Certain-Teed Products Corp.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gustin-Bacon Manufacturing Company Division of Certain-Teed Products Corporation, and Certain- Teed Saint Gobain Insulation Corporation and Floyd D. Hume. Case 17-CA-3341 October 25, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 31, 1968, Trial Examiner Sydney S. Asher, Jr., issued his Decision in the above-entitled proceed- ing, finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed excep- tions to the Trial Examiner's Decision and a support- mg brief, and the Charging Party filed a brief in support of the Trial Examiner's Decision and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondents, Gustin-Bacon Manu- facturing Division of Certain-Teed Products Corpo- ration, Kansas City, Kansas, its officers, agents, successors, and assigns, and Certain-Teed Saint Gobain Insulation Corporation, Kansas City, Kan- sas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Exam- iner's Recommended Order. TRIAL EXAMINER'S DECISION SYDNEY S ASHER , JR , Trial Examiner On September 20, 1967, Floyd D Hume, of Muncie, Kansas, filed a charge against Gustin-Bacon Manufacturing Company Division of Certain-Teed Products Corporation, Kansas City, Kansas, herein called Respondent Gustin-Bacon, and Certain-Teed Saint Gobain Insulation Corporation, Kansas City, Kansas, herein called Respondent St Gobain After the filing of two amended charges, the General Counsel of the National Labor Relations Board issued a complaint on November 9, 1967. This alleges that from on or about April 19, 1967, to on or about May 17, 1967, Respondent Gustin-Bacon laid off Hume because he advised his fellow employees that Respondent Gustin-Bacon had been administering, or was attempting to administer, a collective-bargaining contract between it and Glass Bottle Blowers Association of the United States and Canada, Local 84, AFL-CIO, herein called the Union, in a manner unfair to Respondent Gustin-Bacon's employees It is also alleged that on or about September 18, 1967, Respondent St Gobain suspended Hume and on or about September 22, 1967, discharged him, and at all times since has failed and refused to reinstate him, because he solicited his fellow employees' signatures on a petition seeking to decertify the Union It is alleged that, by this conduct, each Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U S.C Sec 151, et seq.), herein called the Act Thereafter the Respondents filed a joint answer admitting certain jurisdictional facts but denying the commis- sion of any unfair labor practices. Upon due notice a hearing was held before me on December 21 and 22, 1967, at Kansas City, Missouri. All parties were represented and participated fully in the hearing. At the opening of the hearing the parties, by stipulation, amended the pleadings in certain respects. After the close of the hearing, each party timely filed a brief (that of the two Respondents being a joint one). These have been duly considered. Upon the entire record in this case,' and from my observation of the witnesses, I make the following FINDING OF FACT The complaint alleges, the answer admits, and it is found that each Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards;2 and that the Union is, and at all material times has been, a labor organization as defined in the Act. A. The Setting The Union is, and at all material times has been, the recognized collective-bargaining representative of the em- i Page 322, line 10 of the transcript is corrected by striking therefrom the words "the witness's" and substituting therefor the words "that Hume's " 2 Each Respondent is, and at all material times has been , engaged in the manufacture and wholesale sale of fiberglass and related insulating products , with offices and plants in Kansas City , Kansas. Each Respondent annually sells products valued at more than $50,000 directly to customers outside the State of Kansas , and annually purchases materials valued at more than $50,000 directly from sources outside the State of Kansas. 173 NLRB No. 56 GUSTIN-BACON MFG. CO. 333 ployees of each Respondent. In 1965 Respondent Gustin- R-on's predecessor and the Union entered into a collective- bargaining agreement governing the employees involved here. This contract was assumed by Respondent Gustin-Bacon, remaining in force and effect throughout all material times. It contains a provision for cost-of-Irving adjustments at 3-month intervals throughout the life of the contract. Schedule A, attached to it, sets forth wage rates effective March 1, 1965, March 1, 1966, and March 1, 1967 At the end of Schedule A appears this sentence "These rates include the cost-of-living up to date " As amended in December 1966, article XXVIII, section 2 of the contract reads Section 2. Except for activities necessary to the adminis- tration of this Agreement or the adjustment of complaints or grievances involving the interpretation or application of this contract, no employee shall engage in any union activities or solicit membership or participation in any social, fraternal or other organization during working hours in working areas on company property. Two of the buildings in the Kansas City, Kansas, area with which we are here concerned are designated plant 7 and building 14. They operate continuously 24 hours per day, 7 days per week There are three shifts, the hours being 7 30 am. to 3 30 p.m., 3 30 to 11 30 p.m ;and 11 30 p.m. to 7 30 a.m. Building 14 operates essentially as a warehouse. B Hume's Layoff 1. Facts Floyd D. "Don" Hume was employed by Respondent Gustin-Bacon as a single-line inspector in plant 7. For several months prior to April 12,3 Hume had numerous discussions with his fellow employees in the unit represented by the Union. Some of these took place in working areas of the plant, others in nonworking areas. Some occurred during working hours, others outside working time. The subject of these conversations was often the effect of the above-quoted sentence: "These rates include the cost-of-living up to date." Hume told his fellow employees that "under the terms and conditions of that contract the company could screw them out of a portion of their cost of living increases, specifically the six cents an hour they were getting on March 1, 1967," and that "when this contract is reopened ... management will take the stand that .. the rates specified as of March the 1st, 1967, will ... include the six-cents-an-hour cost of living that they were receiving at that time." Early in April, Norman K. Sigle, personnel manager of plant 7 and building 14, and James Ahart, manager of plant 7, reported to Albert E. Johann, Jr., Respondent Gustin-Bacon's vice president in charge of industrial relations, that Hume "was spreading false information about the way the company had handled and intended to handle the Schedule A raise and cost of living implement." Johann responded: "That isn't good." Roy Moss, president of the Union, also informed Johann of Hume's activities. Johann answered that he would not "seri- ously consider this complaint about Mr Hume's activities unless it was documented in some way...." When Moss pressed for details, Johann stated that he wanted wntten statements that the complaining employees could identify Hume, that Hume had been serious and not merely joking, and "where and when" Hume had made the statements in question Two to four days later, Moss delivered six mimeo- graphed questionnaires to Johann, each bearing a different name at the bottom. The first question was "Can you identify Floyd Hume?" In each instance the answer "Yes" was written in. The next question was "What was the accusation made by Floyd Hume?" the answers written in, generally, accused Hume of stating that the employees would not, or could not, get the next 6-cent cost-of-living increase because this would be, or might be, absorbed in the annual wage increase provided in the contract. The next question was. "Date and place accusation was made." Three wntten answers indicated the place as a working area, the other three as a nonworking area No answer related the time. The fourth question was. "Was the accusation made against the company, the union, or both?" Three answered "the Company" and the other three "both." The final question was: "Was he serious, or was the accusation made as a joke?" All six answered "serious " Johann directed Sigle to determine whether the six individuals who purportedly filled out these questionnaires were on Respondent Gustin- Bacon's payroll. Presumably, although the record is not entirely clear, this was done to Johann's satisfaction. On April 19 Johann summoned Hume to his office, where Ahart was also present. Johann stated that Moss "had told him [Hume] was giving the company and the union a bad name and that he ... wanted the company to see what they could do about it." Then Jethro Love, a union steward, came in. Johann asked Hume his interpretation of the relationship between the annual wage raise and the cost-of-living increment. Hume pointed to the above-quoted sentence and admitted telling employees that "the Company could at any anniversary date, or at the end of the contract, wipe out the cost of living increase by simply establishing the Schedule A rate." Johann asked Hume if he had checked his own paycheck recently, the record does not reveal Hume's reply. Johann then stated that it had been alleged that Hume made "some very false and derogatory interpretations," and showed Hume the six ques- tionnaires Hume examined them and categorized three as "absolutely false," two as "correct," and the remaining one as "partially correct." The record does not, however, particular- ize which questionnaires were put in which category. On April 21 Johann sent Hume a letter entitled "NOTICE OF DISCIPLINARY ACTION." It read This is your notice of Layoff as a DISCIPLINARY ACTION. You will be laid off until MAY 17th, 1967. The record will show this disciplinary layoff began with your regularly scheduled shift April 19th, 1967. You will be expected to report for work on your regularly scheduled shift May 17th, 1967. This Disciplinary Layoff results from: (1) Incorrectly advising employees as to the Com- pany's proposed application of pay provisions regarding Cost of Living increment and Schedule "A" Rates. (2) Carrying on such activity on Company time and/or in Company work areas. (3) and, Our review of your record of past violations and resulting disciplinary action .4 3 All dates hereafter refer to the year 1967 , unless otherwise noted . 4 At that time Hume's personnel folder included a number of written reprimands, the substance of none of which are here material. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In accordance with this letter, Hume remained on layoff until the end of the specified period. Although the contract referred to above contained machinery for processing grievances, Hume filed no grievance regarding his layoff. 2. Contentions of the parties The General Counsel contends that "Hume's statements about the contract's interpretation were protected activity", that these activities formed the basis for Respondent Gustm- Bacon's decision to discipline Hume; that the six question- naires were "a pretextual excuse for disciplining Hume" because "whether he made [statements] on company time or on non-company time was evidently of no real significance"; and finally that "the same result would follow even if some of the statements made by Hume had occurred on company time." Hume's attorney, pointing out that "the questionnaires on their face are not the basis for a disciplinary discharge," maintains that "The lay-off could have only been caused by Hume talking about the contract." The Respondents, in their joint answer, admit that Respon- dent Gustin-Bacon laid off Hume for the period in question. At the hearing, the Respondents took the position that Hume's "layoff was occasioned by the fact that he had deliberately spread false, and in effect, malicious information with regard to the alleged shorting of employees and because he engaged in this practice, at least in part, during working hours...." In their joint brief they argue: Hume charged that the employees were being cheated on their pay checks-in a word, defrauded. A false accusation of such gravity certainly supports the discipline meted out to Hume.... That Hume .. . continued to spread slanders so readily belied was in itself evidence of malice.... The malicious and defamatory untruths, uttered by Hume ... were stated in work areas and on company time Under the circumstances, [Respondent] Gustin-Bacon was well within its rights in meting out to Hume a disciplinary lay-off. 3. Conclusions Clearly, Hume's statements to other employees regarding the contents of the contract were critical of the manner in which the Union performed its statutory function of bargain- ing agent. Indeed, Hume testified, and I find, that the statements were part of Hume's "long-range plan" to have the Union decertified.5 Thus, these pronouncements were in- tended to influence the employees' choice of bargaining representative and therefore constituted concerted activities within the meaning of Section 7 of the Act,6 unless they were uttered at such a time, or their contents were such, as to lose that protection. Of course, "working time is for work,"7 and therefore to the extent that Hume's conversations had taken place during working time, they might well have been unprotected. On the other hand, those discussions which had occurred outside working time-and Respondent Gustin-Bacon was aware from the questionnaires that a number of them had been so timed-were protected. As the timing of the c' nversations was only a subordinate reason for the discipline ,' and as the layoff was imposed for all such discussions, both protected and unprotected, we must turn to Respondent Gustin-Bacon's principal defense; namely, the substance of the statements. The defense begins with the premise that Hume's statements were false. The Board has said- It is abundantly clear that the discussion of self- organizational activity by employees at a union meeting ... constitutes a form of concerted activity which the Act was designed to protect. Reason dictates that, if this right is to be accorded its proper place in the employer-employee relationship, limitations should not lightly be imposed upon employees' statements made in the course of such discus- sion, for, otherwise, the right might become so qualified as to be of doubtful value. In other words, it is essential that employees be permitted the widest possible latitude in their discussions at these meetings. In our opinion, the protection accorded by the statute to this form of concerted activity and to those who engage in it against restraint and coercion on the part of the employer, is in no way minimized by the fact that there occurs an intentional or perhaps negligent mistatement of facts. [Emphasis supplied.] 9 Accordingly, I do not feel called upon to decide whether, as the Respondents contend, Hume's statements were, or Respon- dent Gustin-Bacon believed them to be, "false." There remains the question of whether Hume's statements were defamatory, slanderous, malicious, or manifestly destruc- tive of discipline . Bearing in mind that they were mere statements of opinion or prediction of future conduct, representing only Hume's individual interpretation of a some- 5 The contract bore a termination date of March 1, 1968. Under Board contract -bar rules, a decertification petition could not normally be filed until December 1, 1967. Leonard Wholesale Meats, Inc , 136 NLRB 1000 . In April , Hume was fully aware of the fact that it was then too early to do more than merely lay the groundwork , for he testified "I thought if I could inform these people and get the truth to them, when the proper time came to circulate this petition it could help me obtain signatures...." (Emphasis supplied .) Moreover , in September Hume further advanced his "long -term plan," as will appear hereafter, by actually circulating such a petition The parties stipulated, and I find, that these activities ultimately led to the filing on December 13, 1967, of decertification petitions in Cases 17 -RD-343 and 17-RD-344. 6 Selwyn Shoe Manufacturing Corporation , 172 NLRB No. 81; Golden State Bottling Company, Inc., dlb/a Pepsi-Cola Bottling Company of Sacramento , 147 NLRB 410 , 419, and Broderick Wood Products Company, 118 NLRB 38, 59 7 Peyton Packing Company, Inc , 49 NLRB 823, 843. 8 Evidence of this is found in Johann 's original reaction to the news of Hume's activities , his failure to investigate the questionnaires fully although he knew of Moss ' personal antagonism toward Hume, the absence of any data in the questionnaires concerning the time when Hume spoke to the employee in question, failure to ascertain whether the questionnaires themselves had been obtained during working time, and Johann 's conversation with Hume on April 19. Compare Selwyn Shoe Manufacturing Corporation, supra 9 Atlantic Towing Company , 75 NLRB 1169, 1171-72 See also The Bettcher Manufacturing Corporation , 76 NLRB 526; and The Marlin Firearms Company, 116 NLRB 1834. I am aware that a majority of the United States Court of Appeals for the Fifth Circuit (Hutcheson, C. J., dissenting) refused to enforce the Board 's decision in Atlantic Towing, 180 F.2d 726 , and 182 F.2d 625 (C.A. 5). But as a Trial Examiner, I am bound "to apply established Board precedent which the Board or the Supreme Court has not reversed ." Insurance Agents ' International Union , AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768 , 773, and Novak Logging Company , 119 NLRB 1573, 1575-76. GUSTIN-BACON MFG. CO. what ambiguous sentence in the contract, I conclude that his utterances were not so extreme as to furnish justification for his layoff. They were therefore protected. I further conclude that a substantial motivating factor in the decision to lay off Hume on April 19 was Respondent Gustin-Bacon's desire to punish him for making what it considered (correctly or incorrectly) "false" statements to other employees and to inhibit the future reiteration of similar utterances. For these reasons, it is found that the layoff violated Section 8(a)(1) of the Act.' 0 C. Hume's Suspension and Discharge 1. The setting About June 27, Respondent Gustin-Bacon advised its employees by bulletin that, as of July 1, the ownership of plant 7 and building 14 would be acquired by Respondent St. Gobain. The announcement stated that Respondent St. Gobain would, on July 1, adopt the existing contract between the Union and Respondent Gustin-Bacon. It also informed the affected employees that they would continue to hold their present job assignments. It added- "The people involved simply automatically become employees of [Respondent St. Gobain] as of July 1, 1967, with their employee records and service intact." On July 1 Respondent St. Gobain posted written plant rules, of which the following are relevant here: 1. Do not loiter on Company property before or after your work hours. 7. Do not interfere or disturb another employee per- forming his job duties. 15. Observe the rules of agreement as set forth in the Labor Contract between the Company and the Union. These plant rules remained in effect at all times after July 1. Although there do not appear to have been any specific written rules governing the subject, the generally followed clocking procedure, acquiesced in by Respondent St. Gobain, is, and at all material times has been, as follows: Employees on the incoming shift in building 14 are permitted to clock in no earlier than 15 minutes before their shift is to begin. Some of those who clock in early proceed to the cafeteria inside the building for coffee and wait there until the shift begins; others who clock in early simply remain near the timeclock until the shift begins. Employees on the outgoing shift in building 14 often quit work as much as 10 or 15 minutes early, then hand in their orders, wash up, pick up their dinner buckets and go to the timeclock to await the end of the shift, at which time they clock out. The timeclock in building 14 is located on the wall, about 5 feet from the pedestrian door, normally used by employees entering or leaving the building when coming on or going off shift. Near the timeclock, on the same wall, are a company bulletin board and a union bulletin board. Hume, who before the transfer of ownership had been employed by Respondent Gustin-Bacon in plant 7, became, on July 1, an employee of Respondent St. Gobain. His job assignment and union representation remained the same as 10 The complaint also alleges that such discrimination against Hume "encourage [ d] or discourage [ d] membership in any labor organization" and thus also violated Section 8(a)(3) of the Act In my opinion this need not be determined , as the Order hereafter recommended would be the same in any event See The Marlin Firearms Company, supra, 1840. 335 formerly. Some time before September 18, Hume began to circulate among his fellow employees, for their signatures, a petition which reads We, the undersigned bargaining unit employees of CERTAIN-TEED SAINT GOBAIN INSULATION CORPO- RATION, no longer desire to be represented by the certified or currently-recognized bargaining representative and request a NATIONAL LABOR RELATIONS BOARD conducted election to determine its majority status. Beneath this is space for signatures and dates. Prior to September 18 Hume circulated this petition in the lobby of plant 7 and in the parking lot in front of plant 7, presumably on his nonworking time, without any protest or reprimand from management. 2. The events of September 18 and thereafter Hume was not scheduled to work on September 18. At 7 a.m. "D" shift was scheduled to go off duty, and "A" shift was scheduled to go on. About 7 15 a.m. (15 minutes before change of shift) Hume, armed with the petition described above and a "Teamster authorization card," arrived at the parking lot in front of building 14. There he obtained from a fellow employee his signature on both the petition and the card. Shortly after this, Hume entered building 14 through the ,edestrian door, proceeded about 3 feet into the building, and stationed himself near the timeclock. Three or four employees stood idly by the timeclock; another group of employees was at least 6 feet away. It is not clear whether the groups were made up of employees of "A" shift, or "D" shift, or both. Almost immediately after Hume entered the building James E. Wilson, stores foreman of Respondent St. Gobarn, approached Hume and asked him what he was doing there. Hume replied that he had a legal right to be there, that he was "under the clock part of the bulletin board" and that he was circulating a decertification petition. Wilson left the spot and sought his superior, Claude Hughes, senior warehouse foreman for Re- spondent St. Gobain Wilson informed Hughes that Hume was circulating a decertification petition "by the clock." Both men proceeded to where Hume was still standing near the time- clock. Hughes asked Hume what he was doing there. Hume replied that he was circulating a decertification petition. Stating that Hume "was interfering with the men," Hughes directed him to leave the building.' I Hume answered that he had a legal right to be there "as he was under the bulletin board and ... the time clock." Hughes repeated his order to leave, but Hume stood firm. Hughes left and made a telephone call. While Hughes was doing so, an employee standing near the timeclock added his name to the petition, and Hume left building 14 and stationed himself outside, about half way up the steps leading to the pedestrian door. It was there that Hughes found him when Hughes returned a few minutes later, Hume was facing the door but not moving toward it. Hughes ordered Hume to get off company property; Hume adamantly insisted on his right to remain where he was The argument became heated; voices were raised, and Hughes threatened to punch Hume in the mouth At this point, Hughes was called to the telephone and Hume left Respondent St. Gobaln's prop- I I The finding that Hughes' order was to leave the building is based on Hume's testimony. Hughes testified that he ordered Hume to leave the working area On this point, I find Hume's testimony more credible and more convincing than that of Hughes 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erty. All the events described took place in the interval between 7.15 and 7:30 a.m. At no time did Hume go into building 14 more than 5 feet. That afternoon Sigle,i 2 in the presence of a union steward, handed the following letter to Hume, This will confirm telegram sent to you this date, which reads as follows: "This is to advise you that your employment has been suspended pending further investigation, in accordance with Article IV, Section 2 of the Labor Contract, as the result of your activities of loitering on company property during periods of time when your work shift was not scheduled, and interfering with other employees during their regular work shift. These actions are in violation of posted Plant Rules. By this telegram, you are advised not to come on to company property except for the scheduled fact-finding meeting which you will be advised of in accordance with the Labor Contract." Sigle also sent Moss, the Union's president, a copy of the telegram. The decision to suspend Hume on September 18 seems to have been made jointly by Sigle and Kenneth Ferber, acting plant superintendent of plant 7 and building 14 for Respondent St. Gobain. The factfinding meeting was held on September 22.13 Present were Sigle, Hughes, and Ferber representing Respon- dent St. Gobain, Moss and two others, representing the Union, and Hume. Sigle explained the purpose of the meeting and asked Hughes to relate the events of September 18 between 7 15 and 7.30 a.m. Hughes complied. Sigle then invited Hume to give his version. Hume reiterated his contention that he had "a right to be in that particular location ... because that was the place that the company had picked out to put up that union bulletin board." He requested the names of all em- ployees with whose work the company contended he had interfered Hughes furnished the names of about eight em- ployees who had been on "D" shift that day. Hume then asked Hughes "to consider the first name and tell [Hume] how [Hume] interfered with that employee's work." Hughes responded. "What is this, a quiz program?" A discussion ensued, during which Hume argued- "if they [the employees] have a right to stand there and read that union [bulletin] board they have a right to sign a decertification petition." Sigle distributed copies of the plant rules to those present and stated that Hume was accused of violating rules 1, 7, and 15. He told Hume that, as Hume was not scheduled to work on September 18, Hume had no business being on company property. He further stated that Hume had, at or about 7:15 a.m. that day, "caused an interference with both supervisory and hourly employees." Sigle also maintained that the contract clause quoted above (article XXVIII, section 2) "allowed solicitation in nonwork areas on nonwork time only," and that Hume had carried on solicitation "in a work area." Hume offered to give Sigle a copy of the petition which he had been circulatmg, but Sigle declined it. At this point Respondent St. Gobain's representatives withdrew temporarily and consulted together. They jointly agreed that Hume should be discharged. They then returned and announced to Hume and the Union's representatives that because of Hume's violation of those rules (1, 7, and 15) and "his ... previous personnel record,"" Hume was terminated. Five or ten minutes later, Moss brought Sigle "a grievance for unjustifiable termination" signed by Hume and Moss. This grievance is still pending. Hume left and has never returned. On September 25 Sigle sent Hume a letter which read- This will confirm that on September 22, 1967, following a Fact-Finding Meeting in which you participated, your employment was terminated. Specifically, you violated Rule # 1 which prohibits loitering In addition, our investigation indicated to us a violation by you of Rule # 7, relating to interfering with or disturbing other employees performing job duties You were also in violation of Rule #15, because the activities described in Rules # 1 and # 7 were in working areas and otherwise were a breach of the Labor Contract (Article XXVIII, Section 2, as amended December 5, 1966). In view of these violations of Plant Rules, and considering your total employment record, we had no alternative but to terminate your employment by this Company 3. Contentions of the parties The General Counsel does not contend that plant rules 1, 7, or 15, or article XXVIII, section 2 of the contract, are unlawful on their face,15 but merely that they were applied and interpreted by Respondent St. Gobain in a discriminatory and unlawful manner. He maintains "that the area immediately adjacent to and certainly within three to five feet, of the timeclock and ... of the union bulletin board" constituted "a non-working area." Alternatively, the General Counsel urges that whether or not Hume was standing in a working area "is completely immaterial" because what he was doing was soliciting during his off time, and this protected activity "need not be limited to non-working areas." Moreover, he urges, Hume was suspended and discharged in September because of all his activities on September 18 between 7:15 and 7.30 a.m., including his presence on the steps outside building 14, an area which even under the Respondents' definition was a non- working area. Hume's attorney argues that, "while Hume entered Building 14 with the intent to solicit signatures for his petition, he was immediately stopped by the foreman and he solicited no one. The only persons he talked to were the two foremen. Under the circumstances, it cannot be said he engaged in union activities and the time and place he was confronted by the foreman became immaterial." The Respondents take the position that prior to September 18 Hume solicited in nonworking areas without hinderance, that he solicited on September 18 in a working area, that "there were employees working in the area at the time," and 12 Sigle had been personnel manager of plant 7 and building 14 prior to July 1 , when these properties had been owned by Respondent Gustin-Bacon. After the transfer of July 1, he continued in that capacity for Respondent St. Gobain. 13 On the previous day, September 21, both Respondents had been advised of the filing of the instant charges. 14 Hume's personnel folder, which was taken into account in deciding to discharge him, contained a 10-year accumulation of various and sundry documents , ranging from reports of physical examinations to a copy of a letter Hume had written to the editor of a newspaper concerning Section 14 (b) of the Act. 15 Accordingly, the issue of the Union's right to contract away the rights of individual employees represented by it, although mentioned in the General Counsel 's brief, is not properly before me for decision. GUSTIN-BACON MFG. CO that "he was discharged because he was judged by [Respon- dent St. Gobain] to have violated plant rules 1, 7, and 15, and because [Respondent St. Gobain] believed that such conduct, viewed in conjunction with his previous personnel record, called for termination of his employment."16 4. Conclusions The record shows that work vehicles traveled up and down the 15-foot aisle or passageway on the side of which the timeclock was located. The Respondents therefore urge that the area around the timeclock was a working area. I cannot agree Employees coming on shift were permitted to stand near the timeclock while waiting for their shift to begin. Indeed, on the morning of September 18 some employees of the oncoming "A" shift were standing around that area when Wilson approached Hume, yet Wilson did not even suggest to them that they move from there. Moreover, the Union and Respondent St. Gobain (or its predecessor) had selected this spot for placement of the company and union bulletin boards. Admittedly, employees were permitted to stand there and read these bulletin boards. For the above reasons I am convinced, and find, contrary to the Respondents' contention, that the area was not a working area within the meaning of either article XXVIII, section 2, of the contract or of the Board's rules governing solicitation.' 7 It follows, and I find, that Hume's conduct of standing where he did when he did for the purpose he had in mind was not a contract violation. On the contrary, it constituted solicitation of employees by an employee on the nonworking time of both the solicitor and the employee being solicited and therefore fell within the protection of Section 7.18 Insofar as the Respondents argue that Hume's presence inside building 14 on September 18 interfered with the operations then underway in the vicinity, or impeded em- ployees from working efficiently in the area, the short answer is that the record fails to support this Thus Hughes testified concerning September 18- Q. Do you know of any person that he [Hume] talked to other than you and Mr. Wilson? A. No Q. . . Was there any man that you can recall, other than yourself and Mr . Wilson, who were on company time who either spoke to or were spoken to, themselves, by Mr. Hume that you observed on the morning of September 187 A. No. Q. Did you see anybody stop their work or slow down their work as a result of Mr. Hume being there or while Mr. 16 No party raises the matter of Hume's pending grievance . Therefore I merely note that such a grievance was filed by Hume 2 days after he filed the charges herein, and that the grievance remains unresolved, without deciding the effect of these facts. 17 See Stoddard-Quirk Manufacturing Co , 138 NLRB 615, 621, fn. 7. 18 Walton Manufacturing Company, 126 NLRB 697, enfd 289 F.2d 117 (C.A. 5), and Stoddard-Quirk Manufacturing Co., supra. 337 Hume was there, other than the men who were going off shift9 A Not that I can recall Wilson, the only other management representative to observe Hume's activities that day, testified TRIAL EXAMINER You mentioned an employee to whom Mr. Hume had talked in your presence, an employee who signed the petition, the paper9 THE WITNESS Yes TRIAL EXAMINER And you remember who that em- ployee was? I don't want his name, but you do remember him specifically who it was? THE WITNESS Yes. TRIAL EXAMINER Was that individual employee, at that time, on shift or off shift? THE WITNESS He was coming in, he was an employee on my shift, A shift 19 TRIAL EXAMINER And it hadn't started yet9 THE WITNESS I don't know He was punching in, either punching in or getting ready to punch in. TRIAL EXAMINER Was it 7 30 yet? THE WITNESS No, it wasn't 7.30 yet I am convinced that the only disturbance or interference with employees on September 18, if in fact there was any, occurred not as the result of Hume's protected activities, but rather as the consequence of management's attempts to stifle these activities Hughes' offer to punch Hume in the nose, in particular, was hardly calculated to reduce the possibility of a distrubance. But even if, contrary to the above, Hume's presence in building 14 on September 18 should be regarded as either a contract violation or an interference with production, the result would be the same. For the record demonstrates that the Respondent seized upon the incident and used it to interfere with Hume's right to solicit signatures on nonworking time in admittedly nonworking areas. That Respondent St. Gobain was motivated by a desire to insulate Hume from his fellow workers is clearly shown by these facts: (1) On the morning of September 18 Hughes at first ordered Hume out of the building, thus denying him access to other nonworking areas such as the cafeteria;20 (2) later, when Hume, in response to Hughes' earlier order, had removed himself to the steps outside building 14 (unquestionably a nonworking area) Hughes ordered him off Respondent St. Gobain's property, (3) still later that day Sigle's letter to Hume banished him from company property between that date and September 22, and (4) on September 22 Sigle stated that Hume had had no business on company property on September 18 because he had not been scheduled to work that day, and announced an interpretation of plant rule 1 which, in effect, denied Hume 19 It should be noted that, at the factfinding meeting of September 22 Hughes , when asked by Hume for the names of those workers with whose work he had interefered , named only employees on the outgoing "D" shift. 20 The Respondents ' joint brief concedes that sometimes employees "stand around the clock for several minutes waiting to go to work," and notes that "If these people delay work in that area, they are sent to the lunchroom ." (Emphasis supplied.) 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entry to all Respondent St. Gobain's property-working as well as nonworking areas-during his off hours, except for limited purposes.2 i Each of these incidents constituted a separate and distinct instance of illegal curtailment by Respondent St. Gobain of Hume's protected right, on his own time, in admittedly nonworking areas, to solicit off duty employees to sign the decertification petition. I conclude that because they constituted an unwarranted infringement of Hume's protected concerted activities, and also because they were motivated by a desire to inhibit such activities, Respondent St. Gobain's suspension and discharge of Hume on September 18 and September 22, respectively, constituted violations of Section 8(a)(1) of the Act.22 Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Gustin-Bacon Manufacturing Company Division of Certain-Teed Products Corporation, and Certain-Teed Saint Gobain Insulation Corporation are, and at all material times have been, employers within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glass Bottle Blowers Association of the United States and Canada, Local 84, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By laying off Floyd D. Hume from April 19 to May 17, 1967, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent Gustin-Bacon has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4. By suspending Floyd D. Hume on September 18, 1967, and by discharging him on September 22, 1967, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent St Gobain has engaged in and is engaging in unfar labor practices within the meaning of Section 8(a)(1) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6 It is not necessary to rule upon the contention that either or both of the Respondents has engaged in or is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. THE REMEDY It will be recommended that Respondent Gustin-Bacon cease and desist from the unfair labor practices it has committed For aught that appears, however, the motivation behind its conduct may well have merely been pique arising from Hume's critical statements , rather than a basic antago- nism towards the employees' freedom of choice of bargaining representative. Accordingly, I do not believe that a broad cease-and-desist order against Respondent Gustin-Bacon is necessary, a narrow cease-and-desist order should, in my opinion, suffice to effectuate the policies of the Act Of course, the fact that Respondent Gustin-Bacon had since then disposed of building 14 and plant 7 does not relieve it of responsibility to remedy its own unfair labor practlces.2 3 Therefore, it will be recommended that Respondent Gustin- Bacon (severally and jointly with Respondent St. Gobain, for reasons set forth below) make Hume whole for any loss of pay he may have suffered by reason of his layoff, by paying to him a sum of money equal to the amount he would normally have earned from April 19 to May 17, 1967, less his net earnings during this period, plus 6 percent interest as set forth by the Board in Isis Plumbing & Heating Co , 138 NLRB 716. The situation with regard to Respondent St. Gobain is somewhat different. No criticism of Respondent St. Gobain was involved in Hume's circulation of a decertification petition. It has already been found, above, that Respondent St Gobarn acted against Hume not out of mere umbrage but for much broader reasons; namely, its desire to silence opposition to the Union This indicates a fundamental resistence to the principle, spelled out in Section 7 of the Act, that the bargaining representative should be of the employees' own choosing. Judging from this past conduct, I conclude that there exists danger that Respondent St Gobain might, in the future, commit additional unfair labor practices to keep the Union from being unseated. It will therefore be recommended that Respondent St Gobain cease and desist, not only from the unfair labor practices found, but also from in any manner infringing upon the rights of its employees guaranteed in Section 7 of the Act. The Respondents vigorously urge that, in any event, it would not effectuate the policies of the Act to require Respondent St. Gobarn to reinstate Hume because his "strained relationship . . with his employer, his fellow employees, and the incumbent union" make him "unsuitable for rein- statement." In support of this position, the Respondents request me to take official notice of five unfair labor practice charges previously filed by Hume against Respondent Gustin- Bacon, and their disposition- Cases 17-CA-2772, 17-CA-2828, 17-CA-2835, 17-CA-2871, and 17-CA- 3031. I deny this request. In my opinion these five cases are extraneous to the issues herein. The fact that Hume repeatedly 21 The Respondents , in their joint brief, seek to justify this denial of entry on the ground that the interpretation of plant rule 1 "was adopted pursuant to advice from the company 's insurance carrier " The record contains only a brief and vague reference to this , no details have been supplied regarding the time or place, the identity of the insurance carrier , or the nature of the advice . Accordingly, I find no merit in this contention. 22 This conduct is also alleged in the complaint to have been engaged in "to encourage or discourage membership in any labor organization" and thus violative of Section 8(a)(3) of the Act . Perhaps hampering circulation of the decertification petition may be regarded as attempting to compel allegiance to the Union and therefore as encouraging union membership . However, for reasons set forth in The Marlin Firearms Company, surpa , I decline to rule on this issue. 23 Perma Vinyl Corporation, etal., 164 NLRB No. 119. GUSTIN-BACON MFG. CO sought the aid of the Board to protect what he believed to be his rights does not of itself show malice. Neither does the fact, if shown, that his efforts were rebuffed 24 As for malice against the Union, Moss was given a disciplinary layoff because on April 10 he ... became involved in and/or initiated, carried on and/or promoted a heated and inflammatory argument with another employee (Floyd D. Hume). During this argument you [Moss] admit swearing at this employee, calling him profane and abusive names and/or initiating and partici- pating in producing a situation in which either or both parties to the argument could reasonably expect that physical violence to the person could occur at any moment Surely, this indicates that Hume's antagonism toward the Union was by no means unreciprocated. Yet the Respondents do not contend that Moss is "unsuitable for employment" because of his "strained relationship" with Hume In any event, the Respondents' claim that Hume is unsuitable for employment is inextricably interwoven with his known anti- union activities, and constitutes an unwarranted attempt to equate such protected concerted activities with unsuitability. Even assuming, without deciding, that Hume's reinstatement might intensify hard feelings among the employees, it is, as the Board has said under somewhat similar circumstances, "the price which must often be paid in order that the rights guaranteed by Section 7 may be preserved."2 5 I conclude that the alleged "strained relationship" provides insufficient reason to deny reinstatement to Hume. Accordingly it will be recommended that Respondent St. Gobain offer Floyd D Hume immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to the rights and privileges he previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by paying to him a sum of money equal to the amount he would normally have earned from September 18, 1967, the date of his suspension, to the date of the offer of reinstatement, less his net earnings during this period, computed on a quarterly basis in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289, including 6 percent interest as set forth by the Board in Isis Plumbing & Heating Co., supra. The General Counsel, in his brief, requests "that the provisions for Hume's being made whole for the April layoff be applied to both" Respondents. Respondent Gustin-Bacon announced to its employees on June 29 that as of July 1 they would retain their job assignments as employees of Respon- dent St. Gobain "with their employees' records and service intact " Thus there was continuity, the employing industry remained the same, despite the change of ownership. Under these circumstances Respondent St. Gobain must be viewed as a bona fide successor to Respondent Gustin-Bacon. As such it is responsible, along with its predecessor, for taking measures to mitigate the effects of the predecessor's unfair labor practices 26 Accordingly, it will be recommended that Respon- dent St. Gobain, severally and jointly with Respondent 24 There is evidence that one of these unfair practice charges filed by Hume forced an amendment to an otherwise illegal provision of the contract herein. However , as I consider this immaterial , I make no finding with regard thereto. 25 El Mundo, Inc., 92 NLRB 724, 726. 26 Perma Vinyl Corporation, eta!., supra. 339 Gustin-Bacon, reimburse Hume for any loss of pay sustained because of his layoff of April 19 to May 17, in the manner set forth above. Finally, it will be recommended that each Respondent preserve and make available to the Board, upon request, all records necessary to compute the amount of backpay due hereunder, and post appropriate notices. Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, I make the following. RECOMMENDED ORDER A. Gustin-Bacon Manufacturing Company Division of Certain-Teed Products Corporation, Kansas City, Kansas, its officers, agents, successors, and assigns, shall: 1 Cease and desist from (a) Laying off employees or otherwise discriminating against them in regard to their hire, tenure of employment, or any term or condition of employment, because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as amended. 2 Take the following affirmative action which it is found will effectuate the policies of the Act Post at its plants in Kansas City, Kansas, copies of the attached notice marked "Appendix A "27 Copies of the said notice, on forms provided by the Regional Director for Region 17, after being duly signed by its representative, shall be posted by Respondent Gustin-Bacon immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Gustin-Bacon to insure that these notices are not altered, defaced, or covered by any other material B. Certain-Teed Saint Gobain Insulation Corporation, Kansas City, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) Suspending or discharging employees or otherwise discriminating against them in regard to their hire, tenure of employment, or any term or condition of employment, because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership 27 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice in the further event that the Board's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Offer Floyd D. Hume immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of his suspension and discharge in September 1967. (b) Notify Floyd D. Hume if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Post at its plants in Kansas City, Kansas, copies of the attached notice marked "Appendix B."2 8 Copies of the said notice, on forms provided by the Regional Director for Region 17, after being duly signed by its representative, shall be posted by Respondent St Gobain immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent St. Gobain to insure that these notices are not altered, defaced, or covered by any other material. C. Both the above-named Respondents, their respective officers, agents, successors, and assigns, shall: Take the following additional affirmative action which it is found will effectuate the policies of the Act (a) Jointly and severally make whole Floyd D. Hume for any loss of pay suffered by him by reason of his layoff m April and May 1967. (b) Each individually shall preserve and, upon request, make available to the National Labor Relations Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due hereunder. (c) Each individually shall notify the said Regional Direc- tor, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.29 WE WILL NOT lay off employees, or otherwise discrimi- nate against them with regard to their wages, hours, or other working conditions, because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended WE WILL together with Certain-Teed Saint Gobam In- sulation Corporation, reimburse Floyd D. Hume for any loss of pay he suffered because of his layoff from April 19 to May 17, 1967, with six percent interest. Our employees are free to become or remain, or to refrain from becoming or remaining, members of any union, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. GUSTIN-BACON MANUFACTURING COMPANY DIVISION OF CERTAIN- TEED PRODUCTS CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 334-2611. APPENDIX B NOTICE TO ALL EMPLOYEES 28 See fn. 27 , supra. 29 In the event that this Recommended Order should be adopted by the Board , this provision shall be modified to read "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial in which all parties had the opportunity to present evidence, a Trial Examiner of the National Labor 'Relations Board has found that we violated the law and has ordered us to post this notice and to keep the promises that we make in this notice. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- After a trial in which all parties had the opportunity to present evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep the promises that we make in this notice. WE WILL NOT suspend or discharge employees, or otherwise discriminate against them with regard to their wages, hours, or other working conditions, because they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection, GUSTIN-BACON MFG CO and to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL together with Gustin-Bacon Manufacturing Company Division of Certain-Teed Products Corporation, reimburse Floyd D. Hume for any loss of pay he suffered because of his layoff from April 19 to May 17, 1967, with 6 percent interest. WE WILL offer Floyd D. Hume immediate and full reinstatement to his former or a substantially equivalent job, without prejudice to his rights and privileges previously enjoyed, and reimburse him for any loss of pay he suffered because of his suspension on September 18, 1967, or his discharge on September 22, 1967, with 6 percent interest. WE WILL notify Floyd D. Hume if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. Our employees are free to become or remain, or to refrain from becoming or remaining, members of any union, except to 341 the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. CERTAIN-TEED SAINT GOBAIN INSULATION CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 610 Federal Building , 601 East 12th Street , Kansas City , Missouri 64106, Telephone 334-2611.