Western Sample Book and Printing Co., Inc.

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Sample Book and Printing Co., Inc. and United Paperworkers International Union, AFL-CIO and CLC. Case 21-CA-11449 March 6, 1974 DECISION AND ORDER By MEMBERS FANNING, KEI'.NEDY, AND PENELLO On September 24, 1973, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, Respondent and Counsel for the General Counsel filed exceptions and supporting briefs. 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 record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. The complaint alleged that Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of its employees' union activities; by interrogating its employees concerning their union activities; by instituting and enforcing an unlawful no-solicitation rule; by directing its supervisors to engage in alleged interrogations, surveillance, and threats; by promis- ing and providing its employees with a Christmas party; by discharging Supervisors Campos, Miraula, and Stogsdill because of their refusal to commit unfair labor practices in violation of the Act; and violated Section 8(a)(3) and (1) of the Act by discharging employees Olmedo and Zuniga because they engaged in protected activities. 1. We agree with the Administrative Law Judge's findings that Respondent did not violate Section 8(a)(1) of the Act by interrogating its employees; by directing its supervisors to engage in illegal acts; by promising and providing its employees with a Christmas party; by discharging Supervisors Cam- pos, Miraula, and Stogsdill; and did not violate Section 8(a)(3) and (I) of the Act by discharging employees Olmedo and Zunigo. 2. Contrary to the Administrative Law Judge. for the reasons discussed below, we do not find that Respondent violated Section 8(a)(l) of the Act by unlawfully instituting and enforcing its no-solicita- tion rule and by engaging in unlawful surveillance of its employees. In October 1972, the United Paperworkers Interna- tional Union, AFL-CIO and CLC, began an organ- izing campaign in Respondent's plant. On October 26, 1972, the Union held its first organizing meeting; several department supervisors and Sparacino, a more senior experienced employee, attended the meeting. At the meeting the Union stated that all in attendance were employees, entitled to participate in the union campaign. Several department supervisors signed authorization cards. On October 30, 1972, Respondent held a meeting for its department supervisors which was also attended by Sparacino and at least one other employee. At its meeting Respondent directed the department supervisors not to attend union meetings or to take any action for or against the Union, including threatening employees or promising them any bene- fits with regard to the Union without further instructions. On December 4, 1972, the Regional Director, in his Decision and Direction of Election in Case 21-RC-12976, found that department supervisors were supervisors within the meaning of the Act, but he also found that Sparacino was included in the unit. Preceding the formal hearing in that case the parties also agreed that Sparacino should be included in the unit. On December 14, 1972, Sparacino attended a union meeting. Respondent for several years has had a rule against nonbusiness talking on worktime. The written version read: Talking: Talking during working hours should be restricted to business. Not many days pass that I [General Manager] don't notice some people talking and wasting time. I can no longer afford to be lenient, excessive talking, not related to your job, during working hours is cause for termination of employment. Two supervisors, Stogsdill and Baltazar, informed two employees, Zuniga and Rincon, that union discussion during working hours constituted a ground for discharge. The Administrative Law Judge found that Sparaci- no was regarded by employees as a supervisor, was closely allied with management, participated in 209 NLRB No. 64 WESTERN SAMPLE BOOK AND PRINTING CO. supervisory meetings, and was intimately involved in effectuating the Respondent's policies. Based on the above findings the Administrative Law Judge then found that Sparacino was an agent of Respondent within the meaning of Section 2(2) and (11) of the Act and that his attendance at a union meeting on December 14, 1972, was surveil- lance violative of Section 8(a)(1) of the Act. Contrary to the Administrative Law Judge we do not find Sparacino an agent of Respondent.) We do not find that Sparacino was closely allied with management or was intimately involved in effectuating Respondent's policies, but was at most a senior experienced employee. Only one of the General Counsel's witnesses considered Sparacino a supervisor; two of the General Counsel's witnesses and Respondent's gen- eral manager, all three witnesses credited by the Administrative Law Judge, testified that Sparacino was a rank-and-file employee. Sparacino attended the department supervisor meeting on October 30, 1973, because as the only worker in the machine cutting department he was an unsupervised employ- ee; at least one other nonsupervised employee also attended the meeting. We also do not adopt the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) by Supervisors Stogsdill and Baltazar inform- ing two employees that union discussions during working hours constituted a ground for discharge. Any evaluation of these remarks, especially regard- ing the employees' understanding of them, must take into account the context in which they were made which this record discloses. Thus, contemporaneous with the statements to Zuniga and Rincon there existed a rule against nonbusiness talk, the posted version of which is quoted above. On its face, this rule is unambiguously directed against talking on the job. There is no indication that it or the unwritten rule which preceded it was ever enforced against talk during nonworking time, such as lunch periods or break periods when the employees were away from their work areas.2 Indeed, Rincon herself testified regarding the :ule -against talking as that "we are not supposed to talk anything besides, you know, the work we are doing." Against this backdrop, we do not find that the warnings to Zuniga and Rincon were intended or understood to ban union talk during nonwork time. In view of the foregoing we conclude that Respon- dent did not violate Section 8(a)(1) of the Act by enforcing its no-solicitation rule or by engaging in surveillance of its employees. Accordingly, we shall dismiss the complaint herein in its entirety. ORDER 385 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and hereby is, dismissed in its entirety. I Moreover, even if Sparacino was a supervisor, the Board has consistently held that an employer is not responsible for the antiunion conduct of supervisors who are included in the bargaining unit by stipulation of the parties in the absence of evidence that the employer encouraged, authorized, or certified the supervisors' activities or led the employees to reasonably believe that the supervisors were acting for or on behalf of management . National Food Stores, Inc, T/A Big Bear Super Markets, 169 NLRB 94, Hy Plains Dressed Beef Inc, 146 NLRB 1253, and Montgomery Ward, & Co, Incorporated, 115 NLRB 645. 2 Nor does it appear that such a rule was promulgated for a discriminatory purpose or enforced discnminatonly. DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: This case was tried before me at Los Angeles, California, from May 8 through May 11, 1973, upon the basis of a charge filed by United Paperworkers International Union, AFL-CIO and CLC, herein called the Union, against Western Sample Book and Printing Company, Inc., herein called Respon- dent or Company, on December 18, 1972,1 amended on February 5, 1973,2 and a complaint issued on February 8, 1973, in behalf of the General Counsel by the Regional Director for Region 21 of the National Labor Relations Board, herein called the Board. The complaint alleged in substance that on or about October 26, 1972, and on or about December 14, 1972, Respondent engaged in surveil- lance of its employees' union activity; that on or about November 2, 1972, Respondent interrogated its employees concerning their union activity; that on or about Novem- ber 3, 1972, Respondent instituted and enforced in its plant an unlawful, broad rule which forbade employees to discuss unions during working hours; that on or about November 3, 1972, employees were threatened with discharge if they discussed unions during working hours; that in or about the week commencing November 12, 1972, Respondent directed its department supervisors to engage in surveillance of its employees' union activities, to interrogate employees concerning their union activities and to threaten its employees with reprisals for engaging in union activities; that on December 7, 1972, Respondent solicited its supervisors to engage in surveillance of its employees' union activities; that on December 23, 1972, Respondent promised and provided its employees with a Christmas party; that on or about December 8, 1972, Respondent discharged supervisors Maria Campos, Jose- phine Miraula, and Margaret Stogsdill because of their refusal to commit acts constituting unfair labor practices in violation of the Act; and that on or about December 15, 1972, Respondent discharged Christina Olmedo and Inocensia Zuniga because they engaged in union or other protected activities. Respondent, on February 15, 1973, filed its answer i Served on December 12, 1972 2 Served on February 26, 1972. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitting certain allegations of the complaint, but denied that it had engaged in any unfair labor practices within the meaning of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I find that Respondent is engaged in the fabrication of textile sample books at its plant located in Los Angeles, California; that it sells and ships goods and products valued in excess of $50,000 to customers located within the State of California, each of whom in turn annually sells and ships products valued in excess of $50,000 to customers located outside the State of California; that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the purposes of the Act to assert jurisdiction herein. Il. THE LABOR ORGANIZATION INVOLVED The complaint alleged, the answer admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Findings It is agreed and I find that the following persons held the listed positions in Respondent's plant: Stuart Klass President John Perry Vice President Douglas H. Skonord General Manager Andrew Forbis Labor Consultant In addition it appears that Ben Sparacino was regarded by employees as a supervisor. I find, based upon the evidence adduced at the hearing that Sparacino was closely allied with management and participated in supervisory meet- ings. Under these circumstances, it is concluded that Sparacino was intimately involved in effectuating the Employer's policies. Indeed, at a supervisors' meeting held on October 30, when Forbis asked how many supervisors had authority to hire and fire, Sparacino was one of the two present who raised his hand. Accordingly, I find that Sparacino should be regarded, for the purposes of this proceeding, as an agent of Respondent within the meaning of Section 2(2) and (11) of the Act.3 3 Retail Clerks International Association (Agents and Organizers Assn) 366 F.2d 642 (C.A D C, 1966) 4 The Regional Director in his decision and direction of election in Case 21-RC-12976 involving Respondent issued on December 4, 1972, ruled that department supervisors were supervisors within the meaning of the Act There is no dispute in this case concerning the supervisory status of B. The Discharge of Miraula, Slogsdill, and Campos According to the undisputed evidence, the Union some time in October commenced its attempt to organize Respondent's employees by the distribution of literature outside Respondent's plant. On October 26, the Union held its first meeting for Respondent's employees at Hallenbeck Park, a park near Respondent's plant. This meeting was attended by supervisors Miraula, Bobby Belcher, Eddie Mora, Erlinda Ochoa, and Sparacino. In total, there were about 25 employees present at this meeting which was presided over by Daniel Rego, International representative of the Union. Rego distributed authorization cards at the meeting, openly solicited the department supervisors, and encouraged the supervisors to participate in union activity. He stated that he did not believe they were supervisors with the meaning of the Act as they lacked the statutory authonty.4 The evidence shows that most of the department supervisors signed union authorization cards about this time. On the morning of October 30, all supervisors5 were summoned into the executive offices of Respondent and, in the presence of Klass, Perry, and Skonord, were addressed by Forbis. They were told by Forbis that he had learned some of the supervisors had attended a union meeting. He informed the gathering that as supervisors they were not to attend union meetings and any future attendance could result in their discharge. Forbis also told the supervisors that they could not threaten or promise employees any benefits with regard to the Union and they were to take no action for or against the Union without further instruc- tions. Following the above meeting with Forbis, Skonord had several individual meetings with each of the department supervisors "to determine their attitude toward the Company and the Union." Among the first of the supervisors so interviewed was Miraula. About a week after Forbis addressed the supervisors, Miraula was summoned into Skonord's office in the presence of Perry, Klass, and Skonord. Asked what she knew about union meetings, Miraula told the executives present that she had gone to the first union meeting and none thereafter because Forbis had told them that supervisors were not to participate in union affairs. According to Miraula's credited testimony, Perry stated to her that a competitor company, when threatened with union organization, had let its employees go and hired new employees, that he did not want a union in the plant, and that he would do the same thing as the competitor if a union did come in .6 Miraula further testified that she was told to listen and report what she could discover from the girls whom she supervised as to what was going on about the Union, and to try to discourage them from going union.? Miraula was again called into the office about 2 weeks later with Skonord alone present. Skonord asked her what occurred department supervisors 5 Sparacino was included I credit Miraula, Stogsdill, and Campos in this regard 6 Perry's denial of these statements is not credited. 7 This evidence was adduced by leading questions . However, I credit Miraula in this regard as Skonord 's testimony is supportive. WESTERN SAMPLE BOOK AND PRINTING CO. at the union meetings and if she knew any more about them. Miraula repeated that she had attended only one union meeting and did not participate any longer. Skonord said that he had heard Miraula was the chief union protaganist and that a union meeting had been held in her house. She said it was not true. Called again into the office about December 1, she had a conversation with Yacullas which was a repetition of the interview with Skonord about a week earlier. Shortly thereafter, she was again questioned by Skonord in his office9 about her knowledge of union affairs. Miraula reiterated that all she had done was attend one union meeting. Thereafter, on December 7, Klass questioned Miraula while she was working at a machine as to what she knew about the Umon saying he had a nervous condition and didn't wish to become sick. He also stated that he did not wish to discharge anyone before Christmas. Miraula again repeated her statement that she knew nothing, and that she had but gone to the one meeting. The next day she was discharged. On the day of the discharge70 department supervisors Margaret Stogsdill. Maria Campos, and Miraula were called into Skonord's office in the presence of Klass and Perry at the close of the day. Skonord told the three department supervisors that their vacation and paychecks were ready and that they had a choice of resigning or being discharged. Each of the department supervisors was then interviewed separately. Because of her seniority, Miraula was the first to he interviewed. Skonord told her that he had no reason to discharge her except that she was a bad influence on the employees. Stogsdill testified that she had been employed by Respondent since 1958; that she had not attended any union meetings; that Supervisor Mora had given her a union authorization card on October 27 which she completed and returned to Supervisor Belcher; that she attended the Forbis meeting; that two days later she had a discussion with Skonord at her request in which she told Skonord that she had none of the supervisory functions that Forbis outlined; that Skonord about that time gave all department supervisors a paper which told them what they could and could not do; that about a week later Skonord called her into an office and asked her if she had been to the union meeting in the park; that she told Skonord that she had not been there; that Skonord inquired if another employee, her sister-in-law had gone to the meeting; that she replied she did not know; that Skonord then asked if she knew which of the other employees had gone to the meeting; that she again replied in the negative and added that no one was talking to her about the Union as the rank- and-file employees thought that the department supervi- sors when called into the Forbis' meeting had been given a raise so that they would be against the Union; Skonord inquired whether Stogsdill had any idea as to what the employees wanted from the Union; Stogsdill replied that they probably wanted more money as many of them had complained that they had not received a raise for years; Skonord then advised Stogsdill that she should be with the Company, to tell the employees the Umon would not be 8 Respondent's trial counsel. 9 Klass and Perry were present. 10 Friday, December 8, the regular payday was Wednesday 387 good for them and to forget about it, that in the future Skonord would try to get them raises as at the present time they were "frozen on account of the Union." Stogsdill further testified that later she was called in the office on several occasions. On one occasion, Perry was present and that at each of the meetings she was asked for information with regard to the identity of employees who were attending union meetings and where the meetings were being held. When she said that she didn't know, Perry and Skonord expressed surprise. She was repeatedly admonished to be on the Company's side and to report anything she discovered concerning the Union. Stogsdill listened to these admonishments but did not express any agreement or disagreement as no direct question was asked. Stogsdill recalled a meeting with Yaculla during which she was asked about the union meetings and where they were being held. When she said that she did not know. Yaculla expressed surprise. She recalled that at this meeting, Yaculla showed her a document which he said was a decision by the Board in which department supervisors were found to be supervisors and therefore would be unable to vote in an election. With regard to her discharge, Stogsdill testified that she was summoned to appear before Skonord, Klass, and Perry together with Miraula and Campos; that Skonord an- nounced that he had their checks and that they had to make a decision immediately whether they would resign and be given a letter with a good recommendation or whether they were to be dismissed; that it was translated by Stogsdill to Campos in Spanish; that Stogsdill asked why they were being dismissed and Skonord replied, "You are all good workers. You are doing well, but you are not doing enough for the Company." Stogsdill then asked if she could have her husband hear this and Skonord agreed saying she would talk to each one individually, taking Miraula first. Thereupon Stogsdill left to fetch her husband. When she returned both Miraula and Campos were, gone. Stogsdill asked Skonord to repeat what he had previously told her and he did. Mr. Stogsdill then said that he did not understand. Skonord then said that they had called Mrs. Stogsdill in several times and had told her what they wanted her to do, but she had failed to carry out the instructions. Mr. Stogsdill credibly testified that after a short interchange with Skonord, he said, "I told her not to be a fink." Skonord replied, "Well, sometimes we want them to be finks." Maria Campos, called as a witness by the General Counsel, testified" that she was employed by Respondent since 1968 until the date of her discharge, December 8; that she was the supervisor of the swatching department; that she attended the first union meeting at Hallenbeck Park; that she was present at the Forbis meeting; that Forbis explained to them why they were considered supervisors, enumerating their duties; that when Forbis asked how many had the right to hire and fire, the only two present who raised their hands were Louis Ortega and Ben Sparacino; that Forbis told them that, as supervisors, they could not belong to a union; that they could not attend 11 Campos testified through an interpreter. While she displayed a fair understanding of English, she preferred to testify through an interpreter. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union meetings; that some of them had gone to a union meeting and if they continued, the Company had a right to fire them. Thereafter Campos had three or four meetings with Skonord; that the first meeting with Skonord was on October 31 and was at her request; that the next meeting was on November 13 about 3:30 p.m.; that Skonord at this meeting read a warning letter to her, showed it to her and asked her to sign it; that she signed it and asked what he meant about overtime; that Skonord said that she should tell the girls not to come to her table when she was working overtime; that when she questioned the reference to arguments with Baltazar in the warning notice, Skonord replied that it referred to the notes she gave him on October 31; that in the notes there was a reference to arguments between her and Baltazar; that he informed her that Baltazar had authority to make decisions and she should not forget it; that he then asked her if she had enough work in her department; that she expressed a fear that there might be some layoffs; that Skonord said that he expected a lot of work from new customers; that one customer in particular was quite happy with the work he received from the swatching department; that Skonord then asked her if she knew anything about the Union; that she replied that she did not; that she had gone to the first union meeting and that all of the girls in her department had likewise been there; that Skonord questioned her whether she told the employees in her department the reasons for her failure to attend union meetings; that she replied that she had told the girls that if she went to the union meetings she would be fired; that Skonord was upset by this and said she should not have told that to the girls; that Skonord inquired where the meetings were held and whether the meetings were held in someone's home or in a hall; that when she told Skonord that she did not know, he expressed surprise; that Skonord inquired whether she asked any of the girls what went on at the meetings, she replied that when she inquired on one occasion she was told to come to the meetings if she wanted to know. On November 16, Campos was collecting money from employees for a Christmas party; Perry was behind her when she entered the cutting department and received a donation from Mora. Shortly thereafter, Campos was summoned into Skonord's office and asked what she was doing. She explained that she was collecting for a Christmas party. Skonord stated that he knew nothing about it. Campos said that she had told Baltazar about it and that Baltazar had said that it was much too early. Skonord then said that it was all right and asked for the plans for the party. She said that it would be a luncheon and that she was collecting money to pay for the food because she planned to have it catered rather than, as in previous years, when each person brought some food item. Skonord said that if all the supervisors agreed, the Company would stage the party and that he would discuss the matter with Klass. Campos remarked that they had 12 I credit Campos in this regard as I find Campos an extraordinary witness with ability to recall details of conversations and events. As the person affected in this meeting, her memory would seem more reliable especially when consideration is given to the fact that Skonord's three previous, lengthy interviews with Campos were held without an interpreter. Perry's contrary testimony is not credited as I do not regard Perry as a reliable witness . Hernandez' testimony that she was present and interpreting never had the Company sponsor the party and asked him why he wanted to do it. Skonord replied that he wanted to make all the employees happy. At this point, Skonord again asked Campos if she knew anything about the Union. Upon her negative reply, Skonord stated that he had heard rumors that she was assisting the Union. Skonord then asked her if she knew the locale of the meetings of the Union or of any committee. Campos again denied any knowledge of these matters. Skonord expressed surprise saying that the girls were her friends and he believed that one of them would tell her about the meetings. Upon her assurance that she wasn't being told anything, Skonord suggested that Campos should select a girl in whom she had confidence and have her attend the union meeting, Campos would report to him what this girl told her about the meeting. Campos said he knew of no such girl, that what he wanted was a spy and that she could not ask any of the girls to do that. Skonord also told Campos that she should tell the girls that better conditions were coming and that they did not need the Union but that she was not to tell the girls that this came from Skonord. Skonord then said that if the employees insisted on the Union, the same thing that happened 2 years ago at the American Sample could happen here. When Campos inquired as to what happened at American Sample 2 years ago, Skonord said that the Company discharged all the employees upon the advent of the Union and hired completely new personnel. Skonord added that he could hire new employees at $1.65 per hour. Campos replied that it would be unjust to pay $1.65 per hour to employees with experience. About I week later, Campos was again summoned to a meeting with Klass and Skonord. Again Campos was questioned by Skonord about her knowledge of the Union and the identity of any employees in a union committee. Campos repeated her previous denials of knowledge. Klass asked her what she thought of the Union and she replied that she did not know what to think. Asked why she previously seemed to think the Union was a good thing, Campos replied that the dues seemed reasonable and it had a good insurance plan. Klass said this was not true and the Union people were lying; that the only ones helped by a union were those who were lazy. On December 8, Campos was discharged at the same time as Miraula and Stogsdill. She was not told the reason for her discharge when she appeared for her individual interview. However, she was asked by Klass as she was leaving whether she had any questions. Her reply was, "No, thank you." Campos testified that she had asked Stogsdill to act as her interpreter but Stogsdill had gone to fetch her husband, therefore, she appeared before the executives on this occasion without an interpreter.12 Skonord, in describing his conversation with department supervisors, stated that he told them that he would appreciate any information that would help Respondent's for Campos at this interview seems contrived and designed to please her employer. I believe that Skonord was confused and in error on this point because he testified on this aspect with an air of uncertainty. Moreover, as Hernandez had served as interpreter for him on numerous occasions with other employees, he apparently thought that she had been called in at this time. WESTERN SAMPLE BOOK AND PRINTING CO. campaign to dissuade the employees from selecting the Union; that he exhorted the supervisors to tell him anything they knew about the Union; that he sincerely believed that supervisors could and should present the good aspects of the Company to the employees if and when they were questioned by employees; that if they found out something that would be of benefit to Respondent from conversations in which they engaged in or if they overheard anything concerning the Union, they were to inform him; that to accomplish his purpose he questioned each of the supervisors as to their opinion of the Union; that Miraula said she didn't know, that Stogsdill likewise said she didn't know; that Campos hardly told him anything at all about her feelings , but he gathered that she was sympathetic to the Union; that he told each of the supervisors that they were agents of the Company; that as agents they could not do certain things including asking any employees about their union activity or whether or not they belonged to the Union; that if employees came to them and volunteered information they could transmit that information to him; that the supervisors were told that he did not want the Union because he was in a position to do as much for the employees as anyone ; that what he could do depended on how well the Company prospered; that he wanted the supervisors to campaign for the Company and to feel and believe in what they were doing. Skonord explained that when he questioned Stogsdill about her sister-in-law he asked if her sister-in-law went to a meeting as Stogsdill's representative . He explained that when he referred to another company that had discharged its employees upon the advent of a union , he had added that he had no intention of following a similar course; 13 that he was shocked when Campos told him that she revealed to employees that supervisors would be dis- charged if they attended union meetings ; that he reminded Campos that Forbis had warned the supervisors that what had transpired at the supervisor's meeting was confiden- tial; that he pointed out that telling employees that supervisors were subject to discharge would arouse antagonistic feelings and create a hostile atmosphere; that in his conversations with the supervisors he did not ask them if they had attended union meetings ; that he merely invited them to tell him whatever they wished about the Union; that he never directly asked where or when the union meetings were held but gave them an opportunity to tell him ; that with reference to the Christmas party he told Campos that she should not initiate the party on her own because management would decide what kind and whether a party would be held; that Klass approved a party; that he did tell Campos that the Company was prospering and intended to expand ; that wages would then be mcreased but he cautioned her against telling that to employees; that he did not tell Campos or anyone else that he could fire the employees and hire new ones at $1 .65 per hour; that among the chief objectives he sought to accomplish by interviewing the supervisors was to have them learn of the employees' grievances so that the Company could "ad- dress" itself to them in its campaign against the Union; that he explained that to Campos and the other supervi- sors. 389 Skonord's recitation of his aims , policies, and accom- plishments had the ring of enthusiasm and sincerity. I was duly impressed by this aspect of his testimony . According- ly, I extend a high degree of credibility to this testimonial account of his conversations with Miraula , Stogsdill, Campos, and other department supervisors with regard to the information he requested and the limitations he placed on their methods of securing such information. The evidence disclosed that Skonord did not employ an interpreter in his four interviews with Campos . It appears that because of this, her interviews were quite lengthy, exceeding 2 hours on at least one occasion . He conceded that he interviewed Miraula, Stogsdill, and Campos on more occasions than other supervisors. In addition, I have credited Miraula, above, with regard to the occasion when Perry stated to her in Skonord's presence that he did not want a umon in the plant and that he would do what another employer did when faced with unionization, namely, discharge all employees and hire new ones. I also credit Campos that Skonord during the course of one of her interviews told her the same thing and added that he could hire new employees at $1.65 per hour. Such a statement, I believe, is hardly a subject for misunderstand- ing. I am convinced, therefore, that Campos truthfully testified in this regard. However, both of these statements were made to supervisors and there is no evidence that these statements were transmitted to employees . Conse- quently, I make no finding of a violation with regard to either of these incidents inasmuch as they do not encompass coercion of employees. In the light of the foregoing, I find that Miraula, Stogsdill and Campos were discharged because in Sko- nord's opinion they were not doing enough for the Company in its campaign against the Union. Skonord, I find, regarded their failure to reveal to him substantial information concerning the Union and the union activities of the employees whom they supervised as displaying union sympathy and disloyalty to Respondent. In this appraisal, it is apparent that Skonord was quite correct. Nevertheless, I am constrained to conclude that the discharges of Miraula, Stogsdill, and Campos for the stated reasons, under current Board law, do not constitute violations of the Act. The record shows that Campos alone, of the supervisors interviewed, testified that Skonord urged upon her a course of conduct which included violations of the Act. As indicated above, I do not credit Campos in this regard as I believe the absence of an interpreter in her interviews with Skonord caused her to misunderstand the main thrust of Skonord's discussions with her. Skonord, as the record shows, often used phraseology that was difficult to follow. Several witnesses, as appears below, did not understand much of what he was saying. Nevertheless , I believe Skonord successfully avoided a direct request to supervi- sors to engage in any conduct which would be violative of the Act. It is true that his insistence on information concerning the Union, his open opposition to union organization, his references to Respondent's future and current benefits, and his admitted calling in Miraula, Stogsdill, and Campos for repeated interviews in excess of 13 In this regard, I credit Campos' contrary testimony 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other supervisors, may be interpreted as pressure. The foregoing factors together with the precipitate nature of the discharges and when added to Skonord's weak attempts to ascribe some deficiencies in the work of Miraula, Stogsdill, and Campos, still add up only to a strong suspicion that Skonord in effect was seeking to enlist the supervisors in an unlawful attempt to engage in conduct violative of the Act. Suspicion, however strong, nevertheless, cannot be the basis of a finding of a violation of the Act. I have also concluded that Skonord did tell Mr. Stogsdill that he expected his department supervisors to be "finks" at times. The term, "fink," is. a common slang expression for an informer and Skonord readily admitted that he wished the department supervisors to act as informers in order to further Respondent's campaign against the Union. As I view current Board law upheld by the courts, there has been established a class of employees, meeting the statutory definition of supervisors, who can be brow beaten, harassed, threatened, and discharged for failure to prevent the unionization of the establishment where they are employed, or, as in the instant case, if the employer concludes that such supervisors have exerted insufficient energy in discovering information concerning the union and thereby failed to assist the employer's antiunion campaign. Moreover, such supervisors, regardless of their low status in the hierarchy, cannot form, join, or assist any union organization without the employer's condonation or acquiescence. Neither can they engage in any concerted activities to protect their jobs, income, or status. The legislative history of the Act shows that Senator Taft made the following observations: The bill provides that foremen shall not be considered employees under the National Labor Relations Act. They may form unions if they please, or join unions, but they do not have the protection of the National Labor Relations Act. They are subject to discharge for union activity, and they are generally restored to the basis which they enjoyed before the passage of the Wagner Act. It is felt very strongly by management that foremen are part of management; that it is impossible to manage a plant unless the foremen are wholly loyal to the management. We tried various in- between steps, but the general conclusion was that they must either be a part of management or a part of the employees. It was proposed that there be separate foremen's unions not affiliated with the men's unions, but it was found that that was almost impossible; that there was always an affiliation of some sort; that foremen, in order to be successful in a strike, must have the support of the employees' union.14 C. The Discharge of Olmedo and Zuniga Inocensia Zuniga, employed by Respondent from 1966 until her discharge on December 15, was one of the more prominent union advocates. She attended several union 14 Cf Talladega Cotton Factory Inc, 106 NLRB 295, See Southwest Shoe Exchange Company, 136 NLRB 247, 248, where Board found that instructions to supervisors to attempt to dissuade employees from supporting the Union was privileged in the absence of threats of reprisals or promises of benefits to employees meetings and signed a union authorization card. In addition, at least two meetings of the union organizing committee were held at her home. The evidence leaves no doubt that management was aware of Zuniga's sympathies with regard to the Union. Several incidents demonstrate this knowledge. Shortly after the Forbis meeting, Zuniga attempted to discuss the Union with Ruth Rincon, a fellow employee. Rincon said that she understood that employees were not to discuss the Union during working hours and called Connie Baltazar, Skonord's assistant, to confirm this rule. Baltazar stated to them that employees would be fired if they discussed the Union during working hours and that Stogsdill, Zuniga's and Rincon's immediate supervisor, was supposed to have told them that. Rincon in turn testified that Stogsdill did tell them that they were not supposed to talk about the Union during working hours. Zuniga testified that Jonnie Mae Johnson, admitted supervisor, asked her on one occasion, "off working hours," but at her work bench, if she favored the Union. Zuniga asked "Why?" Johnson said she thought the monthly dues were too high. Zuniga then replied that Johnson was talking to the wrong person as it was worth $6 per month. The day after Stogsdill was discharged, December 9, a Saturday, Stogsdill called Zuniga and informed her that Skonord was keeping an eye on Nellie Lopez, one of the older employees; that Zuniga should tell Lopez to work and move around more to avoid being discharged and that Lopez' daughter might be discharged because she was "missing a lot of work." As a result, Zuniga called Lopez and repeated Stogsdill's warning. The following Tuesday, Zuniga was called into Skonord's office and was asked if she knew Nellie Lopez was quitting because she had been told that he was going to discharge her. Skonord asked Zuniga if she had told this to Lopez. Zuniga denied that she called or informed Lopez in this regard, because she thought Skonord was angry and would discharge her if she told the truth. Skonord asked the same questions concern- ing Maria Lopez, the daughter, and Zuniga replied that she never talked to Maria, only to her mother, Nellie. On December 14, Zuniga was again called into Skonord's office. 15 He again asked her if she had called Lopez. Again Zuniga denied it and commenced crying saying that a lot of things were happening in the plant. Skonord replied, according to Zuniga, "We didn't want the Union-you brought the Union." Zuniga then said, "We need the Union." At this time, Perry was shouting and Zuniga said, "Fire me. How come you don't fire me right now?" Skonord 16 replied that Zuniga was a good worker and he would not fire her. Again he asked her if she made the phone call and she denied it. Before she left she remarked to Skonord that he had fired good workers in the past. Asked if Skonord had said anything else, Zuniga testified that Skonord said other things about the Union using words that she did not understand; that by the time the interview was concluded it was 4:30 p.m. and Zuniga went to pick up her purse, she was crying on her way to her car. She then went to a union meeting in the company 15 Klass and Perry were present on this occasion 16 The transcript does not indicate that Skonord was the speaker. However, it seems clear that he was the one referred to in Zuniga's testimony WESTERN SAMPLE BOOK AND PRINTING CO. company of Christina Olmeda. When Olmeda saw Zuniga crying she told Zuniga that she was going to the office and "tell that man off." After informing Zuniga that she was going to say that she made the phone call to Lopez, Olmeda did meet with Skonord on the following day. Later that day, Zuniga was called again into Skonord's office and was told that he had found out who had made the telephone call to Lopez and that he was sorry. Later about 6:30 p.m. that same evening, Skonord called Zuniga on the telephone and informed her that she was discharged because he now had proof that it was she who had made the telephone call to Nellie Lopez. Christina Olmeda, also discharged on December 15, attended several union meetings and was a member of the union organizing committee. On the day before her discharge, she traveled to the union meeting in the company of Zuniga. She saw Zuniga crying and apparently was so emotionally affected that she told Zuniga she would go into Skonord's office and falsely assume the blame for the telephone call to Lopez. As a result at 10 a.m. the next day, Olmeda arranged to go to Skonord's office. She told Skonord that Zuniga had been crying because he had accused her of making the phone call to Lopez when it was she who had made the phone call and not Zuniga. Skonord said that she could be discharged for that and Olmeda replied that she did not know it would so upset Lopez. Skonord then said he never intended to discharge Lopez, just transfer her to another department because she did not get along with Stogsdill. In the discussion that followed Olmeda testified that Skonord said he had good reasons for the discharges of Stogsdill, Miraula, and Campos; that one of the reasons he was trying to keep the Union out was that it wouldn't help the employees; that Skonord said some other things about the Union that she didn't understand. Skonord then thanked her for her honesty and sent her back to work. Later that afternoon he telephoned her at home and told her he had proof that she had lied about the telephone call and that she was discharged. Findings and Conclusions Although the record shows that Zuniga, particularly, and Olmeda were quite prominent in the union organizing drive and that Skonord, prior to their discharge, knew that they were union adherents, I find that this did not immunize them against a discharge for cause. When Skonord received Olmeda's false confession that she was the person who warned Lopez of her discharge, he did not discharge her but sent her back to work. It is fair to conclude, therefore, that Zuniga would not have been discharged if she had been truthful when she was first questioned about the telephone call to Lopez. However, as Zuniga continued to deny her role in relaying Stogsdill's warning to Lopez and as this conflicted with the informa- tion that Skonord was receiving, the matter, in Skonord's view, became quite critical. When Olmeda submitted her false confession, the incident seemed at rest and Skonord made his apologies to Zuniga while sending Olmeda back to work. However, when it was revealed to Skonord by 'T Employees were also given some time off, 1 hour in 1971 is They were given time off equal to that in 1971. 19 Lloyd A Fri' Roofing Company, 123 NLRB 86, The Zeller Corporation, 391 Lopez that Zuniga indeed had been the caller who had transmitted the information, Skonord, apparently, was angered and resentful that he had been victimized. He quickly reacted by discharging Zuniga and Olmeda. Under these circumstances, I find that Zumga and Olmeda were discharged for cause and that Respondent did not violate Section 8(a)(3) and (1) by these discharges. D. The Christmas Party The evidence shows that the employees staged a Christmas party each year at the Respondent's premises. At the party, management distributed 5-pound hams to each of the employees. Food and other refreshments, however, were furnished by the employees.17 In 1972, the employees planned to secure monetary contributions from the employees and have food delivered by a caterer. Customarily, department supervisors participated in the party and the arrangements. In 1972, Campos apparently actively participated in the collection of money and the planning of the party. Skonord learned of the plans from Campos and suggested that the party for that Christmas should be sponsored by Respondent in order to make all the employees happy. To that end, he discussed the matter with Klass and Perry. As a result, Respondent contributed $800 for the cost of food and distributed a 3-pound ham.18 Respondent contends that the difference in cost between the 3-pound ham and 5-pound ham equalled its monetary contribution and therefore there was no violation of the Act, citing Fashion Fair Inc., 157 NLRB 1645. As the evidence shows that the Union was not even mentioned at the party and the employees did in fact stage the party themselves, I find that the variations from other years in the manner in which food and refreshments were provided, do not add up to a violation of Section 8(a)(1) of the Act.19 Accordingly, this allegation is dismissed. E. Other Allegations of 8(a)(1) The evidence shows that supervisors Stogsdill and Baltazar informed employees Zuniga and Rincon that union discussions during working hours constituted a ground for discharge. Such a rule is violative of Section 8(a)(1) of the Act unless special circumstances exist to justify such a rule. The evidence shows no special circumstances which would serve to justify the institution of such a broad rule. Accordingly, [ find that Respondent violated Section 8(a)(I) of the Act by the establishment and enforcement of a rule against union discussions during working hours. As I have found, above, that Sparacino was a manage- ment representative, his continued attendance at union meetings, particularly that of December 14,20 constituted surveillance in violation of Section 8(a)(1) of the Act. The evidence shows that as long as Sparacino was present at the union meeting of December 14, employees were inhibited from discussing union business and that upon his departure the union business at hand was disposed of. Accordingly, I find that Respondent engaged in unlawful 115 NLRB 762. 20 1 credit Zuniga's testimony that Sparacino attended this meeting 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surveillance of its employees' union activity in violation of Section 8(a)(1) of the Act. I find no violation of the Act in Zuniga's testimonial account of Johnson's question whether she favored the Union. Zuniga did not specify when her conversation with Johnson took place.21 Clearly, early in the campaign, department supervisors were solicited to participate in union activities by the employees. It seems that this particular conversation more than likely took place during this period. In this posture, I find that the conversation between Johnson and Zuniga did not constitute unlawful or coercive interrogation in violation of Section 8(a)(1) of the Act. Finally, I do not regard Klass' inquiry directed to Miraula while she was at her machine some time early in December as a request for her to engage in illegal activities to secure information concerning the Union. I view the incident as a renewed attempt to secure from Miraula whatever information she had concerning the Union. Such a query as found above is not violative of the Act. This allegation is therefore dismissed. Respondent, in its brief, intimates that a corrective order need not be issued if some minor violations of the Act are found. I disagree. The record shows that management displayed a strong aversion to union organization which was well advertised in the plant by department supervisors. Under these circumstances, it seems to me, that manage- ment must be restrained in their conduct and employees should be publicly notified of their right to organize without being inhibited in this activity by illegal rules and unlawful surveillance. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. On or about November 3, 1972, Respondent unlaw- fully instituted and enforced a rule against discussion of the Union during working hours in violation of Section 8(a)(1) of the Act. 4. On or about December 14, 1972, Respondent, through Sparacino, engaged in unlawful surveillance of its employees' union activity in violation of Section 8(a)(1) of the Act. 5. Respondent did not violate the Act by the discharge of Miraula, Stogsdill, Campos, Olmeda, and Zuniga. 6. All other allegations in the complaint not found specifically herein to constitute violations of the Act are hereby dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] 21 1 credit Zuniga's version of the conversation