KDI Precision Products, Inc.

KDI PRECISION PRODUCTS, INC. K D I Precision Products , Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 9- CA-5238 and 9-CA-5333 335 Ohio, its officers, agents, successors and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On March 27, 1970, Trial Examiner George Turitz issued his Decision in the above-entitled consolidated proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the consolidated complaint. Thereafter, both Respondent and General Counsel filed limited exceptions,' and briefs in support thereof, to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, KDI Precision Products, Inc., Norwood, ' No exceptions have been taken to the Trial Examiner's findings and conclusions that Respondent independently violated Sec 8(a) (1) by coercively interrogating two employees and by making promise of benefits and threats of reprisal to a third employee ' Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We find no such basis for disturbing Trial Examiner's credibility findings in this case STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner: Upon a charge filed in Case 9-CA-5238 on June 24, 1969,1 by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (the UAW and, at times, the Union) and served on June 25 on KDI Precision Products, Inc. (Respondent and, at times, the Company), and upon a charge filed in Case 9-CA-5333 on September 11 by the UAW and served on Respondent on September 12, the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 9, on August 28 issued and served, on Respondent a complaint and notice of hearing in Case 9-CA-5238, and on October 9 issued and served a complaint and notice of hearing in Case 9-CA-5333 and an order consolidating cases in both said cases and in Case 9- CA-5283.2 Respondent filed its answers in which it denied all allegations of unfair labor practices in both complaints. A hearing was held at Cincinnati, Ohio, on October 22 and 23, and November 19, 20, and 21, before the Trial Examiner named above The General Counsel and Respond- ent were represented at the hearing by their respective counsel; the UAW was represented by an international representative who participated to a limited extent. Respond- ent and the General Counsel have filed briefs with the Trial Examiner. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following. FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, KDI Precision Products, Inc, is a Delaware corporation having a place of business in Norwood, Ohio, where it is engaged in the manufacture, sale, and distribution of fuses In the course and conduct of its business operations at said plant Respondent annually purchases and causes to be shipped from points outside the State of Ohio directly to said plant parts, supplies, and equipment valued in excess of $50,000, and annually sells and ships from said plant directly to customers located outside the State of Ohio, products valued in excess of $50,000. It is found that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act) ' Unless otherwise stated all dates mentioned in this Decision were in 1969 ' Prior to the hearing the charge in Case 9-CA-5283 was withdrawn with the approval of the Regional Director At the hearing a complaint issued in that case was withdrawn and Case 9-CA-5283 was severed from the other cases 185 NLRB No. 60 33b DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ii. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of Section 2(5) of the Act. REASON FOR WARNING- Distributing union literature and disturbing other employees WARNING GIVEN OR DISCIPLINARY ACTION TAKEN Written warning. I ACKNOWLEDGE THAT A COPY OF THIS WARNING HAS BEEN GIVEN TO ME- III THE UNFAIR LABOR PRACTICES The principal issues litigated at the hearing were Respond- ent's rule against union solicitation and distribution, the warning notice issued to Bonnie Durham for violating the rule, the allegedly discriminatory discharge of Gloria Sims, and certain interrogations and coercive statements by supervisors. A. Respondent's Rule as to Union Solicitation and Distribution On June 20, 1969, a conference took place in Respondent's personnel office in connection with a warning notice to Bonnie Durham which is discussed below Present in the office besides Durham were Sorrell, her foreman, Saylor, the superintendent of parts fabricating, and Robers, Respondent's employment manager After her warning notice had been disposed of, Durham asked Saylor when union literature could be distributed. He replied that it could be done before work, after work, and during lunch time. Saylor testified that he added: To make it simple so that everybody understands it, you are not to solicit on company time, or while you are rang in on the card Robers testified that Saylor told Durham, "that . . no conversation about the Union or passing out of literature about the Union was to be done on company time " The warning notice which was issued referred primarily to Durham's distributing union literature, but in the various statements made in the office as to what the rules were, references were made indiscriminately both to soliciting and to distributing union literature It is plain that Respond- ent made no distinction between the two, and that both were within the prohibition stated by Saylor. It is undisputed that employees were "on the clock" during their morning and afternoon breaks. Moreover, as no qualification was made as to place, it is also plain that the prohibitions applied to all parts of the plant, including nonwork areas The rule was thus unduly restrictive of the employees in the exercise of rights guaranteed in Section 7. It is found that by maintaining and enforcing its no-solicitation and no-distribution rule Respondent violated Section 8(a)(1) of the Act. See Stoddard-Quirk Manufacturing Company, 138 NLRB 615 B. The Warning to Bonnie Durham On June 20 Bonnie Durham received a written warning from Respondent reading as follows: NAME Bonnie Durham DEPT. 12 CLOCK NO 554 JOB CLASSIFICATION DATE OF OFFENSE- Punch Press Operator 6-20-69 DATE OF WARNING 6-20-69 Employee's Signature Supervisor's Signature COMMENTS -------- You have been observed passing out union literature during company working hours We have also, received several complaints from employees being disturbed by your distributing union literature during company working hours This letter will serve as a written warning, any further action on your part distributing union literature, disturbing any employee during company time will result in suspension or discharge To justify the warning Respondent relied solely on Dur- ham's actions that day involving Barbara Hensley and Nancy St. Clair Durham worked in Department 12, Hensley and St Clair worked in Department 14, which was on another floor In early May Respondent placed a broaching machine, with Hensley and St Clair as the operators, physically within Department 12 but as part of Department 14 When the machine was not in use, Hensely and St Clair worked in their own department. Durham made a practice of being friendly with Hensley and St. Clair, and they, finding themselves in a strange department, felt appreciative "that she had been nice to us while we were working in the basement." On June 20 Durham enlisted as a member of the UAW In-Plant Organizing Committee and that same day approached St. Clair and Hensley and urged them to sign union cards. Later she returned and delivered two cards to St. Clair When Durham delivered the cards, the broach- ing machine was undergoing a minor repair by Jim Meyer, the setup man for Department 14, and Hensley and St. Clair were on "down time"; i.e., they were being paid although not actually working. Durham herself was on her lunch period. While the fact that none of these employees were working when Durham delivered the cards is undisputed, the evi- dence as to the situation when she first approached them is in sharp conflict Durham testified that her first approach was very shortly before the second one, and that Hensley and St Clair were on down time and she herself was already on her lunch period. St. Clair and Hensley testified that the first approach was considerably earlier and that they were operating the broaching machine at the time However, they testified that they went on working, and neither said that their work was hindered. Respondent had no rule against talking while at work and the record shows that Hensley and St. Clair participated in the conver- sation with Durham, and also that Hensley chatted with Meyer while he repaired the broaching machine. Hensley placed the first conversation after her break, which ended 10 minutes before Durham's began. Neither in the warning notice nor in the interview which preceded it was any accusation made by Respondent that Durham had left her own work. Moreover, it is uncontradicted that Sorrell, Durham's foreman, told his superiors that he had "never KDI PRECISION PRODUCTS, INC seen her disturbing nobody or passing out anything . she's one of the best workers I have." On the basis of the above it is found that Durham was not on her own work time when the first contact occurred. On the other hand, the Trial Examiner is convinced that St. Clair and Hensley did not imagine that they were operating their machine when Durham approached them on that occasion and finds that that incident occurred while they were working Hensley and St Clair did nothing as a result of the first encounter dust discussed and the matter would have been forgotten When Durham returned and delivered the two cards to St. Clair, however, the latter went over to where Hensley was speaking with Meyer, the setup man, and said, "Here's your card, Barb " She remarked to Meyer, "I see another union is trying to get into KDI", and in response to his request she delivered the cards to him and pointed out Durham as the solicitor. Meyer took the cards to Superintendent Saylor and both proceeded to the personnel department and reported the matter to Robers. St Clair and Hensley were invited to the office where, upon request, Hensley made a report of their experience with Durham They then left. Sorrell, Durham's foreman, summoned her to his office and asked her to sign the warning notice set forth above. Durham protested that she did not disturb other employees. Sorrell agreed and said, "I don't understand it, but you're supposed to sign it." Durham refused and he brought her to the personnel office where the meeting with Robers, Sorrell, and Saylor referred to in subsection A took place. Durham told Saylor, "I'm not guilty of that. I don't go disturbing other employees," and Sorrell made the compli- mentary remark about Durham as an employee which has already been quoted Saylor said he could prove the accusation if he had to and that Durham was supposed to sign the warning. When Durham repeated that she preferred not to sign it, Robers insisted no further and had only Foreman Sorrell sign the paper. It was at this point that Saylor told Durham, as already described, that she could not solicit or distribute for the Union at any time when she was "on the clock " Meyer testified that after Durham had delivered the two cards and had left, St. Clair complained, "Can't some- thing be done about this?" He testified further. . . . She said: "We dust got finished voting on, or trying to get the Union in. That's all we have heard for the last 4 months is union. Now we come down here, and we are hearing the same stuff all over again. We are just tired of it." And she said that "Bonnie was here this morning and she wouldn't leave until we promised her that we would take two of her cards and send them in." And she pulled out the cards out of her purse and said, "Here, I don't want them " Saylor testified that Meyer reported to him that Durham returned to St. Clair and Hensley" . . . on vanous occasions to talk to them about . ." the union cards in spite of their telling her that they were not interested. He said that he himself told Durham's foreman, Sorrell, that Dur- ham was "going outside of her department and talking to other employees on company time. . Keep her in her department or let her stay in her break area if she's 337 on her break or lunch hour. Don't interfere with people on their job." Saylor testified that he did not participate in the conference in the personnel office with St Clair and Hensley except to the extent that he stopped there for half a minute or less to say, "I am sorry, girls, that you are being implemented [sic] in this thing." Neither St Clair nor Hensley testified to having made any complaint to Meyer or to management about Durham. Both stated specifically that Meyer, having heard only that cards had been handed out, asked for them and took them to his superiors.' Hensley testified that at the meeting in Robers' office they merely stated that Durham had spoken to them about union cards and then, later, had delivered the cards, and that St Clair had given them to Meyer upon his request Asked whether anything else had been said during the meeting in Robers' office, she testified, "No because we-we didn't want to get involved, so we tried to keep quiet as much as possible . . " Robers testified that he had Hensley and St Clair brought to his office when he was informed that they had been given cards. He men- tioned their earlier encounter with Durham only in connec- tion with the report he elicited from the girls in his office. He testified, further: These girls came in, and the conversation got around to the point Bonnie Durham giving the cards to them They said that they understood that the union activity in the plant was completed, they thought it was all over, they didn't want any further part in it, and that they didn't want to especially get Bonnie Durham into trouble, but that they just didn't want to keep being bothered by someone for them to sign union cards and different things of this nature, in relation to the union. . . . Well . . they told us they didn't want to become involved, but of course we told them that we didn't want them to become involved either, but if something wrong was going on in the plant that-and this was taking place during company time, that we certainly wanted to know about it, if they wanted to tell us. And if they didn't want to be bothered any further, you know, we would follow up on it.... The Trial Examiner has not credited Meyer or Saylor and it is found that St Clair and Hensley made no complaint to Meyer about Durham and that Meyer made no report of such complaint to Saylor It is further found that St Clair and Hensley went to Robers' office at Respondent's request and not for the purpose of registering a complaint, and that they registered no complaint. The Trial Examiner is convinced that Respondent issued the warning notice to Durham solely on the basis of her having handed the cards to St Clair while St. Clair and Hensley were on company time. That was the only incident that brought the matter to the attention of the personnel department. While Robers, in the course of his meeting ' St Clair did testify, "I certainly didn't want her bothering me every few minutes of the day about the Union," but did not testify that she had said that to Meyers or anyone else She explained that she had not reported the matter further and would not have done so unless Durham had come back She was not questioned about the meeting in the personnel office 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Hensley and St. Clair, learned of the earlier encounter, nothing was made of that in the warning itself, which was directed exclusively at Durham's "distributing union literature" and "passing out union literature' during compa- ny working hours " Meyers' uncredited testimony that St. Clair said, "Can't something be done about this," and Saylor's uncredited testimony that he had told Sorrell that Durham was "going outside of her department" to talk to other employees, and that Sorrell should "keep her in her department," supports the conclusion that Respond- ent injected the earlier encounter into the case as an after- thought and that it played no part in the issuance of the warning In this connection it is noted that conversation was permitted during work, and that there is no evidence that Hensley or St. Clair's production was impeded In N.L.R.B. v. LeTourneau Co. of Georgia, 324 U.S. 793, the Supreme Court set forth certain underlying princi- ples governing the extent to which an employer may restrict his employees in union solicitation on his property. The Court stated, at 797-798- These cases bring here for review the action of the National Labor Relations Board in working out an adjustment between the undisputed right of self- organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society The Board has held that, in the absence of special circum- stances, an employer may not restrict employees in union solicitation except during their working time. Working time does not include paid rest periods, formal or informal, see Peyton Packing Company, 49 NLRB 828, 843-844, Campbell Soup Co. v. N.L.R.B., 380 F.2d 372, enfg. in relevant part 159 NLRB 74; Saco-Lowell Shops, a Division of Maremont Corporation, 169 NLRB No 151. While Hens- ley and St Clair were not on a rest or lunch period, it is plain that Durham's delivery of the two cards did not impinge to the slightest degree upon their work and was a protected activity As it has been found that the warning was issued because of this incident alone, it was plainly coercive and violative of Section 8(a)(1) While it has been found that Durham's earlier conversa- tion with Hensley and St Clair while they were working was not the basis for the warning notice, it should be noted that in the circumstances of this case any disciplinary action because of that incident would likewise have been violative of the Act. As already found, Respondent's rule was invalid. Where an employee's violation of an invalid rule is based on conduct which could have been forbidden by a valid rule, an employer must prove actual impeding of production in order to justify disciplining the employee. The fact that worktime has been used for solicitation is ' There is no evidence that Durham passed out "union literature", it is plain that Respondent was referring to the cards insufficient to support an inference that the solicitation interfered with work, see Greentree Electronics Corporation, 176 NLRB No. 126, fn 5; and Respondent failed to prove such interference. Hensley and St. Clair's stated objection to the union activities was not tied to their work, they thought that the union question should not have been raised at that time altogether. Indeed the fact already alluded to, that the warning notice was directed to the handing out of the cards, supports the conclusion that there was no interference with production as a result of the earlier conversation C. Interrogation, Threats ofRetaliation, and Promises of Benefit On June 17 Respondent received from the UAW a letter stating that the Union was conducting an organizing cam- paign among Respondent's employees and setting forth, among other things, a "partial list" of members of the Employee Organizing Committee. On June 19 Respondent wrote a letter to each of the 10 named members of the organizing committee warning that their union membership and activities gave them no special status and that if they did not perform properly, they would be "subject to disci- pline, including discharge, just as any other employee. " That same day Respondent distributed to all the employees, numbering about 900 to 1,000, a letter in which it attacked the "few die-hard employees . . . that refuse to accept the democratic way of life and accept the fact that the great majority of you do not want a union here .." The letter stated, also, "Nine out of the ten employees comprising the UAW organizing committee are the same as the ones on the IAM organizing committee Evidently, they have no trouble changing their loyalty from the IAM to the UAW. We wonder why or what's in it for these employees who are willing to push first for one union then for another...." Among the nine employees referred to in the latter document was Ruth McCollum. The follow- ing week McCollum's departmental manager, Jack Hemple, summoned her to his office McCollum had worked under Hemple previously at a unionized plant, where she had not been active in the union. Hemple was friendly in his manner and asked McCollum to keep the matter "strictly between us" He agreed with her comment that it was "strictly against the law" for him to speak to her about the Union on company time, but he said that he did not think it should matter since they were friends. McCollum replied that she did not think they were "that good of friends." Remarking that he had not known that McCollum was "so union-minded," Hemple asked why she thought the Union was needed and why she had not signed a paper sooner if she felt the employees needed a union. McCollum had also been on the IAM organizing committee in 1969, but not in 1968. She said that the first time she felt that she had not been in the plant long enough to know whether a union was needed, but now she felt it was needed. Hemple asked what her complaints were, to which she replied that she had none, but that two women whom she named had been unfairly discharged. Hemple asked her to speak about the matter to Goodman, the manager of the personnel department, which McCollum KDI PRECISION PRODUCTS, INC 339 did the next day. Goodman brought out the records of the two employees and pointed out their extensive absences, commenting that Respondent had "just reason for letting them go " McCollum agreed that they had bad absence records. Goodman invited McCollum to come back anytime she had problems or wanted to know something about rumors she might hear Hemple's request that the conversa- tion not go farther than "between us" and that he was talking to her as a friend might have contained some implication that there would be no retaliation against her. However, only a few days previously McCollum had received Respondent's letter to the employees in which Respondent publicly questioned her motives in supporting the UAW, and Hemple did not separate himself from the opinions and insinuations contained in that letter In those circum- stances his action in singling her out and summoning her to his office to explain her different behavior in 1968 and 1969 and to justify her adherence to a union so strongly opposed by Respondent tended to chill McCollum's readi- ness to engage in union activities. Respondent demonstrated no need for the information which Hemple sought from McCollum. See Blue Flash Express, Inc., 109 NLRB 591. It is found that Hemple's interrogation of McCollum was coercive and violative of Section 8(a)(1) of the Act. On or about August 1, Gloria Sims told her foreman, Sam Storey, that her daughter's physician was trying to get her into a hospital for examination of a possibly cancer- ous growth and that in 10 days or 2 weeks she would need time off to take her there Sims, a member of the UAW employee organizing committee, was wearing a union button at the time Storey told her to take the button off and that he would see to it that she got as much time as she needed. A week later, having checked with the doctor again , she repeated her request. Storey replied that she had not removed her button. Sims promised to think about it, but pleaded that at that point she could think only of her daughter's operation. Storey commented that he saw that she had not thought about it. Sims did not remove the button but when the time came Respondent readily granted her permission to be off. In the first conversa- tion Storey plainly promised a benefit if Sims would refrain from exercising her right to wear a union button. By reproaching her in the second conversation for not having removed it and for not having "thought about it" he impliedly threatened that the time off might be withheld for those reasons. The fact that Sims did ultimately receive permission to be absent from work did not remove the coercive tendency and effect of Storey's statements. It is found that by Storey's statements to Sims Respondent violat- ed Section 8(a)(1) of the Act. On or about October 1 Bertha Welch, a member of the employee organizing committee, was in the office of Pease, her departmental manager, discussing a job-bidding incident Pease asked her to give him two reasons why she felt the employees needed a union . Welch said that she would need time, and he suggested that the conversation resume the next morning. Welch was wearing a union badge at the time and Pease commented that the "front office" were not happy with him. When she asked why, since he was a fair foreman, he explained, "Well, they think I have been over you girls long enough now to have talked you out of those badges." His statement about "the front office" implied that the employees' persistence in engaging in their protected right to seek union representa- tion might result in a foreman known to them as a fair one being replaced by another who was an unknown quanti- ty. It is found that Pease's interrogation of Welch was coercive and violative of Section 8(a)(1) of the Act. D. The Discharge of Gloria Sims Sims started to work for Respondent about September 1966. During organizational campaigns by the International Association of Machinists in 1967, 1968, and 1969, and by the UAW in 1969, she was, with Respondent's knowledge, a member of the various employee organizing committees and participated in their activities. Respondent rated each employee at designated periodic intervals and granted "merit" increases, up to the maximum for each classification, at least in all cases where performance was considered generally adequate Sims received such an increase 3 months after hire and then each 6 months during her employment except for one instance, in April 1969, described below. She was discharged on September 9, 1969, the ground stated was "excessive absenteeism and tardiness "5 Respondent's attendance policy. On January 28, 1969, Respondent issued and distributed to the employees the following bulletin, which was a revision of one issued the previous month- SUBJECT ABSENCE - REPORTING It is recognized that a certain number of people will be unable to report for work each day because of illness, death in the family, or some other valid reason Since it is very difficult to plan our work schedule unless we know in advance the people who will be unable to report each day, it is requested that employees cooperate as follows: (1) If, for any valid reason, an employee wishes to be excused from work on a particular day, he should seek advance permission from his super- visor to be absent on that day. (2) If an employee is away from the plant and finds that it will be impossible to come to work, for example, if he is ill, he should make every effort to notify the company either by calling or having someone call if he is unable to do so. It is necessary that you call in to report your absence every day. (3) Calls to report an absence should be made by calling 351-3040, extension 245, before the start of the employee's assigned shift, or if this cannot be done, within two hours after the start of the shift. ' While at one time Respondent's supervisors were displeased by Sims' resistant attitude when assigned to different work, this was a thing of the past at the time of and played no part in, her discharge Speaking with respect to his rating and warning Sims in April 1969, Ruh, Respondent's manager of quality control, testified, "As I told you before, the girl was told she was doing a good job, it was only because of her absence and tardiness that that reprimand was given " 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) When an employee calls to report an absence, the following information should be given-name, clock number and reason for absence. The person taking your call will then assign you a number. This is your report number and is for your protec- tion if there is any question as to your calling in or not (5) Anyone who reports more than 1/2 hour late should notify the guard so that his name will be removed from the daily absentee report. By keeping us informed regarding potential absences, the employee shows that he has an interest in his job and also allows the Company to provide the proper number of employees to perform the scheduled work. Robers, Respondent's employment manager, testified that Respondent had no particular standard as to the number of latenesses or absences that would be a cause for discharge or other discipline An exception was 3 consecutive days of unreported absence, which led to automatic termination. Robers testified, also, that an unreported absence was in his mind more serious than one that was reported, provided that the procedure for reporting had been explained to the employee He said that when an employee failed to report an absence, the foreman was supposed to make such an explanation. Robers also testified that absenteeism could be excessive even if for good cause, such as illness He also stated that the question of whether an employee was to be discharged or otherwise disciplined for absenteeism was determined by his foreman or supervisor, although Respondent made some effort to obtain a degree of uniformi- ty with respect to strictness Sims' attendance through 1968. During the first year of her employment Sims was absent from work more than 39 times. On May 2, 1967, she received a verbal warning about absenteeism, and on October 2, 1967, was issued a written warning for "excessive absenteeism" which stated, "Future offense will result in time off from work " During her second year of employment Sims reduced her absences Nevertheless, in February 1968, while she received her scheduled merit increase, the recommendation read, "Increase granted by the narrowest of margins," and it included the following comment Absenteeism is a factor in this employee's case, sick or otherwise, was warned by previous foreman for absenteeism, occasionally sulks or loafs when asked to move to another job, but when she applies herself can do a creditable job In August 1968 Sims' rating report made the following recommendation- Employee has a very poor attendance record plus being late numerous times. I think employee's raise should be held for the present until she improves or see how she is doing now with her present foreman G. Sorrell However, Sims was transferred to another department and was granted the increase In September or October 1968 she became an inspector at the next higher labor grade. Sims' attendance in 1969: Sims was ill at the beginning of 1969 and was given a leave of absence which expired February 2. The following is a summary of her tardiness and absence from work after the leave of absence Period 1969 Total Workdays6 Days Absent Times Left Early Times Late 1 to 17 over 17 minutes minutes? February 3-Apnl 14 51 16 2 7 1 April 18-June 25 48 3 2 10 4 June 26-September 9 42 3 2 2 1 February 3 was the day following the expiration of her leave of absence;' April 14 was the day on which she was given a 3-day suspension and final written warning for excessive absenteeism. April 18 was the day Sims returned from her suspension, and June 25 was the day she received an oral warning for tardiness. September 9 was the day she was discharged. Sims' final warning for absenteeism: Sims received a written warning on April 14, 1969, when she returned after a week's absence from work because of illness. The warning read in part. Held back 6 months merit increase (review in 6 months). Given 3 day suspension final warning that extreme disciplinary action would be taken if situation did not improve... Comments: This employee in less than 3 years employ- ment has had two Leave of Absence granted, has had several verbal and at least one written warning in her record about absenteeism The suspension was April 15 to 17 At that time her rating was completed by Fred Ruh, the quality control ° A, overtime R.I, %olunt,ln Satiird.t\, and Sunda line not hi.ut mvluded \II theca In,tame, msoh cal ' to-1 houw, ° Sims was in fact absent because of illness from December 31, 1968, to February 7, 1969 When she was rated in April, however, the quality control manager's explanation for recommending the 3-day suspension and final warning referred adversely to her entire absence following the leave of absence, including February 3 to 7 KDI PRECISION PRODUCTS, INC. manager, refusing her scheduled periodic merit increase and containing the following explanation. 17 Days L.O.A. Illness from 1-9-69 to 2-3-69. 19 Days' Absent since above date. Has had previous verbal and written warnings about excess absenteeism. The oral warning on June 25: In 8 of the 10 weeks following her April suspension, Sims was tardy one or more times Included were three instances in the week ending June 22, and she was 34 minutes late on June 23. On June 25 Sims telephoned at 6:42 a m. that she would arrive at 9:30. She arrived at 9:15 and was summoned to the personnel office, where she was spoken to by Robers and Ruh.'° Robers demanded to know why she had been off. She said that she had had personal business to attend to and that she had called in. Upon his insistence, she told him that her husband was being sued and that she had had to see her lawyer. Robers asked why she could not have done this outside working hours and she replied that that would have been her preference but that her lawyer fixed the time she could see him. Ruh and Robers told Sims that in the past she had been warned about absenteeism but that now they had looked into her tardiness for the first time and they told her that she had to improve. They also emphasized the necessity of complying with Respondent's call-in procedures " Robers testified that on that day, when it was noticed that Sims was late, he, Ruh, and Goodwin, Respondent's employment manager, conferred and reached a decision that they "would give her a final verbal warning, in lieu of any termination, at that point." He also testified, supported by Ruh, that they gave her a "final verbal warning" as to tardiness and leaving early, and that Sims was told that her absentee- ism had not improved enough.12 The foregoing testimony of Ruh and Robers has not been credited. It is found that on June 25 Sims was warned that she had to improve with respect to tardiness, but that nothing was said to the effect that there had been insufficient improvement in her absenteeism, or that that was to be a final warning. ' Ruh's original entry, apparently made on April 17, read 16 days, the correct figure indicated by the timecards as of April 14. The change to 19 days, which was not explained, was probably arrived at by including the 3-day suspension 10 Sims, who testified about this incident on cross-examination, placed it, incorrectly, at 6 weeks after her April warning Robers placed it "towards the end of June " Sims' timecard and her absence report for June 25 are consistent with her description of the incident " Sims, without exception, had complied with Respondent's rule by calling in by 9 o'clock when she was to be absent However, the bulletin stated that calls were to be made prior to starting time, i e , 7 a in if possible Sims' calls were made after 7 in more than half the cases. " Two of Sims' three absences and both instances of her leaving early during the period since her final warning were the following May 6, when she took a sick child to the hospital, and the prior day, when she left at 10 24; and May 22, when she received an emergency call at the plant to go to the hospital, where her husband had been taken after a collapse, and the following day, when she was with her husband at the hospital The day of her other absence she reported that she was ill and saw a doctor Except for May 5 and 22, when she left the plant early, all these instances were called in by Sims and were recorded on Respondent's absentee reports, with the reasons given No claim has been made that Sims left the plant early on any occasion without permission , and it is inferred that she did have permission to do so on May 5 and 22 as well as all other occasions when she left early 341 Sims' attendance from June 26 to September 8. On July 23 and August 12 Sims punched in 6 minutes and 5 minutes late, respectively; she was docked one tenth of an hour on each occasion. Shortly prior to August 1 Ruh received a telephone call from a lawyer who said that Sims had to attend a bankruptcy hearing on August 1 but had refused to go on the ground that she would lose her job if she remained away from work Ruh instructed Sims' foreman to give her permission to be off and to tell her, "anything we can do to help her, we would be glad to help her." As to this same occasion Robers testified, " . . . she was granted permission. We advised her that if she had a problem we would try to work with her and try to give her permission whenever possible " On August 7 Sims left work 2 hours early and was docked. The record does not show the circumstances; however, for reasons already stated, it is inferred that she had permis- sion to leave. On Thursday, August 14, Sims left work about 35 minutes early, and she was absent all day on August 15 and 18. As already described, Sims had twice previously notified her foreman that she expected to need time off when her daughter would be hospitalized. Notwith- standing Storey's attempt to utilize the occasion to induce Sims to remove her union badge, when, on August 14, she received an emergency call at the plant to go to the hospital, she was readily granted permission to do so and to be absent on August 15. She was not docked for leaving early on August 14 Sims remained out on August 18 also, reporting that she was sick. She testified that she received permission to be out on both days. Ruh testified that she was given permission to be off on Friday and he stated: I even explained to her then, "Gloria, this is the way it should be done." And I said, "You see how we are always willing to help," and that "by letting us know ahead of time we can plan our work schedules, we can plan around these sort of situations," and I congratulated her for doing it the right way." During the remaining 3 weeks of her employment, from August 19 through September 8, Sims' record as to attend- ance at work and tardiness was perfect." Sims' discharge: Sims testified as to September 9 as follows Between 7:30 and 8 or 8:15 am she telephoned the plant and asked for the personnel department. Asked to hold the line because it was busy, she attempted to reach her foreman, Sam Storey. After some difficulty she finally spoke to the secretary of Storey's superior, one Barbara, and asked her to tell Storey that she would be 2 hours late because she had to take her child to school. After finishing at school she drove to the plant, where " Ruh also testified that after the June 25 warning Sims " improved as far as reporting that she was going to be absent, asking for permission to be off for a specific reason " Respondent at no time raised issue with Sims as to her absence on August 18 " On June 27 Sims punched out 1 minute early but was not docked Employees had 5 minutes washup time at the end of their shift but were not supposed to punch out before 3 30 However, the present instance had apparently not come to the attention of Robers He did not enter it on Sims' attendance card, moreover, he testified that he did not know what the practice was if an employee punched out before the end of the washup period. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she arrived 1 or 2 minutes before 9 and met Storey, who instructed her where to go to work In response to her inquiry he said that he had got her message She punched in at 9:01 and went to work. During the afternoon she apologized to Barbara for troubling her with the message and thanked her; Barbara said, "Oh that's okay. I didn't mind." Neither Storey nor Barbara testified. Towards the close of the shift Storey told Sims, "Personnel wants you," and both proceeded there and spoke with Robers When Sims, in response to Robers' question, said that she had called in, he said that the personnel department had not received any message Sims replied that she had called in "downstairs" and Storey confirmed that he had received the message Robers told Sims that the procedure was to call the personnel department, not the foreman, and he told her she was discharged. Robers testified as follows- On September 9 he happened to see Sims arrive about 9 o'clock. Upon checking, he learned from Storey that she had no prior permission and learned from the guards, the records office, and "downstairs inspection" that she had not called in. He then had a meeting with Storey, Ruh and Goodwin, at which it was decided to examine the records to see how many infractions there had been by Sims as to tardiness or absenteeism since her "final verbal warning in June," and then to make a final decision as to disciplinary action. He thereupon personally checked Sims' timecards and absence reports since the end of June and made entries on her attendance record indicating the instances when she had arrived late or left early since that time.13 Absences had already been noted on the card routinely by the personnel records office He brought the card, with his findings, to Goodwin and conferred with him as to what disciplinary action should be taken Those two decided to terminate Sims. He did not testify that Ruh, Storey or anyone else participated in that final decision. Towards the end of the shift, Robers testified, he had Storey bring Sims to the personnel office, where he told her, "that she was late this particular day, and that she had a bad attendance record as far as attendance itself, lateness, and leaving early, and that we would have to terminate her on this ground." On cross-examination he testified, "I believe that about all that was said was . . something to the effect that 'your attendance has not improved, and for this reason we are going to have to discharge you ' " Robers recalled nothing that she replied other than that she objected to her foreman emptying her locker of her personal belongings More specifically, he testified that Sims said nothing to the effect that she had permission to come in late or that she had called in and reported that she would be late. The Trial Examiner has credited Sims Concluding Findings as to Sims' Discharge The reason stated for Sims' discharge on her final "per- sonnel change notice" was "excessive absenteeism and tardi- " Robers incorrectly entered Sims' lateness on July 23 as 10 minutes, instead of 6 minutes as shown on the timecard, and for July 21 he entered "late 4 Hrs" for time which the card earned as, and which he testified was, a half-holiday His other "late" entries did not state the extent of lateness ness," and Robers testified that he told Sims that she was being discharged because her attendance record was bad and had not improved. The General Counsel contends that this ground was a pretext advanced by Respondent to justify "its action in ridding itself of one of its primary union adherents." Respondent contends that Sims was dis- charged in the ordinary course of business for cause and that in fact "the Company went more than an extra mile with Sims." The first, albeit not the ultimate, question that must be decided is whether Sims' absences and tardiness were in fact excessive when measured by Respondent's policies. The record shows that Respondent considered attendance a matter of importance; and even absences for good reason, such as illness, could contribute to what it considered excessive absenteeism. At the same time Respondent's bulle- tin shows that Respondent accepted the fact that from time to time employees would necessarily miss work Indeed, when Sims was granted permission to be absent on August 1 she was assured that Respondent would always try to be helpful and give permission in such a situation; and Ruh's congratulations, when, only 2 weeks later, she again needed permission to be off, demonstrate that so long as absences for reasons which Respondent deemed sufficient did not reach undue proportions, they were not held against an employee. Moreover, Sims had ultimately responded well to Respondent's efforts to bring her up to an acceptable level as to attendance. After her final warning and suspension in April she lowered her absences from 16 or 31 percent, in the period between her leave of absence and April 14, to 3 or 61/4 percent, in the period between April 18 and June 25 The key period for purposes of this case was June 26 to September 9, since Robers testified that the decision to discharge Sims was based upon his personal study of her record during that time. Sims responded to the oral warning on June 25 for tardiness by reducing her latenesses from fourteen, or 29 percent, during the earlier period to two or 4-3/4 percent, for the period from June 25 through September 8, the day preceding her discharge. Her absences remained at three, which was less than 7 percent, and she left early twice. It has already been found that Sims had permission to leave on those two occasions. In view of the amount of tardiness Respondent had tolerated prior to June 25 without even calling the problem to Sims' attention, it must be inferred that her two latenesses, 5 and 6 minutes on July 23 and August 12, were not considered by Respondent to be out of line. As to her three absences during the period, at least two were author- ized in advance and plainly in the "excused" category; and Respondent at no time questioned the legitimacy of Sims' report that she was sick on the occasion of the third absence. She did call in, and Ruh did not withdraw or qualify the congratulations he had extended to Sims shortly before. Respondent placed in evidence certain attendance records, warnings, and termination actions for Audrey Williams, Cleada Kidd, and Phyllis Jeffries, employees who were discharged for absenteeism on August 12, September 3, and September 11, 1969, respectively, and contends that these records demonstrate that Respondent gave Sims more KDI PRECISION PRODUCTS, INC. 343 chance to improve than was given to those three. As only vague testimony was offered as to how these records were selected, and as Respondent had no specific standards as to absenteeism , valid comparisons cannot be made on the basis of the bare fact that these three employees were discharged . Moreover, the three records affirmatively dis- close shortcomings not applicable to Sims-complete failure to report some absences, below-average evaluations as to "attitude toward work" in two of the cases and, in the third, a heavy incidence of absences which could have been part of extended weekends. In addition, the three employees' absentee rates were double that maintained by Sims since April 14 It is found that during the period June 26 to September 8 Sims' attendance at work was within acceptable limits under Respondent 's policies. The events of September 9 will now be considered. Much testimony was adduced as to whether Sims had advance permission to be late on that day The Trial Examiner found McCollum and Welch credible witnesses and finds that Sims did notify Tuttle on September 8 that she would be late the next morning Respondent contends that para- graph ( 1) of its bulletin already quoted and an incident involving Neda Hunt establish that such advance permission was required. The rule is at best ambiguous so far as late arrival is concerned and the more probable meaning is that it applied only to full-day absences. The Hunt incident involved an employee leaving work in the middle of the day, not one arriving late. It is found that Respondent had no rule requiring advance permission to come to work late The Trial Examiner notes, also , that at the time of her discharge Sims was not criticized for any failure to obtain advance permission , and uncontradicted evidence establishes that immediately after Sims' discharge Storey told Bertha Welch that it did not matter whether Sims had asked Tuttle for time off. He said, "That's not the reason we're letting her go." Tuttle was not in the plant during the morning of Septem- ber 9, and Sims did not inform Robers during her exit interview that she had notified Tuttle of her expected absence . It may well be that the conversation between Sims and Tuttle ought to have affected Robers ' decision if he had known about it, but there is insufficient evidence that he did know. It is therefore unnecessary for purposes of this case to resolve the issues of Tuttle's supervisory or other authority or whether what was said constituted permission to Sims to be late. Sims' credited evidence establishes that on September 9 she notified Storey, her foreman , through Barbara, that she would be late that day, and that Storey received the message before 9 o'clock , the deadline for calling in 16 As Robers testified that he thereafter conferred with Storey about Sims' late arrival that day, it is inferred that Storey told him that he had been notified , and Robers' testimony that he was informed by "downstairs inspection " that Sims had not called in has not been credited . In addition, the Trial Examiner has credited Sims' testimony as to her exit interview and finds that Storey there acknowledged having received her message and that Robers' reply was merely that she was supposed to call the personnel depart- ment. Sims admitted that since her transfer to inspection she had made such calls to the personnel department," and it is found that on September 9 that was the proper place for her to telephone A number of factors present in this case raise doubt as to Respondent 's motivation . Foreman Storey , who was the one who would normally initiate a discharge in his department, failed to testify Moreover, Sims' notification to Storey did not show a complete disregard of Respondent's requirements, and her lapse in failing to call the personnel department does not appear to have been especially grave. While Robers testified that he had ascertained that Sims had failed to call the personnel department , he did not recall having mentioned such failure to Sims in her discharge interview, Indeed, Respondent's brief ignores the message to Storey. On the other hand , Sims knew that the right procedure was to call the personnel department . The reason she called Storey instead was that she had failed to make her call before 7 a m., as Respondent's bulletin required whenever that was possible, and thus found herself too rushed to wait until a line to the personnel department was available In view of the efforts Respondent had made to bring Sims into compliance with its policies, it was not unreasonable for Respondent to feel , notwithstanding her improvement , that she remained a problem employee with respect to attendance and attendance procedures. In this situation an important consideration is the weak- ness of the evidence pointing to union animus as the motiva- tion for Sims' discharge . Respondent, it is true, was opposed to the unionization of its employees and it engaged in some unfair labor practices. However, some of these unfair labor practices, such as the illegal rule against distribution and solicitation in the present case , apparently resulted from a misunderstanding of its own legal rights and obliga- tions, and none were of an aggravated nature Respondent's actions do not necessarily show a disposition to discriminate. Indeed, Sims had engaged in unionization campaigns with- out being discriminated against in the past when her more recent employee status and considerably worse absentee record made her vulnerable to discharge, and the General Counsel has not shown any special happening with respect to unionization around September 9 that would particularly induce Respondent to discriminate against Sims or any other member of the employee organizing committee at that time. It is found that the General Counsel has failed to prove by a preponderance of the evidence that Respondent's dis- charge of Sims was discriminatory. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Respondent set forth in section III, above , occurring in connection with its " The call-in requirement was applicable even when employees had advance permission to be absent " Before the company switchboard opened calls were routed directly to the guards 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations described in section 1, have a close, intimate, and substantial relationship 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 As it has been found that Respondent has engaged in certain unfair labor practices, it is recommended that the Board issue the Recommended Order set forth below requir- ing Respondent to cease and desist from its unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and of the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1 Respondent, KDI Precision Products, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. International Uniori, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5 The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. By terminating the employment of Gloria Sims, Respondent has not engaged in unfair labor practices within the meaning of the Act. other labor organization during their nonworking time, or maintaining any rule or regulation containing such pro- hibition. (c) Promising employees benefits if they refrain from engaging in activities on behalf of, or if they give up their membership in, the UAW or any other labor organiza- tion. (d) Threatening employees with refusal to grant time off or any other benefits because of their membership in or activity on behalf of the UAW or any other labor organization (e) Interrogating employees concerning their union mem- bership or desires in a manner , or under circumstances, constituting interference , restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (f) In any like or related manner interfering with , restrain- ing, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Expunge from the personnel record of Bonnie Durham and all other records of Respondent the warning issued to her on June 20, 1969, and all notations referring thereto or to her solicitation of any employees on behalf of the UAW. (b) Post at its office and place of business located in Norwood , Ohio, copies of the attached notice marked "Appendix."" Copies of said notice , on forms provided by the Regional Director for Region 9, after being duly signed by its representatives, shall be posted immediately upon receipt thereof and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered , defaced, or covered by any other material (c) Notify said Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.19 IT IS FURTHER RECOMMENDED that the allegation that Respondent discharged and failed to reinstate Gloria Sims in violation of the Act be dismissed. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclu- sions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, Respondent KDI Precision Products, Inc , its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Prohibiting employees from distributing union litera- ture during their nonworking time in nonwork areas, or promulgating or maintaining any rule or regulation contain- ing such prohibition. (b) In any manner prohibiting employees from soliciting their fellow employees on behalf of the UAW or any 18 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, automatically become the findings, conclusions , Decision and Order of the Board, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." " 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 9, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " KDI PRECISION PRODUCTS, INC 345 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL expunge from the personnel record of Bonnie Durham, and from all other company records, the warning issued to her on or about June 20, 1969. WE WILL NOT prohibit you from distributing union literature during nonworking time in nonworking areas, and WE WILL NOT promulgate or maintain any rule or regulation containing such prohibition. WE WILL NOT in any manner prohibit you from soliciting your fellow employees on behalf of the Inter- national Union, United Automobile and Aerospace and Agricultural Implement Workers of America (UAW) or any other labor organization during non- working time, and WE WILL NOT maintain any rule or regulation containing such prohibition. WE WILL NOT promise you benefits if you refrain from engaging in activities on behalf of, or if you give up membership in, the UAW or any other labor organization. WE WILL NOT threaten you with refusal to grant time off or other benefits because of your membership in, or activity on behalf of, the UAW or any other labor organization. WE WILL NOT question you about your union mem- bership or desires in a coercive manner or under coer- cive circumstances WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed in Section 7 of the Act, except to the extent that such rights might be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Manage- ment Reporting and Disclosure Act of 1959 Date By KDI PRECISION PRODUCTS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street , Cincinnati, Ohio 45202, Telephone 513-684-3686.