Prescott Industrial Products Co.

PRESCOTT INDUSTRIAL PRODUCTS CO. Prescott Industrial Products Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case 26-CA-4384 July 26, 1973 DECISION AND ORDER On January 2, 1973, Administrative Law Judge Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 his recommended Order, except as modified herein. The Administrative Law Judge concluded that Re- spondent discharged employee L. H. Berry in viola- tion of Section 8(a)(l) of the Act for engaging in protected concerted activity. We agree.2 There is essentially no dispute as to the facts in the instant case. On June 15, the day preceding the sched- uled Board election, Respondent's plant manager, Thomas Krengel, delivered a lawful speech to the assembled employees pointing out the disadvantages of a union? Toward the end of his speech, Krengel queried the employees whether the Union could give them a written guarantee of its promises. Krengel stat- ed that Respondent could do so and he began distri- buting written "guarantees." After Krengel had commenced calling the employees forward to receive their guarantees, Berry rose and stated that he wanted to ask a question. Krengel informed Berry that there was no question-and-answer period. Berry repeated that he wished to ask a question because he felt it was right to do so. Krengel told Berry to sit down or leave the room. When Berry continued to stand, Krengel twice more ordered Berry to leave the room. At this time, a fellow employee took Berry by the arm and led him from the meeting. Small groups of employees also left the meeting and Krengel resumed his distribution of the guarantees, with the remaining employees leaving after they had received i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 Inasmuch as the remedy would be essentially the same we find it unneces- sary to pass on the Administrative Law Judge's finding that Respondent's discharge of Berry also violated Sec 8(a)(3) of the Act 3 There is no contention that Respondent's speech was in any way violative of Sec 8(a)(1) of the Act 51 them. That same day, Berry was summoned to Krengel's office and was discharged, allegedly for insubordina- tion at the meeting. The Administrative Law Judge concluded, and we agree, that Berry in attempting to ask a question was thereby engaged in protected concerted activity. The information Berry sought to elicit from Krengel after the antiunion speech was for the benefit of his fellow employees, as well as himself, in making their decision in the pending representation election, and therefore the request for permission to seek such information is protected concerted activity. It is further clear that in protesting that he had a right to ask the question, Berry was engaged in activi- ty protected by Section 7. An employee's efforts to present a grievance on behalf of himself and his fellow employees is protected concerted activity. Trailmobile Division, Pullman Incorporation, 168 NLRB 63. Here Berry was presenting such a grievance in protesting that he had been improperly forbidden the opportuni- ty to ask a question which he thought would aid him- self and his fellow employees in making a decision as to a collective-bargaining representative. Our dissenting colleagues are of the view that under the Board's doctrine set forth in Livingston Shirt Cor- poration, 107 NLRB 400, the Respondent here had the right to deny Berry the right "to reply" to the antiun- ion speech and therefore when Berry persisted in seek- ing to ask the question he was engaging in unprotected activity. In relying on Livingston Shirt our dissenting col- leagues have missed the issue. The question here is whether Berry in some manner lost the protection of the Act when he continued to assert he had the right to ask the question in face of the Respondent' s insis- tence that he did not have such a right. The answer to that question does not, as our dissenting colleagues seem to indicate, depend on whether Berry is correct in his assertion that he had the right to ask the ques- tion.4 Instead it depends on whether Berry acted in such a manner as to warrant a finding that the activity lost its protected status. The Board has long held that there is a line beyond which employees may not go with impunity while engaging in protected concerted activities and that if employees exceed the line the activity loses its protec- tion. That line is drawn between cases where employ- ees engaged in concerted activities exceed the bounds of lawful conduct in a moment of animal exuberance or in a manner not motivated by improper motives 4 The protections of the Act are not dependent upon the merit or lack of merit of the concerted activity The Singer Company, 198 NLRB No. 122, Mushroom Transportation Co, 142 NLRB 1150 Accordingly, we need not decide whether an employer has the right to forbid employee questions under the circumstances present in this case 205 NLRB No. 15 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and those flagrant cases in which the misconduct is so violent or of such character as to render the employee unfit for further service.' In agreement with the Administrative Law Judge we find that Berry did not cross that line in this case. Berry's conduct was not violent. There is no evidence it was engaged in for improper motives or in bad faith. Nor was Berry's activity of such a character as to render him unfit for further service. Berry's activity came after the speech while Employer was passing out "guarantees" and at most can be characterized as mildly disruptive. Moreover, although Berry protest- ed that he should be permitted to ask the question he did not attempt to do so in face of Krengel's instruc- tions to the contrary. Accordingly, we find that Berry's concerted activity was protected and therefore Respondent's discharge of Berry for that activity was unlawful. 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 herein, and hereby orders that Respondent, Prescott Industrial Products Company, Prescott, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following paragraph for the Ad- ministrative Law Judge's paragraph 1 (a): "(a) Interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed in Section 7 of the National Labor Relations Act, as amended, by terminating employees because of the exercise of such rights." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. CHAIRMAN MILLER AND MEMBER KENNEDY , dissenting in part: We do not agree with the conclusion of our col- leagues that Respondent violated Section 8(a)(1) of the Act by discharging Berry for his conduct at the meeting. Accordingly, we would dismiss the com- plaint as it pertains to Berry because of his insubordi- nation. We have no quarrel with the Administrative Law Judge's findings of fact. After Krengel, Respondent's plant manager, had concluded a noncoercive speech in opposition to the Union, made on company time to 5 Bettcher Manufacturing Corporation, 76 NLRB 526, Socony Mobil Oil Company, Inc, 153 NLRB 1244 the assembled employees, Berry, a known union ad- vocate, rose and said he wanted to ask a question. Krengel immediately informed Berry that there was no "question and answer" period. Unpersuaded, Ber- ry again announced that he wanted to ask a question. At this point, Krengel ordered Berry to sit down or leave the room. Berry continued to defy Krengel who told him twice more to leave the room. Finally, a fellow employee took Berry by the arm and led him from the room. The Administrative Law Judge pointed out that, after previous speeches regarding the Union, Krengel had permitted a question-and-answer period and, on at least one occasion, Berry had disclosed his proun- ion stand. On the basis of this fact the Administrative Law Judge concluded, and we agree, that in response to Krengel's speech Berry was attempting to make a statement favoring union organization on behalf of the Union which he espoused, and that Krengel was aware of this fact when he denied Berry an opportuni- ty to speak. In Livingston Shirt Corporation, 107 NLRB 400, the Board held that an employer who delivers a noncoer- cive speech in opposition to a union on company time and property has a lawful right to deny the union an opportunity to make a reply and does not thereby violate the Act. Applying Livingston Shirt to the in- stant case, we would find that Respondent had a right to deny Berry, a union advocate, an opportunity to reply to its lawful antiunion speech on behalf of the Union. We would further find that Respondent could enforce that right by terminating Berry after he had defied repeated warnings from the plant manager, which we find amounted to insubordination. The fact that a union is engaged in an organizational campaign does not nullify Respondent's right under Livingston Shirt or create an exception to the otherwise unpro- tected insubordinate action Berry engaged in. Our colleagues assert that it is unnecessary for them to decide whether an employer has the right to forbid employee questions under the circumstances of this case. Yet, the majority opinion does reach that issue and even holds that an employee may persist in re- peated attempts to ask a question or make a statement at such a meeting, and, even though the employee defies the employer's specific instructions, the em- ployer violates Section 8(a)(1) of the Act if the em- ployer discharges the employee for doing so. In our view, such activity by an employee does not constitute protected activity. The majority's decision places a heavy burden on any employer who desires to express his own views in opposition to a union by delivering a noncoercive speech to his employees. The employer, under the majority's view, could not limit or control the partici- PRESCOTT INDUSTRIAL PRODUCTS CO. pation in such a meeting. If one employee, or even each and every employee in attendance at the meet- ing, desired to ask questions or make statements, the employer would be unable to prevent them from doing so, because the employer would violate the Act if it disciplined them or discharged them for seeking to ask questions or make statements. We cannot sub- scribe to such a view that burdens an employer's right to make a noncoercive speech. Our colleagues' finding that Berry's continued in- sistence on speaking at the meeting constituted an attempt to present a grievance appears to us to be specious. Accordingly, we would dismiss the complaint as it pertains to Respondent's discharge of Berry. 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 a chance to give 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 and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, loin, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these rights. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT terminate any employees for exer- cising such rights. WE WILL NOT coercively interrogate any of our employees about their or any other employees' activities on behalf of United Rubber, Cork, Li- noleum and Plastic Workers of America, AFL- CIO, or any other union. WE WILL offer to L. H. Berry immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his sen- iority and other rights and privileges and make him whole for any loss of pay suffered by him because of our discrimination against him. 53 PRESCOTT INDUSTRIAL PRODUCTS COMPANY (Employer) Dated By (Representative) (Title) 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 compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE PAUL E. WELL. Administrative Law Judge: On June 24, 1972, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, filed with the Regional Director for Region 26 of the National Labor Relations Board, hereinaf- ter called the Board, a charge alleging that Prescott Industri- al Products Company, hereinafter called the Respondent, violated Section 8(a)(1) and (3) by the discharge of L. H. Berry an employee and by other acts and conduct. Thereaf- ter, on June 26 and July 18 t the Union filed amended charges ultimately alleging that Respondent discharged L. H. Berry and another employee Jesse Green, Jr., in viola- tion of Section 8(a)(3) and (1) of the National Labor Rela- tions Act, hereinafter called the Act. On July 28 the Regional Director, on behalf of the General Counsel of the Board, issued a complaint alleging that Respondent violat- ed the Act by the discharge of Berry and Green and by acts of interrogation and solicitation of an employee to interro- gate fellow employees on behalf of Respondent. By its duly filed answer Respondent admitted the jurisdictional allega- tions and that the two employees had been discharged but alleged that they were discharged for cause and further denied the commission of any unfair labor practices. The matter came on for hearing before me on October 24 and 25 at Hope, Arkansas. All parties were present, were repre- sented by counsel, and had an opportunity to call and exam- ine witnesses and to adduce relevant material evidence with regard the issues. At the close of the hearing the parties waived oral argument. Briefs have been received from the General Counsel and Respondent. Upon the record herein and in consideration of the briefs I make the following: 1 Hereinafter all dates are in the year 1972, unless otherwise specified 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, a corporation, manufactures rubber hose in its plant in Prescott, Arkansas. Respondent annually pur- chases and receives at its Prescott, Arkansas, plant, prod- ucts valued in excess of $50,000 shipped directly from points outside the State of Arkansas. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES Background Following an organizational campaign among Respondent's employees an election was conducted by the Board at Respondent's plant on June 15. On the day before the election Respondent culminated its campaign against the Union with the last of a series of speeches by its plant manager, Thomas Krengel. At the close of Krengel's speech, which Krengel testified was written and read pre- cisely as written, Krengel commenced calling the employees forward by name to hand them certain campaign propagan- da. After he had called a few employees forward, employee L. H. Berry rose in his place and said he wanted to ask a question. Krengel told Berry that there was no question and answer penod and Berry repeated that he wanted to ask a question because he thought it was right to do so. Krengel told Berry to sit down, stating something to the effect that he knew that Berry was being paid a large sum of money by the Union. Berry responded the Union was not paying him anything but he just wanted to ask a question because he felt that it was his right to do so. Krengel told him to sit down or leave the room. Berry, without answering, contin- ued standing. Krengel told him twice more to leave the room, whereupon a fellow employee, L. T Stewart, took Berry by the arm and led him out of the room. As Berry and Stewart left the room, 20 to 25 employees got up and fol- lowed them out. After they had finished their departure Krengel resumed dispensing his campaign literature and the meeting broke up. Shortly thereafter, Berry was called into Krengel's office and was discharged for insubordination. Several days before the election, according to the testimo- ny of employee Sorrells, he was called into the office by his supervisor, Rhodes, who asked him if he was going to the union meeting and asked who in Rhodes' department was going to the meeting. Sorrells answered that he did not know. A day or two later, Sorrells met Rhodes at the time- clock in the evening and Rhodes again asked if he was going to a meeting. Sorrells answered "yes" and Rhodes asked who else in his department was going and asked him to report back who attended the meeting. Rhodes denied both conversations but stated that a couple of weeks before the election Sorrells had asked him in his office whether if the Union came in all employees would have to join the Union. According to Rhodes he answered with a noncommittal comment. The General Counsel contends that the interrogations by Rhodes and the discharge of Berry constitute unfair labor practices. Those are the issues with which we deal herein.2 Discussion and Conclusions Employee Sorrells struck me during the hearing as a forthright and honest witness but I was disturbed by his frequent assertion that he did not remember statements and incidents that took place. After close study of his testimony in the transcript, however, I realize that Sorrells, who is an unlettered man of inarticulate speech and minimal vocabu- lary, reacted to questions which he did not understand uni- formly with the answer that he did not remember. As a result both counsel and the witness failed in a large part to communicate with each other. However, his affirmative tes- timony in response to basic, simply expressed interrogation rings true. What Sorrells could understand he could recall and the questions he could understand he answered credi- bly. Nevertheless it is my impression based largely on his demeanor and upon his reaction to vigorous cross-examina- tion that his story is fundamentally true. As a result of Sorrells difficulty in communicating he gave almost no details concerning the speech given by Krengel other than that Krengel told Berry when he attempted to ask a question that there was no question and answer penod. With regard to the alleged interrogation he testified that Rhodes asked him on or about June 12 whether he was going to the union meeting and who else was going. The witness answered that he was going but he did not know who else would be going. On a second occasion, probably within a day or two according to Sorrell's testimony, he was asked if he was going to the union meeting and whether he would find out from other employees whether they were going and report back to Rhodes. I do not believe that the two conversations were substantially different although they are alleged as three separate violations. Rhodes testi- fied as I pointed out above that he had no such conversa- tions, however, I do not credit Rhodes, I think his testimony was in large part contrived to meet the exisgencies of the case as he saw them.3 I find that Rhodes interrogated Sor- rells and asked him to report back on who attended the union meeting and that such interrogation violates Section 8(a)(1) of the Act. Respondent contends that it has a right to discharge Ber- ry for insubordination inasmuch as an employer under the Livingston Shirt decision 4 has a privilege to make a preelec- tion speech on company time and premises to his employees 2 The allegation of discrimination against Jesse Green, Jr , was dismissed at the close of the General Counsel's case and will therefore not be discussed herein 3 For example Rhodes testified that the interruption by Berry took place in the middle of Krengel's speech Everyone else testified that it took place at the end of his speech, but at the time Rhodes testified, Respondent ap- peared to be taking the position that the speech was interrupted by Berry's attempt to question the speaker Livingston Shirt Corporation, 107 NLRB 400 PRESCOTT INDUSTRIAL PRODUCTS CO and at the same time deny the Union's request for an oppor- tunity to reply. Respondent also argues, under the rule in Litton Systems 5 that Berry had no protected right to inter- rupt the management meeting. Respondent also relies on the Board decision in Norfolk Conveyor, Division of Jervis B. Webb Company, 159 NLRB 464, that an employee who argues with the employer about wages and working condi- tions is not engaged in protected activity. Without citation of authority the General Counsel con- tends that Berry's attempt to ask a question at the meeting was protected concerted activity and his discharge therefore violates Section 8(a)(3) and (1) of the Act. Our examination of the issue requires first the decision whether the action of Berry was concerted or union activity, second, if so, whether it was of such a nature that it is protected by the Act and, third, assuming positive answers to the first two questions, whether Berry was discharged therefor. The answer to the third question is clear. Respon- dent admits that Berry was discharged because of his persis- tence in attempting to ask a question after he had been informed that there was no question and answer period. Krengel's speech advised the employees that joining the Union would result in harm to the employees, that the Union wage scale could cause the employer to close the plant and move elsewhere, and that the Union causes strikes and presumably thus employees could lose theirjobs. Also, Krengel asked the employees if the Union could give them a written guarantee of its promises and stated that the em- ployer would do so and in fact, at the end of the speech he proposed to hand out such guarantees.' When Krengel commenced handing out the "guarantees" at the close of his speech Berry rose and attempted to speak. It is admitted that after his prior speeches Krengel had permitted employees to ask questions and that on at least one such occasion Berry had raised issues that disclosed his prounion stand. Berry on this occasion stated that he want- ed to ask a question, and that he felt the question should be asked. It requires no great powers of deduction to conclude that the question Berry proposed to ask or statement to make was responsive to the speech he had just been required to hear and Krengel admitted that he believed Berry to be a union advocate. Accordingly, I conclude first, that Berry was about to ask a question or make a statement favoring the union organization and second, that Krengel contem- plated this to be the fact when he told Berry to sit down and that there would be no question and answer period.? I con- 5 Litton Systems, Inc, 173 NLRB 1024 6 Although the speech was allegedly written and read precisely as written, no copy of it was introduced in evidence Neither of the two witnesses who testified that they had seen the speech in writing, Thomas Krengel and employee relations manager Garrett, testified with any detail as to what was said My account of the speech is pieced together from the examination and cross-examination of witnesses called by the General Counsel 7 Krengel, who made the speech, did not testify that he had announced in advance that there would be no question and answer period although two witnesses called by Respondent , a leadman and a foreman , so testified Several witnesses called by the General Counsel testified that he did not make such a statement before the speech but first stated when Berry attempt- ed to speak that there would be no questions and answers While I do not consider the issue material, I conclude that the statement was not made before the speech Respondent made no attempt to introduce a copy of the speech although all parties agreed that it was read to the employees. 55 elude that Berry in attempting, on behalf of the Union which he espoused, to answer or question Krengel's speech was engaged in concerted or union activity. The question remains whether it was protected. Respondent' s reliance on the Board's decision in Litton and Norfolk Conveyor, cited above, is misplaced. In both those cases, the Board conclud- ed that the action of the affected employee was not concert- ed and accordingly not protected activity, whereas, in the instant case I conclude that Berry's action was concerted. The Board has dealt several times with incidents of this nature. In Leece-Neville Company, 159 NLRB 293, employ- ee Poole at the close of a speech by the plant manager stated "first of all I would like to say that I am 100 percent for the Union. It's coming in and don't you doubt that. If ev- erybody else falls out of it, it is coming in if I have to bring it in myself" then addressing the manager Poole added "if you will stick to what you said it will be OK. Don't make any threats." The Trial Examiner in that case found that Poole was discriminatorily discharged because of the state- ments he made in support of the Union and that even if his discharge occurred solely because he took over the meeting without permission his discharge was unlawful. The Board adopted the Trial Examiner's finding but deemed it unnec- essary to consider the further conclusion that the discharge was unlawful if it occurred because he "took over" the meeting without permission. Thus it appears that in the Leece case the Board expressly declined to consider the issue with which we are here faced. In Boaz Spinning Company an employee at a meeting being conducted by the plant manager said "first of all I want you to know that I am 100 percent for the Union. I'm one of the main men on the union committee, now you've told us what the Union cannot do for us. I want to tell you what the Union can do." The manager told the employee to sit down and that he could not make a speech to which the employee answered with a comparison of the plant manager to Fidel Castro. He was immediately discharged. In Boaz the Board stated: Respondent, of course, had a right to address its em- ployees concerning unionism and to advise them of its opposition to their rights to organize. Having done so, however, and then having opened the meeting to em- ployee questions, Respondent unreasonably interfered with Alexander's Section 7 rights by ordering him to refrain from expressing his prior union views and then discharging him because he expressed his resentment at Respondent's order. In view of the foregoing we find ... that Respondent violated Section 8(a)(1) of the Act by discharging R. C. Alexander for his allegedly insubordinate remark... . Finally in Hicks Ponder Company, 168 NLRB 806, the Trial Examiner found that four employees who engaged in con- cert on a course of conduct fraught with malice calculated to disrupt the employers' meeting and dilute their legitimate purpose, lost the protection of the Act by their conduct, so that they are not insulated from the reach of employer disci- 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pline. He based his decision on his analysis of the Bettcher line of cases 8 The above-cited and quoted cases give us a general out- line within which the decision to the instant case may be drawn. Clearly concerted activities are protected unless the activities result in or from conduct which is violent or of such a disruptive nature as to render the employee unfit for further service. Thus an employer may discharge an em- ployee who disrupts his plant by organizing to the distur- bance of other employees who are attempting to work, but may not discharge an employee for organizing on his own time although he uses the employers' premises for that pur- pose. Even where a certain amount of disruption results from the concerted activity as in the Leece-Neville case where the employer's meeting ended up with some of the assembled employees applauding Poole's statements and others crying, the Board has found that the protection to be afforded concerted activity was not lost. In the instant case this disruptive element does not appear; the employer never permitted the protesting employee to say what he had to say and we accordingly can judge the employer's reaction only to the fact that he attempted to say it. Nor can we find substantial disruption in the fact that Berry was told several times to shut up and to sit down and finally to leave. Ulti- mately, he did leave and there is no indication that his departure was any sort of a prearranged signal to the other employees to follow him out of the meeting, as they did. No more is the element of calculation to be attributed to Berry. In prior meetings questions were permitted and it does not appear that at any time prior to his attempting to ask a question in the instant meeting he was apprised that ques- tions would not be permitted. I conclude that the element of disruption or violence of such a nature as to protect the employer in its discharge of an employee for engaging in concerted activity is lacking in the instant case. According- ly, the Employer by discharging Berry violated Section 8(a)(3) and (1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging L. H. Berry on or about June 14, 1972, the Respondent has discriminated in regard to the hire or tenure and conditions of employment of its employees thereby discouraging membership in the Union in violation of Section 8(a)(3) and (1) of the Act. 4. By coercively interrogating an employee Respondent interfered with, restrained , and coerced employees in viola- tion of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since I find that Respon- dent discriminatorily discharged J. H. Berry, I shall recom- mend that Respondent offer him immediate and full reinstatement to his former position or if that position no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges, dismissing if necessary any replacements hired, and make him whole for any loss of pay he may have suffered by reasons of Respondent's discrimination. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, togeth- er with 6-percent interest per annum to be computed in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, 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 thereof. CONCLUSIONS OF LAW 1. Prescott Industrial Products Company is engaged in 8 The Bettcher Manufacturing Corporation, 176 NLRB 526, in which the Board stated We do not hold of course that an employee may never be lawfully discharged because of what he says or does in the course of a bargaining conference, a line exists beyond which an employee may not with impu- nity go, but that line must be drawn "between cases where employees engaged in concerted activities exceed the bounds of lawful conduct in a moment of animal exuberance or in a manner not motivated by improper motives and those flagrant cases in which the misconduct is so violent or such serious character as to render the employee unfit for further service ORDERS Respondent, Prescott Industrial Products Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Discouraging membership in United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any other labor organization, by terminating employees be- cause of their union activities or in any like or related man- ner discriminating in regard to hire or tenure of employment or any condition of employment. (b) Coercively interrogating its employees regarding their or other employees' union activities. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their v 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 PRESCOTT INDUSTRIAL PRODUCTS CO. rights to self-organization, to form, join, or assist labor orga- nizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer L. H. Berry immediate and full reinstatement to his former position or if that position no longer exists to a substantially equivalent position without prejudice to his seniority and other rights and privileges, discharging if ne- cessary any replacement, and make him whole for any loss of earnings he may have suffered by Respondent's discrimi- nation against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under 57 the terms of this Order. (c) Post at its Prescott, Arkansas, facility copies of the attached notice marked "Appendix." 10 Copies of said no- tice on forms furnished by the Regional Director for Region 26, after being duly signed by Respondent's authorized rep- resentative, shall be posted immediately upon receipt there- of, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be and it hereby is dismissed insofar as it alleges unfair labor practices not found herein. 10 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"