talk about the Union on company time but to restrict his conversations to his own time. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly concerning Wyatt, if Carter did not have a no- solicitation rule and employees were free to talk, he could have advised Alexander that there was a line between conversation concerning Union and harassment of an individual and that he might be stepping over it. And Carter did not try to make this clear to Alexander but warned him for harassment a second time. An indication of Carter's ideas concerning the Union may be had from Alexander's testimony that when he complained to Carter about Whitehead's activity in talk- ing against the Union, Carter's initial response was that since Whitehead had the Company's best interests at heart he could talk when and where he pleased. Although Carter later told Alexander he had restricted Whitehead, the restriction in and of itself shows that the Company did restrict conversation concerning the Union Therefore Respondent's position at the hearing that it did not have a no-solicitation rule is wrong in that Respondent has restricted conversation about the Union with no apparent reason for so doing. Respondent has not claimed that con- versation about the Union was causing production or other problems in its plant. It seems evident from the testimony that Carter in- stituted a rule restricting conversation concerning the Union in Respondent's plant on his own initiative with no showing of any reason for so doing. The promulgation and enforcement of such a rule is under these circum- stances contrary to Respondent's assertion and violative of Section 8(a)(1). I conclude and find that Respondent by Plant Manager Carter has promulgated, issued, and sought to enforce a no-solicitation rule restricting em- ployees from talking about the Union in violation of the employees' Section 7 rights and in violation of Section 8(a)(1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section II, above, and therein found to constitute unfair labor prac- tices in violation of Section 8(a)(1) and (3) of the Act, oc- curring in connection with Respondent's business opera- tions as set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. day that Respondent reinstates him, less any net earnings for the interim. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It is further recommended that Respondent make available to the Board on request, payroll and other records, in order to facilitate the checking of the amount of backpay due and the reinstatement rights of Lanny Madden. Respondent has also interfered with its employees' rights by interrogating them concerning union member- ship and by restricting its employees from talking about the Union and warning them of penalties for violating such rule, and by warning employees that they might be discharged if they supported the Union or became or remained members of it . It is hereby recommended that Respondent be ordered not to infringe upon the rights guaranteed its employees by violating the Act in the same or any similar manner. On the basis of the foregoing findings, and the entire record, I make the following: CONCLUSIONS OF LAW 1. State Chemical Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discriminatorily discharging Lanny E. Madden on June 28 , 1966, and thereafter refusing to reinstate him, because of his union sentiments, membership , and activi- ties, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. By promulgating an invalid rule restricting em- ployees from discussing the Union and by warning them of penalties for violating such rule, by interrogating em- ployees concerning their union membership, and by warning employees that they might be discharged for sup- porting or becoming members of the Union , Respondent has engaged in and is engaging in unfair labor practices af- fecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above , it is recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act as follows: Respondent having discharged and thereafter not hav- ing reinstated employee Lanny Madden because of his union sentiments and activities , it is recommended that Respondent offer him immediate and full reinstatement to his former position , or if that position is unavailable through change in Respondent 's operations, then to a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and that Respond- ent make him whole for any loss of pay he may have suf- fered by reason of Respondent's discrimination against him, by payment to him of a sum equal to that which he would have normally received as wages from June 28, 1966, the date of his discriminatory discharge , until the RECOMMENDED ORDER On the basis of the foregoing findings of fact and con- clusions of law , and upon the entire record in this case considered as a whole , I hereby recommend that the Respondent , State Chemical Company, Amarillo, Texas, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in and activities on be- half of Teamsters Local Union No. 577, Southern Con- ference of Teamsters , affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminatorily discharging and not reemploying its employees. (b) Promulgating an invalid rule restricting its em- ployees from discussing or talking about the Union and warning employees that it would exact penalties for in- fringement of such rule. STATE CHEMICAL COMPANY (c) Unlawfully interrogating its employees concerning their union membership. (d) Warning employees that support of the Union or membership therein might lead to their being discharged. (e) In any like or similar manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist Teamsters Local Union No. 577, Southern Conference of Teamsters, affiliated with the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Lanny E. Madden immediate reinstate- ment in accordance with the recommendations set forth in The Remedy section above. (b) Make Lanny E. Madden whole for any loss of pay he may have suffered by reason of Respondent's dis- crimination against him in accordance with the recom- mendations set forth in The Remedy section above. (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 reports, and all records necessary to analyze the amount of backpay due and the rights of Lanny E. Madden under the terms of this Recommended Order. (d) Post at its Amarillo, Texas, warehouse and plant, copies of the attached notice marked "Appendix."4 Copies of such notice, to be furnished by the Regional Director for Region 16, Fort Worth, Texas, after being signed by a responsible agent of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.5 IT IS FURTHER RECOMMENDED that complaint allega- tions 7(b) and (e) be dismissed. 4 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 463 5 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered their evidence, a Trial Ex- aminer of the Board has found that we violated the law and has ordered us to post this notice and to abide by what we say in this notice. WE WILL NOT try to discourage you from becom- ing or being members of Teamsters Local Union No. 577, Southern Conference of Teamsters, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, by unlawfully discharging any of our employees. WE WILL NOT tell employees that they cannot talk about the Union during working hours or threaten punishment for doing so. WE WILL NOT unlawfully ask employees about their union membership or desires. WE WILL NOT warn employees that they may be fired for helping or joining the Union. WE WILL offer Lanny E. Madden his former job with all of his rights and any backpay due. All our employees are free to become or remain union members. STATE CHEMICAL COMPANY (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, Sixth Floor Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Telephone 334-2941.