Congoleum Industries, Inc.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congoleum Industries, Inc. and United Rubber, Cork, Linoleum & Plastic Workers of America , AFL-CIO. Cases 16-CA-4037,16-CA-4102, and 16-CA-4130 June 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 27, 1971, Trial Examiner Samuel Ross issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Oral argument was held before the Board on December 6, 1971. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has duly considered the record in this proceeding and the Decision and recommended Order of the Trial Examiner in light of the parties' exceptions, brief, and oral argument before the Board and has decided to affirm the rulings, findings, and conclusions of the Trial Examiner and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Congoleum Industries, Inc., Wilburton, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting: I agree with my colleagues that the decision herein should not turn on the subjective motivations of the employees. I would not attempt to probe the psyches of employees to determine whether it is fear, protest, or other subjective intent which motivates their concerted activity. But in my view, the objective I We find it unnecessary to, and do not, adopt the Trial Examiner's finding that Supervisor Kerkes' examination of lunch sacks in the presence of employee Ott on June 23, 1970, constituted surveillance in violation of Sec 8(a)(1) of the Act Such finding is in any event cumulative The Chairman in his dissent analogizes the legal implications of the Respondent's discharging Bullard , Croslin , Newson, and Sauerbry because they refused to work while there was a picket line at a "reserved gate" to 8(b)(4) and 8(e) situations But the analogy is promptly undermined by his recognition that those sections of the Act are not involved herein The legality of the conduct under these sections was neither alleged in the complaint, litigated at the hearing, or indeed argued in the briefs of the parties or at the oral hearing held before the Board on December 6, 1971 Thus, the illegality of the discharged employees' conduct, which is the basic assumption of the dissent , cannot be determined here Admittedly , none of the four employees was replaced , nor was their absence from work found to evidence, -construed in the light of statutory intent, shows that -the employees here were not discharged for engaging in any statutorily protected activity. Section 8(b)(4)(B) of our Act, in defining prohibit- ed secondary activity, makes it unlawful for a labor organization or its agents "to engage in . . . a strike . . . where . . . an object thereof is . . . forcing or requiring any person . . . to cease doing business with any other person. . . ." If a labor organization is prohibited, under this section, from engaging in certain types of secondary strikes, it would be anomalous for us to hold that employees who participate in such a prohibited secondary strike are engaging in protected activity. Applied literally, the language of Section 8(b)(4) might be read to prohibit all strikes, since an incident and partial purpose of any strike is to cut off the employer's business with all other persons. But both this Board and the courts have given due recognition to the congressional intent, as expressed in Sections 7 and 13 of the Act, to protect the right to engage in lawful primary strikes and lawful primary picketing. There is also a specific proviso to Section 8(b)(4) which states the congressional intent not ... to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act. Thus, if the employees here had remained away from work as a concerted action to obtain for themselves and their fellow employees some econom- ic benefit or favorable settlement of some complaint regarding their working conditions, i.e., "for the purpose of collective bargaining or other mutual aid or protection," theirs would have been primary concerted activity under Section 7, and thus protect- ed from any adverse employer action. Or, had they refused to cross a lawful picket line at the premises of another employer, their refusal would have been protected by the specific proviso to Section 8(b)(4) quoted above. be vital to the plant's operations , and our dissenting colleague does not defend the discharges on any such grounds Therefore, the only issue in the present case is whether Sec 8(a)(3) prohibits discharges of employees for withholding their services because of picketing by a union in which they were not members at their place of employment In the absence of additional facts, the violation is plain, and there are no other facts in this record The Chairman has cited no cases, and we know of no precedent, which holds that the refusal of employees for "objective" reasons to honor the picket line of another union at their own place of work is conduct which is not thereby protected concerted activity under Sec 7 and 13 of the Act. See, e g , Smith Transit, Inc, 176 NLRB No 141, Union Carbide Corporation, 174 NLRB 989, enfd in part and set aside in part 440 F 2d 54, cert denied 404 U S 826, Virginia Stage Lines, Inc, 182 NLRB 717, enfd 441 F 2d 499, cert denied 404 U S 856 See also the cases cited in the Trial Examiner's Decision in fns 62, 63, and 65 197 NLRB No. 52 CONGOLEUM INDUSTRIES, INC. But here they did neither. Their refusal to work was not for their mutual aid or protection vis-a-vis their employment relationship with their employer. The only purpose of their concerted action was in support of the concerted activities of other employees who had a dispute with another employer-and the only objective which their refusal to work could have had was to force their own employer to stop doing business with the contractor so that he would be pressured into a settlement of his dispute with his employees. Nor was this secondary action protected by the proviso to Section 8(b)(4). That proviso was designed to prevent either this Board or an employer from forcing employees to help a stranger employer who has a labor dispute with his employees by crossing a lawful picket line at his place of business. But it does not sanction the participation by employees in a dispute to which they are not privy where no crossing of a picket line is required at the place of business of such stranger employer. In fact, this Board has held that it is illegal for a union to induce such participation in the absence of such a picket line.2 Thus here, had the Respondent not provided a reserved gate, the contractor's employees and their union could have picketed the premises of the contractor at the only available place to reach him and his employees-i.e., at Respondent's gates. And in such case, Respondent's employees would, under our law, have been privileged not to cross such a picket line, unless, of course, they had undertaken otherwise by a collective agreement. But the underlying purpose of our reserved gate doctrine is to accommodate the rights of the employees of a mobile employer by providing a lawful place at which protected primary picketing may take place, while at the same time protecting the interests of the neutral employer on whose premises the roaming disputants may be temporarily located. This accommodation was operative here-a re- served gate was established, and no one questions the rights of the pickets to have carried on their, primary appeal to the contractor's employees and to publicize their dispute to all persons who might, on business or pleasure, pass by the reserved gate. But the employees here were not asked to cross that picket line-and, indeed, through the use of the reserved gate procedure, were afforded a nonpicket- ed entryway through which they could pass in order to carry on their normal activities without becoming in any way involved in the dispute between the contractor and his employees. Despite that guarantee against involvement, these employees chose not to utilize their free entryway and voluntarily abstained from the work which an employer may rightfully require his employees to 535 perform if they expect, in turn, to be retained in his employ. We have not only affirmed the neutral employer's right to require such work of his employ- ees despite their concern with someone else's labor dispute, but have even held that he may not contract away that right. Thus in Drivers Local 695, Team- sters,3 we held that a clause in a collective agreement which sought to insulate employees from discipline for refusing to cross unlawful secondary picket lines was violative of Section 8(e) of our Act. Underlying that holding must be the concept that employees cannot find legal justification for failing to perform their duties where their only reason for abstaining therefrom is a desire to involve their neutral employer in someone else's labor dispute. Thus, under the circumstances here, when these employees choose not to work, with no reference whatever to any dispute which they or any of their coemployees might have had with their own employ- er-except for the prohibited secondary objective of forcing him to cease doing business with the contractor-they were engaged mono lawful, primary, concerted activity and were, in my view, entitled to no statutory protection against the kind of disciplinary action which the employer took in response to their deliberate refusal to perform the services reasonably required of them. For there reasons, I would dismiss the complaint. 2 Grain Elevator, Flour and Feed Mill Workers (Continental Grain Co), 155 NLRB 402, enfd 376 F.2d 774 (C A D.C., 1967), cert. denied 389 U.S. 932 3 152 NLRB 577, enfd 361 F 2d 547 (C A D C, 1966) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner: On charges filed by the above-named Union on June 29, 1970, September 3, 1970, and September 30, 1970, respectively, and later amended, a consolidated complaint issued on December 9, 1970, which alleges that Congoleum Industries, Inc. (herein called Respondent or the Company), engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. The Respondent filed an answer to the complaint which denies the commission of unfair labor practices. Pursuant to due notice, a hearing on these consolidated cases was conducted before me at Wilburton, Oklahoma, on January 25, 26, 27, and 28, 1971. Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent,) I make the following: 1 On May 11, 1971, after the hearing had closed, I granted a motion made by the General Counsel to amend the consolidated complaint to (Continued) 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. COMMERCE The Respondent, a Delaware corporation whose princi- pal office and place of business is located in Kearny, New Jersey, is engaged in the manufacture of carpeting and other floor coverings at a number of plants including one located in Wilburton, Oklahoma, the only facility involved in this proceeding. During the past 12 months, in the course of its business operations, the Respondent manufac- tured and sold products valued in excess of $1 million which were shipped from its Wilburton plant directly to places in the United States other than the State of Oklahoma. On these admitted facts, I find that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is not disputed, and I find that at all times material herein, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (herein called the Union), has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues Presented The consolidated complaint in this case alleges numer- ous violations of the Act by the Respondent and the record presents the following issues for determination: 1. Whether the Respondent violated Section 8(a)(1) of the Act by announcing and putting into effect a wage increase for all its employees immediately after it obtained knowledge that the Umon was attempting to organize them. 2. Whether the Respondent's written no-solicitation rule unlawfully impinged on its employees' rights guaran- teed by Section 7 of the Act, and whether the Respondent also violated Section 8(a)(1) by enforcement of the allegedly illegal no-solicitation rule. 3. Whether the Respondent further violated Section 8(a)(1) of the Act by coercive interrogation of employees regarding their union activities, adherence, and desires, by surveillance of the Union's meetings, by giving the impression of such surveillance, by threats to discharge employees who strike, and by threats to close the plant, to cease expanding, and to move the plant from Wilburton, if the Union succeeded in organizing its employees. 4. Whether the alleged instigation of a refusal to work additional overtime by J. W. Aaron was an activity allege that the Respondent's discharge of four employees, previously alleged to have been motivated by their union activity, also was motivated by their concerted activity for mutual aid or protection . In connection with the granting of said motion, the Respondent was offered but declined a reopening of the record to adduce further testimony, and an opportunity to file an additional brief 2 W George Sauerbry, Andy C Bullard, Buddy Croslin, and Sherrill G Newsom 3 The quotes above are from Respondent's bnef which I regard as accurate in this respect According to the 1970 census, the population of protected by the Act, and whether his discharge for such activity violated Section 8(a)(1). 5. Whether the Respondent's discharge of four other employees 2 was motivated by their activity on behalf of the Union, and/or by their concerted activity in refusing to cross a picket line at the Respondent's plant, and whether the Respondent thereby violated Section 8(a)(3) and/or 8(a)(1) of the Act. 6. Whether or not the suspension and demotion of Vernon Tubbs was unlawfully motivated and violated Section 8(a)(1) or (3) of the Act. 7. Whether in the light of anticipated expansion, the Respondent employed a substantial and representative complement of employees in August 1970 when the Umon demanded recognition, and whether the Respondent violated Section 8(a)(5) of the Act by its failure and refusal to recognize and bargain with the Uniori on and after said demand. B. Background-The Commencement of Union Organization Wilburton, where the Respondent's plant here involved is located, is an "extremely small town" in southeastern Oklahoma, a predominantly agricultural region.3 The major thoroughfare in town, appropriately named Main Street, is approximately one-half mile in length, and thereon are located a substantial portion of the town's stores and offices, a little hotel, and a couple of small motels. The Respondent's plant in Wilburton, a new one, was finished with the first phase of its construction about November 1, 1969,4 and hiring of employees for the production of carpets began at about that date. The Union's first steps toward attempted organization of the Respondent's Wilburton employees occurred in Febru- ary 1970,5 when Bob G. Long, a special representative of the Union, visited the plant and left a supply of union handbooks and some handbills with Jerry Davidson, a construction employee who was engaged in the work of enlarging the Respondent's plant. This literature later was given by Davidson to J. W. Aaron, an employee of Respondent, who passed them out in the plant to other employees. No further organizational activities were pursued by the Umon until April when Alvin M. Phillis, a field representative, was assigned by the Union to the campaign and set up headquarters in the Chief Motel located on Main Street. In the latter part of April, Phillis commenced the distribution of union literature by mail to the homes of employees. On about May 1, W. George Sauerbry, then an employee in Respondent's finishing department, visited Union Representative Phillis at the Wilburton was 2,180. 4 A second phase of the construction of this plant, originally planned to take place 5 or 6 years later, was to enlarge the building to accomodate machinery for the continuous dyeing and printing of carpeting. However, the Respondent accelerated its program and commenced construction of the addition to the plant in February 1970, completed it in October 1970, and finished the installation of the machinery for continuous dyeing and printing of carpets shortly before the hearing in this case in January 1971 5 All dates hereafter refer to 1970 unless otherwise noted. CONGOLEUM INDUSTRIES, INC Chief Motel and received from him some samples of union literatures and copies of the Union's contracts with the Respondent for its Trenton, New Jersey, plant employees.? Sauerbry brought this material to the plant about May 1, and passed it around to the employees in the finishing department in the presence of Supervisor Chuck Rowland. Sauerbry also handed Rowland a copy of a pamphlet he had received from the Union of what a "supervisor cannot do" during organizing campaigns. Rowland "read it" and then returned it to Sauerbry. On May 11, Phillis, by certified mail, notified Respon- dent Plant Manager John M. Harrison that the Union was attempting to organize Respondent's Wilburton employ- ees, and that interference with their statutory rights, which assertedly already had occurred, would result in the institution of "appropriate action" by the Union.8 On May 12 Respondent's employees commenced signing cards designating the Union as their collective-bargaining repre- sentative. Fifteen employees signed on that date. A number of the said cards were signed in the Respondent's plant or in the parking lot outside the plant. C. The Wage Increase Announcement on May 13 On May 12, Respondent's plant manager, Harrison, received and read the letter from Union Representative Phillis. The following day, May 13, Harrison assembled all the Respondent's employees in the tufting department, and in a speech in which he admittedly voiced the Respon- dent's opposition to the representation of its employees by the Union, Harrison announced that as of the following Monday, all the employees would receive an increase in their wage rates of 10 cents per hour, and that some employees, who would be notified later, also would receive additional increases to correct inequities in their current pay scales. The complaint (para. 7(a)) alleges that the Respondent violated Section 8(a)(1) of the Act by announcing and granting this wage increase "to persuade employees not to support or engage in union activities and to encourage them to withdraw from such."9 The Respondent contends that its May 13 wage increase to the Wilburton employees could not have been illegally motivated since it was planned long before it had any knowledged of the Union's organizing campaign. According to Plant Manager Harri- son and Industrial Relations Counsel Eriksen, the Respon- dent's first knowledge that the Union was attempting to organize its employees was obtained on May 12, when Harrison received Phillis' certified letter of May I1 advising him of that fact. By that date, according to Eriksen, the Respondent already had approved the rate increases, but had not yet announced it to the employees. According to Enksen, before the Company commenced staffing the plant, it was contemplated that except for six or seven supervisors who would be "brought in from the 6 G C Exhs. 24 and 28 r G C Exhs 25 and 26 8 G C Exh 4 9 The complaint also alleges that Harrison's May 13 speech further violated Sec 8(a)(1) of the Act because he therein threatened employees with discharge, plant closure or removal, and other reprisals for engaging in union activities and/or if the Union succeeded in organizing the plant This aspect of the complaint and the record in respect thereto will be considered 537 outside," as many of the employees as possible would be hired locally. Respondent therefore anticipated that most of the employees hired to staff the plant would be unskilled, would have no industrial experience, and would require "an extensive period" of training during which their productivity would be low. Accordingly, after making a survey of the prevailing wage rates both in the local area and the carpet industry, the Respondent assertedly set the initial pay scales about "seven percent below the going rates at that time." The starting rate thus set assertedly was $1.70 per hour with monthly reviews and merit increases granted more or less automatically as employees "learned their jobs" and "increased their efficiency." 10 According to Eriksen, these rates were intended by the Respondent to be "temporary," and it was planned that new increased rates "would be put into effect ... after six months." - On March 20, at a meeting in Dallas, Texas, attended by Enksen, George Eckhardt, Respondent's manager of plant operations, and Wilburton Plant Manager Harrison and Personnel Director Downing, the latter recommended a wage increase for the Wilburton employees and stated, inter aha, that they "had adapted to the work quite well and were doing an outstanding job." However, the Respondent took no action on Downing's recommenda- tion at that time. Subsequently, on April 13 in a letter to Eckhardt, Eriksen recommended specific increases for certain jobs at the Wilburton plant that "are on the low side in relation to other job rates," and "a $.10 an hour across the board general increase for all jobs" at that plant.[[ Enksen's recommendation admittedly was not acted upon by the Respondent's headquarter officials before May 8. According to Enksen, the wage increase was then approved and Plant Manager Harrison assertedly was notified that same day. However, the Wilburton employees concededly were not advised about the wage increase until May 13, the day after the receipt by Respondent of the May 11 letter from Union Representative Phillis, and then only in conjunction with an antiunion speech. I am persuaded, contrary to the Respondent's conten- tion, that the wage increase was granted and announced for the purpose of dissuading employees from joining or adhering to the Union and was "reasonably calculated to have that effect." 12 My reasons for so concluding are as follows: The Respondent's original wage rates created no difficulty for it in attracting applicants for employment. In November 1969 when production first started at Wilburton and the Respondent hired only 10 employees, it had 900 applicants for jobs. By September 1970, the number of applications for employment by Respondent admittedly had increased to 3,000. When the wage increase was granted in May 1970, the number of employees working for Respondent was only 122. It is thus obvious that a wage increase was not required by Respondent to attract infra is However, many of thejobs obviously paid more than the basic rate of $1 70 (see the attachment to Resp Exh. 5) Moreover, the Respondent offered no testimony or documents to support Eriksen's conclusionary testimony that the rate of S 1 70 per hour was 7 percent below the going rates at that time. 11 Resp Exh 5 12 N LR B v Exchange Parts Co, 375 U.S 405.409 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicants. Indeed, according to Plant Manager Harrison, Respondent's starting rate was not changed by the wage increase and remained at $1.70 per hour. In the light of the obvious attractiveness of employment by Respondent, I regard Eriksen's uncorroborated conclusionary testimony, that the wage rates initially set for the Wilburton plant were 7 percent below those prevailing in the area, as unworthy of credence.13 The rates paid by Respondent to its employees before the May 13 wage increase announcement were not static. Under the Respondent's policy, each employee's perform- ance was reviewed every month, and as his work progressed satisfactorily, he was given a step wage increase until he reached the maximum rate for his job classifica- tion. The record does not disclose how many such steps existed between the starting and maximum rates for the various classifications. However, since all but 29 of the Respondent's 122 employees on May 13 had worked for it less than 6 months, it may fairly be inferred that a substantial majority of the employees had not yet reached the maximum rate for theirjob classification, and still were receiving periodic wage increases. In any event, the record does not disclose either that employees had requested a wage increase or that the Respondent was experiencing any unusual turnover because of low wages. Obviously, therefore, the wage increase on May 13 could not have been motivated by employee dissatisfaction with the rates that were being paid. Moreover, at the time the wage increase was announced, the Wilburton plant admittedly was "still an unprofitable operation." What then was the reason for this wage rate increase which had not been requested by the employees, which was not needed either to hire or retain employees, which was given notwithstanding the operation of the plant at a loss, and which was announced by Respondent to its employees in conjunction with an antiunion speech the day after receipt of a letter from the Union that the latter was engaged in a campaign to organize the Company's employees? The Respondent's only explanation is that the initial low rates it had set were intended from the start to be temporary and to be increased 6 months after production commenced at Wilburton. I am unpersuaded either that the rates initially set were low, or that the Respondent, in the face of operating at a loss, would announce an increase in the rates without some more compelling reason than that it had always so planned. The Respondent contends that since its first knowledge of the organizing campaign was the receipt of Union's letter on May 12,14 after the raise had been recommended and approved-ergo-its conduct obviously could not have been motivated by antiunion considerations. I do not believe that the Respondent's first knowledge of the Union's organizing campaign was obtained after the wage rate increases had been recommended and approved. As found above, union literature was distributed to the Wilburton plant by employee J. W. Aaron as far back as February. There is no indication in the record either that 13 See In 10, supra 14 Both Plant Manager Harrison and Industrial Relations Counsel Enksen so testified 15 For example , witnesses at the hearing referred to Supervisor Rowland Aaron acted clandestinely in such distribution or that he attempted to prevent the literature from coming to the attention of Respondent's supervisors. At that time, the Company employed only 83 employees at Wilburton, many of whom enjoyed a first name and nickname - relationship with their supenors.15 Moreover, according to Harrison's May 13 speech, he admittedly was a frequent visitor to the production areas of the plant, and was accessible to his employees. Under the circumstances, despite the absence of direct evidence, I am persuaded that knowledge of the distribution of union literature in the plant undoubtedly then came to the attention of Respon- dent. No further organizational activities were pursued by the Union until April when Phillis, a field representative, was assigned to the campaign, set up headquarters in the Chief Motel on Main Street, and began meeting with employees in their homes and at the motel. In a town as small as Wilburton, such activity hardly could have escaped the attention of both the Respondent's employees and its officials.16 Starting with the latter part of April, Phillis commenced the distribution of union literature by mail to the homes of Respondent's employees, and on May 1, employee Sauerbry passed around samples of union literature to employees in the finishing department in the presence of Supervisor Rowland. On that occasion Row- land saw and read a union pamphlet which listed what supervisors could not do during a union organizing campaign. I conclude from all the foregoing, contrary to the testimony of Plant Manager Harrison and Industrial Relations Counsel Eriksen, that the Respondent at all times was cognizant of the Union's organizing campaign, and that the wage increase was recommended and approved by the Respondent with knowledge of the Union's activities. I am further persuaded by the record that the wage rate increase announced on May 13 was granted to employees by Respondent to dissuade them from joining the Union. As found above, the wage increase had not been requested by employees, it was not needed by the Respondent in order to hire or retain employees, and at the time it was granted, the Respondent was operating at a loss. Moreover, the announcement of the rate increase was made in conjunction with an antiunion speech by Plant Manager Harrison, during which he admittedly disparaged the Union as Rubber Workers and therefore unfamiliar with the carpet industry; he exhibited one of the Union's authorization cards and suggested that they not sign, or if they had, to consider requesting its return; and he warned that in the event of a strike, the Respondent would have the right to continue to operate with hired replacements who would not be displaced merely because a striker wanted to return to his job. N.L.R.B. v. Exchange Parts Co., supra, teaches at 409 that: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. as "Chuck" and to Department Foremen Gillette and Williams as "Dick" and "Ralph," respectively 16 Angwe!! Curtain Company, Inc v N LR B, 192 F 2d 899, 903 (C A 7). CONGOLEUM INDUSTRIES, INC. 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. In the light of that teaching, the lack of any plausible explanation for giving an unrequested and unnecessary raise to relatively newly hired employees, many of whom still were receiving periodic step wage increases, and the timing of the announcement of the wage increase in conjunction with an antiunion speech, I conclude that it was motivated by antiunion considerations, and that the Respondent thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.17 D. The Respondent's No-solicitation and No-distribution Rule 1. The promulgation and maintenance of the rule On about May 19 or 20, while the Union was actively engaged in soliciting signatures to authorization cards, the Respondent distributed to its employees an "Employee Handbook" containing "rules for the guidance of all employees in the Wilburton plant." 18 On page 12 of said handbook, there appeared a list of "Rules of Conduct" whose violation would "result in disciplinary action [including] discharge if the violation merits it." Rule 36 of these rules proscribed "Unauthorized solicitation," which was defined on page 20 of the handbook under the heading of "Solicitations," as follows: Work time is for work. Although there are many causes for which departmental or Plant wide collections may seem to be justifiable, experience indicates that undesirable consequences follow by way of interrup- tion to work and annoyance to employees Therefore there will be no solicitation of membership, applica- tions, petitions, enrollments, or funds for the support of clubs or organizations of any kind. . . . [Except when approved by the plant manager.] In order that there be no littering of Company premises, the distribution of handbills, leaflets, adver- tisements or other printed matter will not be permitted by any person on Company property. On September 15, by an amendment to its charge in Case 16-CA-4037, the Union alleged that the above-quoted no- solicitation and no-distribution rule impinged on employee rights and violated the Act. Thereupon, the Respondent ceased distributing copies of the handbook to new employees, and after consultation with counsel, it reprinted the handbook on December 31, and revised the no- solicitation rule as follows: (a) In the first paragraph, by adding the words "during working hours" after the word "kind." 55 17 Cf St Louis Car Division General Steel Industries, Inc, 184 NLRB No 18 G C Exh 5(a) 19 Walton Manufacturing Company, 126 NLRB 697, enfd 289 F 2d 177, 180 (C A 5), Stoddard-Quirk Manufacturing Co, 138 NLRB 615, Lexington Metal Products Co, 166 NLRB 878, Farah Manufacturing Company, 187 NLRB No 83 20 Lexington Metal Products Co, supra, Farah Manufacturing Company, supra 539 (b) In the second paragraph, by substituting the words "in work areas" for the words "on Company property." The complaint alleges in paragraph 7(b) that the Respondent violated Section 8(a)(1) of the Act by the publication and distribution of the original "antiunion no- solicitation and no-distribution of literature rule." In his brief, the General Counsel also contends that the rule as amended is still "illegal" because it lacks "clarity" and is capable of being interpreted to prohibit solicitation of union membership during the Respondent's, not the employees', working hours, and, in some departments, the Respondent's working hours are 24 hours a day. The Respondent, on the other hand, contends that at most the rule as originally worded is ambiguous, and that in the light of the union activities engaged in by employees in the plant, it was understood by both management and employees to prohibit only solicitation "during working time." In any event, the Respondent contends that the Respondent has "fully remedied" the "ambiguity" by replacing the rule with one more precisely worded, and by notifying the employees of the change by letter. It is by now well established that a no-solicitation or a no-distribution rule, which prohibits union solicitation on company property by employees during their nonworking time, or which prohibits their distribution of union literature in nonworking areas during nonworktime, is presumptively invalid, unless the employer can show that special circumstances make such a rule necessary for the maintenance of production or discipline.19 No contention is made here of the existence of any such special circumstances. Contrary to the Respondent's contention regarding its ambiguity, the original rule promulgated and distributed by Respondent clearly was broad and prohibit- ed, without limitation as to time, all solicitation of memberships "of any kind." It thereby obviously pro- scribed, inter aka, the solicitation of union membership in the plant during employees' nonworking time. Moreover, the rule also clearly prohibited without limitation the distribution of all leaflets and other printed matter "on Company property," and thereby forbade the distribution by employees of union literature during nonworking time in nonworking areas of the plant. Since the rule, thus, was presumptively invalid, the General Counsel was not required to show either that the rule was illegally motivated, discriminatorily enforced, or indeed enforced at all.20 Accordingly, I find that by promulgating the aforedescribed rule on or about May 19, and by maintain- ing it in effect until December 31, the Respondent interfered with, restrained, and coerced employees in the free exercise of rights guaranteed by the Act, and thereby violated Section 8(a)(1) of the Act.21 21 The fact that some employees, notwithstanding the rule, may have solicited union memberships or distributed union literature in the plant does not establish that the rule was understood by such employees to permit the conduct in which they engaged In the light of the rule's express proscriptions against solicitation "of any kind" and distribution of literature "by any person on Company property," other employees may have been deterred from engaging in such conduct The coercive effect of the rule must be tested not by its actual effect, but by its tendency to inhibit the free exercise of employee rights under the Act 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The enforcement of the rule For the purpose of the discussion above, I assumed that the no-solicitation and no-distribution rule was not enforced by the Respondent. There is, however, uncontro- verted testimony that such was not always the case. On September 3, employee Barbara Colbert wore a sweatshirt in the plant on which appeared the letters "URW UNION." She was then told by Jack Wilcox, her supervisor, to come to his desk, and there was informed that "it was against the rules to wear a union shirt out there." Wilcox read rule 36 to her from "the little rule book." 22 In addition, according to the credited testimony of employee Andy Charlie Bullard, he was told in June by his supervisor, Larry Thrash, that supervisors had been instructed at a meeting that "they [Respondent] did not want to see anyone carrying [union] cards in their pockets," and if an employee carved such cards, he would be "take[n] into the office."23 I conclude that by the foregoing conduct in implementa- tion of its invalid rule 36, the Respondent further violated Section 8(a)(1) of the Act. As noted above, the Respondent contends that since it amended the rule on December 31, and then notified its employees by letter that the rule had been "changed to bring the wording in line with our practice," 24 it has "fully remedied any problem created by the ambiguity" of its original rule. On the other hand, the General Counsel contends that the rule as amended lacks clarity and that the added words "during working hours" are capable of interpretation to apply to the working hours of the plant, and thus prohibit union solicitation, etc., during employ- ees' nonworking time. It has beenjudicially stated that: ... the risk of ambiguity of the rule must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it.25 However, in this case, in the light of the record evidence that notwithstanding the original invalid rule, union solicitation and distribution of union literature was conducted by employees in the plant with no resulting disciplinary action by Respondent, I am persuaded that the rule as amended is sufficiently clear to permit employees to understand that the prohibitions against solicitation and distribution of literature apply only to their working time, and not to breaktime or other nonworking periods. However, since the amendment does not either render the cause moot, or exculpate the Respondent for its prior unlawful conduct,26 I will recommend an appropriate order enjoining future such conduct by Respondent. E. Additional Interference, Restraint, and Coercion 1. Harrison's May 13 speech According to paragraphs 7(f), (g), and (h) of the complaint herein, the Respondent allegedly further violat- 22 The quotes above are from Colbert's credited testimony Wilcox was not called by Respondent to testify 23 Thrash testified that he "may have had a conversation" with Bullard, but when asked whether he said anything to Bullard about carrying union cards in his pocket, Thrash replied, "Not that I can remember " I do not ed the Act by threats to discharge or to deny employment to persons "who supported the Union," "to discharge and permanently replace all employees who went on strike," "to close the plant," "to cease operations," and "to move the plant away from Wilburton" if the Union succeeded in attaining recognition. According to the complaint such threats were made, inter alia, by Harrison in his May 13 speech to employees. Of the 70 to 80 employees who heard the speech, only 2 employees testified about what Harrison assertedly said. Employee George Sauerbry testified that Harrison told the employees that "we could get our [union authorization] cards back, if we wanted to, to ask for them." Sauerbry's only other testimony about the speech was that Harrison said: They [the Company] didn't want any trouble, any strikes and violence, and all this kind of stuff, in town, and that they were trying to stay away from anything of this sort. Employee Tom Cates corroborated Sauerbry's testimony that Harrison told employees that if they had signed a union card, they could ask for its return. Cates further testified that Harrison said "we were not ready for a union," and that "the plant could be closed down if the Union went in." On cross-examination, however, Cates testified that in regard to shutting down the plant, Harrison said: ... this plant here hadn't been here long enough to make a profit, and that they could shut it down at any time, if it wasn't showing a profit. Later, when asked to explain the apparent inconsistency between his above-quoted testimony on direct and that on cross-examination, Cates then testified that Harrison said: ... if they [the Company] didn't show a profit there they could shut down at any time. That we [the Company] did not have to honor a strike. Harrison denied that he said either in words or substance that the Respondent might or could close the plant down if it remained unprofitable, and I regard his unequivocal testimony in this regard as more reliable than Cates' vacillations as to what Harrison said. Clearly, there was nothing in Sauerbry's testimony to support the allegations that Harrison's May 13 speech threatened employees with the various reprisals alleged in the complaint. Accordingly, I conclude that the General Counsel has failed to establish the allegations of paragraphs 7(f), (g), and (h) insofar as they are based on Harrison's May 13 speech. 2. By Supervisor John Kerkes Starting with May 26, the Union commenced holding periodic meetings of Respondent's employees. Generally these meetings were conducted in a hall rented from the American Legion located on a paved alley or street in Wilburton parallel with and one-half block north of Main Street. However, when the hall was not available, the regard this response as a denial of Bullard's affirmative testimony. 24 G C. Exh. 5(c) 25 N.LR B. v. Harold Miller, et al., 341 F.2d 870, 874 (C A 2); Farah Manufacturing Company, supra 26 N.LR B v Mexia Textile Mills, Inc., 339 U.S. 563, 567-568. CONGOLEUM INDUSTRIES, INC. 541 Union conducted its meetings at its headquarters in the Chief Motel.27 a. On August 6, employee John Dunlap attended a 4:30 p.m. meeting of the Union at the legion hall, and while there, he saw Supervisor Kerkes driving east on Main Street and looking to his left towards the hall. The next evening, Dunlap attended a union meeting at the Chief Motel on Main Street. On August 8, while at work, Kerkes asked Dunlap if he "got enrolled at the Chief Motel?" Dunlap replied that he had signed a union card. Kerkes then asked Dunlap, "how come I was for the Union?" Dunlap answered, for "better wages," "more benefits," and to make the plant "a better place to work." Kerkes then said that the Company might not finish the addition to the plant (which then was under construction) if the Union "got in." 28 b. On August 26 at about 4:30 p.m., employee Larry Don Dellinger went to a union meeting at the legion hall accompanied by employees Dunlap and Cloud. As they got out of their car, they observed Supervisor Kerkes driving down Main Street looking "our way" and he "seemed to have slowed down a little bit." The complaint alleges, inter aha, that Kerkes' conduct in driving down Main Street on several occasions when a union meeting was scheduled to take place at the American Legion hall, and in then looking toward the hall, constituted surveillance of the "union meetings and activities of "Respondent's employees. I regard the testimony as insufficient to establish such surveillance. Main Street is the principal artery of traffic in the small town of Wilburton. The presence of a supervisor driving along Main Street at a time when a union meeting was being held obviously does not establish that the supervisor was there for the purpose of snooping. Moreover, since looking to the right and left at street intersections is equally compatible with safe driving, the fact that Kerkes appeared to be looking towards the legion hall, one-half block away, does not establish that Kerkes was engaged in surveillance of the union meeting. However, Kerkes' interrogation of Dunlap as to whether he had signed a union card at the Chief Motel the previous evening and his query as to why Dunlap was for the Union, clearly was coercive interroga- tion, and in addition, it quite obviously conveyed the impression to Dunlap that attendance by employees at union meetings was subject to surveillance by the Respon- dent. Moreover, Kerkes' threat that the Respondent might not complete its plant addition if the Union "got in" also was coercive. I therefore find that in these respects, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. c. On June 23, the Union sent a circular letter to Respondent's employees wherein it discussed the Respon- dent's discharge of an unnamed employee on June 17, 27 To accomodate employees, the meetings were conducted in shifts at 2 30, 4.30, and 7pin According to the uncontradicted and credited testimony of nonemployee Cecil Bullard, the commander of the local post of the American Legion, Respondent's personnel manager, Gerald Downing, accused Bullard of trying to ruin him by renting the hall to the Union, and Bullard replied that the hall was available for rental to anyone, including the Respondent Since the General Counsel specifically disclaimed reliance on this conduct as violative of the Act, I will make no findings in this regard because he assertedly had complained that he wanted "his acting Supervisor The Fix-It-Man to quit cursing him and ' trying to strong arm him" while was trying to work.29 On about June 25, when employee W. George Sauerbry arrived at the plant to work on the second shift, Supervisor Kerkes met him at the shelves where employees store their lunch sacks and instructed Sauerbry to go to the office "right away." Sauerbry complied and Kerkes then accused him of writing the Union's letter of June 23 about him. Sauerbry denied having done so. Kerkes "got pretty mad," and Sauerbry "got a little bit mad, too." While this argument was in progress, Personnel Manager Downing, Plant Manager Harrison, and Ralph M. Williams, the general foreman of the finishing department, entered the office, and Harrison suggested to Sauerbry that future union literature should avoid making personal attacks on supervisors. While Harrison was talking to Sauerbry, Kerkes came out of the office, looked through several of the lunch sacks on the storage shelves, located Sauerbry's, examined its contents, and returned the sack to the shelf. Kerkes then went back to the office and accused Sauerbry of bringing some of the derogatory letters to the plant for distribution. Sauerbry denied doing so, and to prove his statement, he went to the storage shelf, took his lunch sack, returned to the office, and showed Kerkes its contents. At some point during the argument between Kerkes and Sauerbry, Kerkes said that "he would take care" of "the next one who brought stuff like that in." 30 In respect to the above-described incident, I make the following findings: Kerkes' examination of the lunch sacks of employees in the presence of employee Ott clearly constituted surveil- lance which had a tendency to deter employees from carrying union literature into the plant in their lunch sacks or pails. In addition, Kerkes' interrogation of Sauerbry regarding the latter's connection with the Union's letter of June 23, clearly was coercive, and his accusation that Sauerbry's lunch sack contained additional copies of the letter for distribution in the plant, also conveyed the impression that Sauerbry's union activities had been the subject of surveillance by Respondent. Finally, Kerkes' threat that "he would take care" of "the next one who brought stuff like that in," clearly constituted coercion of employees in the exercise of their rights under the Act. In all these respects, I conclude that the Respondent, through Kerkes, engaged in further violations of Section 8(a)(1). d. On July 30, employee Bruce W. Ott attended a meeting at the American Legion hall. On the following day, Supervisor Kerkes approached Ott at his work station in the plant and said, "How did things go last night?" At first Ott thought that Kerkes was referring to the orchestra practice in which he engaged every Thursday night, but Kerkes quickly disabused him of that notion by adding, 28 The findings above are based on Dunlap's uncontroverted and credited testimony. Kerkes was not called by the Respondent to testify. 29 Resp Exh 2 30 The findings above are based on the credited testimony of Sauerbry and employee Bruce W Ott, who observed Kerkes going through the lunch sacks on the storage shelves Plant Manager Harrison testified about this incident, but his version was not materially different from Sauerbry's, which I credit As previously noted, Kerkes did not testify at all. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Have they quit telling you the lies and started telling the truth?" Realizing then that Kerkes was referring to his attendance at the union meeting, Ott replied that "he didn't feel they [the Union ] was (sic) telling me any lies. I felt they were right." In respect to this incident , it is clear and I find that Kerkes' interrogation of Ott as to how things went at the meeting which Ott had attended the previous evening, and as to whether the Union was still telling lies, clearly sought to elicit from Ott, and it did, whether Ott favored the Union. Moreover, it also clearly conveyed to Ott the impression that attendance at union meetings was subject to surveillance by Respondent . In both said respects, Kerkes' conduct was coercive of employees' rights under the Act, and thereby the Respondent further violated Section 8(a)(1) thereof. e. According to the uncontradicted and credited testimony of employees Billy Don Cloud and John Dunlap, about a month before the hearing in this case, Supervisor Kerkes said in their presence that "if anybody . . said anything against him [at the hearing ] that wasn't true that he would whip them." I regard this threat as a further violation of the Act for the following reasons: The determination of the truth at a Board hearing is the exclusive province of the Trial Examiner, subject to review by the Board and the courts of appeals . Kerkes' threat in effect conveyed to employees that he would be the arbiter as to whether they testified to the truth about him, and that they would be subject to physical retaliation if their testimony did not meet his concept of the truth. Such a threat clearly had a tendency to inhibit employees both from testifying freely about Kerkes , and from testifying about him at all. Thus, the threat not only was ,coercive of employee rights , but it also constituted interference with the Board's hearing processes 3. Additional interrogation of employees On about August 23, while employee Barbara Colbert was at work at her mending machine , and employee Wanda Parish was inspecting , Supervisor Jack Wilcox came by, "took a union paper" out of Parish's purse, and read it. Wilcox then asked Parish where she got the paper and Parish replied, "Barbara gave it to me." 31 I regard the removal of union literature from Parish's purse , and its perusal by Wilcox, as coercive and unlawful surveillance of the union activities of Respondent 's employees. I likewise regard the questioning of Parish about the identity of the distributor of the union leaflet as coercive interrogation. I conclude that in both respects, Respondent further violated Section 8(a)(1) of the Act. 4. Additional alleged surveillance A number of employees testified that while in town on diverse dates, they observed various officials and supervi- sors of the Respondent driving in automobiles in the vicinity of the legion hall and the Chief Motel while union meetings were in progress. The complaint alleges that by such conduct, Respondent engaged in unlawful surveil- lance of its employees' union activities and gave the impression of such surveillance . I regard the testimony as insufficient to establish either such violation . Briefly, the testimony regarding the alleged surveillance was as follows: a. On August 26 at about 7 p.m, George Sauerbry, a former employee of Respondent , observed the car of Supervisor Richard Gillette driving west down the alley on which the legion hall is located , turning left (south) to Main Street, and then right on Main Street . As the car passed the hall where a union meeting was in progress, Gillette turned in his seat towards the hall "to see who was standing there." Gillette credibly and plausibly explained that on the night in question , he was on his way home from town, and that his route home took him past the legion hall. Gillette frankly admitted that he noticed "a few people standing over there on the lot," but he credibly asserted that he "didn't really think anything about it at the time, and proceeded on." b Sauerbry further testified that after the meeting ended that night at about 8:30 p.m., he and Bob G. Long, the Union's representative , were getting gasoline at a Gulf station on Main Street near the Chief Motel , when they observed Supervisor Elgin (Pete) Wright driving a car around the block where the Chief Motel is located. c. Employee George Welsh testified that earlier that day at about 4:30 p m ., he "believes" he saw a car containing Supervisors Wright and Gillette drive by the Chief Motel on Main Street heading west , and a few minutes later, he saw the same car pass the motel going east . Wright plausibly and credibly testified that he had no specific recollection of his driving routes on August 26. He frankly admitted that on occasions , he was driven by the Chief Motel and observed "people," including employees, standing out in front of the motel . However, he denied knowingly passing any place where a union meeting was being conducted for the purpose of snooping. d. Several employees testified that on July 22 at about 4:30 p.m., they saw Plant Manager Harrison and Personnel Manager Downing together in a car which drove by the legion hall while a union meeting was in progress . Harrison credibly testified, however, that on the date and time in question, he and Downing had business in the office of Respondent's counsel , Russell, and that the latter's back entrance and parking lot are on the same alley as the legion hall. Harrison frankly admitted that on that date, he and Downing passed the legion hall while going to and coming from Russell's office. e. Another employee, Barbara Colbert , assertedly saw Harrison and Downing drive "near" the legion hall on July 20 at about 1 p .m., while a union meeting allegedly was being conducted there . However, as previously noted, the Union does not conduct meetings at the time ( 1 p.m.) Colbert saw Harrison and Downing. Moreover, Colbert apparently also was mistaken as to the date of this incident, for as Harrison credibly testified , it was July 22 when he and Downing drove to town at about the time Colbert saw them, and on this occasion , they had lunch in 31 The findings above are based on Colbert's uncontradicted and credited testimony Wilcox was not called by Respondent to testify CONGOLEUM INDUSTRIES, INC. a restaurant on Main Street, visited the post office on Main Street, and then returned to the plant. f. Finally, two employees testified that they saw Supervisor Gary Bagwell parked between the Handy Stop, a grocery store on Main Street, and the Chief Motel, and that Bagwell was looking towards the motel while a meeting of the Union was in progress However, employee Larry Satterfield credibly testified that on the date and time in question, Bagwell and he engaged in casual conversation for 5 or 10 minutes while Bagwell's wife was using "the pay phone" at the Handy Stop parking lot, and that they all left "as soon as his [Bagwell's] wife got off the phone." As previously noted, Wilburton is a small town and its principal thoroughfare, on which most of the town's stores are located, is Main Street. Since U-turns are not permitted on Main Street, in order to reverse the direction in which an automobile is facing, it is necessary to turn off Main Street, to traverse one of the alleys north or south of Main Street which parallel it, and then return to Main Street and travel in the direction opposite that previously faced The legion hall is located on the alley just north of Main Street, and the Chief Motel is right on Main Street. Under the circumstances, it hardly can be regarded as unusual that automobiles, while in town, including those of Respon- dent's supervisors, would on occasion drive past the legion hall and the Chief Motel. Moreover, in view of the Union's frequent meetings at these central locations, I am not persuaded that the fact that supervisors drove past the meeting sites, or even that they looked in the direction of the meeting sites, establishes that they were engaged in unlawful surveillance of the Union's meetings. According- ly, I will recommend the dismissal of the complaint insofar as it is based on the alleged surveillance of union meetings by supervisors who were driving by the legion hall and the Chief Motel.32 5. Additional alleged threats In addition to the previously considered threats asserted- ly made by Plant Manager Harrison in his May 13 speech to employees and those made by Supervisor Kerkes as found above, paragraphs 7(f), (g), and (h) of the complaint attribute similar threats to various other supervisors of the Respondent. There is no testimony to support any such allegation in respect to either Tufting Department Head Elgin (Pete) Wright or Maintenance Foreman C. J. Davis, and I will recommend dismissal of the complaint insofar as it attributes such threats to them. The record in respect to the alleged threats of other supervisors will now be considered and determined a. On July 24, Personnel Manager Downing notified four employees33 by letter of their discharge.34 The identically worded letters stated as follows: I regret to have to advise that you have been discharged from employment with this Company. It is obvious, I am sure, that this Plant cannot operate if employees merely, at their option, elect not to attend and perform their jobs as was the case with you last 32 West Point Manufacturing Company, 142 NLRB 1161 13 Andy Charlie Bullard, Buddy Croslin, Sherrill Gene Newsom, and W George Sauerbry 543 Thursday when you said you were afraid to come to work. As more fully described, infra, these four employees had refused to enter the plant to work on about July 23 because there was a picket line in front of the Respondent's premises The complaint alleges that by these letters, the Respondent threatened "to discharge and permanently replace all employees who went on strike." I can perceive no such threat, either explicit or implied, in these letters, and I therefore will recommend dismissal of the complaint insofar as it is based thereon. b. On September 16, Inspection Department Head Richard Gillette issued a written reprimand to employee Larry Ingle for taking an additional break of 5 to 10 minutes from his job on two separate occasions. According to Gillette's uncontroverted and credited testimony, it was Ingle's responsibility, after taking his regular breaks in work, to relieve Ray Carmony, another employee who worked on the oven, while Carmony took his break. Gillette testified that on 2 successive days he observed that after Carmony returned from his break, Ingle made a second visit to the restroom and water fountain; that when he "first noticed this," he orally warned Ingle that he was "taking advantage of the situation," and "that it was not right," and that when the same thing happened on "the following day," he issued the written reprimand.35 Ingle admitted that he "sometimes," "occasionally," visited the restroom and water fountain for a second time after Carmony returned from his breaks Ingle's testimony implied, however, that the issuance of the written repri- mand to him for so doing constituted disparate treatment, which was motivated by antiunion considerations, because it occurred shortly after he started to wear a union sweatshirt in the plant, and because, as far as he knew, other employees who committed similar offenses were not reprimanded The complaint (paragraph 7(f)) alleges that by this reprimand, the Respondent threatened "to deny employ- ment and to discriminate against employees who supported the Union " I regard the evidence insufficient to establish the alleged violation. In the light of Ingle's admission that he "occasionally," "sometimes," takes a second break period 10 to 15 minutes after his regular one, the issuance of a reprimand clearly was warranted. The burden of proving that the reprimand to Ingle represented disparate treatment or discrimination wag on the General Counsel The only testimony in this regard was Ingle's However, Ingle was not shown to possess knowledge as to whether the Respondent had or had not issued like reprimands for similar offenses, and therefore, his testimony that "as far as he knew," no such reprimands issued, is insufficient to establish disparate treatment or discrimination. According- ly, I will recommend dismissal of this allegation of the complaint insofar as it is based on the issuance of a reprimand to Ingle. c. On September 4, Plant Manager Harrison assembled the Wilburton employees in groups of 20 to 25 people and delivered an address to each of five such groups of 34 The discharge of these employees is alleged in the complaint as violations of Sec 8(a)(l) and (3) of the Act, and will be considered, infra 11 See G C Exh 17 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. On each occasion, Harrison was accompanied by Personnel Manager Downing who, according to Harrison, made "a few introductory remarks" Before making these speeches, Harrison, with the assistance of Respondent's Industrial Relations Counsel Eriksen, had prepared an outline of the address he intended to make,36 and had familiarized himself with its contents, but he did not read from it when he spoke to the employees. According to Harrison, he gave "the same speech five times," and there were some questions from employees which he answered. The complaint alleges that Harrison's speeches on September 4 threatened union supporters with discharge and denial of employment, threatened discharge and permanent replacement of all strikers, and threatened plant closure and removal from Wilburton if the Union succeeded. Out of the 100 to 125 employees who heard Harrison's September 4 addresses, only 1, Keith Albright, testified for the General Counsel regarding it. A careful examination of Albright's testimony discloses no reference to any threats of any kind by Harrison in his September 4 addresses. Moreover, I can perceive no support for these complaint allegations either in Harrison's outline of the speech, nor in his testimony regarding it which I credit. Accordingly, I will recommend dismissal of these allega- tions of the complaint insofar as they are based on Harrison's September 4 addresses. F. The Discharge of J. W. Aaron J. W. Aaron was hired by the Respondent on Novem- ber 10, 1969, when the Wilburton plant first commenced operations. He was assigned to work in the finishing department which then had six employees who worked under the supervision of Ralph Williams, the department head. In late January or early February 1970, Jerry Davidson, a pipefitting employee of one of the contractors who was building an addition to the plant, gave Aaron some union literature which Aaron distributed in the plant a day or two later to some of the other hands, and then discussed the Union with them. At that time (February), the number of employees in the finishing department had increased to about 17 to 20. According to Aaron's uncontroverted and credited testi- mony, these employees were so busy that unlike employees in other departments, they were unable to take their breaks at regular times, and "sometimes it might be two or three o'clock before you would get to go to dinner."37 In addition, the employees in the finishing department were working as many as 14 hours a day. These conditions provoked dissatisfaction by "just about every one of them [the men in the department]." Thus, Aaron credibly 36 Resp Exh 9 31 By dinner, Aaron referred to the meal generally known as lunch in most areas 38 Except for the last sentence which contains quotes from Williams' testimony, the findings above are based on Aaron's credited testimony as Aaron frankly testified that not all the employees wanted a second shift, and that three, including John Kerkes and Larry Thrash, who later became supervisors, were opposed and "laughed" at him when he suggested a second shift to reduce their working hours to 8 a day 40 According to W George Sauerbry, the employee who first made this suggestion was Roger Taylor who quit Respondent's employ a few days testified, "They was (sic) tired of it. They was wanting (sic) to start a second shift. They were tired of never getting the breaks like they was (sic) supposed to." However, despite the complaints, Williams told the employees "that the sales picture at the present time did not justify a second shift ... and that we were going to have to work like we were working ...." 38 On about February 24, after discussing with other employees whether they wanted Respondent to add a second shift, and having thus obtained general agreement that this would be desirable, Aaron spoke to Williams at about 4 or 4:30 p.m., and said, "Some of us is wanting (sic) to know when you are going to start the second shift."39 Williams replied "that he would just have to see. If he started a second shift now some of the other men would quit." Aaron then went back to the department and reported to the employees who were working in the area what Williams had said. One of the employees declared, "Well, what we ought to do, we ought to just walk out." 40 Aaron admittedly responded, "Yeah, I agree. We ought to just walk out is what we ought to do." Another employee said, "Let's go," and Aaron repeated, "Let's go." Nobody left, however, and Aaron then suggested, "The best thing for us to do, really, is not even-we wouldn't do no (sic) good to walk out tonight, Ralph [Williams] not even being here.41 The best thing to do is we'll get together, [and] talk to him in the morning." The employees agreed to this procedure, and that Aaron and employee Jerry Andrews would act as spokesmen for the group.42 However, on the following day, Aaron was sick and did not report for work, and consequently, "nobody went in" to present the employees' request to Williams. When Aaron returned to work the next day, his timecard was not in the rack, and he was told by Williams in the latter's office, "J. W., I'm going to have to let you go." Aaron asked "why," and Williams said that two men had reported that "I [Aaron] liked to have caused a walkout, and he [Williams] couldn't have that." Williams also said, "he hated to do it," that he "had plans" for Aaron, and that perhaps at a later date when a second shift was operating, Aaron might come back to work. Aaron made several attempts thereafter to obtain reinstatement, including speaking to Plant Manager Harrison and Personnel Manager Downing. However, all of Aaron's efforts were to no avail for eventually he received a letter signed by Downing dated June 26, which stated: 43 After consideration of your application for employ- ment, we do not feel we will be able to offer employment to you at this time. The complaint (paras. 8, 9, and 10) alleges that Aaron was discharged by Respondent because he "engaged in later Aaron's testimony in this regard was that "somebody," or "some of them," made this statement 41 Williams had by then gone for the day 42 The findings above are based on Aaron's testimony which I credit, inter aba, because I regard him and it as both frank and honest Supervisor Thrash, the only witness to this incident whom the Respondent called, testified that Aaron requested him to "shut the machine down and go home " Aaron , however, testified that he asked Thrash whether "if the men walked out, would he shut down and go with us" I regard Aaron's testimony as more reliable 43 G C. Exh 16(a) CONGOLEUM INDUSTRIES, INC. 545 concerted activities for the purposes of collective bargain- ing or mutual aid or protection," and that thereby Respondent violated Section 8(a)(1) of the Act. The Respondent contends that "Aaron was properly discharged for attempting to instigate [an] unprotected activity-a refusal to work overtime." The foreman's report of payroll change, signed by Williams and Plant Manager Harrison,44 states that Aaron was discharged on February 26 at 8 a.m. because: After general foreman left on 2-25-70 at 5 p.m. J. W. attempted to shut dept down while trying to entice other employees to walk out because dept. was operating more than 8 firs per day.45 As found above, the suggestion to the employees that they walk out to protest the excessive hours of employment did not originate with Aaron, but he nevertheless initially regarded it with favor and joined in the statement first made by other employees, "Let's go." However, as further found above, it was Aaron who later suggested that instead of walking out, the best procedure for the employees would be to "get together" the following morning and concertedly present to Williams a request for the institution of a second shift to reduce the excessive overtime. Finally, as found above, it was Aaron's later suggestion which the affected employees of the finishing department adopted. In the light of those findings, it follows that Williams was in error in his belief that Aaron had "instigate[d]" the attempt to "shut [the] dept down."46 However, even assuming that Respondent was correct in its belief that Aaron was responsible for the attempt to strike on February 24, I find, for the reasons set forth below, that his conduct in so doing was an activity protected by the Act, and that, therefore, his discharge for engaging in that activity violated Section 8(a)(1) of the Act. Employees may protest and seek to change any term or condition of their employment and their ultimate weapon to achieve a desired change is a strike or concerted work stoppage. A strike or concerted work stoppage by employ- ees is protected under Sections 7 and 13 of the Act, unless it is for an improper objective or is conducted in an unlawful manner.47 The Board and the courts have had occasion to consider whether or not strikes to bring about a reduction in the hours of employment constitute an activity protected by the Act. Such strikes are, perhaps, the only ones where employees can achieve their goal by the simple act of walking off the job when they have worked the number of hours they want to put in. The cases therefore hold that although a strike for this objective is no different than one for any other term or condition of employment, "employ- ees who choose to withhold their services because of dispute over scheduled hours may properly be required to do so by striking unequivocally."48 Accordingly, the cases hold that employees who plan and/or engage in recurring 44 G C Exh 16(a) 45 This accords with the testimony of Department Head Williams as to his reason for firing Aaron 46 Cf N L R B v Burnup and Sims, Inc , 379 U S 2I 47 For example, sitdown strikes, slowdowns, recurrent strikes, wildcat strikes, and strikes in violation of a contract generally are unprotected 48 First National Bank of Omaha v N L R B, 413 F 2d 921, 924 (C A 8) 49 C G Conn, Limited v N L.R B, 108 F.2d 390 (C A 7), Mt Clemens work stoppages and thereby substitute their own schedule of hours for that imposed by their employer, engage in an unprotected activity for which they may be discharged or disciplined .49 In each of these cases, the Board, or the court, held that since the employees intended to continue to work their regular hours, but refused to work overtime, they had not unequivocally assumed the status of strikers and thus their conduct was not protected by the Act. On the other hand, however, when the strike is not partial, intermittent, or recurrent, it is protected by the Act, and, therefore, the discharge of employees (who have not been permanently replaced while on strike) for engaging in such a strike violates the Act.50 In this regard, the court in First National said at 925: We recognize the difficulty of drawing a line between protected and unprotected activity in such situations. The task is even more difficult when the walkout occurs at or near the end of a regular day, and the employees return to work the next morning. The line is one which must nevertheless be drawn . Employ- ees have the same right to engage in concerted activity to bring about a change in overtime policy as they do to bring about a change in wages or other working conditions. They have as much right to strike on this issue as any other, and they are not required to institute the strike at any particular time of the day or tQ maintain it for any particular period of time to be entitled to the protection of the Act. The test in each case is whether the employees have assumed the status of strikers. They cannot continue to work the regular hours of employment and refuse to work overtime. There is no evidence that the work stoppage which Aaron attempted to instigate on February 24 by assertedly telling employees to shut down and go home was intended to be repeated the following evening. Since a single work stoppage of limited duration to protest excessive hours of work is a concerted activity protected by the Act unless it is shown that the employees intend by repeating the stoppages to substitute their own schedule of hours for that of the employer,51 it follows, a fortiori, that the instigation of a single such work stoppage clearly also is so protected. Accordingly, I find that by discharging Aaron on February 26 for attempting to instigate a single work stoppage in protest against long working hours, the Respondent violated Section 8(a)(1) of the Act. G. The Termination of Bullard, Croslin, Newsom, and Sauerbry During the construction of the addition to the Respon- dent's Wilburton plant, there were several occasions when picketing by unions of Respondent's construction contrac- tors resulted in work interruptions . In July 1970, a separate concrete entrance road to the plant was completed and the Respondent's employees were advised by notices posted on Pottery Co, 46 NLRB 714, modified and affd , 147 F 2d 262 (C.A. 6), Valley City Furniture Company, 110 NLRB 1589, enfd. 230 F.2d 947 (C A 6); Honolulu Rapid Transit Company, Limite4 110 NLRB 1806 , John S Swift Company, 124 NLRB 394, 396. 59 First National Bank of Omaha, 171 NLRB No. 152, enfd. 413 F 2d 921 (CA 8) 5i Cf. First National Bank of Omaha v N LR B, supra 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 10 that "effective immediately" they were to use the new concrete road, and that the old entrance road was reserved "for the exclusive use" of the "construction people." 52 The new road thus assigned to Respondent's employees was variously estimated to be from 30 to 50 feet from the old one. On July 22, when employees left the plant at the end of the first shift, there was a picket line at the entrance to Respondent's plant. That night, at a meeting of the Union, Jerry Davidson, one of the construction workers who "were out there on strike," came to the Union's meeting and told employees who attended "what was going on " After the meeting, some of the employees were told by the Union's representatives that anything they did in respect to the picket line "we would have to do on our own, they could not advise us- one way or the other "53 On the morning of July 23, employees approaching the Respondent's plant to go to work were confronted with the following spectacle: About 14 or 15 people were "standing at the gate" in the area between the concrete entrance road and the construction entrance road to the plant; one man standing between the two roads had a sign of the "Steelworkers" strapped to his back which said something about "information picket," and that the picketing was against the "Zimmer Machine" that was being assembled by "a bunch of Austrians"; there were two highway patrol cars, a sheriff's car, a deputy sheriff, and the sheriff, and "a car and a pickup parked right next to the road leading into the plant." The entrance road to the plant admittedly "was not completely blocked" by the car and the pickup and access to the plant could be attained by driving "around him." 54 Insofar as the record discloses, most of the Respondent's employees were not deterred by the picket- ing from entering the plant and reporting for work. However, four employees, W. George Sauerbry, Andy Charlie Bullard, Buddy Croslin, and Sherrill G Newsom, upon observing the picket line, turned their cars around and drove back to town where they later met and together went to the Union's headquarters at the Chief Motel.55 They then telephoned the plant, and, one by one, all four in turn spoke to their foreman, Williams, and told him that there was a picket line up and that they did not want to cross it because they were afraid of later physical reprisals by the pickets. Williams in reply told the four employees that there was no reason for fear, that the picket line was not across the employees' entrance road, that he needed their services, and that he regarded their reason for not reporting as "not a valid excuse " Williams offered to come down the road and escort them safely into the plant 52 Resp Exh 8 51 The quotes above are from the credited testimony of Sauerbry The record does not disclose what Davidson told the employees at the union meeting 54 The description of the picketing above is based on a composite of the credited testimony of Sauerbry, Bullard , and Newsom 55 Three of these employees, Sauerbry, Bullard, and Croslin, were members of the Union's "committee " See G C Exh 6 The fourth, Newsom, although not a committee member , was known by the Respondent to be a union advocate, for on May 20 he had been reprimanded by his foreman, Williams, and by Personnel Manager Downing for passing out union literature and soliciting for the Union in the plant during working time 56 In this regard, it may be noted that on July 23, based on the affidavit of Plant Manager Harrison , Jerry Davidson, one of the pickets, was arrested However, his offer was rejected by the four, assertedly because they were "afraid of what might happen sometime later on." 56 Upon the conclusion of the telephone call, Williams reported the matter to Personnel Manager Downing and recommended that "we should terminate them [the four employees] because I had to have somebody out there to operate that oven," and not have to depend on employees who "were bust going to go and stay home any time they got ready." The next morning, July 24, there was no picket line at the plant, and Sauerbry, Bullard, Croslin, and Newsom went together to the plant to work, but their timecards were not in the rack and they were told by Williams that they "were suspended, pending further investigation." Williams also repeated that the strike and picketing the day before were against the Zimmer Corporation, not the Respondent, and that "the Company felt that if there was a picket in McAlester, that we would not come to work and, therefore, we were suspended "57 So far as the record discloses, no investigation was conducted by Respondent On that same day, July 24, Personnel Manager Downing signed and sent the previously quoted identical letters to Sauerbry, Bullard, Croslin, and Newsom, which notified them of their discharge 58 According to the Respondent's foreman's report of payroll changes, all four of these employees were discharged "effective 7-27-70" at 8 a.m. because they "Refused to report for work."59 The Respondent admitted- ly hired no replacement for any of these four employees prior to their discharge. As previously noted, the complaint in this case alleges, inter aka, that the Respondent discharged these employees because of their membership and activities on behalf of the Union and that it thereby violated Section 8(a)(3) of the Act. In respect to this allegation, the record clearly discloses that the four were known by the Respondent to be active proponents of the Union and that the Company opposed the representation of its employees by the Union. There is, however, no evidence that union considerations played any part in the decision to discharge these four employees and none to show that the Respondent knowingly condoned a refusal by other employees to cross the picket line on July 23.60 Accordingly, I find that the General Counsel has failed to establish by the required preponderance of the testimony that the discharge of the four employees was motivated by their union membership and/or activities, and I will recommend the dismissal of the complaint in this respect. However, the complaint, as amended, also alleges, and the General Counsel now contends, that the discharge of and charged with the crime of "obstructing Public Road" by "placing his body and car" on "Road from Highway #2 to Congoleum Industries " See G C Exh 8 57 McAlester is the nearest large town, about 30 miles west of Wilburton The quotes above are from Sauerbry's uncontroverted and credited testimony 58 G C Exhs 9. 10, 1 I, and 12 59 TX Exhs 1, 2, 3, and 4 60 An attempt to show such disparate treatment was made by the General Counsel through witness Bruce Ott, but his testimony disclosed that the Respondent had no knowledge that Ott's failure to work on July 23 was based on the picket line, and it further disclosed that the excuse he gave for being absent was investigated and verified by Respondent before Ott was allowed to return to work CONGOLEUM INDUSTRIES, INC these employees violated Section 8(a)(1) of the Act because it was motivated by their protected concerted activity of refusing to cross the picket line at the Respondent's plant.61 It is by now well settled that an employee who refrains from crossing a picket line at his employer's place of business' has in effect plighted his troth with the strikers has thus become a striker himself. . . . [and] is therefore entitled to all the protections due under the National Labor Relations Act to those strikers with whom he has joined cause.62 Moreover, the Board and the courts have held that this protection applies to employees who respect the picket line of employees of another employer with whom the picketing union has a dispute.63 In this regard the Board, in Redwing Carriers, supra at 1546, said: .. employees engage in protected concerted activity when they respect a picket line established by other employees. Such activity is literally for "mutual aid or protection," as well as to assist a labor organization, within the meaning of Section 7. The Respondent contends that the refusal of the four employees here involved to go to work on July 23 was not a protected activity because the picketing was not conducted "on the roadways leading to the plant," and the employees thus were not "required to cross a picket line in order to go to work. I regard this contention as a quibble and without merit It cannot he gainsaid that the Respondent's plant was being picketed, regardless of whether the pickets actually were on or between the roadways leading to the plant. I note, moreover, that contrary to the contention now made, Respondent's plant manager on July 23 charged Jerry Davidson, one of the pickets, with obstruct- ing the road to the plant with his car and body The Respondent cites no case to support this contention and I reject it as devoid of merit The Respondent further contends that since the refusal of the four employees to cross the picket line assertedly was motivated by fear of reprisals from the pickets, their conduct was not an activity protected by the Act In this regard, the Respondent cites and relies on N.L R B v. Union Carbide Corporation, 440 F 2d 54 (C A 4, January 1971), where the court held that an employee's refusal to cross a picket line which is motivated by fear is not an activity protected by Section 7 of the Act In this regard, the court said at 56' One who is afraid to cross a picket line by reason of physical fear makes no common cause, contributes Si Seefn 1, supra 61 N L R B v Southern Greyhound Lines, 426 F 2d 1299, 1301 (C A 5, 1970), enfg 169 NLRB 627, NLRB v Di/co Laboratories, 427 F 2d 170 (C A 6, 1970), West Coast Casket Company, Inc, 97 NLRB 820, enfd 205 F 2d 902, 905 (C A 9), N L R B v John S Swift Co, 277 F 2d 641 (C A 7) 63 Wheeling Electric Company, 182 NLRB No 33, Nuodex Division of Tenneco Chemicals, Inc, 176 NLRB No 79, Overnite Transportation Company, 154 NLRB 1271, 1274, enfd sub nom Truck Drivers and Helpers Local No 728 v NLRB , 364 F 2d 682 (C A D C, 1966), The Cooper Thermometer Co, 154 NLRB 502, 505 (1965), Redwing Carriers, Inc, 137 NLRB 1545, 1546-47 (1962), enfd sub nom Teamsters, Chauffeurs and Helpers Local Union No 79 v NLRB , 325 F 2d 1011 (C A D C, 1963), cert denied 377 US 905 64 The Cooper Thermometer, supra at 504, Tenneco Chemicals, Inc, supra, 547 nothing to the mutual aid or protection and does not act on principle. However, contrary to the court's holding in Union Carbide, the Board's decisions regard an employee's motive for honoring a picket line as irrelevant.64 Thus, in Cooper Thermometer, supra, the Board said, at 504: . . the focal point of inquiry in determining whether an employee's] refusal to cross the picket line to perform production work was a protected activity must of course be the nature of the activity itself rather than the employee's motives for engaging in the activity. Accordingly, since I am required "to apply established Board precedent which the Board or the Supreme Court has not reversed,"65 I regard as without merit the Respondent's contention that a refusal to cross a picket line is an unprotected activity when it is motivated by fear.66 The Respondent finally contends that its discharge of the four employees was "perfectly proper" because their presence in the plant was "critical to production," and because their absence "created a high possibility of extensive loss because a carpeting would rot unless it was dried properly " In this regard, the record discloses that the four employees constituted half of the crew of eight which operated the drying oven, but that notwithstanding the absence of the four on July 23, the Respondent was able to operate the oven by temporarily transferring a single employee to the crew. Moreover, when the four reported on July 23 and were not allowed to resume work, the Respondent had not hired a replacement for any of them, but it was able, nevertheless, to continue operating the drying oven with the same crew as on July 23.67 In Overnite Transportation Co, supra, the Board said at 1274: .. that if the protected right of employees is to have any meaning at all, then the employer who would justify a discharge on the basis of an overriding employer interest must present more than a mere showing that someone else may have to do the work. That fact is inherent in every situation where employ- ees fall to perform a portion of their assigned tasks by respecting a picket line. To accept it alone as conclusive proof that their services were terminated solely to preserve efficient operation of the employer's business would be to render illusory any finding that the employees engaged in protected concerted activity It would leave the refusal to cross a picket line without any protection at all. Clearly, what is required is the balancing of two opposing rights, and it is only when Wheeling Electric Company, 182 NLRB 218, see also N LR B v Montag Brothers, Inc, 140 F 2d 730 (C A 5), where the court found that the refusal of two employees to cross a picket line was protected activity even though one employee admitted that her refusal was based on fear of physical harm, and the other because she had a relative who was a striker 65 Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772, 773 66 It may be noted in this regard that since Union Carbide, the same Court of Appeals for the Fourth Circuit enforced a Board order which required the reinstatement of two employees who were discharged because they refused to do stnkers' work for "fear of reprisal by the strikers " Virginia Stage Lines, Inc v N L R B, 441 F 2d 499 (C A 4, April 1971) 67 According to the Resp Exh 10, one new employee was hired on Tuesday, July 28, as a replacement for the four dischargees 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employer's business need to replace the employees is such as clearly to outweigh the employee's right to engage in protected activity that an invasion of the statutory right isjustified. The burden of proving the business justification for the discharge of the four employees was on the Respondent 68 I conclude from all the foregoing that the Respondent has not proved that any substantial or legitimate business considerations required the discharge of the four employ- ees who refused to cross the picket line on July 23. Accordingly, I find that by terminating their employment because they engaged in an activity protected by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. H The Suspension and Transfer of Vernon Tubbs Vernon Tubbs was employed by the Respondent as a rollup man in the finishing department69 under the immediate supervision of John Kerkes and Foreman Ralph Williams. On September 23, Tubbs was given a suspension without pay by Respondent assertedly for "refusing to follow the instructions of [his] shift leader."70 He was reinstated on September 27 to a job in the tufting department on the graveyard shift at a rate 5 cents an hour less than his previous rate, but after working 2 nights he became ill and was treated at the Veterans Hospital at Little Rock, Arkansas, for his "nerves." Tubbs returned to the plant after about 5 weeks with a statement from a VA doctor that he was "not capable" of working on the graveyard shift, and he was assigned by Respondent to a daytime job in the maintenance department. Tubbs' testimony regarding the events which precipitat- ed his asserted discharge, suspension, and transfer was confused and difficult to understand. As I comprehend it, on September 23, near the end of the day shift, Depart- ment Head Williams came by the machine which rolls up carpeting and asked Tubbs to increase the speed at which the machine was operating. A few minutes later, Supervisor Kerkes told Tubbs to slow it down, and he admittedly refused to do so. Kerkes then "turned it down," and then laughed and made fun of Tubbs. The following morning, Tubbs and several of his coworkers who agreed that "they was [sic] ready for a new boss," asked Kerkes to resign.71 According to Tubbs, Kerkes "run [sic] and got Ralph Williams" who told Tubbs that he was fired. Tubbs then went to the personnel office, where he admittedly was told by Personnel Manager Downing that Williams had no authority to fire him, and that Downing wanted him "to go back to work out there." Tubbs replied that since he had been fired by Williams, he would not go back until he got 68 N L R B v Fleetwood Trailer Co, Inc, 389 U S 375, 378, and 380, N L R B v Great Dane Trailers, 388 U S 26, 34. 69 Tubbs was hired by Respondent on March 21 and he signed a union authorization card on May 13 70 G C Exh. 19 7i Kerkes assertedly had promised earlier to do so if requested by the men "as a group." 72 The letter (G C Exh 20) first stated "This is to confirm the arrangement for the transfer you requested " Tubbs had requested a transfer in August to a department which worked fewer hours than the 12 to 16 hours per day which the finishing department then worked , but he had heard nothing further about his request until he received Downing's letter "a letter stating that I am rehired," and he accordingly went home. The next day, Tubbs received a message from his brother that Company Counsel Russell wanted to see him. Tubbs accordingly visited Russell's ' office and was asked "to go back to work right then, and just forget about it." Tubbs refused and again said, "I couldn't until I got a registered letter from them . . . stating I was hired back." According to Tubbs, the Respondent then successively sent "a clerk" and "the guard" out to his house with messages that he return to work, but he persisted in his insistence on "a registered letter" as a condition precedent to his return. Finally, on September 25, Personnel Manager Downing sent Tubbs a letter instructing him to report to work on September 27 at midnight.72 As noted above, Tubbs complied with this instruction. In respect to the incident which resulted in Tubbs' suspension and transfer, Department Head Williams credibly testified that after Kerkes reported to him that Tubbs refused to follow instructions, Williams spoke to Tubbs, who heatedly claimed that Kerkes had embarrassed him and that he would not work for Kerkes anymore. Williams "finally quieted him [Tubbs] down," and ob- tained his agreement "to take instructions from Johnny [Kerkes]." The next morning, however, Williams received another complaint from Kerkes about Tubbs, and when he spoke to Tubbs, the latter said he could not get along with, and would not work for, Kerkes. Williams replied that he had no other job for Tubbs if he would not work for Kerkes, and he said, "Let's go to the Personnel Office, and let's see what can be worked out." Tubbs asked, "Am I fired?" and Williams said, "no." However, Tubbs insisted, "Oh yes you did, you just fired me." In any event, Tubbs accompanied Williams to Downing's office and both tried to calm Tubbs down, and then Williams left. The complaint alleges and the General Counsel contends that Tubbs was suspended by Respondent and later reinstated to a "less desirable" shift and "more arduous" job, because of his union membership or concerted activity for mutual aid or protection. So far as the record discloses, the only union activity on the part of Tubbs was to sign a union authorization card. There is no evidence that the Respondent had any knowledge that Tubbs had signed a union card.73 I therefore conclude that the General Counsel has failed to establish that the changes in Tubbs' job effected on September 24 were motivated by his union membership. Moreover, in view of Williams' credited testimony, I am persuaded that Tubbs was suspended and transferred because of his refusal to work for Kerkes and not because of his asserted protected activity of requesting Kerkes to resign. Accordingly, I will recommend dismissal of the complaint in this regard. 73 In response to leading questions from the General Counsel, Tubbs testified that on the day Williams fired him, Downing later said that the Company was "having too much trouble with the Union now," and so it "couldn't afford to fire [him and] would have to change it to a suspension " This was the only reference to the Union in Tubbs' account of the incident which led to his suspension and transfer Prior to the leading questions, Tubbs had been asked by the Trial Examiner to state "the conversation you had in Mr Downing's office," "what he said, and what you said " and his responses contained no references whatsoever to the Union In view of my lack of regard for the reliability of Tubbs' patently confused and sometimes self-contradictory testimony, I do not credit his responses to the General Counsel's leading questions CONGOLEUM INDUSTRIES, INC. 1. The Demand for Recognition and the Refusal to Bargain As previously noted, the Wilburton plant is a new one. During the period involved in this case, an addition to the plant was under construction and new machinery for the continuous printing and dyeing of carpeting was in the process of being installed. The Company's plans also included the expansion of its labor force to a total of 385 by September 1971.74 Between May 12 and August 26, 74 of the Respondent's production and maintenance employees at the Wilburton plant signed cards authorizing the Union to be their collective-bargaining representative.75 On August 27, by certified letter, the Union notified the Respondent that it represented "a majority of the Production and Mainte- nance employees" at the Wilburton plant, and requested Respondent to recognize it as "the exclusive bargaining representative" of said employees. The letter also request- ed: ... an opportunity to prove our majority in the above specified unit by a check of signatures through a disinterested party, agreeable to both the Union and the Company, who will not reveal the identity of the signatures.76 The letter was received by the Respondent on August 28. On that date, the Respondent admittedly had 121 employees in its production and maintenance unit.77 That number did not include the five employees who, as found above, had been discharged in violation of the Act, and whose reinstatement will be recommended herein. It also did not include card signer Tom Dale Cates, who then was on an extended leave of absence granted to him by Personnel Manager Dowing.78 It thus appears and I find that at the time the Union demanded recognition, it represented a majority (74) of the employees in the production and maintenance unit which then consisted of 127 employees. The Respondent admittedly received the Union's letter on Friday, August 28, but before it could reply, the Union, on August 31, delivered to a Board agent, who was in Wilburton on other business, a copy of the charge in Case 16-CA-4102, which the Union already had mailed to the Board's Regional Office, in Fort Worth, Texas. The Respondent did not reply to the Union's letter of August 27. On October 23, by certified letter to the Respondent's counsel, the Union charged that Counsel Walther had "illegally" questioned employees about their signatures to 74 When, as noted, infra, the Union demanded recognition on August 27, the Respondent's labor force was 121 At the time of the hearing in this case, the employee complement had increased to 201 75 The 74 cards included 5 signed respectively by J W Aaron, W George Sauerbry, Andy Charlie Bullard, Sherrill G Newsom, and Buddy Croslin, who, as found above, had been discharged by Respondent in violation of Sec 8(a)(I) of the Act, because they engaged in concerted activities protected by the Act 46 G C Exh 13 77 G C Exh 14 78 The finding in respect to Cates' status is based on his uncontroverted and credited testimony Downing was not called by the Respondent to testify to the contrary, and the Company's records, according to Plant Manager Harrison, admittedly did not disclose that Cates' employment had been terminated 79 G C Exh 15 549 the Union's authorization cards, and thus undoubtedly now knew that the Union represented a majority of the Wilburton employees. Therein, the Union offered to produce the original cards for verification of the signatures by Respondent's counsel and enclosed a list of the employees who assertedly had signed union cards. The letter concluded with a renewed demand that the Union be recognized as the collective-bargaining representative of the Wilburton Plant employees "now that there is no doubt as to our majority status."79 On October 28, Walther, in reply to the Union's letter of October 23, denied the accusation of illegal questioning, admitted that he and his associate had interviewed employees, and stated that based thereon he regarded the Union's claim of majority status on August 27 or thereafter to be unsupported. Walther suggested that if the Union "honestly" felt that it represented a majority it should file a petition with the Board "so that the question can be resolved by a secret election." 80 However, the Union did not accept Counsel Walther's suggestion, and neither it nor the Respondent filed a petition with the Board to have the representation question determined. The complaint alleges that the Respondent violated Section 8(a)(5) of the Act by its failure and refusal to bargain with the Union on and after the latter's demand of August 27. The Respondent contends that its refusal to bargain with the Union at the time of the latter's demand was justified because it did not have a "substantial and representative complement of employees" at that time, and therefore "there was not an appropriate unit for bargain- ing." The Respondent further contends that the nature of the unfair labor practices allegedly committed by it were not such that would "tend to undermine the union majority or impede the holding of a fair election." For reasons which follow, I conclude that a bargaining order is not required to remedy the unfair labor practices found herein because, in my view, they were not such as would have precluded the holding of a fair election to determine the Union's majority status, and that the Respondent's refusal to bargain with the Union did not violate Section 8(a)(5) of the Act.81 In the light of those conclusions, I deem it unnecessary to determine whether or not the planned expansion of the unit justified the Respondent in ignoring the Union's demand for recognition and bargaining in August.82 In N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, the Supreme Court examined in depth the Board's use of bargaining orders to remedy unfair labor practices. 80 Resp Exh 3 The letter stated, inter aba, that according to employee statements, many of the cards were signed under "circumstances" which "would invalidate" them for use as the "basis for any representative claim " At the hearing, however, no testimony was adduced that any of the signatures to the Union's 74 cards were obtained by misrepresentation or other improper means 81 Linden Lumber Division, Summer & Co, 190 NLRB No 116 82 The Respondent's brief intimates that it was prevented from filing a petition for a Board election by the Union's refusal-to-bargain charge which was filed before it had an opportunity to reply to the Union's demand, by the then pending charge of additional unfair labor practices in Case 16-CA-4037, and by the Board's blocking charge policy However, regardless of whether such a petition, if filed, would later have been dismissed by the Regional Director because of the blocking charges, under Sec 9(c)(1)(B) of the Act, the Respondent could have petitioned for an election and the Union's charges did not prevent it from so doin" 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therein the Court held, inter aka, that the Board could impose a remedial order to bargain in any case where it found that: ... the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order . . . . [Id 614-615.] In my opinion, the Respondent's violations here did not have such an impact on the employees that a fair representation election could not have been conducted. I base this conclusion on the facts, among others, that many of the violations were unrelated to the Union's campaign and were not motivated by antiunion considerations, at least one such violation occurred even before organization began in earnest, and the violations did not stop employees from subsequently signing the Union's authorization cards or prevent the Union from thereafter acquiring such signatures from a substantial majority of the employees in the unit. In this regard , the record discloses as follows: 1. In point of chronology, the Respondent's first violation was the discharge of Aaron in February for allegedly instigating a work stoppage to protest excessively long working hours. This violation was based, not on antiunion considerations , but on the Respondent's appar- ent belief that it had a right to discharge work stoppage instigators. It occurred before the Union began soliciting authorization cards and it preceded the demand for recognition by about 6 months. Clearly, this violation would not have precluded a fair election within a reasonable time after the Union's demand. 2. The Respondent's second unfair labor practice in chronological order was the wage increase of 10 cents per hour which was announced to the employees by Plant Manager Harrison on May 13 in conjunction with an antiunion speech . However, the wage increase did not stop the employees from supporting the Union, since out of a total of 74 employees who signed union cards, 8 did so on May 13, and 52 signed thereafter. In my view, this violation would not have prevented a fair election in September, 3 months later. 3. The next unfair labor practice found was the Respondent's excessively broad no-solicitation and no- distribution rule which was promulgated on May 19 in conjunction with the issuance of the employee handbook to the employees in this new plant . There is no evidence that the promulgation of the rule was motivated by antiunion considerations and none that it was disparately enforced . Notwithstanding the rule, union solicitation and distribution of literature was conducted by employees in the plant without resulting disciplinary action. When the illegality of the rule was called to the Respondent's attention on September 15 by an amendment to the Union's charge in Case 16-CA-4037, the Respondent promptly consulted counsel and then amended the rule and eliminated the illegal provisions . Under all the foregoing circumstances , it is my view that this violation would not have prevented the holding of a fair election. 4. As found above, two of Respondent's supervisors, John Kerkes, and Jack Wilcox, engaged in unlawful interrogation of employees and created the impression of surveillance of union meetings and activities . Kerkes also told one employee that Respondent might not complete its plant addition if the Union "got in," and told two others that he would whip anybody who lied about him at the Board hearing . This conduct , although unlawful, was not engaged in by Respondent 's higher supervisory level and was addressed to only a handful of employees in the plant. Moreover, in his September 4 speeches to employees, Plant Manager Harrison clearly conveyed to them that interfer- ence with their union activities by anyone , including supervisors, would not be tolerated, and he urged that any such be reported to him. Harrison further told the employees that there would be no discrimination against any employee because he exercises his right to oppose or support a union.83 Under the circumstances, I do not believe that the violations engaged in by these two lower level supervisors would have precluded the holding of a fair election. 5. There remains the final question of whether the discharge of Sauerbry , Bullard, Newsom, and Croslin on July 24 would have prevented the holding of a fair election within a reasonable period after the Union's August 27 demand for recognition . As previously noted, I have found that the discharge of these four employees violated Section 8(a)(1) of the Act because it was motivated by their refusal to cross a picket line at the Respondent 's plant, a concerted activity protected by the Act . In addition, I found that although the Respondent knew that the four actively supported the Union, there was no evidence that the discharge of the four was motivated by antiunion consider- ations. I therefore recommended dismissal of the Section 8(a)(3) charges which were based on their alleged termina- tion for antiunion reasons. Their discharge did not prevent the Union from thereafter acquiring majority status. Thus, 34 of the Union's 74 cards were obtained in the single month which elasped after their discharge before the Union's recognition demand of August 27. I therefore do not believe that their terminations would have prevented the holding of a fair election after the Union acquired majority status. Although I have found that the Respondent engaged in the foregoing violations and that its defense as to each was insufficient, I am not persuaded that its conduct was motivated by other than a good-faith belief in the propriety of its actions. Such impact on the employees which these violations may have had should , in any event, be erased by the remedy of reinstatement, backpay, and posting of notices which I will recommend. This leaves for consideration the final question of whether, aside from the rationale of Gissel, the Respondent violated Section 8(a)(5) of the Act and may now be required to bargain because it refused to do so when the Union offered to prove its majority status by a cardcheck conducted by a disinterested party. In this regard, it should first be noted that the record does not disclose that the Respondent had any knowledge that the Union represent- 89 See Resp Exh 9 CONGOLEUM INDUSTRIES, INC. ed a majority of its employees. Accordingly, such cases as Snow & Son,84 and Wilder Mfg. Co., Inc.,85 in which the decisions turned on the fact that the employer had such knowledge, are inapposite to the resolution of this question However, the Board's most recent decision in Linden Lumber Division, Summer & Co.,86 considered the very issue here presented, the interpretation and applica- tion of Section 8(a)(5) of the Act- ... to situations in which the Union's majority status has not been established through our election process- es, and where the record does not contain evidence of independent unfair labor practices which would justify a bargaining order under Gissel Therein the Board concluded that absent agreement between an employer and a union to determine the union's majority status by means other than a Board election, an employer "should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of its refusal to accept [such other] evidence of majority status." In the light of that decision, my conclusion that the Respondent's other unfair labor practices did not preclude the holding of a fair election, and in the absence of evidence that the Respondent had knowledge of the Union's majority status, I conclude that the Respondent did not violate Section 8(a)(5) of the Act and I will recommend dismissal of the complaint in this respect. 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 Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent terminated the employment of J. W. Aaron, Andy Charlie Bullard, Buddy Croslin, Sherrill Gene Newsom, and W. George Sauerbry and thereafter failed and refused to reemploy them because they engaged in concerted activities for mutual aid or protection guaranteed by the Act, I will recommend that the Respondent be ordered to offer them immediate reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by 84 Fred Snow, Harold Snow and Tom Snow, d/b/a Snow & Sons v NLRB, 308 F 2d 687 (C A 9) 85 Arthur F Derse, Sr, President, and Wilder Mfg Co, Inc, 185 NLRB No 76 as 190 NLRB No 116 87 F W Woolworth Company, 90 NLRB 289, backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in 551 the payment to each of them of a sum of money equal to the amount he normally would have earned from the date of his termination to the date of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board.87 I will also recommend that the Respondent 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 and determine the amounts of backpay due under the terms of this recommended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Congoleum Industries, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 By coercively interrogating employees regarding their union membership and sympathies , by engaging in surveillance of the union activities of employees and conveying to employees the impression of such surveil- lance, by granting employees a wage increase and by threatening employees with reprisals, to discourage em- ployees from supporting the Union and giving testimony at Board hearings, by promulgating and enforcing a broad no-solicitation and no-distribution rule which prohibits employees from engaging in protected union activities in the Respondent's plant during nonworking time, and by terminating the employment of J. W. Aaron, Andy Charlie Bullard, Buddy Croslin, Sherrill Gene Newsom, and W. George Sauerbry because they had engaged in concerted activities for mutual aid or protection guaranteed to employees by the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: 88 ORDER Respondent, Congoleum Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employees in regard to hire or tenure of employment or the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 88 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall , as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any term or condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. (b) Coercively interrogating employees regarding their union membership, activities, or sympathies. (c) Engaging in surveillance of the union activities of its employees or in conduct which gives the impression of such surveillance. (d) Granting or promising wage increases or threatening reprisals to discourage union membership or support. (e) Interfering with the conduct of Board hearings by threatening employees with reprisals for giving testimony. (f) Promulgating, maintaining, or enforcing any rule which prohibits employees from engaging in union solicitation during nonworking time and/or from distribut- ing union literature in nonwork areas during nonworking time. (g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer J W. Aaron, Andy Charlie Bullard, Buddy Croslin, Sherrill Gene Newsom, and W. George Sauerbry immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights' and privileges enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of this Decision entitled "The Remedy " (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at the Respondent's plant located in Wilburton, Oklahoma, copies of the attached notice marked "Appen- dix "89 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by 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. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.9o I FURTHER RECOMMEND that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found above. as In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " so In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 16. in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discharge or otherwise discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT coercively interrogate you regarding your union membership, activities, or sympathies. WE WILL NOT engage in surveillance of your union activities or in conduct which gives the impression of such surveillance. WE WILL NOT grant or promise wage increases or threaten you with reprisals to discourage union membership or support and WE WILL also not threaten you with reprisals because of the nature of your testimony at Board hearings. WE WILL NOT maintain or enforce any rule which prohibits you from union solicitation in the plant during nonworking time, or which prohibits you from distributing union literature in nonwork areas during nonworktime. CONGOLEUM INDUSTRIES, INC Since it was decided that we violated the Act by terminating the employment of J. W. Aaron, Andy Charlie Bullard, Buddy Croslin, Sherrill Gene Newsom, and W. George Sauerbry because they engaged in concerted activities guaranteed by the Act, WE WILL offer them full reinstatement to their former jobs, and WE WILL pay them for any loss they suffered because we fired them. WE WILL respect your rights to self-organization, to form, join, or assist any labor organization, or to bargain collectively in respect to any term or condition of employment through the United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. You, and all our employees, are free to become members of any labor organization, or to refrain from doing so. Dated By 553 (Representative) (Title) We will notify immediately the above-named individuals, if presently -serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. CONGOLEUM INDUSTRIES, INC. (Employer)