Independent Stave Co.

DIVERSIFIED INDUSTRIES 233 Diversified Industries, a Division of Independent Stave Company and Coopers International Union of North America, AFL-CIO. Case 17-CA-4996 January 9, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 19, 1973, Administrative Law Judge Sydney S. Asher issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Upon consideration of the exceptions, briefs, and record, the Board, on July 30, 1973, remanded the case for findings and conclusions with respect to the merits of certain unfair labor practices alleged in the complaint.' On September 12, 1973, the Administrative Law Judge issued the attached Supplemental Decision in this proceeding. Respondent filed exceptions and a supporting brief to the Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel, The Board has considered the entire record2 and the attached Decision and Supplemental Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings,3 and conclusions of the Administrative Law Judge and to adopt his recom- mended Order, as modified herein.4 ORDER defer to the parties' grievance and arbitration machinery Chairman Miller and Member Kennedy agree with the Administrative Law Judge 's refusal to defer on those issues for the reasons stated by the Administrative Law Judge. Member Jenkins would not have deferred, in any event, for the reasons cited in his dissent in Collyer Insulated Wire, 192 NLRB 837, and subsequent cases. In view of what appeared to be a reasonably close interrelationship of the few remaining issues with respect to which the Administrative Law Judge recommended deferral under Collyer to those which he had already determined on the meets, the interests of orderly procedure and fairness to all parties suggested the desirability of the Administrative Law Judge's making a determination on the merits as to all issues. Accordingly, the proceeding was remanded to the Administrative Law Judge for the preparation and issuance of a Supplemental Decision setting forth his resolution of credibility issues and his findings and conclusions on the merits with respect to those issues which he recommend- ed be deferred under Collyer Cf. Sheet Metal Workers' International Association, Local Union No 17, AFL-CIO (George Koch Sons, Inc.), 199 NLRB 166. 2 After the original Decision of the Administrative Law Judge issued, Respondent filed a Motion To Reopen the Hearing "for the limited purpose of considering the testimony in the hearing in cases numbered 17-CB-1105 and 1137 insofar as that testimony would tend to discredit the testimony given by said Ernest D Higdon in the instant matter " The case referred to in Respondent's motion is Coopers International Union of North America, AFL-CIO (Independent Stave Company, Inc.), ALJD-530-73 (Aug 31, 1973). We have taken official notice of that Board proceeding and find nothing therein which persuades us in this case that the Administrative Law Judge's credibility resolution regarding Higdon should be reversed. 3 The 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 (CA. 3, 1951) We have carefully examined the record and find no basis for reversing his findings d The Administrative Law Judge found that an effort to compute wages lost by employee Dillard because she was deprived of the opportunity to work overtime would lead to an evidentiary morass in the Board's compliance proceedings. He therefore declined to recommend that Dillard be reimbursed for such loss of wages. We do not agree. The evidence shows that the overtime worked by Dillard was a part of her daily duties or was done with respect to regular periodic inventories We perceive no insuperable difficulties in computing her overtime and we shall therefore provide for her reimbursement for the overtime work lost because of the discrimination against her to be computed with interest at 6 percent per annum, as provided in Isis Plumbing & Heating Co, 138 NLRB716.J P Chnapko, inc, 202 NLRB 252, Chemvet Laboratories, Inc., 204 NLRB No 40 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 Administrative Law Judge, as modified below, and hereby orders that Respondent, Diversified Industries, a Division of Independent Stave Company, Lebanon, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to restore to Watraud Olga Dillard all privileges enjoyed by her prior to November 11, 1971, and make Dillard whole for any losses in pay sustained as a result of the denial of overtime work with interest at 6 percent per annum." 2. Substitute the attached notice for that of the Administrative Law Judge. i A full hearing had been held upon a substantial number of issues, as to most of which the Administrative Law Judge appropriately declined to APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Coopers International Union of North America, AFL-CIO, or any other union, or retaliate against employees for filing or processing grievances on behalf of themselves or other employees, by taking away privileges previously enjoyed, or otherwise discriminating against them with regard to their working conditions. WE WILL NOT threaten our employees with more stringent working conditions or other reprisal for filing or processing grievances on behalf of themselves or other employees. WE WILL NOT threaten our employees with more stringent working conditions or other 208 NLRB No. 7 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reprisal, or put into effect more stringent work rules, or otherwise discriminate against employees because unfair labor practice charges have been filed against us, or as a means of forcing employees or their union to withdraw such charges. WE WILL NOT falsely tell employees that they would have enjoyed certain improvements in their working conditions but for the action of the above-named or any other union. WE WILL NOT tell our employees that we took away privileges previously enjoyed from an employee in retaliation for engaging in protected concerted activities. WE WILL NOT enter into an agreement with the above-named or any other union with an undis- closed intent not to live up to the agreement unless other demands, not part of the agreement, are granted. WE WILL NOT refuse to carry out the provisions of any agreement entered into with the above- named or any other union in reprisal for that union having filed unfair labor practices against us, or as a means of compelling the union to withdraw such charges. WE WILL NOT attempt to cause any employee to start a movement to oust certain union officials or otherwise interfere with the internal affairs of the above-named or any other union. WE WILL NOT in any other way interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join or assist any union, to bargain collectively through rep'esentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such rights may be affected by an agreement requiring union mem- bership as a condition of employment, as author- ized in Section 8(a)(3) of the National Labor Relations Act, as amended. We hereby withdraw and rescind the rule put into effect in February 1972 prohibiting employ- ees from eating on the job. WE WILL offer to restore to Watraud Olga Dillard all privileges enjoyed by her before November 11, 1971. WE WILL make Watraud Olga Dillard whole for any losses in pay sustained as a result of the denial of overtime work with interest at 6 percent. We hereby withdraw and rescind that part of the document issued by us and given to the above-named Union on January 27 or 28, 1972, which threatens more stringent working condi- tions should the unfair labor practice charges not be withdrawn. WE WILL abide by and carry out all provisions of the settlement agreement we entered into with the above-named Union on May 25, 1972, including the payment of wages and reimburse- ment provided for therein , and the expunging from our records of the four documents described therein. WE WILL, upon request, bargain collectively in good faith with the above -named Union as the exclusive representative of all employees in the unit described below , with respect to wages, hours, and other working conditions, and, should an understanding be reached , we will put it in a signed agreement . The appropriate unit is: All production, maintenance and machinist employees of Diversified Industries , a Divi- sion of Independent Stave Company, includ- ing quality control inspectors and shipping department employees , but excluding cleri- cal employees, retail store employees, and professional employees, guards, and supervi- sors, as defined in the Act. DIVERSIFIED INDUSTRIES, A DIVISION OF INDEPENDENT STAVE 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, 616 Two Gateway Center, Fourth at State, Kansas City, Kansas 64101, Telephone 816-374-4518. DECISION SYDNEY S. ASHER, Administrative Law Judge: On January 26, 1972, Coopers International Union of North America, AFL-CIO, herein called the Union, filed charges against Diversified Industries, a Division of Independent Stave Company, Lebanon, Missouri, herein called the Respondent. First amended charges and second amended charges were filed on February 2 and July 3. 1972, respectively. Based on these charges and amended charges, the General Counsel of the National Labor Relations Board, herein called the General Counsel, on July 27, 1972, DIVERSIFIED INDUSTRIES issued a complaint alleging that since on or about November 11, 1971, the Respondent has engaged in conduct violative of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act. The Respondent filed an answer and amended answer denying that it had engaged in any unfair labor practices.' Pursuant to notice, a hearing was held before me at Lebanon, Missouri, on various dates between September 26 and November 3, 1972, both dates inclusive. All parties were represented and were given an opportunity to participate fully in the hearing. At the beginning of the hea -ing, in accordance with a previously issued notice of intent to amend complaint, the General Counsel was permitted to amend the complaint in certain respects. The Respondent then denied the amended allegations. The Respondent filed a second amended answer setting forth an affirmative defense that the collective-bargaining agreement between the parties establishes machinery for the settlement of the issues raised in the complaint. During the hearing, at the suggestion of the Respondent's counsel, accompanied by representatives of all parties, I visited the premises of the Wyota Inn, where certain events hereafter described had taken place. During a recess in the hearing the Respondent filed a motion to stay proceedings. This motion was denied by order dated October 19, 1972.2 At the close of the General Counsel' s case, the Respondent moved to dismiss paragraph 5(a), (b), (c), (d), (e), (g), (h). (i), (j), (k), and (1). paragraph 6(a) and (b), and paragraph 7(a), (b), and (c) of the complaint, on the basis of the Board's policy of deferring to arbitration procedures agreed on by the parties. Ruling on this motion was reserved. The motion is now disposed of in conformity with the rulings and conclusions set forth herein. After the close of the hearing, the General Counsel and the Respondent filed briefs, which have been duly considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Matters 1. The Respondent The Respondent is an unincorporated division of Independent Stave Company engaged in the manufacture of wood bowls and novelties at its plant in Lebanon, Missouri. The complaint alleges, the answer admits, and it is found that the Respondent annually sells products i The Respondent filed a motion for more definite statement with regard to par 5(b) and (k) of the complamt The General Counsel filed an answer giving further particulars with regard to the portions of the complaint in question. Thereafter Admimstrative Law Judge Charles W. Schneider denied the Respondent's motion for more definite statement on the ground that the answer supplies the information requested in the motion. The Respondent also filed a motion for summary judgment with regard to pars 5(1) and 7 of the complaint on the ground that the Board should defer to the grievance and arbitration procedure adopted by the parties to settle such disputes The General Counsel filed an opposition to motion for summary judgment. Thereafter the Board dented the Respondent's motion for summary judgment with leave to raise the issues again at the hearing. 2 This motion was based on the fact that on October 11, 1972, the Respondent had filed suit against the Union in the United States District 235 valued at more than $50,000 directly to customers located outside the State of Missouri. The Board has previously found that Independent Stave Company was engaged in commerce.3 It is accordingly found that the Respondent, as a division of Independent Stave,Company, is, and at all material times has been, an employer engaged in com- merce as defined in the Act, and its operations meet the Board's jurisdictional standards. 2. The Union The complaint further alleges, the answer admits, and it is now found that the Union and its Local No. 7 are, and at all material times have been, labor organizations as defined in the Act. 3. The appropriate unit The complaint alleges, the answer admits, and it is found that all production, maintenance, and machinist employees of Diversified Industries, a Division of Independent Stave Company, including quality control inspectors and ship- ping department employees, but excluding office clerical employees, retail store employees, and professional em- ployees, guards and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act.4 B. The Setting Labor controversies between the Respondent on one hand and the Union and its various locals on the other hand are not new; they have been going on since at least 1964.5 In May 1971 the Respondent, the Union, and the Union's Local No. 7 entered into a collective-bargaining contract covering the employees of Diversified Industries, effective through May 21, 1974, subject to automatic renewal thereafter from year to year in the absence of 60 days' written notice by either party of intent to modify or terminate. It contains, among others, the following provisions: Article XX Grievance and Arbitration Procedure Section 1. Should any difference anse between the Company and the Union or any employee in the unit as to the meaning and application of this Agreement, there shall be no suspension of work on account of such difference. An earnest effort shall be made to Court for the Western District of Missouri, Southern Division, Civil Action No. 3144. In that action the Respondent filed with the court a motion to stay proceedings seeking a court order "staying proceedings in Case No. 17-CA-4996, the matter now pending before the National Labor Relations Board." To date, so far as I am aware, that motion is still pending 3 Independent Stave Company. Inc, 148 NLRB 431, 434, enfd 352 F 2d 553 (C.A. 8, 1965), rehearing denied February 8. 1966, cert denied 384 U S 962 (1966), and Independent Stave Company, 175 NLRB 156. 4 On August 2. 1968, in N LR.B. v Diversified Industries, a Division of Independent Stave Company. No 19385, the United States Court of Appeals for the Eighth Circuit entered a judgment requiring the Respondent to bargain with the Union as the exclusive representative of its employees in a substantially similar unit 5 See Independent Stave Company, 175 NLRB 156, especially fn I. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settle such differences immediately in the following manner: Step 1.-Within three (3) working days after the event causing the grievance, the Union shall supply three (3) written copies of the grievance, one for the Union, one for the employee and one for the Company. Step 2.-The majority of the Local Union Officers or representative of the International shall have the right to file the written grievance. Step 3.-Earnest attempts to settle justifiable griev- ances shall be made by the General Manager or other officers of the Company, and the President of the Local Union. Step 4.-If Step 3 is not successful, then a represent- ative of the Cooper's International Union and a representative of the Company shall try to settle the grievances. Section 2. If Step 4 is not successful, then the Union within three (3) days shall notify the Company in writing that it requests outside arbitration. Outside arbitration shall be in the following manner: (a) Within ten (10) work days after serving notice for arbitration, the party requesting arbitration will request the Federal Mediation and Concilia- tion Service to submit a list of available arbitra- tors. Such list will contain seven (7) names. The party bringing the matter to arbitration shall strike the first name from such list. The other party shall strike the second name, and strikes shall be alternated in like manner thereafter, and the last remaining nominee will be designated as the arbitrator in the proceedings, providing however that either party may request the Federal Mediation and Conciliation Service to supply an additional list if all of the names first supplied are unsatisfactory to either of the parties. Section 3. The -decision of the arbitrator shall be final and binding upon both parties. Expenses of the arbitrator shall be borne equally by the parties. Section 4. The Arbitrator shall have no power to add to, subtract from, or modify any of the terms and conditions of this Agreement, and the decision shall be confined to the particular dispute or grievance involved and rely only on questions of interpretation or application of the Agreement. Section 5. No question relating to the scope of the bargaining unit or to the functions reserved to the Company shall be submitted to arbitration. Section 6. An arbitration award covering the subject of discipline or discharge shall be limited to back pay not to exceed four (4) weeks. Article XXIII Management Rights Section 1. Unless specifically contracted away by this Agreement, the right to manage the Company's business, the operation of its plant, and the direction of the work force, and all of the authority to execute all of the various duties, functions, and responsibilities incidental thereto, are vested exclusively in the Compa- ny, and shall not be subject to grievance or arbitration, however, the discipline and discharge of employee for just cause shall be subject to grievance and arbitration. Unhappily, the execution of this contract did not bring an end to strife. At all material times, the Respondent and the Union have confronted one another in an atmosphere charged with mutual mistrust, recrimination, rancor, and litigiousness. It is against this backdrop that we must view the events related herein. C. Events Before Filing of the Unfair Labor Practice Charges 1. The Coryell grievance a. Facts At all material times, Watraud Olga (Connie ) Dillard has been president of Local 7 of the Union and a rank-and-file employee in the sanding department of Diversified Industries. Her duties include the inspection of all bowls completed in the department before they are sent to the finishing operation. Prior to November 11, 1971, she also prepared reports at the end of each day , showing daily production on each item manufactured. The preparation of these reports had to be done partly after the day shift (which worked from 7 a .m. to 4 p.m.) ended . Consequently Dillard, unlike other production employees, worked from 7:30 a.m. to 4 :30 p.m. Dillard was one of the few rank-and- file employees who had a reserved parking space on the Respondent's premises. On November 2, 1971, Amelia Coryell, an employee in the bargaining unit, sustained an injury while at work and left the plant for medical treatment. On November 5, 1971, she had not yet returned to her job . The Respondent mailed the following letter to her at home: We have received notice from the Harwood Clinic that it is o.k. for you to return to work. This is to notify you that no compensation will be paid after you have been released to return to work. You will be expected to return to work no later than Monday morning, November 8, 1971. If you do not report to work November 8, 1971, you will receive an official warning in compliance with article 30 of the union contract. Each unexcused absence will result in an additional warning.6 b Dillard testified that she received no copy of this letter, as required by the contract I deem it unnecessary to make any finding in thic regard DIVERSIFIED INDUSTRIES On November 9, 1971, the Respondent mailed to Coryell an employee warning notice (marked "2nd notice") which read in pertinent part: Unexcused absences will not be tolerated. You received a certified letter requesting your return and ignored it. Therefore I must give you this 2nd warning. The Respondent gave a copy of this notice to Dillard as president of the local. Dillard and Coryell conferred about the matter. On the morning of November 11, 1971, Dillard stopped Gaylord Christie, production manager of Diversi- fied Industries, as he passed her place of work. She informed Christie that Coryell had complained that she had received a warning notice for not coming to work and that Coryell had written out a grievance which Dillard planned to file with the Respondent later that day. Dillard further explained why she thought Coryell did not deserve the warnings. Apparently. Christie made no reply. About 11:30 a.m. John J. Boswell, vice president of Independent Stave Company and plant manager of its Diversified Industries division, came to Dillard's place of work. Christie and Kirby Hertel, Dillard's foreman, were also present during parts of the discussion which ensued. Boswell said he understood that Dillard was helping Coryell file a grievance. Dillard replied that she (Dillard) was going to help Coryell, saying: "1 am 100 percent for her." Boswell, angered, shook his finger at Dillard and said: "How dare you stand behind her. How dare you help her file a grievance. You know there is nothing wrong with her finger and you had better not help her file any grievance." Dillard retorted: "At 4 o'clock quitting time you are going to get your grievance." According to Dillard's credited testimony, Boswell continued as follows: He said, "Well, I will tell you something, Connie I have been good to you. Now I am going to take all of your privileges away from you. I said, "What privileges?" He said, "You have a parking spot. I don't want to see you ever parking in the parking spot no more." He said, "I don't want to ever see you in that parking spot again. From now on I don't want to see you working no overtime no more." ... He said, "There will be no more overtime for you. Do you understand that?" .. . He said, "I don't want to see you work any more overtime. He said something else, oh, he said, "The [production] reports that you have been filling out every day, I want you to put them on my desk in person. I don't want them on the secretary's desk." I had put them on the secretary's desk all of the time. He said, "I want them on my desk from now on " Oh, he also changed my working hours, my working time. 7 Boswell gave a somewhat different version According to him, after he received a written grievance, he went to Dillard and argued about the merits of the grievance, he accused Dillard of "misusing her position as union president to help her good friend Coryell. and I wouldn't tolerate that", he instructed Dillard "from now on she wouldn't be given any special preference or preferential treatment ; and she was going to be treated just like everybody else in the plant" lie denied telling Dillard that she would get no more overtime He also denied that he had stated he was punishing 237 Q. During this conversation of November 11th, what did Mr. Boswell tell you about those [production] reports? A. He told me I would have to place them on his desk instead of on the secretary's desk, he wanted them on his desk. Q. Did he say why? A. That was a punishment. He told me he was going to punish me. Q. He did? JUDGE ASHER: Is there an objection here? MR. HANNAH: Did I understand her last statement to be he said that was a punishment? JUDGE ASHER: Is that your testimony? You used the word punishment. THE WITNESS: Yes, he called it punishment. He said he was going to punish me.7 Boswell then directed Dillard: "Come with me." Together the two left the building and proceeded to the parking lot, where Boswell kicked over the sign containing Dillard's name designating the space as reserved for her. By then it was lunchtime and they parted. That afternoon at quitting time, 4 p.m., Dillard delivered to Boswell the following grievance, signed by Coryell: I refuse to accept your so called first and second warning notices for the following reasons (1) I was injured while working at Diversified Industries Nov. the second. On November the third I went to Dr. Kenneth D. Ridgway; He examined my hand and said that I should not go back to work for 7 days. He gave me a letter stating this and I personally gave a copy of the letter to the general manager John Boswell. (2) The Company has been violating Article XXX. Section 1 -C of the contract by not giving the Union a copy [sic] of the first warning. From November Il, 1971, to the start of the hearing herein, the following changed working conditions applied to Dillard: 1. She no longer parked her automobile in a reserved space on the Respondent's premises. 2. Her working hours, formerly 7:30 a.m. to 4:30 p.m., became 7 a.m. to 4 p.m. As a consequence, she ceased completing production reports at the end of each workday, because she found it impossible to do so before 4 p.m. Presumably these daily reports were thereafter completed by others, perhaps supervisors. 3. Although she had previously worked overtime-she estimated that the amount varied from 5 to 9 hours per Dillard Boswell did not impress me as a candid or forthright witness, his denial in this respect is not credited Dillard testified that at one point in the conversation Boswell turned to Christie and to Hertel and asked them . "Did you hear that Gaylord? Did you hear that. Kirby'" Christie and Hertel, each of whom was present during only part of the conversation, corroborated Boswell's denial that Boswell made any such remark I deem it unnecessary to resolve this particular conflict. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week-she was never again offered overtime until some- time after the beginning of the instant heanng.8 No grievance has been filed by Dillard or by the Union concerning this incident. The later course of the Coryell grievance is related below. b. Contentions of the parties The complaint (par. 5(a) and (b)) as amended at the hearing alleges, and the Respondent denies, that on or about November 11, 1971, Boswell threatened to take away, and took away "overtime, parking and transporta- tion privileges" and threatened to change, and changed, "employees' work duties because of their Union activity." In the Respondent's motion for more definite statement the General Counsel sets forth that Boswell "threatened to change the work duties of employees by discontinuing their preparation of daily production records and/or the manner of distribution of said daily production records." It is alleged that such conduct violates Section 8(a)(1) and (3). The General Counsel maintains that the evidence dis- cussed above supports these allegations .9 The Respondent contends in its second amended answer that these allegations should be dismissed on the basis of Collyer Wire.10 The Respondent asserts in a letter dated February 12, 1973: "The alleged taking away of Dillard's overtime, parking, and transportation could have been made the subject of a grievance since it would have been a cognizable contract violation to so discriminate for Union activity . . . . These alleged violations should be referred to arbitration." In the alternative, should the Board decline to defer to arbitration and tackle this issue on the merits, the Respondent defends on the following grounds: (1) Dillard's conduct did not constitute protected activity under Section 7 of the Act because Coryell had been "malingering" and Dillard's assistance was "unreasonable and virtually fraudulent" and amounted to a "misuse of the grievance procedure"; (2) Boswell was motivated by "the falsity of Coryell's claim, not retaliation against Dillard"; (3) according to the Respondent's witnesses Dillard was not denied overtime, and they should be believed. c. Conclusions There is no question that the Board is not ousted of jurisdiction by existence of a grievance-arbitration proce- dure in a collective-bargaining agreement although, in its discretion, it has deferred in appropriate cases to such a procedure in order to foster and promote the use of voluntary and mutually agreed-upon methods of determin- 8 Whether Dillard was or was not deprived of the opportunity to work overtime during the period November 11, 1971, to October 23, 1972, is a strenuously disputed factual issue. Boswell, Christie, and Hertel testified that she was offered overtime but refused Dillard denied this Dorothy Mathews, an employee and a witness for the General Counsel, testified that about May 12, 1972, Boswell told her "that he had been real good to Connie, that he had given her a lot of overtime, but she wouldn't get any any more. And he hgd given her a parking place, which she wouldn't have any more" Although Boswell denied this testimony, 1 find that the conversation took place substantially as related by Mathews In the light of this collaboration, and my observation of the demeanor of the witnesses involved, I credit Dillard's denial that she received in the period in question any opportunity to work overtime ing disputes. The Respondent in its brief cites many such cases. In one of these, Joseph T. Ryerson & Sons, Inc, 199 NLRB 461, the General Counsel alleged that the respon- dent had violated Section 8(a)(1) of the Act by this conduct: the respondent's general manager, referring to the grievance of an employee pressed by a union official who was an employee, allegedly threatened the union official that he would "have a hard time with the company and also the men in the warehouse" if he pursued the grievance. Pointing to the grievance-arbitration clause in the contract, the respondent there urged the Board to defer to arbitration. The Board refused, saying: the violation with which this Respondent is charged, if committed, strikes at the foundation of that grievance and arbitration mechanism upon which we have relied in the formulation of our Collyer doctrine. If we are to foster the national policy favoring collective bargaining and arbitration as a primary arena for the resolution of industrial disputes, as we sought to do in Collyer, by declining to intervene in disputes best settled elsewhere, we must assure ourselves that those alternative proce- dures are not only "fair and regular" 5 but that they are or were open, in fact, for use by the disputants. These considerations caution against our abstention on a claim that a respondent has sought, by prohibited means, to inhibit or preclude access to the grievance procedures. It is this consideration which persuades us that the issues of arbitrability and contract coverage, discussed above, should not here be left to resolution by the arbitrator as might be appropriate under other circumstances. The Respondent in the instant case, like the Respondent in Ryerson, allegedly "sought. by prohibited means, to inhibit or preclude access to the grievance procedures." Accord- ingly, for the reasons advanced in Ryerson, it is my opinion that the Board should not defer to arbitration on this issue." Turning now to the merits, it is clear-indeed it is nowhere denied-that Boswell became angry at Dillard and retaliated against her for her part in the filing of the Coryell grievance. This conduct of Dillard constituted activity protected under Section 7 of the Act. It matters not whether the grievance itself was or was not meritorious, or even that Boswell might have considered it to be fraudulent. As to the conflicting testimony regarding overtime, Dillard's version impressed me as accurate, and I credit it.12 It is accordingly found that by depriving Dillard of overtime, the use of a parking space, and the use of company transportation, and by changing her duties 9 He does not contend, however, that the change in Dillard's working hours constituted an unfair labor practice 10 Collyer Insulated Wire, a Gulf and Western System Co, 192 NLRB 837. The Board's own appraisal of the significance of this case is contained in its brief in Provision House Workers Union Local 274. AFL-CIO v. N L R B, U S. Court of Appeals, Ninth Circuit, No 72-2617, pp 22-24 ii With regard to the deprivation of overtime, another reason for refusing to defer to arbitration here might be that the limitation of backpay contained in art XX, sec. 6, is repugnant to the policies of the Act because it affords inadequate protection. However, I need not and do not decide this issue i2 In so doing, I have taken into consideration the testimony of Merrill Jeffries, which I do not credit in this regard, and that of Mary Carlson, DIVERSIFIED INDUSTRIES regarding production reports, all on November 11, 1971, and by maintaining these changed working conditions in effect thereafter, because she pressed a grievance on Coryell's behalf, the Respondent violated Section 8(a)(l) and (3) of the Act. 2. The Dowden incident a. Facts On November 29, 1971, Linda Dowden, an employee in the Respondent's finishing department, injured her thumb while a' work. Early in December 1971 she consulted with Maggie Williams Webb, an official of the Union and union steward. During working hours, Webb left her work station, went to the office, and discussed with Christie the possibility of moving Dowden from her job to another job in the department, because of her injury. "According to the testimony of Webb, a witness for the General Counsel, Christie "said for me to go back to my job and he would be up in a minute to talk to me about it." She returned to work. About an hour later, according to Webb's version, Boswell and Robert Milan, then foreman of the finishing department, came to Webb's place of work. Boswell told Webb "he could fire ... [her] for going down to the office and talking about union business on company time." Webb replied that she "was representing an employee that needed to be moved." Webb asked that Dowden be moved to another job in the department. Boswell answered that there were no jobs open in the department. Either Webb or Boswell stated that openings had been filled without posting. Boswell then "said that if [Webb] would forget about the posting of the jobs that he would forget about firing [Webb] and he would call it a deal and forget it." That was apparently the end of the conversation. The Respondent's witnesses, Boswell and Milan, supplied a different version, but for the purposes of this case only it will be assumed, without deciding, that the events occurred substantially as related by Webb.13 No further action appears to have been taken regarding Dowden; none of the Respondent's officials issued any warning notice or written reprimand to Webb; and neither Webb, Dowden, nor the Union filed any grievance as the res It of this incident, or regarding the Respondent's failure to post job openings. b. Contentions of the parties The complaint (par. 5(c)) alleges, and the answer denies, that in early December 1971 Boswell "threaten[ed] employees with discharge for filing grievances about job openings and for inquiring about job openings." It is alleged that such conduct violated Section 8(a)(1) of the Act. The General Counsel argues that the above-described testimony of Webb supports this allegation. The Respondent cites article XVIII of the collective- bargaining contract and contends that this matter should be deferred to arbitration under the provisions of the which I credit Carlson's testimony may tend to show that, had overtime been offered Dillard, it would have been refused But in my opinion it does not tend to dispute Dillard's testimony that overtime was never offered her ii Webb's testimony was corroborated in part by that of Maryetta 239 contract. On the merits, the Respondent maintains as an alternative defense that Boswell's warning to Webb was "clearly justified" because "threats to discharge employees for engaging in union activity on company time is [sic] not violative of Section 8(a)(1)." By way of rebuttal, the General Counsel urges that deferral is not appropriate here because of the disharmom- ous labor relations which exist. c. Conclusions Article V of the contract provides, in pertinent part: The Company shall not discriminate against any worker because of Union membership or Union activity except that the employee shall not engage in Union activity on Company time unless with the permmssion of a Company official. Article XVIII reads, in pertinent part: No employee shall be discharged for performing committee work of the Union, provided it is done outside of working hours or by permission of the Plant Superintendent. In view of these provisions and the grievance-arbitration machinery set up by the parties, and in the light of the absence of any claim herein that Webb was engaged in processing or pressing any grievance on Dowden's behalf within the framework of those contract provisions, or that the filing of such a grievance was ever contemplated, I agree with the Respondent's contention that, on this issue, the Board should defer to arbitration.14 And, contrary to the General Counsel's argument, I believe that the absence here of harmonious relations between the Respondent and the Union does not require a different result. Accordingly, I do not reach the merits of this allegation. 3. The safety equipment grievance On December 13, 1971, the Union filed with the Respondent a grievance by a number of employees. In pertinent part it reads: The company has charged some employees for safety equipment. This is in direct violation of article No. 14 Section No. 3 of the contract between management and the Union Local No. 7. The parties were unable to settle this dispute. On January 13, 1972, J. F. Souders, Esq., the Union's attorney, wrote to the Federal Mediation and Conciliation Service, herein called FMCS, requesting that a panel of arbitrators be supplied to the parties. On January 251 Souders again wrote to FMCS with a similar request, and advised Boswell that he had done so. Accordingly, FMCS supplied a list of arbitrators' names to both parties. On February 7 Souders wrote to FMCS, with a copy to Boswell, advising that the Ballard. 14 Collyer Insulated Wire, supra, National Radio Company, Inc. 198 NLRB No 1: and Joseph T Ryersdfn Sons, Inc, supra 15 Unless otherwise noted, dates hereinafter refer to the year 1972. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entire panel was unsatisfactory to the Union and request- ing a second panel. Meanwhile, as related hereafter, a grievance concerning overtime had been filed by the Union. While the record is not entirely clear, apparently either the Union or the Respondent sought another panel of arbitrators from FMCS for that grievance. Accordingly, FMCS then submitted two new panels to the parties, one for each dispute. On March 27 Ellis notified FMCS that the Respondent rejected both panels in their entirety and requested new panels. On the same day Ellis wrote to Souders explaining what had been done.16 On May 23 Ellis wrote to Ernest D. Higdon, president of the Union, stating that he had received the second panel but adding: "I see no point in trying to select an arbitrator until you and Mr. John Boswell have exhausted all possibility of settlement in your conference which is to be held tomorrow in Lebanon." What happened thereafter to this grievance is related below. 4. The overtime grievance a. Facts On January 24 the Union filed with the Respondent a grievance signed by a number of employees. In pertinent part it reads: We the undersigned demand thirty (30) minutes overtime pay because we failed to receive our pay- checks before five minutes after quitting time; Friday [sic] January 21st. As per the contract between union and management, Article XIX-Section 2. When Dillard handed in this grievance to Christie he, according to his own testimony, "got a little peeved at her for bringing this out." He termed the Union's action as "harassing" and "petty" and pointed out that it was premature. According to Dillard's credited testimony: He said, "Well, if you have to be so petty, I can be petty to. [sic] When somebody is late and has a flat tire, I don't have to take that for an excuse. I don't have to take nothing for an excuse. I can assure you I can be mean , too, or nasty just like you people can." I said, "Well, I don't think that we are nasty. We are just fighting for our rights." He said, "Well, I am going to start giving out warning tickets. I am going to give out warning tickets for every little thing that comes up. If I see somebody talk or eat or somebody coming in late, I am going to give out a warning ticket for that. I assure you I can do all that." I said, "Well, if you have to, you have to." He said, "And you may get a warning ticket, too." Christie testified that he told Dillard: 16 For some reason which is not entirely clear, Ellis' letter to Souders on this date mentions to the caption the Coryell grievance So far as the record shofis, however, no request to the FMCS was made for a panel to arbitrate the ('oryell matter U Kopp-Evans Construction Company, 143 NLRB 690. Max Silver, Irvin Silver anr' Edward Braude, Copartners, d/b/a Max Silver & Son, 123 NLRB Now, Connie, if you're going to insist on being persistent in filing this, not knowing that it won't be honored, I'm going to be compelled to follow the contract more closely than I have in the past. As related above, while the record is not entirely clear, it would seem that this grievance was one of the two grievances for which the parties requested FMCS to supply a panel of arbitrators, that the FMCS did so, but that no arbitrator was ever chosen. What happened to the grievance thereafter is described below. Neither Dillard nor the Union filed a grievance regarding what Christie said on January 24. b. Contentions of the parties The complaint (par. 5(d)) alleges, and the answer denies, that on January 24 Christie told "employees that the filing of grievances would cause the Respondent to make it rough on employees." It is alleged that this conduct violated Section 8(a)(1) of the Act. The General Counsel urges that the above-quoted testimony supports this allegation. The Respondent maintains that this issue is "cognizable as a grievance for an alleged violation of Article V of the contract which prohibits discrimination for union activity." Alternatively, on the merits, the Respondent argues in its brief : "Such statements, even though coercive, if made to rank-and-file employees, are not coercive when made only to union representatives." c. Conclusions The threats alleged to have been uttered by Christie, if made, would inhibit the Union in its use of the very grievance procedure which the Respondent now attempts to invoke. For the reasons already discussed with regard to the Respondent's change of Dillard's working conditions on and after November 11, 1971, 1 conclude that the Board should decline to defer this issue to the grievance-arbitra- tion machinery set up in the contract. Turning to the merits, I credit Dillard's version as more accurate than that of Christie. However, under either version Christie's unmistakable message comes through loud and clear: Because this grievance was being pressed, the employees' working conditions would be made more harsh. Such a threat of retaliation, made to Dillard, a rank- and-file employee, constitutes a violation of Section 8(a)(1) of the Act, even though this employee also happened to be a union official.i7 5. The issuance of warning notices a. Facts On January 26, 2 days after the Christie-Dillard conversation related above, the Respondent issued to 269. and Marie T Redli, d/b/a Reath' Cartage Conyoani , 110 NLRB 1742. cited by the Respondent. are all distinguishable on their facts In none of these cases was the threat in question uttered in the presence of any of the Respondent's rank-and-file employees . Here, on the contrary. the threat was made to Dillard, who was such an employee DIVERSIFIED INDUSTRIES Dillard an employee warning notice marked "2nd notice." In pertinent part it reads: "Solliciting [sic] signature from a non-union employee on a grievance [sic]. Next Time Dismissal." It was signed by Christie and Boswell. On the same day Dillard asked Christie: "Will you please explain to me what that means?" Christie replied that the 241 previously filed grievance demanding a half-hour's over- time pay because the paychecks were late contained the signatu-e of Ladell Booth who "was not supposed to sign it because she wasn't there 30 days yet." 18 Between January 24 and 27 the Respondent issued eight other employee warning notices to employees as follows: No. of Name Date Notices Barbara Kenedy 1/24/72 1 Derald Kenedy 1/24/72 1 Laverne Jones 1/25/72 1 Roscoe Myers 1/25/72 2 Carolyn Bates -- 1 Lois Windsor 1/27/72 1 Sherman Moore 3 Leonard Todd 2 Each bore the signatures of two management officials; Christie signed seven of them. A copy of each was delivered to Dillard. So far as the record shows, neither the Union nor Dillard nor any of the other eight employees involved ever filed a grievance concerning the issuance of any of these warning tickets. b. Contentions of the parties The complaint (par. 5(e)) alleges, and the answer denies, that from on or about January 24 through on or about January 27 the Respondent "issue[d] warning notices to employees because they and other employees had engaged in and were continuing their Union activity." It is alleged that this conduct violated Section 8(a)(1), (3), and (4) of the Act. The General Counsel in his brief points to the timing of these warning tickets shortly after Boswell threatened that, because of the Union's "petty" grievance seeking overtime pay, he intended "to give out warning tickets for every little thing that comes up." The General Counsel further argues that "the Respondent was often lax in enforcing certain rules, and . . . no warning tickets were issued within a period of time prior to January 24." The Respondent maintains that, instead of deciding this issue concerning these nine warning notices, the Board should defer to arbitration. Alternatively, should this defense not prevail, the Respondent contends: "With Remarks Unexcused absences will not be tolerated Unexpected absences will not be tolerated Quit work before quitting time. (Holding time card in hand 1 minute before clock read 12 noon or whistle blew) Excessive absenteeism Absence Unauthorized absence will not be tolerated Absence Absence respect to the warning slip given Dillard . . . General Counsel adduced no evidence showing the reason that the probationary employee signed the overtime grievance. He thus failed to meet the burden of proof required to establish that the warning notice . . . violated Section 8(a)(1)." As to the other eight employees "The mere introduction of these warning notices coupled with Christie's statement on January 24 is insufficient to overcome the burden of proof required to establish that these warnings were given for discriminatory rather than valid business reasons." Also, "None of the recipients .. were shown to have been active in union affairs." c. Conclusions Let us turn first to the warning slip given Dillard. Like the withdrawal of certain working conditions on and after November 11, 1971, this warning notice was on its face a deliberate attempt to hobble the Union in its use of the grievance-arbitration machinery which the Respondent would now have the Board defer to. For the reasons set forth in Ryerson, and relied on for refusing to defer to arbitration the allegations of paragraph 5(a) and (b) of the complaint, it would seem that the Board should itself decide this issue. However, later events make such a result inappropriate here and a Board decision on this matter unnecessary. For on May 25 the parties reached a "" The collective-bargaining contract, at art XXVII, contains a 30-day union-security clause 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settlement under which the Respondent agreed, among other things, to expunge this particular warning notice from its records. In this posture of the issue, I perceive nothing to be gained by insisting on making a decision on the merits of the allegation which has by now been put to rest. Instead, I shall relegate the parties to the disposition of the issue already agreed on by them. So far as the other eight warning notices are concerned, the General Counsel contends that they were issued in retaliation for the filing of grievances by the Union. Thus, if the contention can be proved, they stand in the same light as does Boswell's depriving Dillard of certain privileges, described above. Accordingly, like that matter, the issue of these eight warning slips should, in my view, be determined by the Board and deferral to the arbitr2i process rejected. On the merits, it is significant that on January 24 Christie had threatened to hand out warning slips "for every little thing that comes up " It is also true that the record amply demonstrates the Respondent's animus toward the Union. But there the General Counsel's arguments run out of steam. Other than Dillard, no recipient was shown to have been either an employee who had filed a grievance, a union official who had processed one, or even an active union supporter. Moreover, the argument that the number of slips issued within these few days is significantly high is far from conclusive. The Respondent's use of warning slips was by no means a rare occurrance. On the contrary, it appears to have existed and been in regular use for some time. The record shows that a minimum of 19 warning notices issued in 1970 and at least 23 in 1971. Previously, in the space of 2 days at least four had been given out (October 27 and 28, 1970, and again June 7 and 8, 1971) and within 9 days at least nine had been issued (June 1 through 9, 1971). Furthermore, there is no evidence concerning the circum- stances under which the warning slips made the subject of this allegation were issued, consequently the General Counsel has not proved that they were undeserved or were not issued for valid business reasons. While the matter is not entirely free from doubt, I conclude that the General Counsel has failed to establish by a preponderance of the evidence that the Respondent, by issuing these eight other warning slips, violated Section 8(a)(1), (3), or (4) of the Act. D. Events After Filing of the Unfair Labor Practice Charges I The document drafted by Boswell and the Webb incident a. Facts As previously noted, the instant charges were filed by the Union on January 26. They reached the Respondent the following day, January 27. On January 27 or 28 Boswell called Dillard to the office, where Christie was present. A conference ensued during which the three pending griev- ances and the unfair labor practices were discussed at length.19 Boswell said that he "would like to get [the unfair labor practice charge] cleared up if it was possible." No settlement agreement was reached, but during the conver- sation Boswell drafted the following document and handed it to Dillard: Things that we not "Strictly" enforce that we could 1. Absenteeism. Every other day we could give a warning ticket for this and we could have Layed-off [sic] and dismissed many employees who presently work here. II. Wearing Safety Equipment. According to the OSHA "law" we are required to force our employees to wear Safety Equip. This gives us the right of Dismissal & Disciplinary Lay-off. This has been used only in two cases. III. "No Smoking Rules" We do not strictly enforce this but we could. IV. Eating on the job! Candy Bars. V. Social Conversation on Job! Excessive talking. VI. Being at work station at 7.00 sharp! and at 1:00 sharp. VII. Not to leave before 12:00 or 4:00 sharp. VIII. Handing out Pay Checks Before Friday Afternoon-We often Advance Money when needed and give checks before 3:30 Friday if need e.g. pay rent, cover checks already written, etc.-We Advance as a service only not because we have to. IX. We allow people to leave the building during working hours to get things from their cars, take care of personal business, etc. This is against Company policy but we cooperate w/exceptions. CONNIE: Please discuss these items along with the grievances & Unfair Labor charges against the Company. If you will drop the charges as we feel should never had been filed, we will continue to be what we feel is reasonable. Otherwise the above will have to be followed strictly in order to pay for the grievances & unfair [illegible] charges. Also, please notice $60 [illegible] analysis on economics of these [illegible]. X. Power Failure on 9-27-72 cost you nothing- -cost us $75.00 in labor. We could have docked you but did not. Boswell suggested that the contents of this document be brought to the employees' attention. Dillard agreed to do so at a special membership meeting of the local union. Arrangements were made to post notices of this projected meeting on the plant bulletin boards. About 10 days later, Webb had some candy in a bowl by her worktable. Christie came by "and said there would be no more candy eating on the job, that anybody caught eating candy would be discharged or disciplined." The Respondent did not issue any written warning to Webb. The Union did not file any grievance regarding either the document drafted by Boswell on January 27 or 28, or the conduct of Christie toward Webb about 10 days later. 19 Boswell and Dillard testified credibly that the unfair labor practices were mentioned, Christie denied it I do not credit'Chrisue's denial in this respect DIVERSIFIED INDUSTRIES b. Contentions of the parties The complaint (par. 5(k)) alleges, and the answer denies, that from January 27 to date the Respondent "unilaterally institute[d] and enforce[d] new and more stringent working rules because of employees' Union activity and because of the Union's refusal to withdraw unfair labor practice charges." By way of answer to motion for more definite statement, the General Counsel lists the following ,,more stringent working rules" which he alleges that the Respondent unilaterally instituted and enforced: Absenteeism. Wearing safety equipment. No smoking rules. Eating on the job. Social conversation on thejob. Being at work station. Leaving work station. Handing out paychecks, and advancing wages. Allowing employees to leave working area. Docking employees for power failure. It is alleged that the above-described conduct violated Section 8(a)(1), (3), (4), and (5) of the Act. The Respondent argues strenuously that the issue of alleged unilateral institution and enforcement of more stringent working rules should be deferred to the griev- ance-arbitration process provided in the contract. Alterna- tively, on the merits, the Respondent maintains that "each rule enumerated [in the above-quoted document] had been in existence" long prior to January 1972 and that "there was no change regarding the administration thereof following January 28." In any event, the Respondent contends, "the union had ample opportunity to bargain over the institution and implementation of the rules ... . The Union never requested bargaining regarding the institution of those rules." c. Conclusions I agree with the Respondent that the issues of whether the rules were "new," whether they were thereafter enforced in a more stringent manner, the impact of Christie's verbal reprimand to Webb, and whether the Union was accorded advance notice and a reasonable opportunity to seek bargaining about the rules are issues which the Board should defer to the machinery the parties have set up by mutual agreement.20 One issue, however, is within the Board's special province: the issue of whether or not the document drafted by Boswell and delivered to the local's president contains a threat violative of Section 8(a)(1) of the Act. In my 20 National Radio Company, Inc, supra 21 Dillard testified that during the discussion on January 27 or 28, Christie remarked to Dillard "that he was going to make it rough on the people if we don't drop the unfair labor practice charges " The Respondent moved to strike this testimony as "beyond the scope of the complaint " The motion was denied in order to avoid fragmenting the story of this conference In view of the Respondent's motion, the fact that the complaint does not specifically allege this particular incident as a violation, 243 opinion, the Board should decline to defer on this issue and should itself made the decision 21 Turning to the merits, a reading of the document indicates that the entire thrust is a warning that working conditions would be made more onerous should the Union refuse to withdraw the unfair labor practices it had filea. That is particularly emphasized by the listing in detail of past lenience followed by a paragraph between items IX and X which explicitly states that "if you will drop the charges" the Respondent would "continue" to be "reasonable," but "Otherwise" (that is, should the Union 3ecline to do so) the rules "will have to be followed strictly." It is also significant that these words were penned within a day or two after Boswell first learned of the filing of the charges. It is accordingly found-indeed no other conclusion is reasonable-that the document in question threatened reprisals in the shape of more stringent working conditions unless the Union withdrew its charges. Such a threat itself violates Scction 8(a)(1) of the Act, whether or not it was ultimately carried out.22 2. The local Union's membership meeting a. Facts In accordance with the plan described above, a member- ship meeting of the local union was held in a banquet room of the Wyota Inn in Lebanon on Saturday, January 29, a nonworking day for most employees. It was chaired by Dillard and Clarence Morgan, an officer of the Union. Among the employees and members of the local union who attended was Merrill Jeffries. At some point during the meeting Jeffries left the Wyota Inn and went to the plant, where he informed Christie and Boswell that the members of the local union "were going to process all of the grievances they had and follow through on them." Jeffries, Christie, and Boswell then proceeded to the Wyota Inn. Christie and Boswell waited in the coffee shop, while Jeffries returned to the meeting, announced that Boswell was in the viumty, and asked "if John [Boswell] could speak to the members . . . and show .. . the company's side of the argument." The request was denied. For the second time Jeffries left the meeting. He sought Boswell and Christie in the coffee shop and related what had occurred. Boswell requested Jeffries to "go back and ask the members if they would hear him [Boswell] after the meeting had adjourned." Jeffries accordingly reentered the meeting and, addressing all present, request- ed the members to "speak to Mr. Boswell after the meeting." Dillard replied "if they [the members] wanted to they could go right ahead." Jeffries went out of the meeting again and reported to Boswell in the coffee shop that Boswell "could talk to them after the meeting." and because in any event a finding that Christie threatened reprisals in violation of Sec 8(a)(1) of the Act would not affect the remedy recommended herein and would merely be cumulative, I decline to determine whether such a remark was made 22 While it is possible to argue that this particular threat was not specifically pleaded in the complaint, I am satisfied that the issue was fully litigated at the hearing and in the briefs 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the meeting broke up, the employees had to come out through the lobby. Boswell stationed himself where they would have to pass as they left and suggested that they talk the matter over with him. About 10 members, including Jeffries, Morgan, Dillard, and Webb, accepted the invitation and met with Boswell and Christie in the coffee shop. There ensued a lengthy discussion of the pending grievances with each side directing derogatory and disparaging remarks at the other. No agreement was reached.23 When this broke up, the talk continued in Morgan's motel room. Present were Christie, Boswell, Dillard, Dillard's husband, Morgan, and Webb. There the conversation became rather heated, Boswell grabbing the document he had written (quoted above) forcibly out of Morgan's hand, causing it to tear. Although the possibility of settling the grievances was discussed, no settlement was reached. b. Contentions of the parties The complaint (par. 5(f)) as amended alleges, and the Respondent denies, that on or about January 29 Boswell "attempt[ed] to, and did, interfere with the conduct of a union meeting by insisting upon addressing the employees at and immediately after said meeting." In this connection, the General Counsel takes the position that the Respon- dent made Jeffries its agent for this purpose. The Respondent denies that Jeffries was its agent and that it was accountable for his conduct. Alternatively, the Respondent argues that even were it held liable for Jeffries' acts, nothing that he did interfered with the local's conduct of its membership meeting. c. Conclusions I need not decide the agency issue. For the purposes of this case it will be assumed, without deciding, that Jeffries' conduct was binding upon the Respondent. Even so, there was no significant interference with the meeting while it was in progress. A request that an employer address such a meeting is not itself disruptive, and indeed such direct presentation of an employer's viewpoint to his employees assembled at a union meeting is not unheard of.24 Jeffries addressed the chair and at no time showed disrespect, nor interrupted the business of the meeting for more than a minimal period of time, nor in any other way conducted himself improperly. Moreover, he accepted the adverse ruling from the chair without protest. And to contend that Boswell interfered with the meeting after it had come to an end is a contradiction in terms. I conclude that the General Counsel has failed to establish by a preponderance of the evidence that Boswell (either in person or through his agent Jeffries) interfered with the meeting to any significant degree. 21 Dillard testified that Boswell asked her to drop the unfair labor practice charges but she refused Jeffries, however, testified that he heard no mention of unfair labor practices. I deem it unnecessary to make a finding in this regard. 3. The abortive attempt to improve the insurance program a. Facts Article XVI of the contract between the parties provides for certain specified insurance, to be paid for entirely by the Respondent. In January Robert P. Reams, an insur- ance agent, approached the Respondent regarding an improved program. Boswell complied with Reams' request for certain information. Reams, a witness for the General Counsel, testified as to what took place thereafter: On March 23 or 24 Reams visited the Diversified Industries plant and presented his plan for group insurance to Boswell. This involved obtaining written approval from 75 percent of the eligible persons. It also involved enlarging the Respondent's contributions by about $100 per month. Boswell remarked that he wanted to increase the existing benefits. He suggested that it would be advisable, before contacting individual employees, to speak to the Union's local officers. Accordingly, Boswell introduced Reams to Dillard. Reams then met with Dillard and a group of employees and explained the plan, including the cost to each covered employee. Some signed authorizations. After that Reams began to contact other individual employees and to describe the plan to them. In this manner, over a period of 2 days, Reams obtained 45 signed authorizations from 79 eligible employees. (There were additional cards from ineligible employees). Sometime during this penod the proposed insurance carrier notified Reams that there would be a time limit imposed and that the required number of signatures would have to be obtained by March 25 in order to qualify for the quoted rate; after that date the rate would increase. Not having obtained the necessary percentage of authorizations within this time limit, Reams left Lebanon and nothing more has been done regarding his insurance plan by him or by the Respondent. According to Dillard, while Reams was at the plant collecting signatures of employees on insurance authoriza- tions, Dillard told Boswell, in answer to an inquiry, that the Un'on would like to have the improved insurance, whereupon Boswell said: "If we start anew and get those [unfair labor practice] charges out of the way, we can get the,msurance and . . . settle the grievance" and that on the same day Christie similarly assured her that, should the unfair labor practices be withdrawn, the Respondent would give in on the pending grievances and obtain the insurance plan suggested by Reams. In both instances, according to Dillard, she declined to drop the unfair labor practice charges. On several occasions after Reams' departure, Boswell mentioned the insurance plan to employees. About May 4 or 5 he remarked to Viola Pender, an employee, that "if Connie [Dillard] had done what she should have that we would have had better insurance." About May 8 Boswell told Mona Moore, an employee, "we would have better insurance but for the Union." And about May 12 he 24 See, for example. The Beticher Manufacturing Corporation, 76 NLRB 526, where the employer's representative was invited to address a union membership meeting DIVERSIFIED INDUSTRIES advised Dorothy Mathews, an employee, "to take [her hospital bills] to Connie [Dillard] and tell her that if it hadn't been something that she did that all my insurance [sic ] would have been paid if we would have had this new insurance."25 No grievance has been filed regarding the insurance plan or Boswell's above-quoted remarks to employees. b. Contentions of the parties The complaint as amended alleges (par. 5(g) and (h)), and the Respondent denies, that on or about January 29, in May, and on or about June 12 Boswell "state[d] to employees that they would have had more favorable insurance benefits but for the Union"; and on or about May 8 told "employees that their hospital bills or the hospital bills of their dependents would have been paid but for the Union." It is alleged that this conduct was violative of Section 8(a)(1) of the Act. The complaint as amended further alleges (par. 5(i)), and the Respondent denies, that on or about January 29 and in February and March Christie and Boswell "promise[d] employees more favora- ble insurance benefits, and a favorable resolution of pending grievances, if the Union would withdraw unfair labor practice charges." It is alleged that such conduct violates Section 8(a)(1) of the Act. The complaint, as amended, also alleges (par. 5(1)), and the Respondent denies, that in March the Respondent "failed to effectuate new insurance benefits because of the Union's refusal to withdraw grievances and unfair labor practice charges." It is alleged that such conduct violated Section 8(a)(l), (3), and (4) of the Act. The Respondent seeks deferral of these issues to the machinery provided in the contract for the final settlement of disputes, under the Collyer doctrine. Alternatively, on the merits, the Respondent would justify Boswell's admit- ted remarks to employees regarding the insurance plan on the ground that Boswell had good reason to believe that "Dillard was responsible for the insurance falling through." As to the alleged failure to effectuate new insurance, the Respondent denies all responsibility, claim- ing that the plan failed to materialize solely because Reams could not obtain sufficient employee authorizations. In any event, maintains the Respondent, the matter of insurance was fully covered in the agreement and the Respondent was under no legal compulsion to bargain further on this subject. By way of rebuttal the General Counsel urges "there were a total of 48 eligible employees on March 25, 1972. Thus, Reams had secured applications from over 60 employees, including 45 of the 48 eligible employees." c. Conclusions Let us examine first the admitted remarks by Boswell to Pender, Mathews, and Mona Moore. The allegation that such remarks interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act, in my opinion, is not the kind of issue susceptible of determina- tion under the grievance-arbitration provisions of the 25 Boswell adnutted "I told Viola Pender and possibly Dorothy Mathews and possibly Mona Moore that Connie squelched the insurance deal." 245 agreement. Accordingly, the Board should not defer to arbitration on this matter, but should determine the issue itself. On the merits, the Respondent produced evidence tending to indicate that, while Reams was at the plant, Dillard informed him that in her opinion Boswell was "using" Reams and his insurance plan as a lever to persuade the Union to drop its unfair labor practice charges; Reams then confronted Boswell with this accusa- tion; Boswell denied it; and shortly thereafter Reams, without further contacting Boswell, left the plant and abandoned the insurance plan. The Respondent urges that because of these events Boswell was justified in believing "that Connie [Dillard] had run him [Reams] off." I cannot agree. Boswell knew full well that Reams' insurance plan was enthusiastically supported by Dillard and other union officials and that they had rendered assistance to Reams' efforts. Accordingly, Boswell could not have believed in good faith, that the Union and/or Dillard were to blame for the plan's demise. It follows, and I conclude, that, by his statements in early May to Pender, Mathews, and Mona Moore that the insurance plan would have succeed- ed but for the Union's opposition, Boswell deliberately distorted the truth in order to disparage unfairly both Dillard as a union official and the Union itself. Such conduct was violative of Section 8(a)(1) of the Act. Let us turn to the alleged promises of Christie to improve the insurance if the Union would withdraw its unfair labor practice charges. In my opinion, this issue is also not the type which, under Collyer, may appropriately be deferred to arbitration. On the merits, for the purposes of this case it will be assumed, without deciding, that the Respondent offered a benefit-insurance improved over that provided for in the existing collective-bargaining contract-condi- tioned upon withdrawal of the charges. The offer of such a "deal" is not in and of itself coercive. For the policies of the Act encourage the voluntary settlement of pending charges (subject, of course, to approval by the Regional Director) 26 I look upon this proposition as an integral part of the give and take which often accompanies an effort to reach a mutually acceptable overall settlement 27 As such I find nothing sinister or unlawful in such a proposal. We now examine the alleged failure of the Respondent to put Reams' insurance plan into effect for discriminatory reasons. This issue, also, I do not consider one which the Board should defer under Collyer. By insisting that the record indicates that a sufficient number of employees signed up to enable the plan to go into effect, the General Counsel would contradict the figures testified to by its own witness, Reams. I, on the other hand, accept Reams' figures without hesitation not only because he was in a position to know but also because he impressed me as a credible and reliable witness. Moreover, the General Counsel can point to no facts indicating that the Respon- dent took any steps to foil the plan or to prevent it from going into effect. On the contrary, the Respondent, like the Union, cooperated fully with Reams. Reams described how his efforts failed as follows: 26 See National Labor Relations Board Statements of Procedure, Series 8, as amended , Sec 101.7 27 See Untied Aircraft Corporation, 192 NLRB 382. DECISIONS OF NATIONAL LABOR RELATIONS BOARD JUDGE ASHER: Did Mr. Boswell ever tell you to go ahead with the plan, that the plan was acceptable? THE WITNESS: No, we never really reached that point where we had everything together to make it. JUDGE ASHER: Did they ever tell you not to go ahead with it, tell you that it was unacceptable? THE WITNESS: No. JUDGE ASHER: He never told you either way? THE WITNESS: No. JUDGE ASHER: Do I understand you correctly now-I don't want to put words in your mouth but let me sum it up. See if I understand your testimony correctly. For certain technical reasons it was impossible to go ahead with this? THE WITNESS: Yes. JUDGE ASHER: Is that correct? THE WITNESS: Yes. JUDGE ASHER: You didn't stop because Mr. Boswell, or Christie told you to? THE WITNESS: No. I was never told to. JUDGE ASHER: . . . And you just realized because of these technical difficulties, you didn't have 75 percent, you had a time limit by the company, et cetera? THE WITNESS: Yes. In view of the above, I am satisfied that the insurance plan aborted because of factors beyond the Respondent's control. Accordingly, in agreement with the Respondent, I conclude that the General Counsel has failed to show by a preponderance of the evidence that the Respondent caused the insurance plan to fall through for discriminatory reasons. 4. The job application of Marcia Moore a. Facts Early in May officials of the Occupational Safety and Health Administration, herein called OSHA, at the suggestion of the Union, inspected the plant of Diversified Industries. They informed Boswell that OSHA rules required 1 toilet for each 10 female employees, and that the Respondent was in violation because at that time the plant was equipped with only 2 toilets for women , yet employed on the day shift more than 20 females. (Apparently this admonition did not apply to the night shift ). On May 5 Boswell sent Dillard a letter reading in pertinent part: We had an inspection from Lloyd L. Stone, Compli- ance Officer, Occupational Safety and Health Adminis- tration (OSHA) this date. One of the rules of this act is that we are required to furnish one (1) bathroom for each ten ( 10) female employees . At the present time our facilities are such to accommodate a total of 20 female employees in the rough mill and sanding area. We have attached for your information and guidance a seniority list. Please select those people to a total of 20 that you wish to continue working and the balance will have to be terminated. Attached was a seniority list of Diversified Industries employees. A few days later Higdon wrote to Boswell declining Boswell's request that the Union "select those who must be laid off." So far as the record shows, nothing more was done regarding the proposed layoff, and all employees on both shifts were retained. No grievance has been filed regarding this incident. Construction was begun on an additional toilet facility for the use of female employees. Meanwhile, early in May, Mona Moore, an employee, had asked Christie whether there was a job opening for her sister, Marcia Moore. Later Hertel told Mona Moore that her sister Marcia was hired; Mona Moore replied that she would tell her sister to come in on Monday, May 8. In accordance with the above, Marcia Moore reported for work on May 8. In the presence of both Mona and Marcia, Boswell said "that Marcia couldn't be hired right then because of OSHA coming in and about the restrooms, and that he might have to lay off some people because of it." Marcia was told by either Boswell or Christie to come back in 2 weeks. She eventually returned, was hired for the day shift and began work on July 16. She has been working ther'i ever since. No grievance has been file regarding the eve ,ts of May 8. In mid-August construction of the additional toilet facilities was completed. Between May 8 when Marcia Moore first came to the plant and July 16 when she was finally hired, the Respondent hired no new female employees for the day shift and five new female employees for the night shift. There were always sufficient toilet facilities under OSHA rules for the female employees on the night shift; the Respondent's problem in this regard was limited to female employees on the day shift. b. Contentions of the parties The complaint alleges (par. 6(b) and (c)), and the answer denies, that the Respondent "refuse[d] to hire applicant Masha [sic] Moore" on or about May 8 "because of said employees' Union and/or other protected, concerted activity, and/or because of the Union and/or other protected, concerted activity of other employees." It is alleged that such conduct violated Section 8(a)(1), (3), and (4) of the Act. The General Counsel in his brief describes "Boswell's failure to hire Marcia Moore" as "a sporadic, impulsive reaction to his anger at the Union's .. . initiation of the OSHA inspection." Pointing out that Marcia Moore could have been, but was not, hired for the night shift, the General Counsel argues that "Boswell couldn't have been overly concerned with the OSHA regulations . . . as he in fact hired Marcia Moore before additional restroom facilities had been provided." The General Counsel does not, however, contend that Boswell's letter to Dillard on May 5 constitutes an independent unfair labor practice. The Respondent argues in its brief (1) "the Respondent did not refuse to hire Marcia. She was later employed on July 16": (2) "the Respondent hired no other women employees during the period May 8 to July 16, which negates any inference that Respondent was giving Marcia a run around": (3) Boswell "genuinely believed he could not . . . employ more women until the restroom problem was solved, and initially believed he would be forced to effect a layoff"; and (4) assuming that "Boswell held a grudge against the Union for bringing in OSHA," it is DIVERSIFIED INDUSTRIES unlikely that he would have "taken it out" on Marcia Moore. Affirmatively, the Respondent maintains that "the reasons for Boswell's failure to hire Marcia Moore is . . . that he had an insufficient number of restrooms downstairs for his female employees."28 c. Conclusions It is true, as the General Counsel points out, that Boswell was quite angry at the Union for bringing in OSHA. This is underlined by the juvenile act of temper contained in his letter of May 5 to Dillard. It is also true that on May 8 Boswell availed himself of this opportunity (when Marcia applied for ajob) to make an illegal and coercive remark to Mona Moore blaming the lack of better insurance on the Union. And it is likewise a fact that ultimately Boswell did hire Marcia Moore before the additional toilet facilities had been completed But the situation on May 8 when Marcia Moore applied was that no work had as yet been started on these facilities so far as the record shows. The situation on July 16, when she was finally hired, was entirely different. By then construction was underway and it was actually completed about a month later. Moreover, that Boswell was in fact concerned about the lack of sufficient toilet facilities for women and strongly desired to come into compliance with OSHA rules is shown not only by his expenditure of labor and materials to add facilities, but also by his refraining from new hires of women on the day shift until the additions were at least partially constructed. The most glaring weakness of the General Counsel's case is his failure to show convincingly that Boswell's anger took the form of a reprisal against Marcia Moore. He presumably had never met her before, she was not shown to have been a member of the Union, and was to all intents and purposes completely innocent of any connection with the Union's suggestion to OSHA that the Diversified Industries plant be inspected. Nor was her sister Mona Moore an active adherent of the Union. Although the matter is not completely devoid of suspicion, I conclude that the General Counsel has failed to establish by a preponderance of evidence that the Respondent's delay in hiring Marcia Moore from May 8 to July 16 was discrinunatorily motivated. 5. Boswell's remark to Mathews It will be recalled that on May 12 Boswell told Mathews to tell Dillard "that if it hadn't been something that she did . .. we would have had this new insurance," as described above. In the same conversation, Boswell continued, according to Mathews, as follows: He said that he had been real good to Connie, that he had given her a lot of overtime, but she wouldn't get anymore. And he had given her a parking place, which she wouldn't have any more. The General Counsel in his brief contends that this incident falls within the allegation of the complaint (par. 5(a)) that on or about May 12 Boswell "threaten[ed] to 28 In its second amended answer, and again at the end of the General Counsel's case, the Respondent contended that the Marcia Moore incident should be deferred to arbitration under the Collyer doctrine However, in its 247 take away overtime, parking and transportation privileges from employees because of their Union activity," in violation of Section 8(a)(1) of the Act. The Respondent would have the Board defer this matter to the grievance- arbitration plan under the contract's provisions. In my opinion, this is a matter which the Board should decide rather than deferring to arbitration. To apply Collyer to such an alleged threat would, I believe, stretch that doctrine well beyond its expressed intent. On the merits, so far as the record shows, on May 12 Mathews did not have a parking place or the use of company transportation. Hence, there could hardly have been a threat to deprive her of what she did not have. However, she presumably was offered overtime work on occasion, on the same basis as other employees. Therefore the statement that Dillard had lost any opportunity for overtime in the future because of her union activities (there was nothing else she had done to bring down the Respondent's wrath on her head) constituted a clear threat that Mathews, too, might suffer a similar fate if she engaged in such activities. Accordingly, in agreement with the General Counsel, it is found that by such conduct Boswell violated Section 8(a)(1) of the Act. 6. The disciplinary suspension of Dillard a. Facts On May 17 Dillard was absent from work. When she reported for work the next day Christie told her: "We're going to lay you off for one week. You go home right now, and stay home for five working days." When Dillard asked why, Christie replied: "For not showing up for work yesterday." Some discussion ensued, following which Dillard went home and did not return to work until May 25. She was not paid for the time lost due to this disciplinary layoff. A few days after her talk with Christie, Dillard received through the mail a letter from Christie dated May 18 which reads in pertinent part: Yesterday you were absent from work without permis- sion . You told me on Tuesday, May 16, 1972 you were taking off to go to St. Louis for a Union meeting. I asked you if it related to the Bowl Factory grievances or unfair labor practice charges. You said that you did not know. No permission was given you to take the day off. As a result of your absence we were unable to cover your job for the full day and lost considerable production. Due to the pile up in production it was necessary to lay people off. This is the second offense for the same thing. The first offense resulted in a verbal warning and you were told that further offenses of this kind would result in a discharge . Article XVIII of the contract provides an employee will not be discharged for performing committee work provided it is done outside working hours or by permission of the plant superintendent. Your violation yesterday was within working hours and was without my permission. In fact you did not even check with Mr. J. Luallin our Plant Superintendent. brief at in 74, the Respondent states that it "makes no contention that the allegations of . Paragraph 6(b) come within the purview of Collyer Wire " I therefore deem this defense to have been abandoned 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A disciplinary suspension without pay of one (1) week is warranted and you are now given a final warning; any further offenses of this nature will result in discharge. During the time Dillard was away from the plant on layoff Higdon, on behalf of the Umon, filed with the Respondent a grievance reading: On May 12, 1972 I sent Connie Dillard, President of Local No. 7, a letter informing her she would have to be absent from work one day to meet with the attorney in St. Louis to discuss pending arbitration cases and unfair labor practice charges. On Monday or Tuesday, May 15 or 16, Connie Dillard showed Plant Manager, Christie, a copy of the letter and told him she would have to be off from work Wednesday, May 17. At no time was she denied permission to be absent on the date requested. When she returned to work at 7:30 a.m. May 18, she was given a week off. The reason given by the company was that there is no provision in the contract for a leave of absence for union work. We demand that Mrs. Dillard be paid for all time lost. b. Contentions of the parties The complaint alleges (par. 6(a) and (c)), and the answer denies, that from on or about May 17 to on or about May 24 the Respondent "suspend[ed ] employee Connie Dillard ... because of said employees' Union and/or other protected, concerted activity, and/or because of the Umon and/or other protected, concerted activity of other employ- ees." It is alleged that such conduct violated Section 8(a)(1), (3), and (4) of the Act. In his brief, the General Counsel takes the position that "the one week suspension of Dillard was obviously imposed by Boswell as retaliation for Dillard's recalcitrance in failing and refusing to yield to Boswell's unlawful demands and threats"-presumably that the unfair labor practice charges be withdrawn. In short the General Counsel argues that the suspension was a pretext seized upon to force the Union's capitulation. The Respondent contends in its brief that "whether the Respondent had dust cause for disciplining Dillard is a matter for the grievance-arbitration procedure under Collyer Wire." As an alternative defense, the Respondent maintains that in any event the discipline, far from a pretext, was caused by Dillard's unexcused absence from work and was based on sound business reasons. In this connection the Respondent introduced evidence tending to show that Dillard's failure to report to work on May 17 caused the Respondent to lose a substantial amount of production. c. Conclusions The Respondent's invoking of Collyer must be viewed in the light of what happened to the Union's grievance subsequently. On May 25, Dillard's first day back at work after her suspension ended, representatives of both parties met. At that conference five grievances were settled by mutual agreement. Among them was this particular grievance filed during Dillard's suspension. In the interest of stable and peaceful labor relations, it would seem that the Board should now focus not on whether Dillard's suspension was illegally motivated, but rather on what the parties themselves voluntarily agreed to do about it. A later portion of this Decision will be devoted to that issue. Accordingly, I decline to decide whether the suspension itself constituted an unfair labor practice and defer to the remedy the parties themselves adopted.29 7. The grievance regarding supervisors On May 19, during the period of Dillard's suspension, the Union filed with the Respondent the following grievance: The Union hereby claims all back-pay and all overtime back-pay for unit employees for all unit work wich [sic] has been performed by foreman [sic] and/or supervi- sors on Saturdays and regular work days since on or about January 24, 1972. This is in violation of Art. XXIII, Section 2 of the contract. The subsequent disposition of this grievance is described below. 8. The settlement of pending grievances a. Facts By May 25 there were f've outstanding unsettled grievances pending. In two of these, as previously related, a panel of arbitrators had been submitted to the parties by FMCS but no arbitrator had been selected. In the other three no attempt had been made to secure a panel from FMCS. On the afternoon of May 25 Christie conferred in the Wyota Inn with Higdon and Dillard. Christie had been previously authorized by Boswell to negotiate a settlement of the five grievances on behalf of the Respondent.30 At the start, Christie asked whether the pending unfair labor practice charges could also be discussed. Higdon declined to do so.31 No more was said about these charges during the remainder of the conference. After a lengthy discus- sion, all grievances were settled on the following basis:32 29 Appalachian Power Company, 198 NLRB No 7, cited by the Respondent, is distinguishable on two grounds (1) There the "issue [wasl essentially a dispute about the meaning of relevant contract terms " Here, on the contrary, the issue is that of pretext, retaliation, and motivation (2) Here the parties have themselves agreed to dispose of the grievance on mutually acceptable terms No such agreement was present in Appalachian Power 30 The Respondent elicited evidence tending to show that Boswell's presence elsewhere was urgently required by other business matters. I deem it unnecessary to make any findings as to why Boswell did not attend in person However, the record is clear, and I find, that Boswell had agreed in advance to be present, and never notified Higdon that he could not make it 31 This is based on Higdon's version. Christie denied that he mentioned the charges but I do not credit this denial 32 These findings are based on a synthesis of the testimony of the people who attended Of the three, I find Christie to be the least reliable, therefore, to the extent that his testimony contradicts that of Higdon or Dillard, that of Higdon or Dillard is credited DIVERSIFIED INDUSTRIES 1. The Coryell grievance: The Respondent agreed to expunge from its records the warning notices sent to Coryell on November 5 and 9, 1971. 2. Safety equipment: The Respondent agreed to reimburse the employees for deposits they had been required to make in the past, that the money would be paid the next payday, June 2, that in time it would supply lockers in which the employees could store their safety equipment at the plant under lock and key, and to post the names of the employees involved and the amounts of their respective reimbursements on the plant bulletin board. The Union agreed that employees who reported to work without their safety equipment could be required to go home to obtain the equipment and then return to work without being paid for the time lost thereby. The Union also agreed to write a letter after lockers were furnished urging the employees to lock up their safety equipment securely at the plant, not to take it home. 3. Overtime: The Respondent agreed to pay 1/2 hour overtime to each employee who had signed the grievance and to any other employee whose pay had been delayed for more than the allotted time on the payday before the grievance was filed; payment to be made on June 2. 4. The Dillard grievance: The Respondent agreed to reimburse Dillard for wages for the time she was suspended and to expunge from its record Christie's letter to her dated May 18. Although not the subject of a specific written grievance, the Respondent also agreed to expunge from its records the Employee Warning Notice issued to Dillard on January 26 by Christie and Boswell. 5. Supervisors working: The Union agreed to drop its demand for backpay and overtime and agreed that supervisors could continue to work on outstanding orders. The Respondent agreed not to accept any new contracts requiring production work by supervisors. The agreement has never been reduced to writing. Later that afternoon, shortly after the agreement described above was reached, Boswell called Higdon on the telephone and "wanted ... a blow by blow description of what we had agreed to." Higdon, in a hurry to catch a plane, declined to do so. Boswell then asked: "Well, what did you do about the unfair labor charge?" Higdon replied: "Nothing, John, because we had agreed that we wouldn't." Boswell then asked: "What did you do about Connie's pay?" Higdon answered: "He [Christie] agreed to pay Connie a week's pay." Boswell stated that Christie "had no right to do that." Irate, Higdon accused Boswell of trying to renege on the agreement, and the conversation came to an abrupt end.33 On May 31 in another telephone conversation, Boswell requested Higdon to relate in detail the agreement that had been reached on May 25; Higdon did so. Boswell exclaimed: "There never was any agreement like that," to which Higdon retorted: "This is exactly what happened." 33 These findings are based on the testimony of Higdon supplemented somewhat by that of Boswell Boswell denied that the unfair labor practices were mentioned 1 do not credit his denial in this regard Christie testified 249 Higdon then inquired whether Boswell "was going to make those payments that was agreed to on the 25th of May, into effect June the 2nd as was agreed to." Boswell responded:, "There was never any agreement, that we will make no such payment on June 2nd or any other day." On June 1 Higdon wrote to Boswell describing the agreement as he understood it. The letter ended with a warning: "If the settlements agreed to are not executed as exactly agreed, then I will file more charges." So far as the record shows, none of the terms of the agreement have been carried out. No further steps have been taken under the contract's grievance-arbitration procedure. On October 11, during a recess in the instant hearing, the Respondent brought suit against the Union in the United States District Court for the Western District of Missouri, Southern Division (Civil Action No. 3144). Count I thereof is brought pursuant to Sectior 301 of the Act. It alleges that on or about May 25 the Respondent and the Union, "in accordance with Step 4 of the Grievance and Arbitration Procedure" contained in the contract "entered into a settlement of . . . certain differences" which existed between them and that since then the Umon "failed and refused to comply with the terms and conditions of said settlement." The remedy sought is specific performance of the "settlement reached on May 25." Count II thereof alleges that the Union "denied the authority" of the Respondent's representative "to enter into the said settlement reached on May 25," that the Respondent and the Union "have disagreed as to the terms and conditions of said settlement actually reached on or about May 25," and that the Union "refused to process the said differences ... as to the meaning and application of the said collective-bargaining agreement in accord with the provi- sions" of article XX of the contract. The alternative relief sought (should the court find no settlement to have been reached on May 25) is that the court require the Umon "to arbitrate said differences in accordance with said Article XX." This lawsuit is currently pending, including a motion to the court to stay Board proceedings in the instant case "until the court has had an opportunity to determine .. . the rights of the parties." b. Contentions of the parties The complaint alleges (par. 7(a), (b), and (c)), and the answer denies, that on or about May 17 the Respondent "agree[d] with the Union on the disposition of certain then pending grievances," and that continuously since on or about that date the Respondent "has refused to implement its agreements with the Union . . . because the Union had filed and declined to withdraw unfair labor practice charges, and/or because of employees' Union and/or other protected . . . activities." It is alleged that such conduct violated Section 8(a)(1) and (5) of the Act. The General Counsel in his brief contends that "it is necessary [for the Board] to make ... Findings . . . regarding the exact terms of the agreement made on May 25." His position that he overheard Higdon say "No, there woald be no warning tickets " This alleged fragment, out of context, is in my opinion of little probative value in the absence of the question to which it might have been an answer 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seems to be that an agreement was reached, that Boswell failed to live up to that agreement,' that this conduct in this regard was illegally motivated so that it was not a mere breach of contract, and that therefore the Act has been violated. The Respondent maintains that, as there is disagreement as to whether an agreement was reached at step 4 of the grievance procedure,34 or at least what the terms of the agreement are, these matters properly should be submitted to an arbitrator. Alternatively, the Respondent by motion to stay takes the position that these matters should be determined by the court under Section 301 of the Act. However, should the Board decide the matter itself, the Respondent urges that the agreement reached was that described by Christie and that this agreement was breached not by the Respondent, as alleged in the complaint, but rather by the Union. Finally, although this argument is not so clearly articulated, there remains the defense that, in any event, a failure to live up to a settlement is no more than a mere breach of contract and was neither illegally motivated nor part of an attempt to undermine the Union. c. Conclusions Of course Collyer is not applicable for here, admittedly, the parties carried these grievances all the way through step 4 of the contract's grievance-arbitration procedure. At that point they attained a voluntary settlement of all pending grievances.35 This leaves nothing unresolved for the arbitrator to rule upon. However, there is a dispute as to the terms and conditions of the settlement. The Respon- dent would have the arbitrator decide this, while the General Counsel urges that this is the function of the Board. In my opinion, this is beyond the powers of the arbitrator, as described in the contract herein. Alternative- ly, the matter could certainly be left for the court to decide in the Section 301 suit. There is much to be said for that procedure. But there are reasons why I believe it best that the Board retain the jurisdiction conferred upon it by Section 10(b) of the Act to remedy unfair labor practices: Tht Board possesses a particular expertise in labor matters which the courts have often recognized. Moreover, the motivation of Boswell is here in issue and it is doubtful whether this question would be reached or resolved by the court in the Section 301 action. Yet motivation is an essential element of the alleged violation of Section 8(a)(5) of the Act. Finally, testimony of witnesses has been taken before me and the matter gone into exhaustively in the 34 The Respondent's pleadings in the instant case would seem to deny that any agreement was reached But the Respondent's pleadings in the suit which it brought in the U S . District Court clearly allege that some settlement was attained 33 Christie testified JUDGE ASHER Are you satisfied in your own mind that there was a complete agreement reached on May 25th, verbally between you and the union representatives on all these five grievances that you discussed, of which this particular portion that you have Just described is a- briefs; to require the parties to go through all this again in court would unnecessarily duplicate effort and expense. Accordingly, the determination of the exact terms of the settlement should be reached here. And in fact I have done so, above, by sifting sometimes vague and sometimes partially conflicting testimony. Having determined the terms of the settlement, we turn now to the General Counsel's accusation that the Respon- dent failed to live up to the agreement and the Respon- dent's counter accusation that not it, but the Union, is the guilty party. On the entire record before me I find that the fault clearly was that of the Respondent. Finally, let us turn to Boswell's motivation. Within 2 days after receiving a copy of the unfair labor practice charges Boswell embarked on a campaign to get the Union to withdraw them. He made numerous statements of his desire to have the charges dropped. Clearly he indicated that he considered it a matter of utmost importance to him. He threatened reprisal, he attempted to reach a "deal" which would include disposition of the charges. All to no avail; the Union remained stubborn and adamant. He wheedled, he cajoled, and he coaxed. The Union refused to budge. Finally, he authorized Christie to bargain for the disposition of the grievances. Significantly, Christie's first question when negotiations began and Boswell's first question after agreement had been reached both dealt with the unfair labor practice charges. Considering Boswell's demonstrated vindictive personality and his conduct both before and after this authorization, I am convinced and find that Boswell (although he did not disclose this to the U lion) never intended to go through with a complete and final disposition of all pending grievances unless the unfair labor practice charges were dropped at the same time. In short I conclude that, in refusing to carry out the terms of the agreement, Boswell was motivated either by a desire to inflict reprisals on the Union for having filed the charges in the first place, or a desire to use the settlement as a vehicle to pressure the Union into capitulation. Accordingly, such conduct constituted dealing in bad faith in derogation of the statutory duty imposed by Section 8(a)(5) of the Act. 9. Boswell's attempt to interfere with union affairs a. Facts On or about July 13 or 14 while Maryetta Ballard was at work Boswell approached her and a conversation ensued. THE W ITNESS' (interrupting) Sir. I'm convinced that everyone understood the agreement inasmuch as it was the first grievance that we discussed, and we did not come to an agreement immediately after discussing that first grievance We covered- JUDGE ASHER (interrupting) No, now, before you left that room over at that Wyota Inn that there had been a complete agreement on everything discussed" THE WITNESS After I explained to Mr Higdon and Connie, also- JUDGE ASHER . ( interrupting) Just answer my question THE WirNESS Yes, sir, I'm convinced that we had a meeting of the minds DIVERSIFIED INDUSTRIES According to Ballard's testimony: Q. Would you please state what Mr. Boswell said to you and what you said to him during that conversation? A. Well, he just asked me what kind of meanness I was into and I said nothing that I couldn't handle. He said, "I understand you are writing some letters." and I asked him what he meant by that and he told me that they wanted Connie [Dillard] out of the union and I told him I didn't know how to write such a letter, letters like that. I had never had anything to do with that before and he said he would get Ron [Baker] to write them for me. s * r s s Q• He said he would get Ron to do what? A. To write the letters for me. Boswell's version was as follows: Q. Would you tell us what the conversation was? A. I asked Maryetta what kind of meanness she had been up to. She made a kind of reply like-I know it was kind of a cute remark but she said-made kind of reply like nothing that she couldn't handle. Then I told her that I understood that there was a letter being sent around and she said that she couldn't write, she didn't know anything about how to write a letter like that. Q. Was there any further conversation? A. Not that I recall. Q. Do you recall making any mention of Ron Baker? A. I may have. It seems like I told them that Ron Baker could help her or that Ron Baker had brought a letter by my office but I don't recall what was said about Ron Baker. Q. Now, I want you to think about this because Ron Baker said something or you said something about Ron Baker. Tell us to the best of your recollection what you said about that. A. Well, she said that he didn't know-that she didn't know how to write a letter like that. I can't say that Ron Baker's name was mentioned or wasn't mentioned. I don't recall. Baker was then a rank-and-file employee of the Respon- dent who was not within the unit because he was a clerical. He drafted three letters for Ballard's signature. These are not in evidence and their contents must be gleaned from sketchy oral testimony. I find that they were identical, except for addresses; in all the writer attacks the union leadership, Dillard, and Webb, "for unfair complaints and misrepresenting the employees." There was also a deroga- 36 Boswell testified that Baker had shown him the letters before Boswell spoke to Ballard 17 This is based on Ballard's version which I find credible Baker related a somewhat different version . He impressed me as arrogant and distainful of the entire proceedings and a thoroughly unreliable witness Except where corroborated, I do not credit his testimony 251 tory reference to Higdon. Purporting to represent a group of rank-and-file union members , the writer requests that a new election of union officers be held . One copy was intended for Dillard , one for Higdon, and the third for Boswell. Baker showed these letters to Boswell and said he intended to give them to Ballard.sf A few days after the Boswell-Ballard conversation related above , Baker handed the letters to Ballard , saying: "Here's the letters John wanted you to have. You will have to get the addresses from the office , because I don't know them." Baker added that Ballard should "take them home and look them over and see if it was all right." Ballard responded that she "didn't want no part of it," but nevertheless accepted the letters 37 She then took them home and destroyed them. Two or three days later Boswell came to Ballard's workplace and inquired whether she "had sent Connie a letter ." Ballard replied that she had not done so yet, but intended to do so38 b. Contentions of the parties The complaint as amended alleges (par. 5(m)), and the Respondent denies, that on or about July 13 Boswell "attempt[ed ] to cause an employee to start a movement to oust certain officers of the Union from their respective offices." It is further alleged that Boswell did so "because [the Respondent"s] employees had given testimony under the Act in support of unfair labor practice charges filed by the Union against the Respondent," in violation of Section 8(a)(4) of the Act . In connection with this allegation the General Counsel maintains that Baker was acting , in this instance, as an agent of the Respondent. The Respondent denies any part in this episode except that Boswell did see the letters. It denies that Baker was its agent. Admitting that the testimony may perhaps indicate "that Boswell was somewhat curious as to what was going on," the Respondent insists that Baker acted entirely on his own, without any encouragement, aid, assistance , or even suggestions , from management. c. Conclusions That Boswell entertained more than a passing interest, or mere curiosity, in any movement to oust Dillard, Webb, and/or Higdon from office is evident from his animus toward the Union and these officers personally. Further- more, Baker could probably not have so glibly named Higdon in the letter nor suggested that "the office" would supply addresses unless he had been in cahoots with Boswell. Moreover it is significant that Baker intended a copy of the letter for Boswell, and that he showed the letters to Boswell before he (Baker) gave them to Ballard. However, despite suspicions, a determination of exactly to what extent Boswell aided Baker, or what instructions Boswell gave Baker, is unnecessary. It is enough to find, as I do, that Boswell first stated to Ballard that "he would get 's The General Counsel elicited testimony concerning a conversation between Ballard and Boswell about this matter which allegedly took place on September 22, a few days before the start of the hearing in the instant case I deem it unnecessary to make any findings with respect to this incident. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ron ... to write the letters for me," and that thereafter Baker appeared with the letters and said: "Here's the letters John wanted you to have." This sequence of events convinces me that Boswell held out Baker as his agent. In view of this apparent authority, I reject the Respondent's contention that it is blameless and hold the Respondent accountable for Baker's actions. Accordingly, I conclude that Boswell deliberately injected himself into a matter which did not legitimately concern him, and that by interfering with the Union's internal affairs he violated Section 8(a)(1) of the Act 39 10. The warning notices to Mathews a. Facts On July 24 the Respondent issued an employee warning notice to Dorothy Mathews, an employee. Marked "1st Notice," it reads: "Standing idle during working time, causing other employees to wait for panels." About a half hour later another warning slip, marked "2nd Notice," was given to her. It reads: "Poor quality workmanship." No grievance has been filed with regard to either of these warning notices. b. Contentions of the parties The complaint as amended alleges (par. 5(e)), and the Respondent denies, that on or about July 24 the Respon- dent "issued warning notices to employees because they and other employees had engaged in and were continuing their Union activity." It is alleged that such conduct violated Section 8(a)(1), (3), and (4) of the Act. In this connection the General Counsel points out in his brief: It is clear that Matthews [sic] was not standing idle and was not producting poor panels. It is more than a mere coincidence that after three years of work . . . with a perfect record of no warning notices whatsoever, Boswell should cause Matthews [sic] to receive two unjustified warning slips within a time span of 30 minutes, less than three weeks after being given notice by the Union's second amended charge that Matthews [sic] had obviously related her conversation with Boswell to the Union. Obviously, Boswell was well aware of the fact that particular allegation of the second amended charge, "Told employees that but for the Union their hospital bills would have been paid-May 12," referred to Matthews, [sic] who, pnor to May 12 had been hospitalized and absent from work for eight weeks. Thus, the warning notices given to Matthews [sic] are obviously in retaliation for Mat- thews' [sic ] assistance to the Union. The Respondent urges that on this issue the Board should defer to the grievance-arbitration procedure set forth in the contract. Alternatively, on the merits the Respondent points out (1) "Boswell had no way to connect Matthews [sic] with the allegation in the Amended Charge"; (2) No other rank-and-file employee was the target of his resentment after the filing of the amended charge; (3) "Mathews [sic] was not shown to have been a union activist"; (4) there was a substantial "time lag between the receipt of the Amended Charge and Mat- thews' [sic] warnings"; and (5) both warning notices were justified. c. Conclusions Ordinarily, warning notices of this kind are the type of dispute which the Board defers to arbitration under Collyer. However here, as in the case of the eight warning slips issued in January, described above , the alleged motivation makes a substantial difference in the wisdom of applying Collyer. For here it is alleged that the warning slips were issued in reprisal for the Union's filing an amended charge. The integrity of the Board's own processes are involved . What is basically at issue here is whether there has been an attempt to hinder the Union's access to the Board. This is in my opinion a matter particularly appropriate for the Board itself to handle. Turning to the merits , the issuance of two warning slips in 1 day to an employee of long standing may perhaps be somewhat suspiciois. However, it can hardly be consid- ered harassment . There is some evidence tending to show that the warnings might have been merited . In any event it is significant that, even according to the version of Mathews herself, there was no mention of the Union or of the unfair labor practice charges in connection with the warnings. On the surface, it was the legitimate exercise of a normal business function ; there is little more than surmise that it was not what it purported to be . Accordingly, it is concluded that the General Counsel has failed to establish by a preponderance of the evidence that these two warning slips were issued to Mathews for reasons proscribed by the Act. Upon the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Diversified Industries, A Division of Independent Stave Company, is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Coopers International Union of North America, AFL-CIO, and its Local No. 7 are, and at all material times have been, labor organizations within the meaning of Section 2(5) of the Act. 3. All production, maintenance and machinists em- ployees of Diversified Industries, A Division of Independ- ent Stave Company, including quality control inspectors and shipping department employees, but excluding office clerical employees, retail store employees, and professional employees, guards and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 'y As the remedy hereafter proposed would not he substantially affected, f deem it unnecessary to decide whether this conduct was also violative of Sec 8(a)(4) of the Act DIVERSIFIED INDUSTRIES 4. The above-named labor organization is, and at all material times has been, the exclusive representative of all employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By revoking privileges previously enjoyed by Wa- traud Olga Dillard on November 11, 1971, and thereafter failing and refusing to restore these privileges to her, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By failing and refusing on and after May 25, 1972, to bargain collectively in good faith with the above-named labor organization as the exclusive representative of all employees in the above-described unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the above-described conduct; by threatening employees with more stringent working conditions because they filed or processed grievances on behalf of themselves or other employees, or in reprisal for their collective- bargaining representative having filed unfair labor practice charges against the Respondent, or in order to force them or their bargaining representative to withdraw such charges; by falsely informing employees that they would have enjoyed certain improvements in working conditions but for the action of the above-named labor organization; by informing employees that it had taken away privileges previously enjoyed from an employee in retaliation for engaging in protected concerted activities; by refusing to carry out the provisions of an agreement entered into with the above-named labor organization in reprisal for that labor organization having filed unfair labor practice's against it, or as a means of compelling the said labor organization to withdraw such charges; and by attempting to cause an employee to start a movement to oust certain officials of the above-named labor organization, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of 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. 8. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in or is engaging in any unfair labor practices oth' r than as found herein. 41' Since March 1969 the Respondent has been subject to a broadly drawn cease-and-desist order issued by the Board Independent Stave Ccmpany, 175 NLRB 156, 159 Other Board and court orders outstanding against the Respondent are listed in fn I of that decision THE REMEDY 253 As the unfair labor practices found to have been committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future may reasonably be anticipated from the Respondent's past conduct.40 Therefore, in order to effectuate the policies of the Act, it is necessary that the Respondent he ordered to cease and desist not only from the unfair labor practices found but also from any other invasions of the employees' Section 7 rights. Affirmatively it will be recommended that the Respon- dent offer to restore to Dillard all privileges enjoyed by her before November 11, 1971. It has been found that the Respondent discrimmatorily deprived Dillard of opportu- nities to work overtime between November 11, 1971, and October 23. 1972. The General Counsel, in his brief, contends that Dillard "should be made whole ... for the overtime which she had lost as a result of the Respondent's discrimination against her." After the briefs had been filed, however, the Board decided the case of Chenivet Laborator- ies, Inc., 201 NLRB 734. In Chemvet the Board found a violation of Section 8(a)(1) and (3) of the Act in that the respondent had for discriminatory reasons deprived certain employees of an opportunity to perform their fair share of overtime work. The Administrative Law Judge recom- mended that the respondent be ordered to make these employees whole for any loss of earnings they may have suffered by reason of such conduct. The Board refused to do so, saying: While we find, in agreement with the Admimstrative Law Judge, that the evidence is sufficient to show a decline in available overtime offered to these employ- ees and to establish a causal relationship between this and the employees' union activities, we find no practicable way to measure how much overtime would nave been available or which employees would have availed themselves of overtime opportunities, had they been offered . . . . These and other factors suggest that in affirmative make-whole order would lead only to an evidentiary morass in our compliance proceedings. We will therefore substitute for the affirmative make-whole order recommended by the Administrative Law Judge a specific injunctive prohibition against future discrimi- nation in offering overtime opportunities to employees. In the instant case it has been shown that Dillard was offered, but declined, overtime work on October 23, 1972. Here, as in Chemvet, there is "doubt as to how much additional overtime [she] would have accepted." As the case before me is, in all substantial respects, similar to Chemvet, there is good reason to believe here. as in Chemvet, "that an affirmative make-whole order would lead only to an evidentiary morass in our compliance proceedings." Accordingly, it will not be recommended that Dillard be reimbursed for wages lost because she was deprived of an opportunity to work overtime.41 41 Sec however J P Chnapko, Inc, 202 NLRB 252, issued after Chemvet, which makes no mention of Chemvet but reaches a contrary result regarding backpay. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will further be recommended that the Respondent withdraw and rescind that part of the document issued on January 27 or 28 which threatens more stringent working conditions should the unfair labor practice charges not be withdrawn. In addition, it will be recommended that the Respondent abide by and carry out all provisions of the settlement agreement it entered into with the Union on May 25, 1972. In connection with this affirmative relief, it will be recommended that the Respondent preserve records necessary for the Board to determine whether there has been full and complete compliance therewith. It will further be recommended that the Respondent bargain collectively in good faith with the Union as the exclusive bargaining representative of the employees in the appropn- ate unit. The Respondent's contention that the Board defer to arbitration has been found meritorious with regard to certain issues raised by the complaint. With respect to these issues, as was done in Collyer, the Board should retain jurisdiction for the purposes of entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute has not, with reasonable promptness after the issuance of a Board decision, either been resolved by amicable settlement in the grievance procedure or submitted to arbitration, (b) the grievance or arbitration procedure has reached a result repugnant to the Act, or (c) the decision of the arbitrator is not wholly dispositive of the issues in this proceeding.42 In addition to the above, it will be recommended that the Respondent post the usual notices. 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: ORDER43 Diversified Industries, A Division of Independent Stave Company, Lebanon, Missouri, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Coopers International Union of North America, AFL-CIO, or any other labor organization , or retaliating against employees for filing or processing grievances on behalf of themselves or other employees, by revoking privileges previously enjoyed, or otherwise discriminating against employees with regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with more stringent working conditions or other reprisals for filing or process- ing grievances on behalf of themselves or other employees. (c) threatening its employees with more stringent working conditions or other reprisals for filing unfair labor practice charges against it, or as a means of forcing them or their bargaining representative to withdraw such charges. (d) Falsely informing employees that they would have enjoyed certain improvements in their working conditions 12 See Brotherhood of Teamsters & Auto Truck Drivers Local No 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (National Biscuit Company), 198 NLRB No. 4 11 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, but for the action of the above-named or any other labor organization. (e) Informing its employees that it had revoked privileges previously enjoyed by an employee in retaliation for engaging in protected concerted activities. (f) Entering into an agreement with the above-named or any other labor organization with an undisclosed intent not to live up to the agreement unless other demands, not part of the agreement, are granted. (g) Refusing to carry out the provisions of any agreement entered into with the above-named or any other labor organization in reprisal for that labor organization having filed unfair labor practices against it, or as a means of compelling that labor organization to withdraw such charges. (h) Attempting to cause any employee to start a movement to oust certain officials of a labor organization or otherwise interfering with the internal affairs of the above-named or any other labor organization. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to restore to Watraud Olga Dillard all privileges enjoyed by her prior to November 11, 1971. (b) Withdraw and rescind that part of the document issued by it and transmitted to the above-named labor organization on January 27 or 28, 1972, which threatens more stringent working conditions should the unfair labor practice charges not be withdrawn and notify the said labor organization, in writing, that it has done so. (c) Abide by and carry out all provisions of the settlement agreement entered into by it with the above- named labor organization on May 25, 1972. (d) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive representative of all employees in the unit described below, with respect to wages, hours, and other conditions of employment, and, should an understanding be reached, put it in a signed agreement. The appropriate unit is: All production. maintenance and machinists employees of Diversified Industries, A Division of Independent Stave Company, including quality control inspectors and shipping department employees, but excluding office clerical employees, retail store employees, and professional employees, guards and supervisors, as defined in the Act. (e) Preserve until compliance with the settlement agreement entered into on May 25, 1972, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social 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 objection shall be deemed waived for all purposes DIVERSIFIED INDUSTRIES security payment records, timecards, personnel records and reports, and all other records necessary to compute the amounts due under the terms of said settlement agreement. (f) Post at its plant in Lebanon, Missouri, copies of the attached notice marked "Appendix."44 Conies of such notice, on forms provided by the Regional Director for Region 17, after being signed by an authorized representa- tive of the Respondent, shall be posted by the Respondent 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 displayed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that jurisdiction of this proceeding be retained by the Board for the limited purposes indicated in that portion of this Decision entitled "The Remedy." 44 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 " SUPPLEMENTAL DECISION SYDNEY S. ASHER, Administrative Law Judge: On March 19, 1973, I issued my Decision in the above-entitled proceeding in which I concluded, among other things, that the Board should defer to the gnevance-arbitration machinery set up by the parties with respect to the alleged threat by Plant Manager Boswell to discharge Union Stewardress Webb if she did not forget about filing a grievance regarding the posting of jobs. I likewise conclud- ed that the Board should defer to the grievance-arbitration machinery with regard to whether the Respondent had instituted new work rules, whether the rules were enforced in a more stringent manner, the impact of Plant Superin- tendent Christie's reprimand of Webb for eating candy on the job, and whether the Union was accorded advance notice and a reasonable opportunity to seek bargaining about the rules. On July 30, 1973, the Board remanded these proceedings to me to resolve credibility issues and make findings and conclusions on the merits with respect to the above-descnbed matters. On August 23, 1973, the Respondent filed a supplemental brief which has been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: i These findings are based on Webb's testimony, corroborated in substantial part by the testimony of Maryetta Ballard, an employee working nearby who overheard part of the conversation. To the extent that the versions of Boswell and Milan differ from those of Webb and Ballard, I credit those of Webb and Ballard as more accurate Webb and a few of the Respondent's witnesses testified also about a SUPPLEMENTAL FINDINGS OF FACT A. Boswell 's Alleged Threat to Discharge Webb 1. Facts 255 On November 29, 1971, Linda Dowden, an employee in the Respondent's finishing department, injured her thumb while at work. Early in December 1971 she consulted with Maggie-Williams Webb, an official of the Union and union steward. During working hours, Webb left her work station, went to the office, and discussed with Christie the possibility of moving Dowden from her job to another job in the department, because of her injury. Christie told Webb to go back to her job and he would be up in a minute to talk to her about it. She returned to work. About an hour later, Boswell and Robert Milan, then foreman of the finishing department, came to Webb's place of work. Boswell told Webb "he could fire . . . [her] for going down to the office and talking about union business on company time." Webb replied that she "was representing an employee that needed to be moved," and asked that Dowden he moved to another job in the department. Boswell declined, on the ground that there were no jobs open in the department. Either Webb or Boswell stated that openings had been filled without posting. Boswell then said "that if [Webb] would forget about the posting of the jobs that he would forget about firing [Webb] and he would call it a deal and forget it." That ended the conversation.' Immediately after this, Boswell approached Maryetta Ballard, an employee working nearby, and asked if she would like to have Webb's job, adding that Ballard could do it as well as Webb. The record does not reveal Ballard's reply. 2. Contentions of the parties The complaint (par. 5(c)) alleges, and the answer denies, that in early December 1971 Boswell "threaten[ed] employees with discharge for filing grievances about job openings and for inquiring about job openings." It is alleged that such conduct violated Section 8(a)(1) of the Act. The General Counsel argues that the above-described testimony of Webb supports this allegation. The Respondent maintains that Boswell's warning to Webb was "clearly justified" because "threats to discharge employees for engaging in union activity on company time is [sic] not violative of Section 8(a)(1)." 3. Conclusions Articles V and XVIII of the contract between the parties are quoted in my original Decision. In view of these contract provisions and the general rule that working time petition being circulated in the plant seeking the discharge of certain named individuals, and Boswell's objections to such circulation I do not understand that the General Counsel bases any allegation of unfair labor practices thereon and accordingly I deem it unnecessary to discuss the evidence regarding this incident. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is for work, it will be assumed that Webb's working time union activities were unprotected and that Boswell could legitimately threaten to discipline her for such conduct. But what Boswell did was not simply to threaten discipline; instead he used the threat of discipline as a vehicle to force Webb to forgo protected concerted activity; namely, filing a grievance concerning the Respondent's failure to post certain job openings.2 Such coercive conduct violated Section 8(a)(1) of the Act. B. The Document Drafted by Boswell and Following Events 1. Introduction In the original Decision I set forth a document drawn up by Boswell and handed to Dillard on January 27 or 28, 1972. I found that the entire document constituted "a warning that working conditions would be made more onerous should the Union refuse to withdraw the unfair labor practices it had filed." I concluded that "Such a threat itself violates Section 8(a)(1) of the Act, whether or not it was ultimately carried out." The present remand directs me to make findings (1) whether the Respondent had instituted new work rules; (2) whether the rules were enforced in a more stringent manner; (3) the impact of Christie's reprimand of Webb for eating candy on the job; and (4) whether the Union was accorded advance notice and a reasonable opportunity to seek bargaining about the rules. I am directed to decide whether the alleged violations of Section 8(a)(1), (3), (4), and (5) of the Act based on these above-described matters have been proved. For convenience, the rules will be treated in two categor- ies: those which do not deal with eating on the job, and the rule which dealt with this subject. 2. Rules dealing with matters other than eating on the job The various subjects which the General Counsel lists as "more stringent working rules" in his answer to motion for more definite statement are listed in the original Decision. Eliminating, for the time being, eating on the job, there remain these others: absenteeism, safety equipment, smoking, conversation at work, remaining at or leaving work station, pay advances, and power failures. Several of these are mentioned in the contract: Breakdowns are discussed in article IX; hours of work in article X; safety and clothing in article XIV; and absenteeism in article XXX. The question to be decided is whether any of these items in the document of January 27 or 28 constitutes a new rule and, if not, whether any rule was more stringently enforced thereafter. On this subject Webb, a union steward and a witness for the General Counsel, testified on cross- examination: Q. . . . has the company, to your knowledge, in fact, imposed-put into effect any of the rules which were contained in the document Mr. Morgan was holding which has been introduced as General Coun- sel's Exhibit No. 11 [the document drafted by Boswell]? A. Not in our department other than the candy. On further cross-examination Webb admitted stating in a prehearing statement given to a Board agent: "To date, to my knowledge, the company has not imposed the new rules contained in Boswell's handwritten list." There is no other evidence in the record to show that any substantially new rule (except eating on the job) was in fact ever enforced-' Moreover, I find no probative evidence to establish that the old rules (except for eating) were enforced more strictly after Boswell handed the document to Dillard than they had been before that event.4 3. Eating on the job As set forth in the original Decision, one of the items in the document drawn up by Boswell reads: "Eating on the job! Candy bars." The General Counsel, as with the rest of the document, contends that this constituted the promulga- tion of a "new and more stringent" working rule. The Respondent, consistent with its position regarding other items in the document, maintains that it never put any new or more stringent rule into effect with respect to eating at work. Some months prior to the drafting of this document by Boswell, there had been a "flash fire" in a cardboard container into which paper wrappers from candy had been thrown. Christie called the employees together and exhibited to them the remains of the fire, bringing to their attention "the dangers of a fire that could put us out of business." He prohibited them from going to the candy machine (presumably a coin-operated automatic vending machine) during working hours, and limited them to doing so during lunch or break time, and further instructed them to "throw their wrappers in the waste containers [presuma- bly made of metal or other fire-proof materials ] that were put down there by the candy machine for that purpose." He did not then, or at any time prior to January 28, forbid the employees to eat candy on working time. As described in the original Decision, about 10 days after Boswell composed the document in question, Christie saw candy in a bowl by Webb's worktable. Christie warned Webb "there would be no candy eating on the job, that anybody caught eating candy would be discharged or disciplined." Since then, Webb has not eaten any more candy on the job. From the above I conclude that, before the document in question existed, employees were not forbidden to eat candy at their workplaces, that the document, in violation 2 It matters not that such a grievance might have lacked merit or might notices issued to Dorothy Mathews, an employee, on July 24, 1972, as have been untimely proving more stringent enforcement of work rules However, in the original 3 See Firestone Coated Fabrics Company, Division of the Firestone Tire & Decision I concluded that the General Counsel had failed to establish that Rubber Company, 179 NLRB 724 such conduct by the Respondent was discriminatorily motivated or 4 The General Counsel apparently relies, at least in part, on two warning constituted more stringent enforcement of existing work rules DIVERSIFIED INDUSTRIES of Section 8(a)(1) of the Act, threatened to change this rule to the detriment of the employees unless the Union withdrew its pending unfair labor practice charges, that approximately 10 days later Christie, in effectuation of the threat, announced to Webb, a union steward, a new and more stringent rule, namely, no eating at work,5 and finally that the motive for the promulgation of the new rule was to punish the employees because their bargaining representa- tive had filed, and refused to withdraw, unfair labor practice charges. By such conduct, so motivated, the Respondent violated Section 8(a)(1), (3), and (4) of the Act.6 There remains the issue of the alleged failure of the Respondent to live up to its statutory bargaining obliga- tions. In this connection, the General Counsel maintains that the new no-eating-at-work rule was put into effect unilaterally, that is, without the Union's agreement. The Respondent mounts a double-pronged defense against this allegation: that before changing the rule the Respondent had given the Union adequate advance notice and opportunity to bargain; and that in any event the rule change fell within the ambit of the contract's management rights clause and there was therefore no obligation to bargain with regard to it-the Union having contractually waived its rights in this respect. I find merit in the Respondent's first defense. The sequence of events was as follows: On January 27 or 28 the Respondent illegally threatened to change its rules regard- ing, among other things, eating at work, unless the Union withdrew its unfair labor practice charges. On January 29 the Union, through Dillard, notified the Respondent7 that the charges would not be withdrawn. Approximately 10 days later, the Respondent carried out its previous threat and, for proscribed reasons, changed the rule. It is significant that at no time did the Union request bargain- ing or in any way grieve or protest the new rule. Under these circumstances, although the Respondent's conduct violated Section 8(a)(1), (3), and (4) of the Act as found above, I conclude that it did not also constitute a unilateral change of working conditions in violation of Section 8(a)(5) of the Act. Rather, I find that the Union had ample advance notice of the Respondent's intent to change the rule and adequate opportunity to seek bargaining but nevertheless remained silent.8 In this posture of the case, I deem it unnecessary to rule upon the Respondent's second defense, that the rule prohibiting eating at work was not a proper subject for bargaining because of the coverage of the management rights clause in the contract. Upon the above supplemental findings of fact, and upon the entire record, I make the following: 5 To the extent that Christie testified that no new rule was promulgated or put into effect f deem his testimony inaccurate 6 The Respondent argues in its brief that the management rights clause of the contract gives the Respondent the power to put into effect any rule regarding eating at work Be that as it may. the vice of the Respondent was not its promulgating the rule, per se, but rather its promulgating such a rule for proscribed reasons Therefore the managerights clause is no defense to allegations that the Respondent violated Section 8(a)(I), (3), or (4) of the Act. r In fn 23 of the original Decision I found it unnecessary to resolve conflict between the testimony of Dillard and Jeffries on this point. In view AMENDED CONCLUSIONS OF LAW 257 The following is substituted for Conclusion of Law 5 in the original Decision: "5. By revoking privileges previously enjoyed by Watraud Olga Dillard on November 11, 1971, and thereafter refusing to restore these privileges to her, and by promulgating, announcing, and putting into effect in February 1972 a new rule prohibiting employees from eating on the job, and thereafter enforcing and maintaining such rule in effect, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the mee ping of Section 8(a)(3) of the Act " The following new Conclusion of Law is inserted as Conclusion of Law 6 and Conclusions of Law 6, 7, 8, and 9 in the original Decision are renumbered as Conclusions of Law 7, 8, 9, and 10, respectively: "6. By promulgating, announcing, and putting into effect in February 1972 a new rule prohibiting employees from eating on the job and thereafter maintaining and enforcing such rule, thereby discriminating against its employees because their representative had filed charges under the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4) of the Act." Upon the foregoing supplemental findings of fact, amended conclusions of law , and the entire record, and pursuant to Section 10(c) of the Act , I hereby issue the following recommended: 9 AMENDMENTS TO ORDER The following is substituted for paragraph 1(c) of the Order in the original Decision: "(c) Threatening its employees with more stringent working conditions or other reprisals, or promulgating, announcing, putting into effect, maintaining, or enforcing more stringent work rules, or otherwise discriminating against its employees, because unfair labor practice charges have been filed against it, or as a means of forcing employees or their bargaining agent to withdraw such charges." The following new paragraph 2(f) is inserted after paragraph 2(e) and paragraphs 2(f) and (g) in the original Decision are relettered as paragraphs 2(g) and (h), respectively: "(f) Revoke the rule promulgated in February 1972 prohibiting its employees from eating at work." of the remand , I now resolve that conflict by crediting Dillard's testimony s N LR B v. Cone Mills Corporatism, 373 F.2d 595 (C.A 4, 1967); Holiday Inn Central, 181 NLRB 997; and Coppm Engineering Corporation, 195 NLRB 595. 9 In the event no exceptions are filed as provided by Sec 102 46 of the Rules ai d Regulations of the National Labor Relations Board, the supplemental findings, conclusions, and recommended Amendments to 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 objection shall he deemed waived for all purposes