Champagne Color, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Champagne Color, Inc. and Local 631, International Alliance of Theatrical Stage Employees and Mov- ing Picture Machine Operators of the United States and Canada, AFL-CIO. Case 12-CA-7308 January 5, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 4, 1977, Administrative Law Judge Pla- tonia P. Kirkwood issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. Contrary to the dissent, we find that the Adminis- trative Law Judge correctly concluded that Supervi- sor Malarkey's inaction in response to McKinney's harassment of Gilmartin "could not but [have left] the employees with the impression that Respondent welcomed and encouraged employee efforts to defeat the Union .... " McKinney, a notorious antiunion employee, ad- mitted that his participation in the altercation was loud, emotional, and dramatic. Malarkey acknowl- edged that he was only about 10 feet away and that, although he could not remember hearing anything Gilmartin said, he could recall McKinney telling Gil- martin that, "Somebody ought to kick your ass" and "You're too chicken to fight your own battles. You have to get the Union to do it for you." Clearly Ma- larkey was aware of the general content of the con- versation and its harassing tone. Nevertheless, Malarkey did nothing to stop this conduct. In the context of the Respondent's explicit antiunion attitude and its enforcement of rules prohi- biting union solicitation and discussion, Malarkey's failure to respond to McKinney's harassment of Gil- martin would certainly leave the employees with the impression that such conduct was welcomed and en- couraged. The subsequent mild and private censure was given to McKinney as he passed his supervisor in the hall. Such a reprimand could hardly mitigate the effect of this rather dramatic scene of an avowedly antiunion employee approaching a prounion employee at his I In the absence of exceptions. we adopt, pro forma. the Administrative Law Judge's dismissal of the 8(aXI) charge based on the Respondents 234 NLRB No. 8 workplace and loudly berating him for his union atti- tudes, all in violation of the Respondent's own rules and in clear view of a representative of management standing idly by. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Champagne Color, Inc., Orlando, Florida, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Insert the following as paragraph l(d) and re- letter the subsequent paragraphs accordingly: "(d) Convey the impression that management will not bargain in good faith with a union which is certi- fied as the collective-bargaining representative of any of its employees." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER MURPHY, concurring in part: I agree with my colleagues that the Respondent violated Section 8(a)(1) of the Act as found by the Administrative Law Judge with the exception, how- ever, of the finding relating to what can be described as the McKinney-Gilmartin incident. McKinney was a strong antiunion person, while Gilmartin. as McKinney knew, was a strong union protagonist. At a time when Gilmartin was at work, McKinney came up to him and proceeded to assail him verbally for his prounion stance and activities. He accused Gil- martin of being "crazy" and "stupid," and stated he "should have his teeth shoved down his throat" and should "be kicked in the behind." During this tirade, Supervisor Malarkey stood about 10 feet away and neither said nor did anything about the confrontation. The Administrative Law Judge concluded that Malarkey's inaction "could not but leave employees with the impression that the Re- spondent welcomed and encouraged employee ef- forts to defeat the Union, even though intemperately conducted and even though pursued during working time." By creating such an impression, the Respon- dent, the Administrative Law Judge found, violated Section 8(a)(1) of the Act. I do not believe the facts support this result. It is true that Malarkey stood by and did nothing while McKinney berated and threatened Gilmartin. However, as soon as McKinney left, Malarkey asked change in or enforcement of work rules relating to reading while working and to restricting movement of the employees in the Respondent's facility. 82 CHAMPAGNE COLOR, INC. Gilmartin "what all this was about." Whether or not Malarkey in fact knew what was involved, his inquiry suggesting that he did not clearly made highly unlike- ly any possible implication or impressions that through his inaction he was intending to encourage antiunion activities. Furthermore, what followed shows that the Respondent not only did not wish to encourage such worktime activities but also actually disapproved of them. Thus, when in reply to Malar- key's query Gilmartin stated what the "argument" was all about and objected to McKinney's conduct, Malarkey's response was to promise to take care of the matter. A complaint was indeed passed on to McKinney's supervisor who then reprimanded McKinney for his conduct. In these circumstances, I can see no substantial basis on which to conclude that through Malarkey's inaction the Respondent vi- olated Section 8(a)(1) of the Act by creating the im- pression it approved of McKinney's conduct when in fact it disapproved of it. Consequently, I would dis- miss the complaint with respect to the McKinney- Gilmartin matter. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government WE WILI NOT promulgate and enforce a no-so- licitation rule which prohibits employees from so- liciting their fellow workers on company premises on behalf of the Union, or any other labor organi- zation, during nonworking time. WE WILL NOT promulgate any no-solicitation rule which is limited to employee solicitation on behalf of any labor organization. WE WILL NOT create the impression that man- agement will knowingly tolerate and condone ver- bal harassment and verbal abuse of prounion em- ployees by fellow workers opposed to unions. WE WILL NOT convey the impression that man- agement will not bargain in good faith with a union which is certified as the collective-bargain- ing representative of any of its employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. CHAMPAGNE COLOR, INC. DECISION STATEMENT OF THE CASE PLATONIA P. KIRKWOOD, Administrative Law Judge: This case was heard before me at Orlando, Florida, on November 11, 1976. The complaint, which issued on Sep- tember 17, 1976, is based on a charge filed on August 9, 1976. It alleges that the Respondent committed numerous independent violations of Section 8(aX1) of the National Labor Relations Act, as amended.' Upon the entire record in this case, and based also on my observation of the witnesses and their demeanor and the posthearing brief filed by Respondent, 2 I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Champagne Color, Inc. (Respondent hereafter), is a Florida corporation with its principal office and place of business located in Orlando, Florida. It is there engaged in processing and selling film, cameras, and other photo- graphic products to retail customers. During the past 12 months, Respondent, in the course of its business opera- tions, sold and distributed products from which it derived gross revenues in excess of $500,000. During the same peri- od of time, Respondent purchased and received at its Or- lando, Florida, facility, from out-of-state locations, sup- plies, goods, and materials valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED Local 631, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO (hereinafter Union), is a labor organization within the meaning of Section 2(5) of the Act. 1n. THE ISSUES The complaints alleges, and Respondent's answer denies that, following the Union's advent, Respondent, through its supervisory or management agents, violated Section 8(a)(l) by engaging in the following conduct: I. Telling employees, during the delivery of an antiun- ion speech that, in the event of a strike, Respondent could and would exercise its legal right to replace economic strik- ers. 2. Promulgating and/or enforcing more stringently the following plant rules: (a) A rule prohibiting employees from leaving the area of the plant in which they worked to go to other plant areas. (b) A rule prohibiting employees from reading while they were working, and from having any reading material, in- ' Pursuant to the unopposed motion of General Counsel at the opening of the hearing. the allegations contained in par 5 of the complaint were withdrawn. 2 I have also taken into account the arguments orally made before me by counsel for General Counsel and by counsel for Respondent at the close of the hearing. I note also that Respondent's posthearing brief was signed not only by Attorney Greaves but also by Attorney J. Howard Daniel. 3 As amended during the course of the hearing. 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cluding union literature, within 25 feet of the machine on which they worked. (c) A rule prohibiting any employee from soliciting other employees to join the Union, or from distributing union authorization cards, unless the employee was on breaktime or was in a nonworking area of the plant. 3. Allowing or encouraging an employee who was not in favor of the Union to threaten another employee with physical violence because of the prounion sympathies of the threatened employee. 4. Telling an employee that Respondent would not en- gage in collective bargaining with the Union. 5. Interrogating an employee about his or other em- ployees' union membership, activities, and desires. 6. Telling an employee that he would hate to lose his crew because of the union organizing campaign. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Beginning of Organizational Activity In January, 1976, 4 Brian Gilmartin, a chrome depart- ment machine operator and film processor assigned to the night shift, contacted the Union to find out if it would accept representation of employees of the type employed by Respondent. 5 He received an affirmative answer. For about 3 or 4 months thereafter, Gilmartin did no more than to engage in general discussions about unionization with his fellow employees.6 In May 1976, however, Gilmartin arranged with the Union for the conduct of an organiza- tional meeting, and he and several fellow workers attended. Thereafter, Gilmartin and a number of other employees began openly distributing union cards and soliciting em- ployee signatures. Respondent's officials learned of the employer's activity when, on June 24, the Union sent Respondent a letter requesting recognition and stating that it had been desig- nated as a collective-bargaining representative by a majori- ty of employees classified as motion picture processors, in- line processors, chemical mixers, and lab technicians. Re- spondent received that letter on or about June 25.7 B. Respondent's Reaction to the Union's Campaign; the Alleged Unlawful Actions of Supervisory Officials I. The speech by Respondent's president, Howard Noel On June 28, Respondent's president, Howard Noel, spoke about the Union to various small groups of employ- ees who were assembled in the plant at his request. Noel read to each group the following prepared statement: 4 All dates hereafter are for the year of 1976 unless otherwise mentioned. 5 There is no evidence of any precedent organizational activity among Respondent's employees. 6 Gilmartin, an articulate advocate of union representation, made no effort to conceal his prounion interests from his superiors. He frequently engaged in prounion talk and debate with his immediate supervisor, John Malarkey, in the course of his working hours, and/or with other fellow members in Malarkey's presence, both before and after the union campaign actually commenced. I On the same date (June 25) the Union filed a representation petition for a unit composed of the employees named in the letter (Case 12-RC-5134). A hearing was held on this petition on July 14. At that time the Union Gentlemen: I have asked you to meet with me tonight to discuss a very serious matter. A matter that is extremely impor- tant to all of us. Now, so there can be no misunder- standing as to my position on this matter, I'm going to read what I have to say. I received a letter last Friday from a labor union. Some of you may be aware of this fact already. For those of you who may not know about this letter, I want to read it to you and tell you where I stand on the subject of labor unions. [He read the letter at this point.] Today, I received this in the mail [held up petition]. This is a petition filed by the Union asking the Labor Board to certify this union as your representative for purposes of collective bargaining? It would appear from this petition that we may have an NLRB election here at the plant to determine if you do in fact want this labor union to be your representa- tive-your agent, in dealing with the Company con- cerning your employment. s General Counsel claims that Noel's speech communicat- ed an unlawful warning or threat in referring to the taking of strike action to support bargaining demands and in stat- ing that the Respondent would permanently replace eco- nomic strikers. I find no merit in General Counsel's posi- tion. The Board, I note, has found similar remarks to be privileged employer communications of antiunion views which do not fall within the scope of 8(a)(l)'s proscriptions. See, for example, Buddies Supermarkerts, Inc., 192 NLRB 1004, fn. 1(1971). 2. Supervisor Pfann's promulgation of a union solicitation and literature-distribution rule and his imposition of certain restrictions on other employee activities Certain of the 8(aX)(1) allegations are predicated on oral directives admittedly issued by George Pfann, manager of the chrome department, within a week or two after Noel's speech for the ostensible purpose of regulating the conduct of employees under Pfann's overall supervision while "on the clock." Three directives in all are involved-one per- taining to union solicitation activity and the other two per- taining to certain personal activities employees had previ- ously been allowed to engage in during working hours. I discuss below the specific terms of each of these directives, the circumstances surrounding their issuance, and the con- tentions concerning their unlawful character or purpose, seriatim. amended its petition to expand the unit to all of the employees in the chrome department, about 22 in number. Respondent's total complement was composed of about 60 employees. s Noel's testimony, which I credit in roro, indicates that during the course of his meeting with the night-shift group of employees-one attended by Gilmartin-Noel departed from the written text in two respects: (I) he asked Gilmartin to read the union letter which his prepared statement indi- cates he (Noel) meant to read himself; and (2) at the end of his speech he said that if employees had any questions on what he had just read to feel free to make an appointment to come to his office, and he would be glad to give them the time. Gilmartin later availed himself of Noel's offer. 84 CHAMPAGNE COLOR, INC. a. The terms of the directive pertaining to union solicitation The terms of the rule about solicitation activity are vari- ously reported in the testimony of employees Gilmartin and Holmgren and Supervisors Pfann and Malarkey. A composite of their testimony establishes, and I find, that during early July Pfann promulgated an oral rule prohibit- ing employee distribution and solicitation of union authori- zation cards during working hours or in working areas.9 General Counsel asserts, and I agree, that Respondent's promulgation of the above rule violated Section 8(aXI) of the Act. The terms of the rule, as enunciated by Pfann, were, I find, unduly broad under Board law, first because they barred employee solicitation in working areas without regard to whether or not the solicitation activity occurred on employee nonwork time; '0 and next because they ex- pressed the restrictions in terms of "working hours" rather than in terms of "working time," and thereby conveyed the idea that no employee solicitation activity would be per- missible at any time during the period marking the begin- ning and end of the employee-participant's work shift." Finally, I note that the rule, on its face, applied only to union-solicitation activity, and that, according to the un- disputed evidence, Respondent had been permitting or condoning other employee solicitation or related nonwork type activity during working hours before the Union's ad- vent, and continued to condone solicitations during work- ing hours for purposes unrelated to the Union even after the above-described no-union-solicitation rule was promul- gated.'2 For all the above reasons, I conclude that, by its promul- gation of the above-described restrictions on employee so- licitations on behalf of the Union on its premises, Respon- dent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, and thereby violat- ed Section 8(a)( I) of the Act. b. Other restrictive rules The other two of Pfann's directives either promulgate new work rules or express a policy of stricter enforcement of existing work rules.'3 One enjoined employees from leaving their particular work area to go to other plant work areas for purposes unrelated to the performance of their 9 Pfann communicated the terms of this rule to Malarkey and to certain employees under Malarkey's supervision. Pfann promulgated the rule after he had been informed, by employee Mary Marring, that Holmgren had handed employee Sue Reynolds a union card at Reynolds' work station and, checking on that information, he walked by Reynolds' station and saw a union card lying on her worktable. io See Stoddard-Quirk Manufacturng Co., 138 NLRB 615 (1962). In that case the Board established the parameters of an employer's privilege to restrict union-solicitation and union-literature distribution on its premises and held, inter alia, that: (I) a no-solicitation rule which prohibits employee solicitation in working areas while the employee participants in that activity are on nonwork time is presumptively invalid: (2) a no-distribution-of-litera- ture rule which enjoins the use of work areas and worktime for distribution activity is presumptively valid; (3) the handing out of authorization cards by employees is solicitation, rather than literature-distribution activity. I note that there is no claim and no evidence that Respondent's overly broad rule wasjustified by special economic considerations. " See Essex International, Inc., 211 NLRB 749, 750 (1974) a case hold- ing to be overly broad a rule expressing the restrictions on employee union solicitation activity in terms of "working hours," rather than "working time." work assignments. The other imposed a ban on the em- ployees' engagement in the reading of any literature while on the job and/or the accumulation of any literature at or near the employees' work stations. In claiming that both of these prohibitions on employee on-the-job activities were imposed for antiunion reasons, General Counsel does not question the reasonableness of the express terms of those rules. Nor does he contend that the rules' prohibitions were limited to employees who were known union supporters or that they were disparately en- forced. He claims, rather, that, if the rules had existed at all before the advent of the Union's organizing drive, Respon- dent had been lax or indifferent about their enforcement and that its decision to tighten up was prompted by animus to its employees' introduction of the Union to the plant. I reject General Counsel's claim about the purpose as unsup- ported by a preponderance of the credible record evidence. To be sure, General Counsel adduced undisputed testimo- ny by employees Gilmartin and Holmgren, which I credit and which establishes that, prior to the Union's appearance on the scene, the three or four employees composing the film processing crew under Malarkey's supervision (includ- ing Gilmartin, Holmgren, and Robert Henry)' 4 had been permitted by Malarkey to: (a) go to the work area in which the print department was located to deposit, for develop- ment, their personal rolls of film negatives,' 5 and (b) to have reading material near their machines or work loca- tions and to peruse or read the same at times when they were waiting for film to go through machine-processing operations.' But, in rebuttal, Respondent provided unre- futed and, in my judgment, equally credible testimony which, as below related, sets forth legitimate reasons for Pfann's decision to adopt or to insist upon strict enforce- ment of the restrictive rules here under discussion. Called as Respondent's witness, Pfann testified that he decided to impose the bans here under discussion after Malarkey reported to him that: (a) certain customer film had been damaged on a machine to which Henry was as- signed; (b) that Henry had been reading when the damage (break in the film) occurred, and (c) that he (Malarkey) had recently twice seen Henry chatting with a female employee in another area of the plant and had had difficulty keeping Henry at his place of work. In further testimony, Pfann maintained that he had always felt that the members of the platform crew which Malarkey supervised had no business 12 Cf. Hosiery Corporation ofAnerica 175 NLRB 180(1969). i3 Respondent had no written work rules but, according to the testimony of Respondent's supervisors, it advised employees orally about its plant regulations on the employees' entry into employment. It is not clear from the record whether the rules here in issue were among those which Respon- dent communicated to the employees here; but, in the circumstances of this case, a finding on this point one way or the other would not affect the disposition of the 8(aX I) allegations here under consideration. 14 Henry was no longer in Respondent's employ at the time this case was heard. 15 Gilmartin testified that he also picked up "gray tubs" from the print or color department. The record indicates that this was a work task normally performed by employees of the print department. but it does not show precisely what this work task was or where it fitted in as part of the film processing operations of Respondent. "I The truth of the testimonial reports of the employee witnesses about the practices here under discussion and Malarkey's permissive attitude about them before the events here in issue took place was affirmed by the testimony of Malarkey when the latter was called by Respondent. 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason for going to the print department and that he had never approved of employees reading on the job. He admit- ted that breakage in film similar to that now reported to him by Malarkey was not an uncommon occurence. But, he maintained, when Henry's conduct was brought to his attention, he concluded that the inefficiency in the plat- form area operations which Malarkey supervised was at- tributable, at least, in part, to Malarkey's lax attitude in condoning the employees' visitations to other work areas and their reading on the job, and that a stricter attitude was therefore called for. Pfann also testified that this was not the first occasion that he had found it necessary to ban certain personal on-the-job activities by employees under his overall supervision. He reported that, some months be- fore the events here in issue took place, he found it neces- sary to withdraw permission which had apparently been given employees to play and listen to radios while they were working because the employees' activity in this re- spect had interfered with the proper performance of as- signed work tasks. Respondent then called on Malarkey to testify. He af- firmed the substance of Pfann's report about when and what he had been told about Henry's inattention to his work and the work problems such inattention had caused. Malarkey's testimony also corroborated Pfann's represen- tations that he (Pfann) issued the injunctive directives upon receiving Malarkey's reports.1 7 I find no valid basis for rejecting as untrue the above- recited testimony of Respondent's supervisors. Both Pfann and Malarkey left me with an exceedingly favorable im- pression of their earnest desire to give an honest portrayal of events within their knowledge without regard to Respon- dent's interest in this proceeding's outcome. Their testimo- ny was plausible and not inconsistent with inherent proba- bilities; and I was convinced, on hearing them testify, that their mutually corroborative and unrefuted report about Henry's inattention to his work, and the problems it had caused, was a truthful one. Further, and having made this judgment, I also deem it logical for Pfann to have conclud- ed in the circumstances-as he here represented-that em- ployee performance of assigned work tasks in an efficient manner was being hampered by Malarkey's attitude of per- missiveness in allowing employees, inter alia: (a) to leave their own work areas when they chose to do so for purposes of delivering their personal film negatives; and (b) to en- gage in reading on the job. Finally, I regard as not unrea- sonable the corrective measures he took accordingly. In sum, I find and conclude that, although General Counsel made out a primafacie case about a nexus between IT I deem it appropriate to point out that, on the motion made by Gener- al Counsel at the outset of the hearing, a sequestration rule was in effect throughout the hearing's course. "I In resolving these allegations of the complaint, I note that employees were not denied the right to bring union materials to the Respondent's premises, to distribute union literature in the breakroom and other nonwork areas, or to carry union cards on their person in visible places while at work. And, while their right to solicit employee signatures of authorization cards was unduly restrained by the terms of the no-solicitation rule, as promulgat- ed, Respondent's violative conduct in this respect is adequately remedied by the order I shall issue. i9 All of the witnesses reporting on this episode agreed that it took place in July. None was certain of the exact date. 20 In narrating my view of the factual aspects of the incident, I have the two restrictive rules here under consideration and the Respondent's antiunionism, Respondent refuted that case by establishing a business need for the prohibitions here under discussion. I shall therefore recommend the dismis- sal of the part of the complaint which alleges that Respon- dent's conduct in restricting employee visitations to other work areas while on the job and in banning possession and perusal of reading material at work stations was violative of Section 8(a)(1) of the Act.18 3. Malarkey's alleged condonation or encouragement of physical threats by an antiunion employee against a prounion employee The complaint alleges in paragraph 8(a), that Respon- dent, through Malarkey, "allowed and encouraged an em- ployee who was not in favor of the Union to threaten an- other employee with physical violence because of the prounion sympathies of the employee." This allegation is founded on an episode involving a ver- bal exchange which occurred sometime in July 9 between Carl McKinney, a maintenance employee, and Gilmartin, near the latter's work station while Malarkey was standing about 10 feet away. McKinney, a professed opponent of unions, knew that Gilmartin was a strong union activist; and, on the evening in question, while walking through Gilmartin's area en route to a nearby lab where he had been assigned to check on a machine by his supervisor (George Wisneski), he stopped to tell Gilmartin what he thought about unions in general and about Gilmartins's sponsorship of the Union in particular. The substance of the statements made by McKinney on that occasion and his manner of expressing them is variously described by Gilmartin, testifying as General Counsel's witness, and by McKinney and Malarkey, as Respondent's witnesses. From a composite of the portions of their testimony of each which I regard as credible20 I find that what most probably took place was as follows: McKinney taunted Gilmartin about his sponsorship of the Union, called him a "communist" for undertaking its support, and, taking issue with Gilmartin's efforts to ex- plain why he thought a union was needed in the plant, he began to use more and more abusive and intemperate lan- guage. He called Gilmartin "stupid," "crazy," and an "as- shole." He further stated that Gilmartin "ought to have [his] teeth shoved down [his] throat," that he should "be kicked in the behind," and that he was "too chicken to fight his own battles," but had to "get the Union to do it for him." His tone of voice was loud, abrasive, and emo- rejected portions of each of the testimonial reports of both McKinney and Gilmartin which did not seem to me to carry the ring of truth. I do observe. however, that, overall, McKinney made a better effort to give a full and unbiased report of what took place than did Gilmartin and that Malarkey, who, as I have noted earlier, impressed me very favorably by his demeanor and his overall candor, furnished a report partially corroborating that of McKinney. I have therefore relied more heavily on McKinney's testimonial report of the incident in my narration of the factual aspects of the incident and its aftermath. Gilmartin, I further note, was inclined, as he candidly admitted at one point in the record, to color his accounts of pertinent events with exaggerated adjectives. He was also prone to characterizing the con- duct of others in a manner he thought was apt, and I had to caution him, on occasion, to omit the characterizations. 86 CHAMPAGNE COLOR, INC. tional; and he used dramatic arm and finger-pointing ges- tures. 21 Malarkey, who was about 10 feet away while all the above was going on, gave no indication of any disapproval of McKinney's conduct. But, when McKinney left, he asked Gilmartin "what all this was about." Gilmartin told him he felt McKinney was "gonna take a swing" at him and he wanted something done about it. Malarkey thereaf- ter told Pfann,2 2 his superior, about the "argument"; Pfann reported to McKinney's supervisor, George Wisneski, that McKinney was "disrupting" his night-shift people; and Wisneski reprimanded McKinney for his conduct.23 Reviewing the above facts I find, consistent with the position of General Counsel, that in the total circumstances of this case-and especially in light of the Respondent's restrictions on union solicitation and its avowed antiunion- ism-Malarkey's inaction and silence while McKinney was harassing Gilmartin at the latter's place of work, could not but leave with the employees the impression that Respon- dent welcomed and encouraged employee efforts to defeat the Union, even though intemperately conducted and even though pursued during working time. By contrast, it stood ready to discipline any prounion activity by employees which took place during "working hours," or in a work area of the plant. By creating that impression, Respondent, I conclude, further unlawfully discouraged its employees' exercise of their Section 7 rights and thereby violated Sec- tion 8(aXl ) of the Act. 4. Malarkey's futility-of-bargaining statements to Gilmartin Paragraph 8(b) of the complaint attributes to Malarkey an unlawful statement alleged to have been made on or about August 2, that Respondent "would not engage in collective bargaining with the Union." In support of this allegation, General Counsel presented testimony by Gil- martin that, during a discussion he had with Malarkey sometime in July,2 4 Malarkey told him that the Company "wouldn't bargain with the Union," and that if it did so, "they wouldn't bargain effectively ... they will give you a dime and take this away so you won't really gain by going union. You will just lose your dues." Malarkey, called by Respondent in rebuttal, affirmed a part of Gilmartin's testimony. He admitted telling Malar- key, in the course of a discussion about the give-and-take of collective bargaining, and in response to statements by Gilmartin to the effect that a Federal mediator could "force" the Company to agree to bargaining demands, that "the Company would not bargain effectively"; that, for example, if during "a bargaining session, the Union asked 21 Gilmartin, so McKinney reported, nonetheless remained "cool and calm" throughout and acted as a "perfect gentleman." McKinney also re- torted that he himself was of an "excitable" temperament, that he "raised his voice" in talking to Gilmartin, and that, although he did not feel "angry" towards Gilmartin, his conduct on that occasion was "dramatic and emo- tional." I do not believe McKinney meant to harm Gilmartin physically, and I feel that Gilmartin's report that he nonetheless feared physical harm at McKinney's hands was exaggerated. 22 Malarkey also approached McKinney in the breakroom that evening and told him that Gilmartin had lodged a complaint against him and had said that if McKinney was going to "campaign against the Union dunng working hours" he should be allowed to do so as well; McKinney told Malarkey to tell Gilmartin" to go to H ." Malarkey then walked away. for 10 cents, the Company might grant it but it would take some other benefit away." Based upon the above evidence and, accepting as true Malarkey's report about his bargaining statement and its context, I find that the violation here alleged is supported by the remarks Malarkey admits having made. Those re- marks, I conclude, conveyed the message that the employ- ees' self-organization effects were futile because the Com- pany would not "bargain effectively," and that even if it agreed to better one working condition it would take away some other benefit. Remarks of this type by a supervisory agent of a respondent-employer have, I observe, long been held to be serious violations of Section 8(aX)(1) of the Act. See, for example, R & M Electric Supply Co., 200 NLRB 603 (1972); Marathon Metallic Building Company, 224 NLRB 121, 124 (1976). I shall accordingly sustain para- graph 8(b) of the complaint. 5. Malarkey's alleged interrogation of Holmgren and his further alleged threatening statements Paragraphs 8(c) and (d) of the complaint allege that, on or about August 2, Malarkey engaged in unlawful interro- gation of, and addressed threats of discharge to, an em- ployee. Evidence in support was adduced by General Counsel through Holmgren, one of the three employees under Ma- larkey's supervision. Holmgren testified that in early Au- gust, while he was working together with Malarkey and employee Robert Henry, the three discussed the Union. Asked to report on what Malarkey said at the time, Holm- gren responded: John informed me that the Company wouldn't be willing to bargain with us in good faith, as far as us being a part of the union, and he was stating the man- agement's view. And, he also said to me that if we were to strike, that we would be permanently replaced. And, furthermore, he went on to say that he would hate to see us - to lose his platform crew over this union organization. Q. Okay. Do you recall whether at that time he said anything else that you can think of, about the union or about - yes - just let it go at that? A. Not right offhand. Q. Well, did he say anything to you about your union activities? MR. WESTHEIMER: Well, the witness said he didn't remember anything further. JUDGE KIRKWOOD: Overruled. THE WITNESS: Would you please - 23 No other incidents of the type above-described took place in the pres- ence of any supervisor. There is some evidence, however, that two other other reports about McKinney's further verbal harrassment of employees about unionization soon after the above incident was given to supervisors- and that Wisneski therefore issued a further reprimand to McKinney. He then told McKinney he knew McKinney was "trying to help" but that he should "lay off" and stop his argumentative conduct. 24 Gilmartin testified that he had frequently held a number of "open" discussions with Supervisor Malarkey about the Union over a several month penod between January and May and that this discussion occurred some- time after the union petition had been filed. He placed the date of the discussion as being sometime in July. 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. WESTHEIMER: Yes. Q. (By Mr. Westheimer) Did he say anything to you about your union activities? A. Not other than that we would be permanently replaced if we - you know - were to strike and - Q. Well, that was in general. I'm talking about you. Did he say anything to you or personally ask you any- thing about your union activities, or where you stood? A. He questioned my involvement. Q. Right. What did he say? A. He asked me what I thought of the union and if I was - you know - how I was partaking in this, and so forth. And, I really didn't answer his questions; I let it go at that. Malarkey, on rebuttal, recalled the discussion about the Union described by Holmgren but stated that he (Malar- key) and Henry were the main participants. 25 He admitted remarking to Henry that he "would hate to lose his plat- form crew"; but explained that he and Henry were discuss- ing what might happen if a strike took place; and that, in response to Henry's statement that the employees could have their jobs back on demand after striking the Company for failure to agree to bargaining demands, Malarkey said, "If a strike occurs you could be permanently replaced and I'd sure hate to lose my platform crew." Malarkey categori- cally denied having said anything to suggest that the Com- pany would not bargain with the Union in good faith; and he also expressly denied having interrogated Holmgren in any way about his union involvement or his union activity. I credit Malarkey's version of his striker-replacement re- marks on the occasion in question and his denial of the interrogation and refusal-to-bargain statements attributed to him by Holmgren. 26 As I am unable to find credible evidence to support the alleged unlawful interrogation, I shall recommend dismis- sal of paragraph 8(c) of the complaint. I shall also recom- mend dismissal of Section 8(d) of the complaint because, in my opinion, Malarkey's remarks with respect to the Re- spondent's right to permanently replace economic strikers stands in no different a legal posture under Board law than Noel's on the same subject. See Buddies' Supermarket, su- pra. THE REMEDY The recommended Order will require Respondent to cease and desist from the unfair labor practices found and 25 Holmgren, on cross-examination, had admitted this to be the case. 26 The reliability of Holmgren's testimony is open to doubt. Thus, his account, on direct, made it appear that he, rather than Henry, was the one to whom Malarkey was mainly addressing his remarks. He admitted to the contrary on cross. Furthermore, his report about the interrogatory remark does not appear in, and is not consistent with, the affidavit statement he gave the Board soon after the events in issue. And, finally, I observe, I deem it unlikely that Malarkey could have asked Holmgren about his union sym- pathies and note inasmuch as it is uncontested that Holmgren customarily carried union cards in his shirt pocket and that Malarkey so knew. Malarkey also knew that Holmgren had handed union cards out to other employees. from engaging in any like or related conduct. The Order will also contain the conventional notice-posting provi- sions. Upon the foregoing findings of fact, conclusions of law, and the entire record and, pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 27 The Respondent, Champagne Color, Inc., Orlando, Flor- ida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating or enforcing any no-solicitation rule which prohibits employees from soliciting their fellow workers on company premises on behalf of the Union or any other labor organization during nonworking time. (b) Promulgating any no-solicitation rule which is limited to employee solicitation on behalf of any labor organiza- tion. (c) Creating the impression that management will know- ingly tolerate and condone verbal harassment and verbal abuse of prounion employees by fellow workers opposed to unions. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of protect- ed Section 7 rights. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its plant in Orlando, Florida, copies of the attached notice marked "Appendix." 28 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 12, after being duly signed by an authorized represen- tative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that such notices shall not be altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply therewith. 27 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. 28 In the event that this 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." 88