Pines of America, Inc.

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pines of America, Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC and Employee Committee, Party of Interest. Cases 25-CA-3292 and 25-RC-3880 September 9, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, AND ZAGORIA On June 6, 1969. Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that those allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, a "request for review and dismissal of proceedings and/or request for rehearing." and a supporting brief, and the General Counsel submitted a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that they are free from prejudicial error.' 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 hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, Pines of America, Inc., Fort Wayne, Indiana. its officers, agents, successors and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election conducted on November 21 and 22, 1968. in Case 25-RC-3880 be. and it hereby is, set aside, and that Case 25-RC-3880 be, and it hereby is, remanded to the Regional Director for Region 25 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election' omitted from publication.] 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wvman-Gordon Company. 394 U S 759 Accordingly, it is hereby directed that 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 25 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 arc riled TRIAL EXAMINER'S DECISION ST&il'MEN1 OF THL C&Sr OW'SLLY VOSE, Trial Examiner: This case, heard at Fort Wayne, Indiana, on March 25 and 26, 1969, pursuant to a charge filed on December 3, 1968, and a complaint issued on January 31, 1969. presents questions whether the Respondent: (1) discharged Victoria Walker and Sidneue Chin in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended: (2) discharged Laraine Combs in violation of Section 8(a)(3), (4). and (1) of the Act. (3) dominated and interfered with the formation and administration of the Employee Committee in violation of Section 8(a)(2) and (1) of the Act; and (4) further violated Section 8(a)(1) of the Act by promulgating and enforcing restrictive employee rules. including unduly broad no-solicitation and no-distribution provisions, and by engaging in various other alleged acts of interference, restraint, and coercion. Upon the entire record' and my observation of the witnesses and alter due consideration of the briefs liled by the General Counsel and the Respondent, I make the following. 'Respondent contends in part that the Trial Examiner unduly limited the scope of cross-examination , and displayed bias, thus denying the Respondent' s constitutional right to a fair hearing Consequently, Respondent requests a rehearing in the event the complaint is not dismissed and the objections to the election are not overruled After a careful review of the record , we conclude that the Trial Examiner acted within his discretion in limiting the scope of cross-examination , and note that the Respondent fails to suggest how its case was prejudiced thereby Accordingly, we find no basis for granting a rehearing and reject the charge of bias 'We agree with the Trial Examiner that Respondent 's conduct interfered with the election held in Case 25-RC-3880, but in doing so we rely solely upon the preelection unfair labor practices occurring after the filing of the petition on September 9, 1968 We adopt his recommendation that the election be set aside and shall direct that a second election be held. FINDINGS AND CONC LUSIONS 1. THL BUSINFSS OF fHL• RFSPONDLTT The Respondent, an Indiana corporation, is engaged at Fort Wayne. Indiana. in the manufacture, sale, and distribution of children's pedal cars and related products. During the year preceding the issuance of the complaint the Respondent purchased and imported across State and national boundaries more than S50,000 worth of parts and The General Counsel's unoppos,d motion to correct the record is hereby granted , except with respect to corrections suggested for pages 115 and 298 178 NLRB No. 58 PINES OF AMERICA, INC. 377 materials, and during the same period shipped across State lines more than $50,000 worth of finished products. Upon these facts I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein American operations. As the Fort Wayne plant was nearing completion Meyers spent much of his time at the plant, supervising the hiring of employees and the preparing of the plant to start production. Bruno Biernat was sent down from Toronto to act as plant manager. At the time of the events involved in this case Rex Slagle was general foreman, and under him were Orren Cox, as assembly line supervisor, and Larry Cearbaugh, foreman. II. THE LABOR ORGANIZATIONS INVOLVED The International Union of Electrical. Radio and Machine Workers, AFL-CIO, CLC (hereinafter called the IUE), is a labor organization within the meaning of Section 2(5) of the Act. The status of the Employee Committee as a labor organization is discussed below. B. Sequence of Events 1. The IUE organizational drive commences on August 21 III. THE UNFAIR LABOR PRACTICES A. Introductory Statement The Respondent's headquarters are a: Toronto, Ontario, Canada. The construction of the Respondent's Fort Wayne, Indiana, plant, the only plant here involved, was completed near the end of July 1968. The first employees were hired about the middle of July 1968 and production was begun about the end of July. At the time of the events involved in this case, the latter half of 1968. the Respondent was unable to hire sufficient qualified full-time employees to meet the needs and consequently utilized the services of part-time employees and temporary employees furnished by firms in the business of supplying temporary help The Respondent's Fort Wayne operations consist primarily of assembling pedal cars which are made of plastic and metal parts. The metal parts are manufactured by related corporations in other countries and are shipped to Fort Wayne. The plastic parts are made on injection molding presses. one of which is very large, in the Fort Wayne plant. The Respondent uses an assembly line process in assembling its pedal cars. Norman Meyers, the secretary-treasurer of the Respondent, is the general manager of its North During the week of August 12, 1968, Victoria Walker, Kathleen Scott, Naomi Kennedy, and Sheila Gibson went to the office of a local of the IUE in Fort Wayne to seek information about organizing the employees at the Respondent's plant. The group was advised to contact Ted Nolan, an International representative of the IUE. On August 21, Scott, Kennedy, and Gibson, accompanied by Laraine Combs, met with Nolan in his office. After informing the four employees of the procedure usually followed in organizing plants such as the Respondent's, he secured the permission of the four girls to notify the Respondent by letter that organizing efforts were under way and to name them as the IUE organizational committee in the plant. This was done by letter dated August 21, which was addressed to "Mr. Meyers, Plant Manager, Pines of America." and sent by certified mail, return receipt requested to the Respondent's plant. This letter was received by the Respondent and acknowledged by it by letter on the next day, August 22.' 2. The Respondent posts Shop Rules on August 23 and thereafter summons members of the IUE organizing committee to the office for questioning The next day after the Respondent was informed that a union drive was in progress the Respondent posted a list of 30 Shop Rules. Among these rules were the following: NO. RULE FIRST OFFENSE SECOND OFFENSE THIRD OFFENSE FOURTH OFFENSE 24. UnauLhorl7ed canvassing, soliciting or collecting Reprimand Three work, Discharge contributions at any time on Company porperty. day layoff 25 Unauthorized distribution or posting of written or Written Three work Discharge printed matter of any description on Company Reprimand day layoff property 'After the receipt of this letter General Manager Meyers promptly issued and addressed to "Mr Norman Meyers, General Manager, Pines of instructions to his secretary that registered mail addressed to him be America , Inc ," were returned to the sender by the post office bearing the refused in his absence Pursuant to these instructions , seven letters, bearing notation "Refused" or some similar notation These letters span the period the return name and address of the IUE, which were sent by certified mail from August 26 to November 15, 1968 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Twenty-one of the thirty rules provided for discharge as punishment for the first offense. Although Rules 24 and 25 broadly prohibit all unauthorized solicitation and distribution of written and printed matter on Company property, the Respondent did not enforce these rules as written. Rather it gave them a lawful application, permitting union solicitation on Company property during nonworking time and allowing union literature to be distributed in nonwork areas during nonworking time A few days after Meyers posted the new Shop Rules, he summoned Laraine Combs to his office where he questioned her in the presence of General Foreman Slagle. Combs, it will be recalled, was one of the four employees named as members of the IUE's organizing committee in the IUE's letter to the Respondent dated August 21. After asking her how she liked her job, Meyers told her that all new employees were on probation for 90 days. Since the plant had been in operation less than 90 days, this meant that all employees were probationary employees. None of the employees hired up to this point had been told about any probationary period. Combs asked why the employees had not been informed about the probationary period when they were hired. Meyers angrily replied, as Combs credibly testified, that "he was the one that ran the company and that he would tell us how things would be done."' Meyers then asked Combs whether she was familiar with all of the Respondent's shop rules. When she told him no, Meyers declared, "Well, you better read them." IUE Organizing Committee Members Sheila Gibson and Naomi Kennedy were also called to the Respondent's office thereafter where both were questioned about the IUE. General Manager Meyers asked Gibson why she felt that she needed a union. Meyers indicated displeasure when Gibson explained that she wanted someone competent to represent her. Plant Manager Biernat inquired how Kennedy liked Pines of America. When she replied. "Fine," Biernat asked Kennedy. "Why the union " After she explained that the IUE meant more security to her, Biernat stated that he had nothing against the IUE. When Verla Bailey appeared in Meyers' office on September 4 to explain why she had been late 2 days in a row, Meyers took advantage of her presence to ask her how she felt about the IUE Bailey told Meyers that she was not interested then, and that as long as the Respondent did right, she was not interested in any union. 3. The Respondent initiates the formation of the Employee Committee The formation of an Employee Committee was first suggested on September 5, 1968. Before discussing the On September 6, the Respondent posted the following notice on its bulletin boards September 6, 1968 ALL EMPLOYEES Probationary Period This is to remind all employees that the probationary period for all employees is 90 days alter date of commencement Employees will not be considered regular employees until 90 days of continuous service Part time employees will not acquire regular employee status until such time that they become full time employees Yours truly, N 0 Meyers NOM/mc facts relating to the Committee, however, it is pertinent to consider a talk given by General Manager Meyers to the employees September 4. Meyers first gave a brief history of the Company and its activities around the world, and then focused his attention on the IUE organizing drive then in progress. After acknowledging that the employees had the right to join or not to join a union , Meyers frankly stated that "we do not want to have to deal with a union representing our employees it it can possibly be avoided." Then Meyers continued for some minutes with a number of arguments, all permissible under the Act, as to why the employees should not have a union represent them. The next day after giving this talk to the employees Meyers summoned Kathleen Scott, another member of the IUE Organizing Committee, into his office. As in the case of Meyers' interview with Laraine Combs, General Foreman Slagle was present during this interview. Meyers first asked Slagle whether he had any complaints about Scott's work. When Slagle said he was satisfied, Meyers asked Scott if she had any complaints. Scott mentioned a few and this led to a general discussion of conditions in the plant. In the course of this discussion General Foreman Slagle mentioned that in his previous employment they had had an employee committee consisting of representatives of various departments which would meet with representatives of the employer. At these meetings, Slagle explained, the parties discussed each other's proposals and reached whatever agreement they could. Meyers said that he thought this was a good idea and asked Scott about her views concerning an employee committee Scott said that she accepted the idea. Immediately thereafter Meyers. Slagle, and Scott agreed that an election of departmental representatives should be held that very afternoon. Meyers suggested that Scott go out and arrange for an election among the girls on the injection molding presses She did so, and Slagle collected the ballots from the employees on the presses. Slagle arranged for the balloting among the assembly line employees, the shipping employees, and the office employees, collected the ballots after they were cast, and thereafter counted them. The next morning the Respondent posted on its bulletin boards the following notice September 6, 1968 TO ALL EMPLOYEES Employee Management Meetings Suggestion has been made by you to convene either on a monthly or bi-monthly basis, meetings by the designated and elected employees from the various departments, and shifts for the purpose of meeting with management in order to review on a regular basis on matters such as problems pertaining to employees, methods of increasing or improving efficiency, and to discuss in general all points relating to harmonious and mutual well-being of the Company and Employees. This the management welcomes and expresses its sincere hope that such meetings will he fruitful and productive. In view of the tact that this Company is new to Fort Wayne the cooperation and understanding of' the Company's program, problems. and aims should he, and must be, made known to all employees Should you have suggestions we urge you to advise those persons elected to bring them up at these meetings. Complaints will continue to he handled by your foreman, but may be channeled through your elected representative to the foreman. Those persons nominated PINES OF AMERICA. INC. to representyou areas follows. Listed below were the names of the various employees who were elected as representatives or alternates on the Employee Committee. The first meeting of the Employee Committee was held on September 6. Meyer-, presided. Meyers stated at the outset that the purpose of the Committee was to exchange ideas relating to efficiency and production and that his goal was to make the plant "a model plant" with "complete harmony and cooperation on both sides." Various suggestions were made by the departmental representatives for improving the efficiency of operations, including the assigning of additional employees on certain operations and the acquisition of additional mechanical equipment. Other suggestions were made about ways of improving conditions in the plant for the employees The second meeting of the Employee Committee was held on September 18. Meyers again presided. Among other matters discussed were hourly versus incentive pay, wage differentials for probationary employees, length of lunch periods, periodic pay raises for shipping employees, paid lunch periods for shipping employees, and bidding for job openings on a seniority basis in the notes of the second Employee Committee meeting, which were prepared and typed by the committee member from the office, the following appears: Mr Meyers then brought up our production. It is not what it should be and not what it must be. We have been reviewing our operation program in the case of Jaguar Custom and Deluxe Our production requirements on a single shift minimum is 787 pieces on a shift. This is based on so many operations for which a person is required to do on the job. Cost per piece is therefore based on the work that is done. The assembly of chassis frame must produce minimum 787 chassis. Anything above that gets 1 8 cent. The piece work program will take the cooperation of everybody. Everyone, will have a daily work sheet Time starting, time ending How many pieces. The foregoing is quoted because, as will become apparent later in connection with the discussion of the discharge of Victoria Walker, a misunderstanding arose in the minds of at least some employees as to when the Respondent's piecework system become effective. It is possible that Meyers' comment about those assembling chassis frames getting 1.8 cent per unit for all units assembled above 787 may have led to this misunderstanding Both meetings of the Employee Committee were held after working hours and the members of the Committee were paid for the time spent attending. 4. The IUE files a petition for certification with the Board on September 9; the ensuing propaganda contest On September 9, the IUE filed with the Board's Regional Director at Indianapolis, Indiana, a petition for an investigation and certification as bargaining representative of the Respondent's employees. The Respondent issued the first in a long series of communications to the employees on September 9. This was apparently before the Respondent received notice of the filing of the IUE's petition. In this first written communication the Respondent stressed what a handicap having to deal with a union would be, pointed out the generous working conditions which its employees in other plants had without a union, suggested the possibility of a strike resulting from its inability to meet unreasonable 379 demands, and reminded the employees of certain companies which had been forced out of business by unions. The letter concluded with an expression of hope that "nothing will occur because of union activities or have any other reason which might compel our management to discontinue its long awaited program here in Fort Wayne." The Respondent sent its second letter to the employees on September 26. In it the Respondent stated that it was opposing the holding of any election by the Board because of its belief that "the current work force does not constitute an appropriate bargaining unit." It frankly admitted in the letter that "We do not want a union in our plant." After marshaling various arguments against the employees having a union, it concluded with a plea for more time in which to demonstrate to the employees that it was not necessary for them to have a union. The IUE was a little slow in getting started with its counterbarrage of propaganda, but once it did, it made up for lost time The IUE's communications were prepared by International Representative Nolan and his approach was largely a personalized one tailored to conditions in the plant. One of the incidents played up by Nolan in his first letter to the employees, which was sent out early in October, involved Laraine Combs, a member of the IUE Organizing Committee. Combs' discharge on October 22 is one of those involved in this case. The letter mentioned two unnamed employees (one of whom was Combs) who had been stopped by Foreman Larry Cearbaugh from smoking cigarettes just outside the plant door near the end of their paid lunch period Cearbaugh told them, according to the IUE letter, that the Shop Rules prohibited going outside the plant. The IUE letter mentioned that subsequently, when they asked the plant manager about this, he told them that it was all right to step outside as long as they did not leave the plant However, a short while later, according to the letter, the plant manager went back to the employees and told them it was a violation of Shop Rule 16 to go outside of the plant. Thereafter the Respondent and the IUE kept up a more or less continuous barrage of letters, each attempting to win the employees over to its point of view This propaganda compaign was carried on right up until the time of the election which was held on November 21 and 22, 1968 Needless to say, the comments of each adversary about the positions of his opponent were frequently not of a complimentary nature. However in my opinion nothing was said in these letters during the preelection campaign which exceeded the limits of Section 8(c) of the Act In the election which was held on November 21 and 22, 24 votes were cast for the ILE, 30 votes were cast against it, and there were 2 challenged ballots Thereafter the IUE filed with the Board's Regional Director objections to conduct affecting the results of the election. These objections. insofar as they were not overruled by the Regional Director, involve the same conduct which is challenged in the complaint in this unfair labor practice case, and the Regional Director accordingly directed that the objections he consolidated for hearing with the unfair labor practice case. 5. The discharge of Victoria Walker on September 20 It will be recalled that Victoria Walker was among the first group of four employees to go to an IUE office in an effort to gain information about organizing the plant. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, she actively participated in the membership drive in the plant, passing out leaflets and talking to her fellow employees about the benefits of union membership. After one occasion on which Walker had been observed passing out leaflets, Plant Manager Biernat admittedly asked her what she thought about the IUE. Walker persuaded between 5 and 10 employees to sign IUE authorization cards. These discussions occurred mainly in the plant cafeteria. That the Respondent was aware of Walker's strong support of the IUE appears in the uncontradicted testimony of Leo Walker concerning his prehire interview with General Foreman Slagle on September 6. In the course of this interview Slagle asked Walker what he thought about the IUE. Walker replied that he was for the IUE if it was in the shop. Then Slagle asked Walker if he was any relation to Victoria Walker. When Walker told Slagle that Victoria was his sister-in-law. Slagle replied, according to Leo Walker' s undenied testimony, "I guess you know she is giving us a lot of trouble on the union deal."' On September 17 Walker solicited Sidnette Chin to sign a card in the cafeteria dust as the lunch period was ending. General Manager Meyers was standing in the doorway to the cafeteria as this happened. Chin handed her signed card to Walker as they passed Meyers going out the door.' After reaching her work station. Meyers questioned Walker as to why she was late in returning to work. - A day or two later General Foreman Slagle directed Walker to accompany him to Meyers' office. In the office Meyers told Walker that several employees had complained to him about her "pressuring" them into signing IUE cards, by telling them "that if they didn't sign the cards they could get fired." Walker angrily denied this and urged him to bring in the complaining employees so that she could confront them face to face Meyers said that this was "not necessary, that he believed her, and told her to go back to work. On Friday, September 20, at the end of the break period, Line Supervisor Orren Cox spoke to a group of employees working on the assembly line, including Victoria Walker. As Walker testified, Cox told the employees "that if we kept up the good work that morning, Monday we would go on piece work and we would really begin to make money." Walker asked Cox what he meant by "going on piece work," asserting that the employees already "were supposed to be on piece work " Cox replied, in Walker's words, that "all he knew is that we were supposed to start piece work Monday." Walker, who was upset by this information, reported Cox's conversation with her to Kathleen Scott, who was working on an injection molding press right behind Walker's work station.' A few minutes later Walker noticed Plant Manager Biernat walking down the aisle towards her and she walked over to him Walker's credited testimony concerning this incident is as follows: 'Prior to Leo Walker' s interview with Slagle he had been interviewed by Plant Manager Biernat Biernat asked Walker on this occasion among other things, what he thought about the IUE Walker showed Biernat his union card and indicated that he had been a chief steward at Hausman Steel. Biernat stated , according to Walker's credited testimony. "that he didn' t care for the union being in there because it was so small it would hurt the plant." Notwithstanding Walker's stated prounion position, the Respondent hired him 'Meyers denied being aware of Walker's solicitation of Chin on this occasion `Scott testified that she also understood that the girls were on piecework So when he got pretty close to where I was, the line was shut down, so I stepped over to him and I asked him what the big deal was on this piece work, and he said, "What do you mean, big deal?" And I said, "Well, this big deal about us starting piece work or the big deal we were already supposed to be on piece work." and he told me to stop shouting, and I told him I wasn't shouting, and he turned around and walked away. So I went back to my station. Q. What if anything occurred after that') A. Well, it wasn't but five or ten minutes later that Orren Cox, my foreman, came to me and told me to get my purse and come to the loreman's office with him Q. All right, and did you go to the office A. Yes. Rex Slagle was in the office and Orren and I went in. Q. Was there anyone else present? A. No, there was not. Orren Cox was silent for a few seconds and then he said, "Well, Vicki, you hollered at the wrong person this morning. I am going to have to let you go," and I says, "Well, what do you mean?" And he said, "Well," -I got to recall a minute. He said, "I am going to have to let you go," and I asked him, "Why," and he said, "Disrespect to the management,"' Subsequently the Respondent mailed the following memorandum to Walker at her home: September 20, 1968 Vickev Walker Termination of Employment Dismissed on September 20th at 11:10 because of Disrespectful behavior against Plant Manager. In violation of Shop rule No. 15 she was shouting at Plant Manager "What's the big idea of going on piece work on Monday." By doing so she was violating shop rule 16, Leaving work position without permission. Bruno G. Biernat Plant Manager BGB/mc 6. The discharge of Sidnette Chin on October 16 Sidnette Chin was not as active in support of the IUE as the other employees whose discharges are involved in this case. Chin was involved in the incident in the cafeteria with Victoria Walker on September 17, in which she turned over her signed card to Walker in front of Plant Manager Meyers as he was standing in the cafeteria doorway. Thereafter, according to her testimony. several times a day Chin talked to her fellow workers about the that day According to Scott, "every girl in the place thought that day that we were working on piece work " 'Biernat's version of this incident is substantially in accord, as follows A. As I recall, I was walking between the assembly line area and the machine area down the line , and Mrs Walker stepped off the line, approached me, and shouted at me, "What is the big idea' What is going 11 on Q Well, was anything further said' A. There was a few words said, and as far as I recall I said, "What do you mean, what is going on"" And she said , "Mr. Meyers promised that there would be piece work on this particular day," and I said, "Mr Meyers did not promise that as far as I know " Q Now what was her general-- did she speak loudly9 A She shouted Q. What did you do immediately subsequent to that9 A I went into my office and gave instructions for her dismissal PINES OF AMERICA, INC. 381 advantages of having the IUE in the plant. On one occasion Chin jokingly asked Line Supervisor Cox if he wanted to join the IUE. Chin started working for the Respondent on Thursday, September 12. Chin was unable to go to work on Friday, September 13, because the new babysitter whom she had just hired' had gone into labor and could not take care of Chin's children. Chin called Slagle and told him about her problem and he told her to report the following Monday. The Respondent's records show that Chin was not absent again until Monday, October 14. Chin had been ill all the weekend of October 12 with the flu, and Chin's husband called in on Monday morning to report her illness. On Tuesday, October 15, Chin reported for work but asked Line Supervisor Cox to put her near the restroom as she was still feeling a little ill. Cox refused and put her on the assembly line. After Chin had to leave the line and dash for the restroom once or twice, Cox took her off the line and put her close to the restroom. About 9:30 that morning, Chin's condition had not improved, and she asked Cox if she could go home. Cox told her to check out. Wednesday, October 16, Chin was still ill and her husband called the plant that morning and reported that Chin was still ill and was going to see a doctor that day While Chin was home sick on October 16 she received a telephone call from General Foreman Slagle during which he informed her that she was no longer needed, as she was absent too much. The Respondent's files disclose a copy of a memorandum from Slagle to Chin stating as the reason for her termination that she was a probationary employee and that her attendance was unsatisfactory. The Respondent's attendance records which were received in evidence in this case show that at least six employees with comparable or much worse attendance records in September, October, and November 1968 were continued on the payroll despite such absences. These absences were due to illnesses, hospitalization, deaths in the family, or for unexplained reasons. 7. The discharge of Laraine Combs on October 22 Combs was the most active IUE supporter among the Respondent's employees. She was among the group of four girls who visited with IUE International Representative Nolan in his office on August 21. And Combs was named in Nolan's letter to the Respondent of that day as a member of the IUE Organizing Committee. Combs solicited signatures on IUE authorization cards in the cafeteria on four or five occasions. Frequently, Combs passed out IUE advertising materials, such as leaflets, matches, and pens on Company premises. Combs was the only IUE adherent who passed out IUE leaflets at the door of the cafeteria. Combs also distributed leaflets in the restroom, the parking lot, and the driveway. She did this four or five times a week from the time the organizing drive started, the latter part of August, until her discharge on October 22, Combs had singled herself out to Meyers as a staunch defender of employee rights in the course of Meyers' interview with her shortly after she was named on the IUE Organizing Committee. It will be recalled that Combs questioned Meyers about the Respondent's failure to mention any probationary period to the employees at the time they were hired, and succeeded in arousing 'Chin had to change babysitters when she went to work for the Respondent because she had previously been working a different shift Meyers' ire on this occasion. As found above. Combs was involved in one of the incidents of harsh enforcement of the Respondent's Shop Rules which was cited by the IUE in its letter to the employees of early October. This necessarily brought home to the Respondent the fact that Combs was close to the power center of the IUE organizing drive. General Foreman Slagle was well aware of Combs' union activities. He frequently joked with her and other employees about the IUE. On one occasion just a few days before she was discharged Slagle asked Combs, "What are you going to do it the union doesn't get in?" Combs replied, "W"ell, I probably won't be here much longer." Slagle made no response. Combs was one of two employees present at the hearing in the representation case on October 8. Combs was hired on July 29 and was assigned almost exclusively to jobs on or related to the assembly line. On September 30, at the end of the first week that the assembly line employees were being paid on a piecework basis, Line Supervisor Cox called Combs into the office and told her that she was not keeping up with production and that he would have to transfer her to another operation. That same day Cox prepared and filed in Combs' personnel file the following memorandum: September 30, 1968 Laraine Combs Shop Rule No. 26' You have been guilty of idleness and inattention to your work. You should realize that on assembly line incentive you not only hurt your chance for higher pay, but also hurt the other people on your line. Any further disregard of this rule will force me to give you a three day layoff without pay. Yours truly, Orren Cox Line Supervisor OC/mc Cox did not give Combs a copy of this memorandum. The Respondent's own records of Combs' production during the week preceding the September 30 reprimand contradict the Respondent's claim that Combs' production was poor. On Monday, September 23, Combs was assigned to a team operation with Sharol Owen. Operations 145-18 and 145-19, Make Up Inner Cartons, and the team achieved a production of 648 cartons, which, although less than the piecework quota, was more than the 548 cartons completed on September 25, when Sharol Owen was teamed, up with Rose May. On September 24 Combs was engaged for most of the day in a seat operation, 98-8, on which she made over the base 'Shop Rule 26 in full is as follows FIRST SECOND THIRD FOURTH OFFENSE OFFENSE OFFENSE OFFENSE 26 Inattention to work , Written Three work Discharge deliberate loitering or Reprimand day layoff idleness. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production required and hence was paid an incentive bonus. On September 25 Combs was assigned to a nonpiecework operation, repacking helmets, and there is no suggestion in the record that her production on this operation was unsatisfactory. On September 26 and 27 Combs was teamed up with Rose May on Operations 145-18 and 145-19. Make Up Inner Cartons, and the two employees turned 750 and 710 cartons, respectively. While this production was not sufficient to entitle them to incentive payments, their production on both days was superior to that of Rose May and Sharol Owen when they were teamed up together on September 25 on the same operation. On this date May and Owen together completed only 548 cartons One other team consisting of Patsy Johns and Doris Cox worked on Operations 145-18 and 145-19 for 6-1/2 hours on September 24. The hourly rate of this team was slower than either of the teams performing this operation of which Combs was a member. Thus, during the week preceding Cox's reprimand of Combs and the filing of the warning notice against her, Combs was a member of the better performing team for 3 days of the week, made more than her quota on the fourth day, and was on an hourly rated job on the fifth day There is no suggestion in this case that the poorer producing employees, Owen, Johns, and Cox, were also reprimanded. All three employees remained on in the Respondent's employ after Combs' discharge This is the production record on which the Respondent's decision to reprimand Combs and place a warning notice in her file necessarily was based. This follows from the fact that Combs was reprimanded during the day on Monday, September 30, before production figures were available for that day. This record plainly did not dustily the action taken against Combs. On September 30, the Respondent assigned Combs to another inner carton team operation, 98-16 and 98-17, with Owen. This is a different operation from Operations 145-18 and 145-19 on which the team of Combs and Owen had had comparative success the preceding Monday On this 1-day operation Combs and Owen failed to be as speedy as a team consisting of May and Owen which had worked on this operation on September 24, the former team producing at the rate of 104 units per hour as compared with the 122 units per hour produced by the latter team. The next morning, October 1, Cox assigned Combs to taping bumpers, Operation 98-15. After 3-1/3 hours, however, during which time Combs had completed 700 bumpers, which is a very high rate of production, Cox assigned Combs to another operation assembling motors. Operation 145-27. Combs told Cox that she was doing well over the rate on the bumper operation and asked why he was transferring her. According to Combs' undenied testimony, Cox started laughing and said, "Well, you are making too much money." That afternoon Cox assigned Ethel Martin to taping bumpers. In the 3-1/4 hours Martin performed this operation that day she completed only 394 bumpers. Of the nine assembly line employees assigned to perform the taping bumpers operation in the period from September 24 through October 18, Combs' hourly production rate that morning exceeded that of all eight other employees, and in some cases, by a very substantial margin. Despite Combs' proficiency on this operation, she was reassigned to it only once, and then for only 40 minutes. Apparently Cox's assertion that Combs was "making too much money" taping bumpers was not made in jest For the remainder of the day, October 1, and part of the next day, Combs was assigned to Operation 145-27. Assemble Motors, an operation on which she was not proficient. However, Combs was slightly better on this operation than Marcella McClure and Ruth Hootman, who worked on this operation at or about the same time. On the afternoon of October 2 Cox assigned Combs to Operation 135-15, Make Up Cartons, and she worked intermittently on this operation on October 3 and 4. By the morning of October 3 Combs succeeded in exceeding the production quota and hence was paid an incentive bonus for this work on October 3 and 4. Edith Sells, the only other employee assigned to this operation during this period, with the exception noted below, had worked 3 full days the preceding week on this operation, but had not made the minimum quota I day.'" Sells had better success in the following weeks, exceeding the production quota on 3 days and falling below the quota on 2 other days. After assigning Combs to nonpiecework jobs on October 7 and 8, commencing on October 9 and continuing for the remainder of her employment. Cox kept Combs for most of the time on two operations on which she continued to have difficulty. l-rom October 9 through October 16 the Respondent assigned Combs almost exclusively to Operation 500-14A, Assemble Tires and Wheels, an operation on which only two employees out of nine during this period were able to earn more than the base rate During the period Cox was keeping Combs on Operation 500-14A, on which she was slow. Cox prepared a document containing various comparisons of Combs' production with that of other employees. The Respondent introduced this document into evidence as Company Exhibit 4. The first example contained on the document purports to compare the production of two two-girl teams on what it described as an "Inner Carton" operation, first with Combs as a member of the team and the following week with Owen substituted for Combs However, the operations performed the second week were not the same as those being done the first week and consequently no fair basis for comparison exists The 3 days Combs worked on inner cartons during the first week. September 23, 26, and 27, the operations were 145-18 and 145-19. As found above, the team on which Combs worked at this operation, whether she was teamed up with Owen, as she was on September 23. or with May on September 26 and 27, was the top producer on this operation for the week, the team production being 648, 750, and 710 units, respectively. The Respondent in its comparison does not note that on September 23, when May was teamed up with Owen on Operations 145-18 and 145-19, their production was but 548 units. The following week, beginning Monday, September 30, Operations 98-16 and 98-17 were being done on Monday and Tuesday and the rest of the week, Operations 135-18 and 135-19 were being performed The different operations numbers indicate that different products were being packed. The higher production figures the second week may merely reflect the fact that the products being loaded the second week were easier to handle. The fact that Combs when teamed up with Owen the first week did better on Operations 145-18 and 145-19 than May did when she was teamed up with Owen on precisely the same operations suggests that the difference in the type, of "Ethel Martin worked on thi, operation for 5-1/2 hours on O(.toher 2 She too failed to make the minimum production requirement and hence was paid at a straight hourly rate. PINES OF AMERICA. INC. 383 operations being performed in the first and second week was significant, and indicates the comparison between the 2 week's production figures is entitled to little weight. In the second example given on Company Exhibit 4, which involves only about 8 hours of Combs' time, the Respondent compares the production of Combs with that of Barbara Bible on Operation 145-27, Motor Assembly. Of the eight employees who worked on this operation about this time, Bible had the fastest rate of production. Needless to say, Combs' production rate on this operation suffers from comparison with that of Bible. The final comparison on Company Exhibit 4 also involves Bible it compares Combs' production with that of Bible on Operation 500-14A, Assemble Tires and Wheels. This is the operation to which Combs was assigned at the time Company Exhibit 4 was prepared. Combs' rate of production was poor on this operation, compared with Bible and several others. It would seem more lair for the Respondent to have selected a more average operator for comparison purposes, since obviously the majority of the employees cannot equal the production of the top operators. The fact that the Respondent chose Bible as the employee with whom to compare Combs suggests that the Respondent was not being wholly objective in preparing Company Exhibit 4. Having prepared Company Exhibit 4, the Respondent was aware not only of tombs' comparatively poor showing on this wheel assembly operation but also of Bible's superior production record on this operation. (Bible had the next to the highest production rate of all 10 employees who were assigned to this operation in October.) Yet the Respondent continued to assign Combs to this operation for 7 consecutive working days. taking May, the fast producer, off the operation after 3 days. The Respondent kept Combs on this operation for more than twice as many hours as any other employee. Two other employees, Patsy Johns and Mildred Fagan, who when tried out on this operation on one occasion each during this period had production rates even lower than Combs, were not assigned to this operation again during this period. During the day on October 17 the Respondent finally took Combs of[ of Operation 500-14A and transferred her to Operation 100-21, another motor assembly operation As found above, Combs previously had had difficulty with Operation 145-27, which also was a motor assembly operation. On Operation 100-21 Combs' production was quite poor compared with the other two employees who were placed on this operation about this time. Combs' rate of production did improve gradually on the 3 days she was assigned to this operation. At noon on October 21. the Respondent transferred Combs to Operation 500-5, Assemble Pedals, and on this operation Combs developed considerable speed and earned an incentive bonus. The next morning, the day of Combs' discharge, Combs was placed on Operation 500-9A, Insert Inner Cartons, and on this operation Combs not only earned an incentive bonus. but her production was the higher of the two employees on that operation that day. At the end of the workday on October 22, Line Supervisor Cox summoned Combs to the office where, in the presence of General Foreman Slagle, he told Combs that he was terminating her employment because her production was so slow. Cox further stated that he had tried Combs out on various operations, but her production was still slow Combs mentioned the incident of his removing her from taping bumpers on which she had been making "well over rate" and reminded him of his comment about her "making too much money." Cox denied on this occasion having made any such statement." Combs went on to say that she had made well over the rate that day on the assembly line. Cox replied, "Well, we don't get those until next week, so he wouldn't know anything about it." With that remark, Cox handed Combs her termination papers C. The Respondent 's Contentions; Conclusions Concerning the Respondent's Unfair Labor Practices 1. The Respondent's promulgation of unduly restrictive Shop Rules in violation of Section 8(a)(l) of the Act The complaint alleges that the Respondent on August 23 promulgated and thereafter enforced a set of Shop Rules which were not only harsh in their application but unlawful in scope insofar as they dealt with solicitation and the distribution of written or printed matter on Company property. The complaint further alleges that these rules had the purpose and effect of obstructing and interfering with the union activities of its employees. With respect to the Respondent's no-solicitation and no-distribution rules, they are unquestionably invalid as written in that they prohibit all union solicitation and all distribution of union literature on Company property. Stoddard-Quirk Manufacturing Co.. 138 NLRB 615; Solo Cup Co., 144 NLRB 1481; Pueblo Supermarkets, Inc., 156 NLRB 654; Mock Road Super Duper, Inc., 156 NLRB 983. While there is no evidence that the Respondent has enforced its no-solicitation and no-distribution rules in an unlawful manner, this affords no defense. As the Board stated in the Pueblo case, supra (156 NLRB at 656): The promulgation of an unlawfully phrased rule has an inhibitory effect upon employees' exercise of their statutory rights, regardless of the innocence of purpose for the rule or the undisclosed limitations placed upon its use and application. Furthermore, while as of a particular date the offending rule may not have been invoked against any employees who had engaged in union solicitation or distribution of union literature, as long as the rule is in existence it is susceptible to such application and therefore tends to coerce, restrain, and interfere with employees' right to engage in self-organizational activities. The allegations of the complaint that the Respondent's Shop Rules as a whole were promulgated for the purpose of obstructing and interfering with the union activities of the Respondent's employees are, in my opinion, supported by the evidence in this case. In reaching this conclusion I do not rely on the fact that they may have been unduly harsh. (I do not have a sufficient basis in this record to make such a determination.) Rather I rely on, among other items, the timing of their promulgation, immediately after the Respondent was informed about the iUE organizing drive, the Respondent's obvious hostility to the IUE, the illegal scope of its no-solicitation and no-distribution rules, and the Respondent's repeated reliance on the rules in its dealings with IUE sympathizers in the plant. The Respondent resorted to its Rules 15 and 16 in the case of Victoria Walker's discharge, although, as shown below, they did not fit her offense. Similarly, in the "While Cox, in the presence of the general foreman, denied having made any such comment , he was not asked about it while on the witness stand I believe that Cox made the statement, as Combs testified 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case of Laraine Combs the Respondent invoked its rules on three occasions, first in connection with her stepping outside the plant door to smoke a cigarette, then in connection with her low production warning, and finally in connection with her discharge. Upon all of the facts I conclude that the Respondent hastily adopted the rules in effect at its Canadian plants, with minor modifications, to express its displeasure at the organizing activities then commencing in the plant. and that its action was taken in the belief that the existence of rules would somehow make it easier to get rid of IUE supporters.'Z I further conclude that the Respondent's invocation of the 90-day probationary period was also motivated by the same misconception. The taking of such action for antiunion reasons in my opinion interfered with, restrained, and coerced the Respondent's employees in violation of Section 8(a)(1) of the Act. Master Transmission Rebuilding Corp., 155 NLRB 364, 366, fn. 1, Modern Settings, Inc, 158 NLRB 1584, 1589; King Radio Corporation, Inc., 166 NLRB No. 70. 2. The Respondent's domination and interference with the Employee Committee in violation of Section 8(a)(2) and (1) of the Act The facts found above establish that the initial suggestion for the formation of the Employee Committee came from General Foreman Slagle, that the plan of having departmental representatives and alternates was decided upon by General Manager Meyers and General Foreman Slagle, with the concurrence of Kathleen Scott, that at Meyers' direction Slagle and Scott handled the election of departmental representatives, and that Slagle counted the ballots. 1 have further found that Meyers presided at the meetings of the Employee Committee and that the departmental representatives were paid for the time spent attending these meetings On the foregoing facts a finding that the Respondent has dominated and interfered with the formation and administration of the Employee Committee and has contributed support thereto is fully warranted. The Respondent contends that the Employee Committee was a mere suggestion committee and was not intended to function as a labor organization. Whatever may have been the Respondent's intention, the facts concerning the matters discussed at the Committee's meetings on September 6 and 181- particularly the discussion of wage differentials, incentive pay. periodic pay raises,and bidding for job openings- leave no doubt that the Committee developed into an organization which existed in part, at least, for the purpose of dealing with "grievances," "wages," and "conditions of work." and therefore was a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent's discriminatory discharges in violation of Section 8(a)(3) and (1) of the Act Victoria Walker - The Respondent stated on the termination notice sent Walker after her discharge that she was discharged for leaving her work without "I am not unmindful of the testimony of General Manager Meyers that the rules were too complicated to have been formulated in 1 day, and that in fact they had been in the process of preparation for some time. Elsewhere in his testimony Meyers stated that the Fort Wayne rules were basically the same as those in effect at the Respondent' s Canadian plants under all the circumstances of the case, I cannot accept Meyers' testimony that the rules had long been in the process of preparation permission and shouting at the plant manager "What's the big idea of going on piece work on Monday?" in violation of Shop Rules 15 and 16. Shop Rules 15 and 16 are as follows- 15. Use of abusive, threatening or profane language to another employee or a Supervisor. 16. Leaving work or the factory during work hours without permission. Upon consideration of all of the facts of the case I conclude that Walker's conduct on this occasion was not the true reason for Walker's discharge. In the first place, at the time Walker momentarily left her work position to speak to Biernat, the assembly line was not running. Walker frequently had had occasion to leave her work position when the line was not running and nothing had been said about it. Secondly, Walker's language may not have been as respectful as Biernat desired, but it was not really abusive, threatening, or profane. While Walker undoubtedly spoke loudly on this occasion, it was not possible to speak to Biernat in the immediate vicinity of the noisy presses without raising her voice. The fact that Biernat couched his explanation for Walker's termination in terms of violating two Shop Rules suggests that he was trying to build a case against Walker. In my opinion, Biernat would not have been so quick to take offense at Walker's tactless way of questioning him as to why the employees were being deprived of incentive payments had not he known that Walker was one of the leading supporters of the IUE The Respondent's strong opposition to having the IUE or any other union represent its employees had been frankly stated in Meyers' talk to the employees on September 4 This hostility to the IUE was thereafter repeatedly given expression in the Respondent's many letters to the employees. As found above, the Respondent was unable to hire sufficient qualified full-time employees to meet its needs. Yet the Respondent abruptly discharged a satisfactory full-time employee for having addressed a complaint to the plant manager in an insufficiently respectful way The very nature of the complaint must have revealed to Biernat that there was a misunderstanding in the mind of at least Walker. Yet, notwithstanding this knowledge, Biernat chose to dispense with Walker's services without even attempting to get to the bottom of what was upsetting her. Biernat, I find, seized upon Walker's "disrespect" as a pretext for ridding the Respondent of her services, and his action in this regard violated Section 8(a)(3) and (1) of the Act. Sidnette Chin- According to the Respondent, Chin was terminated because her attendance was unsatisfactory. Chin was not absent at all from the second day of her employment, when her absence was excused, until her absence for less than 3 days because of illness commencing on October 14 Chin's first day's absence on this occasion was excused; Chin reported for work the next morning and received permission to go home after 1-1/2 hours because of illness; on the morning of the third day Chin's husband called in to report that Chin would not be in because she was going to see a doctor about her illness While at home this third day General Foreman Slagle called her and notified her that she was being discharged. Under the Respondents Shop Rules 3 and 28, absence for 2 consecutive working days without calling in and giving good cause for absence called for a discharge. The attendance records in this case affirmatively show that the Respondent ordinarily treated illness as a good cause for PINES OF AMERICA, INC. 385 absence. Consequently, Chin's absences during the period from October 14 to 16 must be regarded as excused. As found above, the Respondent retained in its employ at least six emaloyees who had comparable attendance records, including a few who had considerably worse records. While Chin was not as conspicuous in the IUE movement as were Walker and Combs, from the time she signed an authorization card on September 17 she actively "talked up" the IUE in the plant. With the close supervision which the Respondent gives its relatively small complement of employees (65) it is difficult to believe that information concerning Chin's support of the IUE did not reach the Respondent's supervisors. In any event, Chin jokingly invited Line Supervisor Cox to join the IUE. Under all the circumstances, including Meyers' opportunity to observe Chin turning over her authorization card to Walker, I find that the Respondent at the time of Chin's discharge was aware that she was an IUE supporter. Respondent's explanation that Chin was discharged for unsatisfactory attendance is plainly spurious. In view of the Respondent's obvious hostility to the IUE, its discharge of Victoria Walker and, as found below, Laraine Comas, because of their union activities, I conclude that Respondent discharged Chin on October 22, 1968, in order to eliminate one more IUE supporter. Accordingly, the Respondent's conduct in this regard was violative of Section 8(a)(3) and (1) of the Act. Laraine Combs- The Respondent contends that Combs was discharged because of her low production rate. It is true that on the two operations on which Combs spent most of her time during the last 2 weeks of her employment, Combs' production was poor. However, for the reasons stated below I conclude that the Respondent deliberately kept Combs on operations on which it knew she had difficulty in order to furnish it with an excuse for discharging her. The Respondent's production records show that Combs was a satisfactory producer on a number of its operations. As found above, Combs excelled on the seat operation, 98-8; her hourly production rate on taping bumpers. 98-15, was the highest of all 10 employees who were assigned this operation; and on Operations 145-18 and 145-19 she was consistently a member of the high producing teari On Operation 135-15, Make Cartons, Combs made over the quota after the first few hours on the job. On the one occasion each on which Combs was assigned to Operation 500-5. Assemble Pedals, and Operation 135.10, an assembly operation, she received incentive pay for over-quota production each time. Thus, of the I1 operations worked on by Combs during the last month of her employment her production was satisfactory on 7 operations and poor on 4. The Respondent's production records show, and it is also a recognized fact of industrial life, that employees do not perform different manual operations at the same rate of speed. One employee may be a high producer on one type of operation and slow on a different type of operation. Another employee may work out just the reverse. Employers normally take such differences in performance into consideration in making job assignments . But the Respondent did not do this in the case of Combs. Instead. the Respondent kept Combs on Operation 500-14A, for 7 consecutive workdays although it had seven employees who had shown greater proficiency on this operation. While there are undoubtedly reasons why some of these seven employees could not be placed on this operation, it would appear that sound business considerations would have dictated putting one of the others on this operation, instead of keeping Combs, a known slow producer on this operation, on it In view of the fact that the Respondent could not hire enough competent full-time employees, the Respondent's refusal to utilize Combs' services on the operations which it knew she could competently perform becomes all the more inexplicable. The Respondent's treatment of Combs, however, becomes understandable when Combs' role as the most active leader of the fUh organizing movement and the Respondent's pronounced aversion to having a union in the plant are considered. The Respondent's various actions against Combs follow a consistent pattern. Thus the Respondent prepared a warning notice on September 30. charging Combs with a breach of Rule 26 covering "inattention to work, deliberate loitering, or idleness, which in my opinion was completely unwarranted in the circumstances of this case. Then about October 12 the Respondent prepared Company Exhibit 4 which unfairly compared Combs' work with that of others. Finally, on October 22, the Respondent discharged Combs for low production after keeping her an unduly long period of time on operations at which it knew she was a slow producer. Such actions are consistent with a fixed determination on the Respondent's part to build a record against Combs for low production and to discharge her when in the Respondent's judgment a sufficient record had been compiled. This, I find, is what the Respondent did in Combs' case. It utilized the record of Combs' alleged low production, which it had taken pains to establish, as a pretext for getting rid of this known union leader whose activities, in the Respondent's view, presented a threat to the Respondent's continued operation of the plant on a nonunion basis. I conclude that the Respondent's discharge of Combs on October 22 constituted a further violation of Section 8(a)(3) and (1) of the Act. I perceive no evidence of any significance indicating that Combs attendance at the hearing in the representation case was a factor in Combs' discharge. Accordingly, the allegations of the complaint that Combs' discharge also violated Section 8(a)(4) and (1) of the Act will be dismissed. 4. The Respondent' s questioning of employees in violation of Section 8(a)(1) of the Act As found above, within 2 weeks after the Respondent was notified that the IUE organizing drive was in progress, the Respondent called all four members of the Organizing Committee into the office and queried them as to complaints or causes of dissatisfaction with their jobs General Manager Meyers asked Sheila Gibson why she felt that she needed a union and Plant Manager Biernat made the same inquiry of Committee Member Naomi Kennedy. During this same period, both Biernat and General Foreman Slagle asked Leo Walker, in prehire interviews, about his union sympathies. On September 4, Meyers interrogated Verla Bailey as to how she felt about the IUE. Meyers admitted that during this same period he had personal interviews, the exact nature of which is not disclosed, with every employee in the plant. While the individual interviews standing alone do not assume serious proportions, considering the scope of the interviews against the background of unfair labor practices in which they were conducted - the promulgation of unduly restrictive shop rules for antiunion reasons, the formation 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Employee Committee, and the discriminatory discharge of three employees -these interviews take on a coercive aspect, in my opinion, and require a finding that they were in violation of Section 8(a)(1) of the Act Iv. THE OBJECTIONS The Regional Director' s Supplemental Decision, Order Consolidating Case, and Notice of Hearing presents for my consideration in Case 25- RC-3880 four objections which are based upon the same evidence as the allegations of unfair labor practices contained in the complaint in the unfair labor practice case, Case 25-CA- 3292 I have found that the allegations of the complaint are full-, sustained by the evidence, with a minor exception not here relevant, and conclude that these unfair labor practices in the August to October period interfered with the free choice of the Respondent's employees in the election which was held on November 21 and 22 and affected substantially and unfairly the outcome of the election . It is therefore necessary that the election be set aside and that a new election be ordered, following the Respondent's taking certain remedial action which is discussed below CONCLUSIONS OF LAW 1. By promulgating and maintaining a rule broadly prohibiting all union solicitation and all distribution of union literature on Company premises, the Respondent has engaged in interference, restraint, and coercion in violation of Section 8(a)(l) of the Act. 2. By promulgating, maintaining, and enforcing strict shop rules and by belatedly announcing a 90-day probationary period for all employees, both for the' purpose of discouraging union membership and of facilitating the discharge of union sympathizers, the Respondent has engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. 3. By coercively questioning employees concerning union matters, the Respondent has engaged in interference, restraint, and coercion in violation of Section 8(a)(l) of the Act. 4. By dominating and interfering with the formation and administration of the Employee Committee, and contributing support thereto, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(2) and (I) of the Act 5 By discharging Victoria Walker, Sidnette Chin, and Laraine Combs, the Respondent has discouraged union membership by discrimination in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THF REMFDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, my Recommended Order will provide that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act My Recommended Order will direct that the Respondent rescind or modify its Rules 24 and 25 to make it clear that its no-solicitation rule does not prohibit union solicitation on company premises during break and other nonwork periods and that its no-distribution rule does not bar the distribution of union literature in nonwork areas of the premises during nonworking time. To remedy the Respondent's domination and interference with the Employee Committee, my Recommended Order will provide that the Respondent withdraw all recognition from the Employee Committee and completely disestablish it, if it has not already done so. I have found that the Respondent discharged Victoria Walker. Sidnette Chin, and Laraine Combs in violation of the Act. To remedy this unfair labor practice, my Recommended Order will provide that the Respondent offer each of these employees immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make each whole for any loss of earnings she may have suffered as a result of the discrimination, by payment to each of them of a sum of money equal to that which she normally would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less her net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 216. Because of the character and scope of the unfair labor practices herein found, my Recommended Order will provide not only that the JRespondent cease and desist from the specific unfair labor practices found, but also that it cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following: RECOMMENDED ORDER The Respondent, Pines of America, Inc.. Fort Wayne, Indiana, its officers, agents. successors, and assigns, shall: 1 Cease and desist from (a) Promulgating, maintaining, or enforcing any rule prohibiting its employees from engaging in union solicitation on Company premises during nonworking time. (b) Promulgating, maintaining. or enforcing any rule prohibiting its employees from distributing union literature in nonwork areas of its premises during nonworking time. (c) Promulgating, maintaining, or enforcing rules governing employee conduct or establishing probationary periods for new employees for the purpose of discouraging union membership or facilitating the discharge of union sympathizers. (d) Coercively questioning employees concerning union matters. (e) Dominating or interfering with the formation or administration of the Employee Committee, or any other labor organization of its employees, or contributing financial or other support thereto. or recognizing the Employee Committee or any successor thereto. (f) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, in order to encourage or discourage membership in any labor organization. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization. to form, join, or assist any labor PINES OF AMERICA, INC. 387 organization, 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, or to refrain from any or all such activities, except to the extent that such right may be affected by a lawful agreement conforming to the provisions of Section 8(a)(3) of the National Labor Relations Act. as amended, requiring membership in a labor organization as a condition of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Rescind or modify Shop Rules 24 and 25 to make it clear that its no-solicitation rule does not prohibit union solicitation on company premises during nonwork periods and that its no-distribution rule does not bar the distribution of union literature in nonworking areas of company premises during nonworking time. (b) Completely disestablish the Employee Committee as a representative of any of its employees for the purpose, in whole or in part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work (e) Offer to Victoria Walker, Sidnette Chin, and Laraine Combs immediate and full reinstatement to their former positions or to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make each whole for any loss of pay she may have suffered by reason of the discrimination against her, in the manner described in " the Remedy" section of the Trial Examiner's Decision. (d) Notify Victoria Walker, Sidnette Chin, and Laraine Combs, if presently serving in the Armed Forces of the United States of their 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. (e) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (f) Post at its plant at Fort Wayne, Indiana, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorved representative, shall be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "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 " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 25 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " IT IS ORDERLI) that the complaint insofar as it alleges that the discharge of Laraine Combs violated Section 8(a)(4) of the Act be. and it hereby is, dismissed. IT IS FURTHER ORDERED that the election conducted on November 21 and 22. 1968, in Case 25-RC-3880 be. and it hereby is, set aside, and that Case 25-RC-3880 be, and it hereby is, remanded to the Regional Director for Region 25 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative [Direction of Second Election" omitted from publication. "In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have ai.i.css to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company. 394 U S 759, decided April 23, 1969, 70 LRRM 3345 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be tiled by the Employer with the Regional Director for Region 25 within seven (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 APPENDIX NOTICF TO ALi. 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 at which all sides had a chance to give evidence, it has been decided that we, Pines of America, Inc, violated the National Labor Relations Act, and we have been ordered to post this notice to inform our employees of their rights. The National Labor Relations Act gives all employees these rights To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with these rights. WF WILL NOT make, maintain, or enforce any rule prohibiting our employees from engaging in union solicitation on Company premises during nonworking time. WE WILL NO1 make, maintain, or enforce any rule prohibiting our employees from distributing union literature in nonwork areas of our premises during nonworking time. WE WILL NOT make, maintain, or enforce any work rules or establish new or different probationary periods for the purpose of discouraging union membership. WL WILL NOT coercively question employees about union matters. WE WILL NOT dominate, assist, or recognize the Employee Committee, or any successor thereto. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT'discharge you, punish you, or treat you differently in anyway because you join or favor a union. WE WILL reinstate Victoria Walker, Sidnette Chin, and Loraine Combs, with full seniority and other rights, and WE WILUpay'them backpay, together with 6-percent interest. WE WILL rescind or change our Shop Rules 24 and 25 so as to make it clear that our no-solicitation rule does not prohibit union solicitation on Company premises during nonworking time and that our no-distribution rule does not bar the distribution of union literature in nonwork areas of the plant and premises during nonworking time You are free to loin International Union of Electrical. Radio and Machine Workers, AFL-CIO, CLC, or any other union, and, by majority choice, to select any union to represent you in bargaining with us. PINES OF AMERICA, INC. (Employer) Dated By (Representative) (Titley 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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.