SNC Manufacturing Co., Inc.

SNC MFG . CO., INC. SNC Manufacturing Co., Inc. and International Union of Electrical Radio & Machine Workers, Local 806 (IUE-AFL-CIO). Cases 30-CA-738 and 30-RC-771 January 21, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS BROWN, JENKINS, AND ZAGORIA On September 4, 1968, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found in Case 30-RC-771, that the Respondent interfered with a Board election held on January 10, 1968, and recommended that the election be set aside and that case be severed. Thereafter, the Respondent and the Union filed exceptions to the Trial Examiner's Decision, and briefs in support of their exceptions. Pursuant to the provisions of Section 3(b) of the 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 hereby 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 with the following modifications. 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by promulgating and enforcing a broad no-distribution rule which precluded employees from distributing union literature while on nonworking time and in nonworking areas of the plant. We also agree with the Trial Examiner that threats of disciplinary action for distributing literature in the plant constituted interference, restraint, and coercion, and were violative of Section 8(a)(1). We further agree with the Trial Examiner's finding, for the reasons stated in his Decision,' that the suspension of employee Towns was motivated by antiunion considerations and in violation of Section 8(a)(3) and (1) of the Act. 2. The Union excepts to the Trial Examiner's failure to find that Respondent's posted "no solicitation" rule was invalid. We find merit in this exception. The rule, admittedly posted from January In reaching our conclusions, unlike the Trial Examiner , we do not rely on the conduct of Respondent found unlawful in a prior case. 159 1967 until the day prior to the hearing, reads: It is the rule of the Company that unauthorized solicitations of employees or customers upon the premises or in the area of the plant by or on behalf of any club, society, labor union, religious organization, political party or similar association is strictly prohibited. The prohibition applies both to employees on working time and to outsiders, and it covers soliciting in any form, whether for membership, for subscription, or for payment of money. Respondent acknowledged that it invoked this rule in prohibiting the distribution of literature and claims that it ceased distribution of Company literature in the plant pursuant to this rule. However, the rule on its face is too broad, in that it prohibits employee solicitation anywhere on Company property, and is therefore presumptively invalid. Respondent has introduced no evidence which justifies a restriction on employee solicitation during an employee's own time. Therefore, we find that although the original promulgation occurred more than 6 months prior to the filing of charges, the continued maintenance of the rule as posted, within the 10(b) period, violated Section 8(a)(1) of the Act.2 3. The Trial Examiner found that the Respondent interfered with, restrained, and coerced its employees by granting a wage increase on December 9, payable December 15, during the pendency of an election without adequate justification or explanation. On the facts of this case, we do not agree. The record shows that Plant Manager Esslinger approached Respondent's President Vette, sometime in early September 1967 regarding the increase in the minimum wage law to take effect in February 1968. Esslinger proposed that Respondent use the method the company had used in the past, which included achieving the minimum prior to the effective date of the new Federal law and maintaining wage differentials in the plant. By way of explanation, Esslinger pointed out that twice in the past Respondent had achieved the minimums required by law at least 6 months prior to the effective date. Vette also accepted Esslinger's recommendation that Respondent accomplish the raises in groups rather than all in one pay period, and directed Esslinger to implement his proposals for all wage increases prior to the end of 1967. In implementing its decision to grant increases in groups, Respondent began its program in the pay period October 1 to 14, 1967, when five employees received increases of 6 to 8 cents per hour. Thereafter, in successive pay periods, Respondent granted increases of from 5 to 8 cents per hour to 58 employees during the October 15 to 28 pay 'Mason & HangerSilas Mason Co, Inc, 167 NLRB No 122, enfd in this respect 405 F 2d 1 (C.A. 5, 1968), cf Campbell Soup Co, 159 NLRB 74, 82, enfd in this respect 380 F 2d 372, 373 (C.A 5, 1967) 174 NLRB No. 31 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period: granted increases of the same amounts to 67 employees during the October 29 to November 11 pay period; granted 21 employees raises of from 5 to 8 cents per hour during the November 12 to 25 pay period; and granted 50 employees raises in the November 26 to December 9 pay period.3 None of the raises were announced and none were merit increases. However, at a meeting in the Board's Regional Office, subsequent to the last pay period but prior to issuance of the employees' checks, the company representative advised the union representative that a substantial number of increases were being effected. The Union, at that time, did not object. Esslinger's testimony, which is uncontroverted, explains that Respondent granted all employees increases in order to maintain differentials and to meet competition in the labor market, in addition to advancing minimum wages so that all rates would equal or exceed the new minimum wage. The General Counsel alleged that only the raises in the last pay period were violative of the Act. In support of that allegation, the General Counsel introduced only a summary of Respondent's payroll records for late 1967. The Trial Examiner analyzed those records, found some discrepancies, rejected Respondent's explanations, and concluded that Respondent granted the last increases during the pendency of an election without adequate justification or explanation, and thereby violated Section 8(a)(1). Contrary to the Trial Examiner, we do not believe that the final wage increase violated Section 8(a)(1). In the first place, according to uncontradicted testimony, the decision to increase wages occurred 3 months prior to the filing of the Union's petition. Pursuant to that decision, numerous increases, not alleged to be violative of the Act, had already been implemented before the increase in question, the last of the series, which was paid after the petition was filed. Under these circumstances, it has not been shown that the decision to grant these wage benefits was prompted by the Union's presence. Nor can any inference of employer misconduct be drawn from the time of the final payment. Further, we cannot agree with the Trial Examiner's analysis of the payroll data. Thus, almost all employees received at least one wage increase4 and the increases were generally 5 to 8 cents per hour, although some employees on the night shift received increases of 12 cents per hour. Those employees below the new minimum wage advanced in separate steps to achieve the new required minimum or slightly above. Finally, in analyzing the payroll data, it appears to us that the increases, in most part, uniformly followed steps within the Respondent's wage program.5 We find, from the uncontroverted evidence and under all the circumstances, that Respondent's grants of wage increases were in The Union filed its petition December 4 implementation of its decision made prior to the Union's organizational efforts to achieve the new minimum wage rates required by Federal law before the effective date thereof, and in doing so, Respondent attempted to maintain wage differentials. In addition, the evidence revealed that Respondent's competitors for the labor market had already advanced their wage rates at the time Respondent initiated its increases. Therefore, we cannot find, as did the Trial Examiner, that Respondent failed adequately to explain and justify its grant of wage benefits. Accordingly, we shall dismiss the allegation that Respondent violated Section 8(a)(1) of the Act by granting wage increases.6 4. We agree with the Trial Examiner, that the election held on January 10, 1968, in Case 30-RC-771, be set aside and that case be severed and remanded to the Regional Director for Region 30. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein,, and orders that the Respondent, SNC Manufacturing Co., Inc., Oshkosh, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete the present paragraph 1(b), and substitute therefor the following paragraph 1(b): (b) Maintaining or enforcing any rule which prohibits Union solicitation on Company property on the employees' own time. 2. Delete the second indented paragraph of the notice marked "Appendix," and substitute therefor the following- WE WILL NOT maintain or enforce any rule which prohibits Union solicitation on Company property during the nonwork time of the employees. IT IS HEREBY ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. IT IS HEREBY FURTHER ORDERED that the election, held on January 10, 1968 in Case 30-RC-771, be, and it hereby is, set aside, and that case be remanded to the Regional Director for Region 30 for the purpose of conducting a new election at such It is not significant to us that the witnesses appearing for the General Counsel received but one increase , as this was true of the majority of employees 'As pointed out in In. 12 of the Trial Examiner's Decision, five employees received an additional 5 cent increase in the last pay period We note, however, that according to the record , one of these employees, Chellow, was active in passing out union literature in the women's lockerroom. 'See, Fashion Fair, Inc., 173 NLRB No. 28, Oxco Brush Division of Vistron Corp, 171 NLRB No. 70. SNC MFG. CO., INC. time as he deems circumstances permit free choice of a bargaining representative. [DIRECTION OF SECOND ELECTION7 omitted from publication.] 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 30 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc, 156 NLRB 1236 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Oshkosh, Wisconsin, on May 21, 1968, on the complaint of General Counsel and the answer of SNC Manufacturing Co., 'Inc., herein called the Respondent.' The complaint alleges violation of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. Resolution of the validity of the objections is set forth infra. The parties waived oral argument and briefs filed by the General Counsel and the Respondent, and a brief filed on behalf of the Petitioner addressed to the Objections, have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation , engaged in the manufacture and sale of transformers, maintaining its offices and plant in Oshkosh , Wisconsin: During the year preceding the issuance of the complaint, a representative -period , Respondent sold and shipped, in interstate commerce, products valued in excess of $50,000, to points outside the State of Wisconsin . The complaint alleges, the answer admits, and I find, that the Respondent is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio & Machine Workers, Local 806, (IUE-AFL-CIO), herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Issues The principal issues raised by the complaint and answer, and litigated at the hearing, are whether the 'A charge was filed on January 15 , 1968, and the complaint was issued on March 11 , 1968, On March 11 , 1968, the Regional Director for Region 30, issued an Order consolidating the hearing on Petitioner's objections to an election, held on January 10, 1968,, with the hearing of the issues raised by the complaint. 161 Respondent: (1) Engaged in conduct constituting interference, restraint, and coercion, therefore violative of Section 8(a)(1) of the Act by, (a) granting a wage increase on or about December 9, 1967, or (b) by the conduct of Superintendent Esslinger, in ordering employees not to distribute union literature anywhere in the plant or on company property, on November 30, 1967, and January 4 and 9, 1968, or (c) by the conduct of Foremen Crahen and Ziebell, in ordering employees not to distribute union literature anywhere in the plant on January 4, 1968, or (d) by Superintendent Esslinger, on November 30, 1967, or January 4, 1968, or Foreman Crahen, on the latter date, threatening employees with disciplinary action for distributing literature in the plant during non-worktime, or (e) by Respondent discriminatorily applying a no-solicitation rule, since on or about November 30, 1967; or whether Respondent discriminatorily suspended Dawn Towns, on January 9, 1968, in contravention of the provisions of Section 8(a)(3) and (1). Respondent denies the commission of any unfair labor practice and asserts that the layoff was by reason of insubordination. Identical issues are raised as objections to conduct affecting the results of the election and are set forth and considered infra. Supervisory Personnel The complaint alleges, the answer admits, and I find, that John Vette, president, Daniel Esslinger, plant superintendent, James Crahen and Charles Ziebell, foremen, are supervisors within the meaning of Section 2(11) of the Act, and were agents of the Respondent, at all times material herein. Background Commencing in February, 1963, the Union undertook the organization of Respondent's employees. Subsequently, on June 26, 1964, the Board, having found that Respondent had engaged in unfair labor practices, within the meaning of Section 8(a)(1), (2), and (5), issued a Bernel Foam' type order. Thereafter, Respondent and the Union entered into a collective-bargaining agreement, which, by its terms, became effective July 1, 1966, and provided for its expiration on July 1, 1967, upon appropriate notice of termination, by either party, which notice was, in fact, given by the Union. Respondent challenged the continued existence of the Union's majority representation, and, on December 4, 1967, the Union filed a Petition for Election, in Case 30-RC-771. A Stipulation for Certification Upon Consent Election was executed by the parties and approved by the Regional Director, on December 19, 1967. A secret ballot election was conducted by the Regional Director on January 10, 1968. Petitioner filed timely objections to conduct affecting the results of the election, on January 15, 1968. On March 11, 1968, the Regional Director issued a Report finding, inter alia, that the issues raised by petitioner's objections, as modified, involve the same factual and credibility issues involved in an unfair labor practice complaint, issued the same day, and Ordered Consolidation. The Regional Director's Report reflects that there were approximately 150 eligible voters who cast 64 votes for petitioner, 68 votes against petitioner, 4 challenged ballots, 'Bernet Foam Products Co., Inc, 146 NLRB 1277 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 1 void ballot. In the earlier case the Board found that the unit was comprised of a total of 76 employees. Interference, Restraint, and Coercion A. Wage Increases It is alleged that Respondent, on or about December 9, 1967, granted wage increases to discourage employees from becoming members of, giving assistance to, or voting for, the Union. Respondent's payroll records, for the latter part of 1967 reflect: the hourly rate of each employee, in the payroll period of September 17 to 30; that 5 employees received pay increases in the pay period of October I to 14, 3 of 6 cents per hour and 2 of 8 cents per hour; that 58 employees received increases in the pay period of October 15 to 28, 57 of them being between 5 and 7 cents per hour and 1 of 8 cents; in the pay period of October 29 to November 11, 67 employees received increases, 60 being between 5 and 7 cents per hour and seven receiving 8 cents per hour; in the pay period of November 12 to 25, 21 received increases, 18 being between 5 and 7 cents per hour and 3 of 8 cents per hour. Thus, of the 157 employees, listed as being employed at least some of the time between September 17 and November 26,' 146 received a raise in one of the four pay periods preceding the payroll period complained of; i e November 26 to December 9.4 Eight employees each received two pay raises, in the first four pay periods.' General Counsel's complaint is addressed to the 476 who were given raises in the pay period from November 26 to December 9, payable December 15. Thirty-seven of these had received one or more pay raises, of 5 cents per hour or more, each, in one or more, of the previous pay periods described.7 In fact, five of those named had received two pay raises in the previous pay periods and received a third pay raise in the period of November 26 to December 9.' While the bulk of these raises were between 5 and 7 cents per hour, the reason for granting six employees an increase of 12 cents per hour is obscure.' Since Respondent asserts the increase in the Minimum Wage Act, as justification, it is appropriate to note that only seven of these employees were below the $1.60 minimum rate at the time of this pay increase 11 'I exclude Bricci and Gavin, who appear to have been hired in the pay period of November 26 to December 9 4The 11 who received no raise included 3, Ebel, Schilling, and Stadler who received no increase at any time; Caldwell and Finch apparently hired initially in the October 29 to November 11 period, and raised from $1.47 to $1.60, in the pay period complained of, J. Raddatz , apparently separated in October; and Brandt, F Jones, Kallin , Kempinger and Rosenthal, each of whom received a single 5- or 6-cent raise, except Kempinger who received 12 cents, in the period which began November 26. 'Berndt, Gelhar, Hassler and Weigand were increased, in two steps, from $1,40 to $1.60 Stewart, in two steps, from $1 40 to $1 53 Binder, Lloyd, and Ratchman, in two steps, from $1 .76 to $1.90. 'I have excluded Brehmer, whose raise of 10 cents per hour , as explained by Respondent, was clearly marked as a night shift differential I have also excluded Bricci and Gavin apparently hired on or after November 26 Adams A Jones Appleby Ford (9) Bahr Kaminski Bergman Klotzbuecher Berndt Lueck Chellow Mathe Davis Novis Deasteal (9) Nimmer Eagen Oilman Eberhart A. Potratz Frank Kresal (f) Plant Superintendent Esslinger has been in that position for 7 years and is in charge of personnel and production, including the administration of a wage plan in the production unit. Esslinger asserted that it had been Respondent's policy, at the request of President Vette to achieve the minimums required by Federal Law prior to the effective date of each By way of explanation, Esslinger asserted that when the minimum became $1.25 effective in September, 1963, it was achieved, by Respondent, in May. When the minimum was raised to $1.40, effective February 1, 1967, Respondent achieved it in July 1966. Esslinger asserted in view of the required increase to $1.60, effective February 1, 1968, he had a discussion with Vette in September 1967, and it was determined to use the method they had in the past and accomplish it before the effective date. However, it was determined to accomplish it in groups rather than all in one pay period. In addition, Esslinger asserted Respondent was faced with competition for the female help available in Oshkosh, by such firms as Victory Lite Candle Co., Hoffmaster Co., Miles-Kimball, and Standard Kollsman Respondent made no explanation of the reason for the additional raises for the 37 listed as having received raises. Only 10 who had not received previous raises, were given raises in this period." Esslinger's effort to explain the discrepancy in the amount of the raise to each employee, including the raises in the November 26 pay period, as an effort to maintain differentials is patently erroneous. Esslinger asserted those in the higher pay grades received only one increase while, inferentially, those in the lower grades received multiple increases. In its brief, Respondent describes the last increase as the final "installment" of the plantwide increase, and as an across-the-board increase - "past practice dictated the maintenance of the wage differentials within the plant." The contrary appears to be true.12 William Daseke, executive vice president and chief engineer, asserted that the Union was advised, at a meeting at the Board's Regional Office, on December 13, that a substantial number of increases were being placed in effect, by reason of the minimum wage law changes and to remain competitive in the labor market. He acknowledged these raises had not been announced to the employees. Daseke asserted these were general increases, not merit increases. Gelhar Sira Glebke Strandlie Gomall Stewart Hassler Thresher Hazelwood Vaughn Herzig Washmeski Horne Weigand Wischow 'Berndt, Gelhar, Hassler, Stewart , and Weigand, resulting in an hourly rate of $1.65 for each. 'Kempinger, Klotzbuecher, Novis, Scheinpflug, Sira, and Stewart Those named were increased from $1 63 to $ 1 75, except Scheinpflug and Stewart whose new rate was $1.65 "Brandt, Caldwell, Finch, Mathwig, Oswald , Scheinpflug, and Stewart, most of whom were new employees. "Brandt, Caldwell, Finch, F Jones, Kallin, Kempinger, Mathwig, Oswald, Rosenthal, and Scheinpflug '=E g., on September 17, hourly rates varied from $1.40 to $2.79, 28 employees had a rate of $1.59, all received a 6-cent increase to $1 65 in the October 15 to 28 pay period Five of these , for unexplained reasons, received an additional 5-cent raise in the November 26 to December 9 pay period Why Chellow, Glebke, Herzig, Home, and Ford , were so singled out is unexplained. SNC MFG. CO., INC. B. Events Related to the Distribution of Union Literature on November 30, 1967, and January 4, 1968 It ns undisputed that, commencing January 3, 1967, and continuing until the day preceding the hearing herein, May 20, 1968, the following notice appeared on Respondent's bulletin board, on a sheet of Respondent's stationery, over the signature of Dan I. Esslinger, plant superintendent, under the title of "No Solicitation Rules": It is the rule of the Company that unauthorized solicitations of employees or customers upon the premises or in the area of the plant by or on behalf of any club, society, labor union, religious organization, political party or similar association is strictly prohibited. The prohibition applies both to employees on working time and to outsiders, and it covers soliciting in any form, whether for membership, for subscription, or for payment of money. Clifford Kinderman, an employee in the plastics department, since October 1966, credibly related that on Thursday, November 30, 1967, at about 7:35 a.m., he was standing outside the building, adjacent to the employees entrance, distributing an announcement of a union meeting scheduled for the following Sunday. Plant Superintendent Esslinger and Foreman Ziebell approached him. 'Esslinger advised Kinderman that he was not allowed to distribute literature on company property and should go out on the road. Kinderman complied with Esslinger's instructions. Kinderman whose work hours at that time were 8 a.m. to 4:30 p.m., acknowledged that Iae had punched the timeclock at approximately 7:25 a.m., prior to engaging in his distribution activity. After Kinderman had reported to his work station, the same morning, Esslinger approached him and inquired "Don't you think you're getting yourself in a little deep?" Kinderman made no response. Kinderman acknowledged that Esslinger also reminded him of a company rule about punching in and then leaving the Company premises, and acknowledged leaving the Company premises after being told to do so by Esslinger." It appears undisputed that Respondent's employees have a morning break period, approximating 10 minutes, which is staggered, and a lunch period which is also staggered. However, the afternoon break period, which commences at 2:30, for a period of 10 minutes, is taken by all employees at the same time. It appears undisputed that Marie Beyer, an employee for approximately 13 years, presently a tester, is also president of Local 806 and chairman of the organizing committee. Dawn Towns, has been employed for approximately 5 years, is also a tester in the assembly department, and has been chief steward for the Union for 5 years. While Beyer asserted that she and Towns distributed additional copies of the notice distributed by Kinderman, before work that morning, the distribution by Beyer and Towns was during the afternoon break the same day and was made in the plastics department, the shipping area, and the subassembly and assembly departments, to employees who were either sitting; at their work stations or walking around, there is no evidence that this activity was observed by Respondent's managerial employees. "Foreman Ziebell was not called as a witness While Esslinger appeared as a witness he was not questioned about the recitation of Kinderman, relative to these events of November 30 However, he acknowledged observing distribution on that date. 163 Beyer related that on December 14, during the 2:30 p.m. break period, she, Towns and Myrtle Kaul distributed the lower portion of a union notice of a meeting to be held on Sunday, December 17, and this distribution was likewise made in work areas However, there is no evidence that any managerial employee was aware of this distribution. It appears undisputed that the upper portion of the same notice was likewise distributed, during the break period of December 20, and related to a special meeting relative to the NLRB election, scheduled for January 10, 1968. Similarly there is no evidence of any management employee being aware of this distribution Beyer credibly related that a Christmas Scroll, with a Christmas message to all employees and their families, from the officers, stewards and Executive Board of Local 806, was distributed near the timeclock, by Beyer and Towns, before work, on December 22, 1967. They distributed approximately 100 copies, including a copy given to Plant Superintendent Esslingen. Esslinger acknowledged receiving a copy of the Christmas message from either Beyer or Towns. He did not object to the distribution of it, explaining, "It was a nice thing. It was just before Christmas. It was okay." Beyer related that on Thursday, January 4, 1968, during the 2 30 p.m. break period, she distributed 20 or 25 copies of a union notice of a meeting scheduled for Sunday, January 7, in the plastics department, shipping area and subassembly, to employees who were sitting at their work benches or walking around. While she was so engaged in the subassembly department, Foreman Ziebeli advised her, "Marie, you are, not allowed to pass out Union literature in the plant on Danny's [Esslingen] orders." Beyer asserted that she responded, "Well, Danny knows that we can pass out literature on our own time." Ziebell responded, "Well, Marie, I have to take orders." Beyer responded that she understood and returned to her work area. As Beyer was placing the balance of the literature in her possession into a box, she was approached by Esslinger, who advised her, "Marie, you are not to pass out literature in the building." Beyer related that she responded, "Well, Danny, you know we can pass them out on our own time." Esslinger shook his head in the negative. Beyer related that she then asserted, "Well, you can check with the law that we aren't doing anything wrong." Esslinger again shook his head in the negative, and advised, "I am making a statement The next time that anyone is caught passing out literature in the building they will be asked to leave." Beyer asserted that Towns, Florence Jones, and other female employees were present during this conversation. Beyer related that the employees had been instructed by the union representatives, Kitzinger and Burden, that they were not to distribute literature during worktime. Towns, who asserted that she was present, during the exchange between Beyer and Esslinger, corroborated the assertions of Beyer, particularly in relation to his statement that anyone passing union literature in the plant would be asked to leave the plant." Esslinger corroborated the assertion of Beyer, asserting, "I believe this was the date [January 4] that I told Marie [Beyer] and Dawn [Towns] to stop distributing literature in the plant." Esslinger acknowledged that they complied with that request. Myrtle Kaul has been employed, in the plastics department, for approximately 2 years. On January 4, while she was employed in the lead room, and during the 2.30 break, Kaul passed out leaflets in' the lead "Florence Jones did not appear as a witness 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, approximately six in number, to several girls who were sitting at a table looking at catalogues. It is undisputed that this is a work area. She approached Foreman Ziebell, who was standing at the entrance to his office, and inquired if he wanted a copy. Ziebell responded, "No, I am sorry, you can't pass those out, Myrtle, on orders of Danny Esslinger." Kaul responded that she would take the remaining pamphlets back where she got them.' S Lucille Schessler has been employed for approximately 6 1/2 years in plastics assembly, and is secretary-treasurer of the Union. Schessler credibly related that, on January 4, during the' 2:30 break period, she distributed approximately 20 copies of the union pamphlet, in the aisles of the plastics department. At the end of the break period, after she had returned to work, Schessler observed Esslinger talking to her foreman, Crahen. Crahen then approached 'Schessler and, according to Schessler, advised her that Esslinger had advised Crahen that Schessler was not supposed to pass out leaflets in the plant, "and the next time that I did it I would be subject to disciplinary action." Crahen then explained that Esslinger had talked to a lawyer about the matter. Schessler responded, "Well, Marie [Beyer] said that we could pass leaflets out in the plant." Schessler then inquired as to what the lawyer had said and was advised by Crahen that he did not know. Crahen then advised Schessler that she should not get mixed up in this union thing. Schessler then advised Crahen that if he did not want her to pass out any more leaflets that she would not do so. Crahen did not appear as a witness and Schessler's recitation, which stands undisputed, is credited. The Events of January 9 - Suspension of Towns Towns credibly related that on January 9, during the 2:30 break period, she was passing out a Union bulletin, which urged the employees to vote "yes" in the election scheduled for the following day. Towns was standing in a passageway adjacent to the men's locker room and passed out approximately 10 copies of the leaflet. Esslinger approached and inquired as to what Towns was doing. Towns responded that she was passing out leaflets and inquired if he wished a copy. Esslinger responded in the negative and inquired, "What did I say the other day?" When Towns did not respond, Esslinger repeated the question, then added, "If anybody was passing leaflets in the plant I would ask them to leave. I am asking you to leave." Towns inquired, "Am I fired?" Eslinger responded, "No, I just want you to leave the plant." Towns again asked if she was fired. Esslinger then responded, "No, I want you to leave the plant as disciplinary action. You can come back in the morning." Towns responded, "Okay." Towns proceeded to the girls locker room, where she found Beyer and Rita Chellow passing out leaflets. When Towns put her jacket on, Beyer inquired as to where she was going, and Towns explained to Beyer and the others present that she had been told by Esslmger to leave. Beyer advised Towns that she should not leave because the law said that she could pass out union literature in a non-working area on her own time. Towns placed her jacket back on the hanger and, when the bell rang at 2:40, returned to work. At approximately 3.20 p.m. Esslinger came to her work station and advised Towns that he thought he had asked her to leave. She "Ziebell did not appear as a witness and I credit the undisputed assertions of Kaul acknowledged that he had. He then inquired if she was not going to leave. She responded that she did not do anything wrong Esslinger then advised that he was giving her 5 minutes to leave the plant. Towns again inquired if she was being fired. Esslinger responded, "No, I am asking you to leave the plant as a disciplinary action " Esslinger then advised her that if she did not leave the plant she would be discharged. Towns complied with Esslinger's request. Esslinger's version of his conversation with Towns, on January 9, is not at substantial variance with the recitation of Towns. Esslinger asserted that he asked Towns if she remembered the statement that he had made to her a few days before. Esslinger asserted, "I don't recall the exact wording, but it was fairly accurate in the testimony this morning [of Towns] that if she did this again or if anyone did this again, they would be charged with a disciplinary action and asked to leave the premises." Esslinger acknowledged advising Towns that he was asking her to leave. Esslinger, at variance with Towns, asserted that Towns responded, "You'll have to fire me first." Esslinger asserted that he responded, "No, I won't fire you, for a thing such as this, I'm just asking you, to leave." Esslinger asserted that she raised her voice and repeated that he would have to fire her first. Esslinger asserted that he again responded in the negative, that Towns then stated that she had a legal right to do what she was doing and he advised her that he was ordering her to leave, and assumed that she was complying. An hour later, he found her still at her work station and again requested her to leave. Esslinger asserted that Towns responded that she did not have to leave. Thereupon, Esslinger advised her that if she did not leave within 5 minutes she would be discharged for insubordination. Towns denied having raised her voice on either occasion, and denied that Esslinger raised his voice. Towns also denied advising Esslinger that he would have to fire her before she would leave the plant On the basis of demeanor and on the basis of the undisputed facts, particularly the fact that Towns did leave the plant without being fired, and by reason of certain inconsistencies which I find in the testimony of Esslinger, I credit Towns where her testimony is at variance with that of Esslinger. Janice Kallin, an employee in the assembly department, was with Towns throughout the initial episode with Esslinger and corroborated Towns, in the latter's assertion that she inquired if she was being fired, as distinguished from Esslinger's version. The Alleged No-Distribution Rule and Its Enforcement I have found, supra, that on January 3, 1967, Respondent promulgated and posted a "No Solicitation Rule." Esslinger asserted that he posted the rule at the request of President Vette. Esslinger described it as a legally approved "No Solicitation Rule" which he had obtained from a Prentice Hall manual. Esslmger's asserted reason for posting was that a local attorney was walking through the employee's entrance and soliciting one of the employees about a parental case, and Esslinger asserted that he was advised that since the individual was an attorney, that he should have some legal basis for not allowing his trespass . In addition, Esslinger asserted that sales people were soliciting employees after an engagement or wedding announcement , and Esslinger was advised that he had to have some basis for barring such individuals from the plant. Esslinger asserted that, since SNC MFG. CO., INC. there was a contract with the Union in force, he called the officers of the Union and explained that this was not intended to hamper their collection of dues. Esslinger asserted that in the past they would on occasion take up a collection for someone who was ill, or by reason of a relative's death, or a marriage, and the rule was not intended to preclude this activity, which would be permitted to continue. Esslinger asserted that on an unspecified later date the Respondent changed its policies with respect to distribution of company material m the plant to employees. Esslinger asserted they decided that they would no longer write company letters and pass them out among the employees because it was disturbing and distracting and interfered with production. Therefore, according to Esslinger, anything too lengthy to be read from a bulletin board would be mailed to the employees' homes. Esslinger acknowledged that, inferentially in May 1968, which he described as 2 or 3 weeks prior to his testimony, on May 21, the Company did distribute a booklet entitled "It Pays to be Profit-minded in Your Job," a 16-page booklet, approximating 2 by 5 inches in size, distributed with paychecks sometime during the morning work hours. Esslinger asserted it was distributed "just before lunch period, which gave people an opportunity to read it during lunch or take it home or whatever." I have found, supra, Esslinger made no explanation to Kinderman, as to the reason why Kinderman could not distribute union bulletins on Respondent's parking lot. Initially, Esslinger asserted that the distribution, on January 4, was "creating havoc." Asked to explain his meaning, Esslinger asserted, "It was interfering with production and it has always been the past practice with our company, whether it be distributing union literature or anything else, if the thing becomes a nuisance, other people are annoyed by it, or it becomes an annoyance to the production of the product we are trying to make, we put a stop to it." Esslinger then asserted that the employees would discuss the pamphlets and read it at their 'work place after the bell had sounded for resumption of work. Asked to specify the nature of the disturbance, Esslinger asserted that three individuals, including two foremen, had complained to him, and that the foremen had specifically named employees who had come to them reporting an annoyance by reason of the distribution. Esslinger attributed this report of annoyance by certain employees as one reason for halting distribution. Esslinger thus vacillated between the "annoyance," expressed by employees, and loss of production as the reason underlying his announcement of a no-distribution rule. Neither assertion is supportable upon close scrutiny of the evidence. Esslinger denied any knowledge of union distribution in the plant, prior to January 4, except the Christmas distribution to which he did not object. The asserted "annoyance" was not corroborated by anyone. I have found that Foremen Ziebell and Crahen within the span of the break period, 2:30 to 2:40 p.m., advised employees, that, on orders from Esslinger, they could not make any distribution in the plant without being subject to disciplinary action. Obviously, no impact on production could have been determined, as resulting from the distribution, prior to the resumption of production. Esslinger was an outstanding proponent of conduct found by the Board, in the prior case, to have demonstrated antiunion animus by Respondent. Esslinger was unable to identify anyone who reported being "annoyed" by the distribution, and admitted there had been no such 165 complaint prior to January 4. Even if he had, it is an insufficient reason for a total bar on distribution. I find no credible evidence of "annoyance" being expressed by anyone, except Esslingen. After asserting that production did show a measurable loss as a result of the distribution of literature, Esslinger then asserted that he could not pinpoint a specific day when production was bad, but that it applied to part of December and all of January. Yet, Esslinger acknowledged he knew of no distribution in the plant in December, except the Christmas letter to which he did not object. Esslinger then acknowledged that a lack of orders from the Allan Bradley Company resulted in a reduction in force of some 60 to 65 employees, inferentially, in late December, and this was the reason for a substantial loss of production. When Esslinger's attention was called to a letter distributed to the employees, by Respondent, over Esslinger's signature, on March 4, 1968, in which he attributed the reason for Respondent's restriction on distribution of literature as being due to an "untidy condition" which created extra work for the janitorial personnel, Esslinger asserted that this was an additional reason for the restriction on distribution. I find significant Respondent's failure to assert either "annoyance" or loss of production as the underlying reason for the rule, in this letter. Both appear to be afterthoughts, to justify unlawful conduct. In the light of Esslinger's acknowledgement that he had instructed employees that there was to be no distribution of literature in the plant, I find of no consequence Esslinger's assertion that he did not admonish, reprimand, or discipline any employee with respect to distribution of literature in lunch rooms or lockerrooms. I similarly find of no consequence Respondent's effort to establish that the aisleway, where Towns was distributing literature, during the break period on January 9, was a storage area for parts kept in bins and moved to assembly areas, as needed, during worktime, and therefore a work area. Esslinger's attention was called to the fact that in the same letter Respondent asserted the reason for the layoff of Towns was "for insolence" (emphasis in letter). Esslinger asserted the insolence resulted from Towns having raised her voice to him. Asked if he had not already, at that time, indicated to Towns that she was being laid off, Esslinger responded "Yes, but she wanted to be fired " Respondent's effort to establish a' "Union plot" to create an incident by getting Towns fired was stillborn. CONCLUDING FINDINGS C. Wage Increases I have found, supra, that by reason of Respondent's challenge relative to the continued existence of the Union's majority representation, the Union, on December 4, 1967, filed a Petition for Election, Case 30-RC-771. Daseke, Respondent's executive vice president, related that he attended a meeting at the Regional Board Office on Wednesday, December 13, at which Kitsinger and Burden, International Representatives of the Union, Beyer, Local president, Glaeser, an employee, and George Strick, a Board employee, as wel'. as Respondent's attorney were present. In the words of Daseke, near the end of the meeting Daseke announced that a substantial number of wage increases were being placed in effect, for the pay period of November 26 to December 9, payable 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on December 15, "to meet the new minimum standard wages, and second, to remain in a competitive labor market." In answer to an inquiry, Daseke acknowledged that the raise had not been announced and the first notice the people would have of it would be when they received their paychecks. Daseke then explained that these were general increases and not merit increases. I have found, supra, that in the preceding payroll periods of October 1-14, October 15-28, October 29-November 11, and November 12-25, a total of 157 employees are listed as being employed, in the unit, during at least a portion of the period described, and 146 of these received at least one pay raise, while some received two pay raises. I have also found that the amounts of the pay raise, without considering multiples, were from 5 cents to 12 cents per hour. It appears undisputed that 47 employees were given a raise in November 26 to December 9 pay period. Thirty-seven of these had received one or more pay raises of 5 cents per hour, or more, in the previous pay periods described, five having received two previous pay raises of 5 cents or more and also received a third pay raise in the period complained of. I have also found that only 7 of the 47 granted raises, were below the $1.60 minimum rates at the time of this last pay increase Only 10 of the 47 receiving a pay increase in the last pay period had not received a pay increase in the previous pay periods. Respondent's effort, in its brief, to describe the increases complained of as across-the-board is patently erroneous. While some employees were raised, in steps, from $1.40 or $1.47 to $1.65, per hour, and others received a single or multiple increase which totalled 12 cents per hour, it is interesting to note that those who appeared herein as witnesses for the General Counsel were not among the more fortunate: Beyer, Kaul, Kallin, Kinderman, Schessler, and Towns, each received a single 5- or 6-cent raise in the entire period.16 The alleged "maintenance of the wage differentials within the plant," asserted by Esslinger as the basis for the. last increases is thus patently false. The assertion of Respondent, in its brief, that the wage increase was determined prior to the Union organizing campaign, since "three months passed between the decision on the questioned increase" must similarly be rejected. There is no evidence of uniform increases, in fact the contrary is true. The record contains no explanation of the disparity in the amount of the increases Respondent urges that the Union representatives when informed, on December 13, of the pending increases approved them. Respondent asserts that Beyer "seemed delighted." Respondent urges that the Union could have postponed the election "if it thought it's cause might be prejudiced by the increases." The short answer is that it is for General Counsel and the Board to determine if the "laboratory conditions" which the Board attempts to obtain in every election were interfered with. In the Exchange Parts case" the Supreme Court held. The broad purpose of Section 8(a)(1) is to establish "the right of employees to organize for mutual aid without employer interference." We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging "The resultant rates, of Kaul at $1.65 Schessler at $1.70 and Kallm at $176 do not substantiate the assertion of Esslmger that it was the employees "in the higher grades" who only received one increase "N.L R B v Exchange Parts Co., 375 U S 405, 409 upon their freedom of choice for or against unionization and is reasonably calculated to have that effect. - The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. (Citations omitted.) This Respondent in the prior case" a was found to have engaged in a wide variety of violations of Section 8(a)(1), including, specifically, the granting of wage adjustments of 5 to 15 cents per hour, to affect the outcome of the earlier election. Numerous Board and Court decisions have held that a mere promise of benefits, during the pendency of an election is violative of Section 8(a)(1) of the Act." A fortiori, granting benefits during such a period, without adequate justification or explanation, must fall in the same category. The wage increases complained of, admittedly without prior announcement, were granted after the filing of the Petition for Election. Other misconduct by Respondent, during the period of the pendency of the election is set forth infra. Accordingly, on the evidence in the record as a whole, for the reasons stated, supra, I find the granting of the wage increases constituted interference, restraint, and coercion and was violative of the provisions of Section 8(a)(1) of the Act. D. The No-Distribution Rule - Events of November 30 and January 4 The complaint alleges that Esslinger, on November 30, 1967, and January 4 and 9, 1968, ordered employees not to distribute union literature anywhere in the plant or on Company property, and, on the first two dates threatened employees with disciplinary action for engaging in the distribution of literature anywhere in the plant during non-worktime. It is also alleged that Crahen and Ziebell, on January 4, ordered employees not to distribute union literature anywhere in the plant, and that Crahen, on the same date threatened employees with disciplinary action for engaging in such conduct during non-worktime. It is also alleged that Respondent, since November 30, 1967, discriminatorily applied the existing no-solicitation rule. It appears undisputed, and I have found, supra, that on November 30 Esslinger advised Kinderman to leave the Company parking lot and go out to the road as he was not allowed to distribute literature on Company property. Thereafter, after Kinderman had reported to his work station, Esslinger inquired, "Don't you think you are getting yourself in a little deep?", and reminded Kinderman of a Company rule about punching in and then leaving the Company premises Esslinger, who later relied on the "annoyance" caused to other employees by reason of distribution of literature, acknowledged, that the "annoyance" was not reported to him prior to January 4. Esslinger's conduct on November 30 stands unexplained. It appears undisputed, and I have found, supra, that on January 4 Esslinger advised Beyer, in the presence of Towns and Jones, either during or immediately following a break period, that anyone passing out union literature in the plant would be asked to leave the plant, with no differentiation made between work areas and nonwork "147 NLRB 809 "See, e g , Ralph Printing & Lithographing Co., 158 NLRB 1353, and fn. 3, enfd in pertinent part 379 F.2d 687 (C.A 8) SNC MFG. CO., INC. areas. This conversation followed the advice of Foreman Ziebelll, which immediately preceded it, that Beyer was not allowed to pass out literature in the plant on Esslinger's orders. Esslinger acknowledged advising the employees "to stop distributing literature in the plant." I have also found that Kaul was similarly advised, on the same date, during the break period, by Ziebell. I have also found that on the same date, during the break period, Schessler was advised by Foreman Crahen that she was not to pass out leaflets in the plant and that the next time she did it she would be subject to disciplinary action, and this was pursuant to instructions from Esslinger. It is patent that the no-solicitation rule, posted by Respondent on January 3, 1967, is unrelated, by its terms, to the subject of no distribution. The no-distribution rule was first announced by Esslinger on January 4, 1968, and was, as stated, a restriction against any distribution in the plant, at any time. It thus encompassed both work areas and nonwork areas, worktime and free time. Accordingly, it was inherently violative of the rights accorded employees by Section 7 of the Act. In the Le Tourneau case '20 the Board held that a no-distribution rule precluding distribution of union literature, by employees, on the parking lot placed an unreasonable impediment on the- freedom of communication essential to the exercise of employees right to self-organization, and that the suspension of employees for engaging in such activity constituted discrimination. The Board has held in numerous cases, with court approval, that an employer may make and enforce a rule forbidding his employees to engage in union solicitation during worktime. However, a broad no-solicitation rule, in the absence of special circumstances making such a rule necessary in order to maintain production or discipline, is presumptively an unreasonable impediment to self-organization and is therefore presumptively invalid.' The Board, in the Minneapolis-Honeywell case,22 found the presumption of invalidity unrebutted The Board distinguished between a rule that had application limited to areas where the employees have their work stations and a broader proscription of distribution of union literature, absent a showing of special circumstances involving maintenance of production or discipline. The Board asserted] that it unanimously adheres to the Walton view23 that a ban on distribution of literature was presumptively invalid, in normal circumstances, if and insofar as it precludes employees from distributing union literature when they are on nonworking time and also in nonworking areas of the employer's establishment. Herein, no special circumstances are asserted or established. Respondent, in its brief, incorrectly asserts the question to be whether an employer can prevent distribution in work areas during non-worktime, without violating the Act. The rule enunciated by Esslinger prohibited distribution in the plant. This necessarily encompassed both work and non-work areas, worktime and free time. Being all encompassing it was violative of the Act. North American Aviation Inc., 163 NLRB 863, enfd 389 F.2d "Le Teurneau Company of Georgia, 54 NLRB 1253, affd. 324 U.S 793. - "See Peyton Packing Co., 49 NLRB 828, cited with approval in Republic A viation Corp. v. N.L R B., 324 U.S. 793; 28th Annual Report of the National Labor Relations Board, p. 66, Idaho Potato Processors Inc., 137 NLRB 910, enfd 322 F.2d 573 (C.A. 9). "Minneapolis-Honeywell Regulator Company, 139 NLRB 849, 851 "Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F 2d 177 (C A 5). See also, Southwire Company, 145 NLRB 1329. 167 866 (C. A. 10). Respondent's assertion that the rule was adopted more than 6 months prior to the filing of the charge herein is without merit. The no-solicitation rule of Respondent has no application to the matter of distribution. Accordingly, I find the enunciation of the Rule, by Esslinger, on January 4, 1968, the restriction placed on the activity of Kinderman by Esslinger, on November 30, 1967, the orders issued by Crahen and Ziebell, on January 4, 1968, and the threats of disciplinary action, if employees distributed literature in the plant, made by Esslinger and Crahen, on January 4, 1968, were, in each instance, conduct constituting interference, restraint and coercion, and were thus violative of Section 8(a)(1) of the Act. E. The Suspension of Towns It appears undisputed that Towns was suspended on January 9, the day before the election, because she was distributing a Union bulletin, in the plant, during the afternoon break period, contrary to the instructions of Esslinger, issued on January 4. It is undisputed that Esslinger advised Towns that he was asking her to leave the plant "as a disciplinary action." Later, when Esslinger became aware of the fact that Towns had not complied with his request to leave, he advised her that if she did not leave within 5 minutes she would be discharged for insubordination. Esslinger acknowledged that he had had no disciplinary problems with Towns prior to January 9. Esslinger acknolwedged that disciplinary layoffs were, in his words, "very extraordinary," being confined to approximately one each year during the past 2 or 3 years.24 Esslinger acknowledged that the matter of Towns' layoff had been noted in her personnel folder. It appears undisputed that the fact of Esslinger's summary action against Towns became a matter of common knowledge to other employees in the unit, as related in detail by Schessler, Kaul, Beyer and Towns. General Counsel correctly urges that the motivation for the suspension of Towns resulted solely from her exercise of her Section 7 rights and in order to dissuade others from asserting such rights. I concur. Esslinger, without corroboration, sought to establish that the distribution of literature caused "havoc" and interfered with production "to some extent" because employees continued to talk about the literature after the break period on January 4 and 9. These assertions constitute little more than self-serving afterthoughts. In evaluating them it is necessary to begin with Esslinger's conduct on November 30, outside the plant, before worktime, for which Esslinger did not even attempt any justification of the restrictions he placed on Kinderman. It appears without question that Esslinger's announcement of the rule on January 4 occurred during the break period, thus, he did not have an opportunity to evaluate the after effects, during the subsequent production period which had not commenced at the time he promulgated the Rule. His assertion of "complaints" from other employees and foremen must be rejected out of hand as an insufficient basis, even if true, for the enforcement of the Rule which "Esslmger detailed the reasons for the prior disciplinary actions as resulting from an employee leaving before the end of the shift without permission, and having an unsatisfactory record, described by Esslinger as "You could name it, she's done it " The second individual was described by Esslinger as having excessive unexcused absences. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was enunciated. Section 7 rights are not subject to popularity contests. Respondent's reliance on the fact that the distribution by Towns, on January 9, was in a work area is misplaced. Respondent concedes that perhaps neither Towns nor Kallin were aware of the fact that it was a work area since neither could see the passageway from their work station. We are treating here with the application of an invalid rule. In the Burnup and Sims case's the Supreme Court stated: We find it unnecessary to reach the questions raised under Section 8(a)(3) for we are of the view that in the context of this record Section 8(a)(1) was plainly violated, whatever the Employer's motive In sum, Section 8(a)(1) is violated if it is shown that the discharged employee was at the time in a protected activity, that the Employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. The timing of the suspension by Esslinger, the day preceding the election; the announcement and enforcement of an invalid no-distribution rule by Esslinger, commencing January 4, 1968; Esslinger's conduct found to be violative of the Act and to demonstrate his antiunion animus in the earlier SNC case, which included the announcement of wage increases and other benefits, to discourage adherence to the Union, and an effort to establish a shop committee in lieu of the Union; the total absence of any justifiable reason for the suspension of Towns, other than her engagement in protected activities; in my view are sufficient to establish the pretextuous nature of Respondent's action and require a finding that the suspension was discriminatorily motivated and violative of the provisions of Section 8(a)(3) and (I) of the Act. 26 D. Objections to the Election The objections to the election, timely filed by the Union, are premised upon: (1) the effect of the wage increases of December 15, 1967, upon employee votes; (2) Respondent's discouragement of Union activity by threats of discharge or disciplinary action if employees distributed union literature on Company premises, as announced on January 4, 1968; and (3) the unlawful disciplinary layoff of Towns on January 9, 1968, for distributing union literature on Company property. Thus the objections encompass the acts and conduct complained of, as unfair labor practices, in the complaint. The Board has held in Dal-Tex Optical Co. Inc., 137 NLRB 1782, 1786, that: Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammelled choice in an election. The Board stated that this is so because the test of conduct which may interfere with the "laboratory conditions" for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or coercion, which violates Section 8(a)(1). Accordingly, having found that the conduct complained of in the objections, was violative of Section 8(a)(1), I will recommend that the Union's objections be sustained, and that the 1968 election be set aside. 6IN.L R B v. Burnup and Sims, Inc , 379 U.S. 21, 22-23 "Le Tourneau of Georgia, supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall Recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily suspended Dawn Towns on January 9, 1968, because of her protected activities, I recommend that Respondent make her whole for any loss of pay she may have suffered by reason of the suspension of that date. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I further recommend that Respondent be ordered to strike any reference to such alleged disciplinary action from its records. It is also recommended that Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of earnings due. In view of the nature of the unfair labor practices committed the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that Respondent be ordered to cease and desist from any manner infringing upon rights guaranteed its employees by Section 7 of the Act. I also recommend that the election, held on January 10, 1968, in Case 30-RC-771, be set aside and that said case be severed and remanded to the Regional Director for Region 30, with instructions to conduct a new election at such time as he deems circumstances permit free choice of a bargaining representative. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union of Electrical Radio & Machine Workers, Local 806 (IUE-AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct set forth in the section entitled "Interference, Restraint, and Coercion," to the extent therein found, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with respect to the hire and tenure of employment, and terms and conditions of employment, of Dawn Towns, on January 9, 1968, thereby discouraging the free exercise of rights guaranteed by Section 7 of the Act, and discouraging membership in or activities for the above-named labor organization, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. SNC MFG. CO., INC. 169 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I Recommend that Respondent, SNC Manufacturing Co., Inc., its officers, Agents, successors, and assigns, shall: 1. Crease and desist from: (a) Discouraging membership in International Union of Electrical, Radio & Machine Workers, Local 806 (IUE-AFL-CIO), or any other labor organization of its employees, by suspending or otherwise discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment. (b) Granting wage increases to discourage employees from becoming members of, giving assistance to, or voting for the Union. (c) Promulgating, publishing, or enforcing any rule proscribing or prohibiting the distribution of Union literature in the plant or on Company property, to the extent such rule is applied to the non-worktime of the employees, or nonwork areas of the plant. (d) Threatening employees with disciplinary action for engaging in the distribution of Union literature during the non-worktime of employees, or in nonwork areas of the plant. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may 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-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole Dawn Towns for any loss of pay she may have suffered by reason of Respondent's discrimination against her, on January 9, 1968, in accordance with the recommendations set forth in "The Remedy," including the excision from its records provided for. (b) Preserve and make available to the Board, or its agents, upon request, for inspection and reporduction, all payroll records, social security reports, timecards, personnel files, and all other records necessary to analyze, compute and determine the amount of backpay to which Dawn Towns may be entitled under the terms of this Trial Examiner's Decision. (c) Post at its plant in Oshkosh, Wisconsin, copies of the attached notice marked "Appendix." 27 Copies of said notice to be furnished by the Regional Director for Region 30, shall, after being signed by Respondent's representative, be posted by the Respondent and maintained by it for 60 consecutive days thereafter in conspicuous places, including each of Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply for the foregoing Recommended Order. IT IS FURTHER RECOMMENDED that unless within 20 days from the date of the receipt of this Trial Examiner's Decision the Respondent shall notify said Regional Director in writing, it will comply with the foregoing Recommended Order,28 the National Labor Relations Board issue an Order requiring Respondent to take the aforesaid action. "In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "Recommendations of a Trial Examiner " in the notice In the further event that the Board' s Order be 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 " "In the event that this Recommended Order 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 the Respondent has taken to comply therewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 6 a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT discourage membership in International Union of Electrical, Radio & Machine Workers Local 806 (IUE-AFL-CIO), or any other labor organization of our employees, by suspending or otherwise discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT grant wage increases to discourage employees from becoming members of, giving assistance to, or voting for the Union. WE WILL NOT promulgate, publish, or enforce any Rule proscribing or prohibiting distribution of Union literature in the plant or on Company property, during the non-worktime of the employees, or in nonwork areas of the plant. WE WILL NOT threaten employees with disciplinary action for engaging in the distribution of Union literature during non-worktime of the employees, in nonwork areas of the plant WE WILL NOT in any other manner interfere with, restrain, or coerce, our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may 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-Management Reporting and Disclosure Act of 1959. WE WILL make whole Dawn Towns for any loss of, pay she may have suffered by reason of our discrimination against her on January 9, 1968. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD m All our employees are free to become, to remain, or to refrain from becoming or remaining, members of a labor organization of their own choosing. Dated SNC MANUFACTURING CO., INC. (Employer) 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, 2nd Floor Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin 53203, Telephone 272-3861.