Glenn Berry Manufacturers, Inc.

GLENN BERRY MANUFACTURER'S INC. 799 Glenn Berry Manufacturers , Inc. and Dorothy Green, an Individual. Case 16-CA-2924 February 14, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Local 427, for the purpose of voting on the ratification of a proposed contract with the Respondent; and (b) discharged employee Dorothy Green because she was active in circulating a petition to remove an International representative of the Union from his job of servicing Local 427. Respondent's answer denied the commission of any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and the Respondent, I make the following: On October 24, 1967, Trial Examiner Milton Janus issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 Trail Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended that such allegations be dismissed. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a sup- porting 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 finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions 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 Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Glenn Berry Manufac- turers, Inc., Commerce, Oklahoma, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. TRIAL EXAMINER'S DECISION MILTON JANUS, Trial Examiner: This case was heard at Miami, Oklahoma, on June 1 and 2, 1967, upon a com- plaint issued April 18, 1967, pursuant to a charge filed March 14, 1967, by Dorothy Green. The issues presented are whether the Respondent (a) engaged in un- lawful interference, restraint, or coercion by urging em- ployees to attend a meeting called by their bargaining representative, United Garment Workers of America, FINDINGS OF FACT 1. RESPONDENT'S OPERATIONS Respondent is a Kansas corporation, maintaining its principal business office and a manufacturing plant at Commerce, Oklahoma, where it is engaged in producing men's pants, primarily for the Armed Forces. During the past year, it purchased goods for this plant which were valued in excess of $100,000, of which, goods valued in excess of $50,000 were delivered to the plant from points outside the State of Oklahoma. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Company admits, and I find, that United Garment Workers of America, Local 427, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Summary of Events The Employer has two plants, at Commerce, Oklahoma, and Oswego, Kansas, about 20 miles apart, where it cuts and sews pants material for the military. The various sewing operations are done by women who work on a piece-rate incentive basis, determined by time and motion studies which are conducted jointly by the Com- pany and the bargaining representative at both plants, United Garment Workers of America. About 300 women are employed at Commerce and about 100 at Oswego. There are two principal product lines, one, a sateen known as OG 107, and the other a poplin material. Ninety percent of the combined production of the two plants is on the OG 107 line. The poplin line is a fairly new operation and comprises about 25 percent of the per- sonnel and 15 percent of the production at the Commerce plant. The allegations of the complaint involve only events at Commerce, occurring during a single week in February 1967. The employees at both plants are represented by separate locals of the Union, but have been serviced by the same International representative, Earl Carroll. In January 1967, the existing bargaining agreements were reopened by mutual consent in order to negotiate changes made necessary by the new minimum hourly rates im- posed by the Federal Wage-Hour Law as of February 1. Bargaining committees for the two locals, with the assistance of Carroll, engaged in joint negotiations with company officials. A tentative agreement was reached and was submitted to the employees for ratification some- 169 NLRB No. 121 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time in January. The employees at both plants rejected the proposed agreement and the parties then resumed bargaining. A second proposal was arrived at, was again submitted to the membership at the two plants, and this time was ratified. Local; 427, at the Commerce plant, did so at a membership meeting on the evening of February 8, 1967, and the new contract became effective February 17. Shortly before the close of the workday on February 8, the president of the Company, Francis Heydt, called the employees on the poplin line together and, it is alleged in the complaint, urged them to attend the union meeting that evening and vote for ratification of the agreement. About the same time, Supervisor Louise Yankowski is al- leged to have urged an unkonown number of employees to attend the same meeting. During the 2-to 3-week period preceding the ratifica- tion on February 8, a petition was circulated among the Commerce employees asking that Carroll be replaced by another union representative. One of the three employees who was active in circulating the petition was the Charg- ing Party, Dorothy Green, who was discharged on February 13. The General Counsel argues that she was discharged because of her engagement in the concerted, protected activity of circulating the petition, while the Company contends that she was, in fact, discharged for excessive talking during working time which caused a loss of production. B. Urging Employees To Attend a Union Meeting Employee Ann Mills, called by the General Counsel, testified that Supervisor Yankowski told her the after- noon of February 8 to be sure to go to the union meeting that evening, but did not tell her how to vote on the question of ratification of the contract.' Yankowski's testimony is to the same effect. Heydt testified that he spoke to the employees of the poplin line for a few minutes at the end of the workday. He said that his purpose in doing so was to let them know that their piece-rate problems had been considered in the negotiations over the new contract, that there hadn't been time to fix their new rates but that the operations would be retimed as soon as possible and the new rates would be made retroactive to February 1. He admitted that he had asked them to attend the union meeting that evening, but denied that he had told them to vote for ratification. The Company also called a number of employees from the poplin line who testified that Heydt had asked them to go to the union meeting but had not told them how to vote on ratification. Some of them also recalled that Heydt had told them their operations would be retimed ' Mills was one of the three employees who had circulated the petition for removal of Carroll Mills also testified that on the day of the union meeting the following month, she said to Yankowski that the latter had forgotten to remind her where to go that night, and that Yankowski then said in effect that she didn't care whether Mills went or not. I do not con- sider this piece of testimony to have any particular relevance on whether Yankowski's remark to Mills on February 8 violated Section 8(a)(1) It shows, of course, that the Company was more concerned about having its employees attend the ratification meeting than other union meetings, but its indifference as to whether they attended the March meeting does not establish that there was anything improper in Yankowski's reminder to Mills to attend the February meeting 2 The General Counsel characterizes the remarks of Yankowski and Heydt as instructions to the employees to attend the meeting. It is, of and that they would be paid retroactively on the basis of their new rates. In his case-in-chief, the General Counsel called LaRue Rutledge, a former employee from the poplin line. She testified that Heydt had told them at the brief meeting on February 8 that the other departments had accepted the new raises in the standards, that their department being new, the Company would retime their standards in 60 to 90 days, and that they should go to the union meeting and vote to accept the contract. In its case, the Company put on six or seven witnesses from the poplin line who testified uniformly that Heydt had not told them how to vote on ratification. In rebuttal, the General Counsel then called another former employee, Carol Smith, to testify as to what Heydt had said. On objection by Respondent's counsel that this was not a proper matter for rebuttal, I held that I would permit the General Counsel to make an offer of proof by question and answer, and that I would determine in my decision what weight to give to Smith's testimony. I now hold that Smith's answer in the offer of proof was not proper rebuttal since it was merely cumula- tive to Rutledge's testimony. In any event, the factual issue of whether Heydt told the poplin line employees to vote for ratification is clearly posed by Rutledge's affir- mation that he had, and by the denial of Heydt and the other witnesses of the Company. The General Counsel contends (a) that the instruction of Yankowski and Heydt to the employees to attend the union meeting of February 8 interfered with their right not to participate in union matters if they did not wish to do so, and (b) that Respondent further violated Section 8(a)(1) when Heydt told them to vote for ratification and promised them that their rates would be retimed, or their quotas restudied, if they accepted the contract. I have already noted that the Company does not deny that both Yankowski and Heydt suggested to, or requested a number of employees to attend the February 8 meeting.2 I cannot agree with the General Counsel that there was anything improper in such a request. There was no intimidation of any employee, no demand that anyone declare whether she would or would not attend, no over- bearing of an employee's expressed desire not to attend, and no request for a report on what took place at the meeting. All that is present here is an unadorned request of the employees that they go to a union meeting called to consider a matter of importance both to themselves and to their employer. An employer's expression of aware- ness and interest in a union matter that concerns him is not in itself a violation of Section 8(a)(1). It must con- stitute an intrusion or inroad into the employees' right to decide freely for themselves whether or not to participate in the matter. I find no intrusion here.3 course, impossible to determine from the diverse testimony of the eight or so witnesses who testified as to these remarks the exact words used by Yankowski and Heydt, or for them to recreate the inflections which would indicate the overtones to what they said However, the tenor of the testimony of all the witnesses on this point convinces me that there was nothing peremptory in either Yankowski's or Heydt's statements about attendance, nor any implication ofathreat 3 Although the factual situations in the following cases are not exactly similar to those here, they are illustrative of the line drawn by the Board between proper and improper requests or action by an employer regarding attendance of his employees at a union meeting. Uniform Rental Service, Inc., 161 NLRB 187; Jack Roesch, d/b/a Roesch Transportation Com- pany, 157 NLRB 441, 448; Senco Manufacturing Corp, 141 NLRB 1306, 1308; and Southern Coach & Body Co., Inc., 135 NLRB 1240. GLENN BERRY MANUFACTURER'S INC. 801 C. Retiming Rates as a Promise of Benefits I consider as closely interrelated the factual question of whether Heydt told the poplin line employees to vote for ratification, and whether his remarks on retiming their rates and paying them retroactively on the new basis was a promise of benefits. If Heydt went beyond a simple request that employees attend the union meeting, and asked them to vote for ratification, he did so, as Rutledge and others testified, by attempting to persuade them that it was in their best interest. The crucial question then is not whether he asked them to vote yes, but whether what he said about retiming their rates and paying them retroactively constituted an improper promise of benefits. It appears from the testimony of Heydt, Rutledge, and the other witnesses from the poplin line that Heydt wanted them to know why the rates for their operations were not set out in the proposed contract, and to tell them that they would not suffer any monetary loss because of the delay in setting their new rates. In whatever manner Heydt expressed this proposition, that is, whether on not he specifically told them that the Company and the union negotiating committee had already agreed that the poplin line would be retimed, I am satisfied that he clearly ex- pressed to them that they would not be deprived of the benefit of having their piecework rates recalculated as had already been done for the other piece-rate workers. This does not, in my opinion, constitute a promise of a benefit conditioned on a vote for ratification. Heydt was concerned over the possibility that poplin line employees might be tempted to reject the contract because they were dissatisfied over the failure to retime their piecework operations and to set new rates. Heydt wanted to coun- teract this, and therefore pointed out to them that the delay was due to the need to first retime the rates on the other product line, and that their new rates would be put into effect retroactively. I find that Heydt's remarks to the poplin line employees about their rates accurately summarized the actual agreement already reached by the Company and the Union on this matter, and that he was not offering them anything new or different in return for a favorable vote on ratification.4 I shall, therefore, recommend dismissal of those allega- tions of the complaint regarding the remarks of Heydt and Yankowski on February 8. D. The Discharge of Dorothy Green Green had been a sewing machine operator at the Com- merce plant for about a year and a half before her discharge on February 13, 1967. She was one of the three women at the plant who had, for 2 or 3 weeks, been circu- lating a petition for the removal of Carroll as the Interna- tional representative of the Union assigned to assist the plant Local. Eventually, about 75 employees signed the petition. Green testified that before she began circulating the petition, she had asked Martha Lawrence, the president of the Local and a fellow employee, whether they could get rid of Carroll if they got enough names on a petition, and that Lawrence had said they could. Lawrence's ver- sion of their conversation is somewhat fuller but not basi- cally different. It is that Green had spoken to her about getting rid of Carroll, and that she had told her that she didn't know much about such matters, the best she could tell her was to get up a petition but she couldn't say whether it would do any good. That Lawrence herself was opposed to the purpose of the petition and its circula- tion is revealed by her refusal to sign it later, her warning to Green on two occasions to keep the petition out of the plant lest someone get into trouble over it, and her advis- ing Heydt on February 11 that it was causing a disturbance at the plant. 1. Contentions of the Parties. Respondent contends that it discharged Green, after she first refused to resign voluntarily, for violating articles (7) and (14) of its Rules of Conduct, with which the employees were familiar. Ar- ticle (7) prohibits excessive talking during work periods or the spreading of rumors which are untrue and affect the morale of the plant. Article (14) prohibits actual or threatened physical violence against an employee, or in- timidation by untruthful statements causing damaging character assassination which promotes disturbance, un- rest, or confusion in the plant. At her discharge interview, Heydt told Green he was discharging her for disturbing the peace and tranquillity of the plant, and disrupting production. I take it that Respondent's reference to arti- cles (7) and (14) relate specifically to charges of excessive talking, disturbing production, and creating unrest and confusion in the plant, although not by threats of physical violence, untruthful rumors, or character assassination. Respondent denies that it knew, until after her discharge, that she had been engaged in any union activi- ty, or that it knew the contents of the petition she had been circulating. It also contends that even assuming it had known-that she was engaged in a concerted, pro- tected activity, it was justified in discharging her under a provision in the bargaining agreement which prohibits the carrying on of union activity by employees in the plant during working hours. The General Counsel contends that Respondent discharged Green for circulating the petition; that it knew the nature of the petition before February 13, but in any event, that Green told Heydt what it contained, at her final interview; and that the asserted reasons for the discharge were pretexts, concealing its discriminatory na- ture. 2. Green's Activities at the Plant. Green testified that the people she solicited signed the petition only on their free time, that is, before 7:30 a.m. and after 4 p.m., during the morning and afternoon breaks, and during the lunch period. She also said that she had not circulated the peti- tion during work times. She did not recollect whether she had ever talked to anyone about it during work time, but admitted that she may have done so. It was also her recol- lection that the people she solicited to sign had done so outside the plant. She denied that she had engaged in ex- cessive talking at the plant during this period, but ad- mitted that her production may have fallen off a little. That there was some solicitation during work time was admitted by Green to be possible, and was in fact sub- stantiated by witnesses for the Respondent. Thus, Pat Hayes testified that once she got up from her machine to call a mechanic, Green, who was at her own machine, asked her if she was going to sign the petition. Alfreda Kelly said that Green had spoken to her during work time 4 Compare Paranite Wire & Cable Division, Essex Wire Corporation, 164 NLRB 319, finding a violation of Section 8(a)(1) in an employer's threat to close down his plant if the employees voted to reject a contract which had been negotiated with the union. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about signing the petition. Betty Newman said that as girls came to Green's machine at breaktimes to sign, they would linger on after the bell rang for them to resume work. Edith Terry said that Green asked her, just before the bell rang for lunch whether she would sign after she got back. Martha Tune said that Green had approached her once while she was at work, and asked her to sign, and that on another occasion about 25 women had gathered together in the restroom during work time, that Green had asked her to go there, and that she had signed the petition then. Darlene Ludford testified that Green had asked her and several other employees during work time to sign the petition, and that she had seen her pick up the petition at another operator's desk. Finally, Martha Lawrence, president of the Local, testified that Green had spoken to her just at 4 p.m. to ask her to sign. What emerges from this body of testimony by Respond- ent's witnesses is that Green's solicitation during work periods was furtive and hurried, and that the few mo- ments consumed thereby could not have had any signifi- cant effect on production at the plant. That is not to say, of course, that the motivation for circulation of the peti- tion did not have an effect on the employees and their work output. I credit Heydt's testimony that production had fallen off early in February, but I do not believe that this was due to Green's minimal solicitation efforts while the women were supposed to be working at their machines. Even assuming that production was wholly unaffected by employee dissatisfaction over the contract negotiations, it seems obvious to me that it was the reason behind the circulation of the petition and its sign- ing by a substantial number of employees, which may have raised doubts and questions in the minds of the em- ployees affecting their production, rather than the few moments snatched from work by the solicitation. 3. Respondent's Knowledge of the Petition. Respondent contends that it was aware of Green's talking during work time and its effect on production without knowing what she was engaged in, until she herself revealed it during her discharge interview. Heydt testified that he learned about Green's disrup- tive effect on production from one of the women super- visors, from Plant Manager Morris, and from Martha Lawrence. These reports were made to him on Saturday, February 11, because he had been out of town the preceding week. He also testified that while he had been away from the plant he had gotten phone reports from Morris about the drop in production, but that he had not known then of Green's circulation of the petition.5 Lawrence, the president of the Local, testified that she had come into the plant that Saturday morning, a non- workday, of her own volition, to tell Heydt that a petition was being circulated, there was confusion in the plant, too many people were involved and she had been brought into it. She urged him to keep the trouble down, and although the tenor of her conversation with Heydt was that the trouble and confusion was due to the petition, she denied that she had told him what it contained. Heydt testified, with respect to their conversation, that Lawrence had told him that it was Green who was disrupting production and creating a disturbance by 5 It should be noted that Heydt and Morris could not have meant that Heydt had been absent the entire week from the plant , since Heydt also testified that he had spoken to the poplin line employees at 4 p m Wed- nesday , February 8 , about the union meeting that evening. It is strange passing the petition. Heydt and Lawrence were alone during their conversation. I have no doubt that Lawrence had what she con- sidered to be the mutual interest of the Company and the Union at heart when she told Heydt Saturday morning that the trouble at the plant was caused by the petition. There is no reason why Lawrence, as one of the 300 or more nonsupervisory employees, should know that production was falling or that Green was engaged in ex- cessive talking during work time. If she was concerned with what was primarily a matter for company super- visors, it was because of its effect on the Union's relation- ship with the Company. I cannot therefore accept Heydt's explanation for Lawrence's coming to the plant to see him on a nonworkday as being motivated merely by the fact that Green had bothered her about the petition. It is much more likely that Lawrence was disturbed over the possibility that the petition, by encouraging action against a union official, might upset the existing harmony between Company and Union. Exactly what Lawrence told Heydt about the content or nature of the petition is not clear, but I do not believe that Heydt remained totally unaware, after talking with Lawrence, that the petition had something to do with Green's opposition to Carroll. After his conversation with Lawrence, Heydt spoke with Morris, the plant manager. Morris testified that he had seen Green out of her section talking to operators during work time, but had not reprimanded her for it because it was his practice to do so only when one of his supervisors asked him. Apparently because no supervisor had asked him, he did not ask Green to explain why she was out of her section talking to employees during work time. At their meeting on Saturday, Morris told Heydt that the plant was disturbed and that he thought it was Green's excessive talking that was behind it. He asked Heydt what ought to be done about Green, and Heydt recommended that she be discharged. Although Heydt and Morris spent 4 hours that Saturday mulling over the problem of what to do about one employee who was talk- ing too much, it would appear from their testimony that Green's relationship toward Lawrence or other union of- ficials was neither discussed nor considered, despite the fact that Lawrence had just told Heydt that Green was the reason for the unrest in the plant. I consider this to be as unlikely as Lawrence's not telling Heydt what Green was trying to do with her petition. I find, based on the probabilities of the situation and my impression of the demeanor of Lawrence, Heydt, and Morris, that Heydt had learned by Saturday at least, that Green was engaged in circulating a petition which affected or involved the Union. Monday morning, Heydt called Green to his office. Also present were Morris, Lawrence, and Conners, the president and vice president of the Local. The two union officers were there in accordance with a plant practice to have them present whenever disciplinary action was to be taken against an employee. Heydt told Green that she had violated rules (7) and (14), and had been disturbing the peace and tranquility of the plant. He asked her if she was unhappy or having troubles, and although she said she wasn't Heydt asked her to resign. When she refused, that with production falling so mysteriously all week that Heydt should have made no effort to track it down on Wednesday when he was at the plant GLENN BERRY MANUFACTURER' S INC. 803 he discharged her, It was apparently at this point, although the testimony of Heydt and Green does not make it definite, that Heydt asked Conners if Green had been bothering her. Conners said she hadn't but that Green had asked her to sign the petition for a new union representative. Green then told Heydt about the petition, and Heydt responded by saying that if she was having trouble with the Union, she was having trouble with the Company. Morris then brought her personal possessions from her machine and she was escorted out the door. As I have already found that Heydt had known by the previous Saturday that Green's solicitations at the plant the past week or two were concerned with a union matter, I do not consider it particularly significant whether Green disclosed the exact nature of the petition before or after Heydt declared her discharged. In either event, Heydt had the opportunity to reconsider his decision to discharge her if he felt that what Green had just told him shed new light on her alleged disturbance of the plant. He considered that it did not, and he let the discharge take ef- fect. 4. Conclusions as to the Discharge of Green. Green's solicitation of signatures for a petition to remove a union official was a concerted and union activity. Employees represented by a union have a protected right to attempt to remove those designated by the union to negotiate for them, and an employer who discriminates against them for such reason violates Section 8(a)(1) and (3) of the Act. 6 Respondent claims that it discharged Green for violat- ing articles (7) and (14) of its Rules of Conduct. Heydt testified that he considered that Green had broken these rules by talking during work periods, thus disrupting production.7 He also relied on what he called her disturbance of the peace and tranquillity of the plant. If he had discharged Green sdlely for the reasons given, it would not, of course, be in violation of the Act regardless of how harsh, unreasonable, or unfound the action was. However, in view of her solicitation of employees and cir- culation of a petition, an examination of all the facts, in- cluding the extent of her talking and its effect on produc- tion and peace and tranquillity must be made in order to determine whether it was, in fact , the disruption caused by her protected activity which prompted, or played some part in, the decision to discharge her. I have already found that Heydt knew by Saturday, February 11, that Green's petition was a matter of con- cern to the president of the Local because it might upset the existing harmony between the Union and the Com- pany. The contract, once rejected by the employees, had just been ratified. Lawrence and Heydt would un- derstandably believe that the result just reached might be affected by a petition stirring up employees against a union official who had helped negotiate the new agree- ment. It is not my concern, nor are there any facts availa- ble to me, to judge whether the 75 women who signed the petition had any reasonable ground for complaining about Carroll. I note only that Lawrence and Heydt had reason for concern over the impact of the petition on the produc- tivity of the employees and their own harmonious rela- tionship. Other circumstances surrounding the discharge tend to support my belief that the reference to articles (7) and (14) cloaked a discriminatory motive. I have already pointed out that Lawrence had warned Green that she might get into trouble over the petition. I also note that the testimony of Respondent's witnesses does not establish that Green was engaged in excessive talking or that their production was affected by her few, hurried so- licitations during work time. I have also considered Mor- ris' conduct in this regard. He testified that he saw Green out of her section talking, but never asked her what she was doing, nor warned her to stop . I can only attribute his failure to confront her and to demand an explanation as an indication that he already knew what she was up to and was prepared to use her infraction of the rules as a pretext to discriminate against her. His explanation that he never repimanded anyone for infractions occurring in his presence unless a supervisor asked him to, strikes me as an improbable reaction for a top supervisor. Finally, one of the reasons which Heydt gave Green for discharging her, was that she had been disturbing the peace and tranquillity of the plant, is hardly the expression one would expect from a supervisor who was only concerned with an employee who has been talking too much. An em- ployee may disturb the peace and tranquillity of a plant by disrupting an existing harmonious relationship between Company and Union, and in that sense an employee who is having trouble with the Union is in trouble with the Company also. It was not Green's minimal intrusion into work time which was disturbing the employees and af- fecting their production, but rather what Green was say- ing and doing about Carroll and his role in negotiating the new agreement which would tend to upset them and af- fect their production." Section 3 of the contract in effect early in February 1967 is headed "Discrimination" and reads as follows: The Company and the Union will at all times use their best efforts to promote and maintain friendly and harmonious relations. The Company will not countenance any discrimination against or inter- ference with the Union and its members in the con- duct of the Union's lawful activities, by an employee or any agent of the Company; however, Union activi- ties shall not be carried on by the employees in the plant during working hours, except as hereinafter provided. [Emphasis supplied.] It shall be the responsibility of the Local Union to advise its members of their responsibilities under this contract. 6 Aerodex, Inc., 149 NLRB 192, 198, Top Notch Manufacturing Com- pany, Inc., 145 NLRB 429, 432. 7 However, in an affidavit which Heydt gave to an attorney for the General Counsel on March 22, 1967, during the investigation of this case (G C Exh. 4), Heydt claimed that he had discharged Green for circulating a petition on company time and property in violation of articles (7) and (14), and of the union agreement. He said that he had been told by four or five women that Green had been circulating a petition before work, on break time and lunch hours, and after work at the plant Heydt did not mention in his affidavit that Morris or any other supervisor had told him before February 13 that Green had been soliciting signatures for a peti- tion during work time, although he so testified at the hearing. Considerable doubt is thus cast on Heydt 's testimony that he knew before he discharged Green that she had been engaged in excessive talking during work time, and on his explanations for her discharge. 6 In any event, an employee does not forfeit the protection of the Act in exercising a concerted activity because it incidentally produces some ir- ritation to other employees or causes unrest . Aerodex, Inc., supra at 199. Contrast Stuart F Cooper Co , 136 NLRB 142. 350-212 0-70-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It shall be the responsibility of the Local Union to advise its members of any actions that they may take contrary to the terms of this agreement. The Respondent argues that even if Green's circulation of a union petition was protected, it was nevertheless justified in discharging her because her solicitation during work periods was in violation of the above section of the agreement. Whether the italicized portion of the section is an in- valid no-solicitation or no-distribution rule because it may apply to union activities during ,nonworking time or in nonworking areas, is not a matter of concern here since the complaint did not allege that the rule was invalid, nor was the matter litigated.9 Moreover , the Respondent does not now claim that it had a right under the contract to discharge Green for her activities during nonworking periods anywhere in the plant. All it contends for is that it had a right to discharge her for engaging in union activi- ties during work time, because the Union had agreed by contract that such activities were prohibited. An incumbent union may agree by contract to restrict distribution or solicitation activities on its own behalf, but it may not deprive employees of the right to distribute literature in nonwork areas or to solicit during nonwork- ing time, in opposition to itself. 10 A quite different situa- tion is presented, however, with respect to distribution or solicitation on work time. An employer does not need the consent of a bargaining agent to reserve work time for work, nor are his rights and powers over his employees' work time augmented by a contractual prohibition against distribution or solicitation during such periods. Neverthe- less, his right to demand a full measure of work during as- signed work periods cannot excuse his intention to discipline an employee for an illegal reason. Based on the considerations set out previously , I am satisfied that the motivation for discharging Green was her circulation of the petition which Respondent believed might lead to dis- sidence and unrest among its employees Who were union members. Even granting that Respondent knew before February 13 that Green had been soliciting signatures for the petition on work time , Respondent's reliance on the prohibition of section 3 of the contract is of no avail. For all the foregoing reasons, I find that Green was dis- criminatorily discharged by Respondent in violation of Section 8 (a)(1) and (3 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in 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 of commerce. V. THE REMEDY Having found that Respondent violated Section 8(a)(3) and (1 ) of the Act by discharging Dorothy Green, I will 9 Before the hearing, Heydt apparently believed that this section prohibited union and antiunion activity any time in the plant. See fn. 7. 10 Gale Products , Division of Outboard Marine Corp , 142 NLRB 1246, enforcement denied 337 F.2d 390 (C.A 7); Armco Steel Corpora- recommend that Respondent offer her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights or privileges , and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her, by payment to her of a sum of money equal to that which she would normally have earned as wages from the date of her discharge to the date of the Respond- ent's offer of reinstatement, less her net earnings during such period with backpay and interest thereon to be com- puted in the manner prescribed in F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Glenn Berry Manufacturers , Inc., is an employer within the meaning of the Act, and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Garment Workers of America, Local 427, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Dorothy Green , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, upon the entire record in this proceed- ing, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, Glenn Berry Manufacturers , Inc., its of- ficers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Encouraging or discouraging membership in United Garment Workers of America, Local 427, or in any other labor organization by discharging or in any other manner discriminating against employees for seek- ing to change union officials or representatives or other- wise engaging in concerted or union activities , in violation of Section 8(a)(3) and (1) of the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Dorothy Green immediate and full rein- statement to her former or substantially equivalent posi- tion, without prejudice to her seniority or other rights or privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, in the manner set forth in the section of this Decision entitled "The Remedy." Lion, 148 NLRB 1179, enforcement denied 344 F.2d 621 (C.A. 6); General Motors Corporation , 147 NLRB 509, enforcement denied 345 F.2d 516 (C A. 6); Mid-States Metal Products, Inc., 156 NLRB 872; and General Motors Corporation , 158 NLRB 1723. GLENN BERRY MANUFACTURER'S INC. 805 (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its Commerce, Oklahoma, plant copies of the attached notice marked "Appendix."11 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately 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 have been taken to comply herewith.12 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. " 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." 11 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 16 , in writing, within 10 days from the date of this Order, what steps Respondent had 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: WE WILL NOT encourage or discourage member- ship in United Garment Workers of America, Local 427, or in any other labor organization by discharg- ing or otherwise discriminating against employees for seeking to change the officials or representatives of their Union. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Dorothy Green immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniori- ty or other rights or privileges, and will make her whole for any loss of earnings she has suffered. Dated By GLENN BERRY MANUFACTURERS, INC. (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas, Telephone 334-2934.