E. I. DuPont de Nemours & Co.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. I. DuPont de Nemours & Co. (Doyle Works) and Doyle Works Employees' Union. Case I-CA-9244 May 21, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 20, 1974, Administrative Law Judge Sidney D. Goldberg issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's 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 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, E. I. DuPont de Nemours & Co. (Doyle Works), Leominster, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. DECISION SIDNEY D. GOLDBERG, Administrative Law Judge: In this case the complaint i issued pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), alleges that E. I. DuPont de Nemours & Co. (Doyle Works) (herein called Respondent or the Company) discharged an employee, George R. Adams, because he engaged in union or concerted activities by filing a grievance with Doyle Works Employees' Union (the Union) over a wage-rate dispute he had with the Company. Respondent answered, admitting that it had discharged Adams and was refusing to reinstate him, but denying that it had done so for the reasons alleged in the complaint. The issues raised by the answer came on for trial before me at Leominster, Massachusetts, on October 16 and 17, 1973. All parties were represented: they were afforded an opportunity to adduce evidence, cross-examine witnesses, and argue on the facts and the law. The General Counsel's 1 Issued September 14, 1973, on a charge filed July 3, 1973. 2 Typographical errors in the transcript have been corrected by order dated January 23, 1974. motion for summary judgment , made during the trial, was denied. Decision was reserved on the General Counsel's motion to assess litigation expenses against Respondent and that motion is herein denied. Helpful briefs filed by the General Counsel and by counsel for Respondent have been considered. For the reasons hereafter set forth in detail , I find that Respondent's discharge of Adams was in retaliation for his activities, in concert with the Union, in filing and pursuing a grievance and that such discharge violated Section 8(a)(3) and (1) of the Act. Upon the entire record herein ,2 and considering the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. THE PARTIES Respondent, a Delaware corporation, operates a plastics plant, designated as the Doyle Works, in Leominster, Massachusetts. It admits that it annually imports, into the Commonwealth of Massachusetts, materials valued at more than $50,000; that it annually exports products valued at more than $50,000; and that it is engaged in commerce. I so find. The record shows that Respondent has entered into a collective-bargaining contract with the Union and Respon- dent's answer admits that the Union is a labor organiza- tion . I so find. II. SUMMARY OF EVENTS The material facts herein are substantially undisputed. On June 18, 1973,3 George R. Adams, who had previously worked for Respondent, inquired concerning job possibili- ties there. He was first told that there were no openings but, the same day, the Company teleph ned to request that he come in for an interview. The followiri -iv ;ie came in, was seen briefly by Chiara Lolli, the personnel assistant, who told him that the job was in the bristling department, where brushes are made,4 and turned him over to Clifford T. Beckman, the production supervisor of that department. Beckman showed Adams the machine he would operate and they sat down and talked. Adams testified that Beckman, knowing that his previous employment had been at a "higher" rate, asked him what he thought would be a fair starting rate; that, when he said he didn't know, Beckman said, "How does $2.96 strike you?" and that he answered that that rate was satisfactory. Beckman's testimony on this point conceded that he mentioned the $2.96 rate but he insisted that he had referred to it as the rate for the job, as distinguished from the starting rate that he was offering Adams. He also admitted that there may have been a "misunderstanding" on the subject. There is no dispute that, during their conversation, Adams in- formed Beckman that he had been discharged by another local employer, Borden Chemical Co., for "sleeping on the job" and that, after Adams gave him the details of the 3 All dates herein not otherwise designated are in 1973 4 There is a conflict between the testimony of Adams and that of Mrs. Loth as to whether there was any mention of the pay rate for the job. 210 NLRB No. 114 E. I. DUPONT DE NEMOURS & CO. 771 incident, Beckman said that he thought that Borden had treated Adams unfairly and said that he would hire him. Arrangements were made for Adams to come in the following day for a physical examination. On the 20th, Adams came in as scheduled and was given the physical examination; he then saw Mrs. Lolli again and, at her request, filled out a written application for employment. With these formalities completed, he went to work at once. Adams received his first paycheck on June 27, covering his wages from the 20th to the 24th .5 He noted that he was not being paid at the rate of $2.96 per hour. He talked with William Wyrebeck, a friend and union official, telling him that it had been agreed that his rate would be $2.96 but that he did not get it. Wyrebeck testified that, while he knew that the usual starting rate was $2.75, there was nothing in the collective-bargaining contract that preclud- ed a higher rate and he knew that Adams had previous experience with the Company. Accordingly, he testified, he advised Adams to discuss the problem with Beckman. Adams answered that he would wait until he had received his second paycheck before talking with Beckman. On July 5, when Adams received his second paycheck, covering the week from June 25 through July 1, he saw that it was not computed at the $2.96 rate. He told Beckman that he had not been paid at the $2.96 rate, which he thought he was going to get; but since he did not have his earlier payslip with him, he and Beckman agreed to discuss the subject on Monday, July 9. As agreed, Adams and Beckman met on July 9; they went over Adams' slips and it was clear that he had been paid $2.75 per hour. According to Adams, he asked Beckman why he had not been paid at $2.96 and Beckman said there must have been a misunderstanding. Adams testified that Beckman also said that he didn't know whether the misunderstanding was his fault but employees were required to start at the $2.75 rate. Adams asked Beckman to check with the foreman to see whether he, Adams, wasn't earning the $2.96 rate and Beckman agreed to do so. Beckman's testimony confirms that of Adams in all major details concerning their discussion on July 9 except that he testified that he asked the foreman if there was any reason why Adams should have been started at the $2.96 rate instead of the customary starting rate of $2.75 and that the foreman said he knew of none. For the reasons hereafter stated, it is unnecessary to resolve this conflict. As Adams came out of Beckman's office he met Wyrebeck who asked how the discussion had gone; Adams told him and Wyrebeck advised Adams to cop kilt the union representative on his shift. Wyrebeck also offered to talk to Francis Bartolomeo, the president of the Union, and he told Adams that he "felt that it was in order that [Adams] should pursue a grievance." Bartolomeo testified that, on either July 9 or 10, Wyrebeck told him that Adams had a problem involving his starting rate; that Wyrebeck told him that Adams said he had been promised $2.96 but had received only $2.75; and that when he, Wyrebeck, inquired about it he was told .hat no employee starts at higher than the starting rate. Bartolomeo further testified that he knew, from personal contacts with employees, that both employees who had quit and come back, and newly hired employees, had started at rates higher than the usual starting rate. Accordingly, Bartolomeo testified, he met with Adams and Raymond Bishop, the union representative on Adams' shift, the same day or the next one, and he authorized Bishop "to initiate a grievance and to try to settle it." Bartolomeo instructed Bishop , if he could not settle the matter, to carry the grievance through step 2 and that he, Bartolomeo, would handle it at step 3. At the same time, Adams prepared and signed a grievance form for the Union's record. On Wednesday, July 11, Bishop and Adams went in to see Beckman. Bishop said they had a grievance over Adams' rate and that this was the second step. Beckman answered that Adams was receiving the starting rate, as would any new employee. Bishop replied that he had to pursue the grievance . Beckman then said that he was going to recommend that Adams' rate be raised to $2.96, retroactive to July 9, and he asked Adams whether he would still press his grievance for the first 2 weeks of his employment. Adams answered in the affirmative. Beckman testified that, after this interview and Adams' statement that he would pursue the grievance , he talked with Federick W. Trombley, the plant manager, and outlined the situation ; and that Trombley confirmed the fact that there was a problem and suggested that Beckman discuss with Frank Nash, the employee relations superin- tendent, the probable extent of union participation, but he indicated that, because Adams was still in his probationary period, the Union's participation would probably be minimal. Trombley confirmed Beckman's consultation with him as outlined. He added, however, that he told Beckman that, while his interpretation of the contract was that the Union had no right to pursue a grievance under these circumstances, there was nothing in the contract to prevent the individual involved from doing so, and it would be best to accept the Union's involvement and follow the prescribed grievance procedure. Beckman testified that on the following day, Monday, July 16, he again called Adams into his office; that he asked Adams what he hoped to gain from pursuing the "problem about his wage"; and that, when Adams answered that he wanted what he felt was due him, he, Beckman, replied that he thought that Adams and the Union were wasting their time in pursuing the matter. According to Beckman , Adams then said he would pursue the grievance alone, if necessary. It was at this time, and as a result of this exchange, Beckman testified, that he resolved to recommend Adams' discharge. He again consulted Trombley-without disclosing his decision to have Adams discharged-and Trombley said that, since Adams was a probationary employee, he could be disciplined or discharged without the use of the procedure required by the contract; and he added that discipline was rarely used. 5 Almost all of the employees are on either the day shift , 7 a.m. until 3 night The employees on the afternoon shift receive their paychecks for the p.m., or on the afternoon shift , 3 p in until I I p in. Adams was, at different preceding workweek at 3 p .m on Wednesday and the employees on the day times, on both shifts. The workweek is from Monday morning until Sunday shift receive their paychecks at 7 a.m. on Thursday 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Thursday, the 19th, Beckman recommended that Adams be discharged. He testified that he told Trombley that I felt this man had a severe attitudinal problem, that he did not respond the way I had thought to logical explanations of why he had gotten the rate that he did get. Also, the fact that he was continuing to pursue this [the grievance ] on an individual basis ... . Trombley's version of their conversation was as follows: On July 19th Mr. Beckman again came to my office and approached me and at this time he had a firm recommendation that we proceed with the discharge of Mr. Adams .... He noted that on several occasions Mr. Adams had been unreasonable, obtuse, uncoopera- tive and extremely presistent in pursuing a grievance, pursuing a concern that he had with regard to the starting rate. Trombley's answer, according to Beckman, was . wait a while and see if things change . . . see if there's any ... other things that you can think of to substantiate your recommendation for discharge. According to Trombley, his answer was: I pointed out to him that I did not believe that he had sufficient justification or sufficient reason for me to make a judgment decision to terminate Mr. Adams at that point. I suggested to him that he develop more data, both pro and con, in the Adams situation, discuss it with personnel, employee relations, and with the foreman, develop more information and return to me in a week or so with a firm recommendation. Despite the foregoing occurrences, Trombley had al- ready approved Beckman's recommendation that Adams' pay rate be raised to $2.96, retroactive to July 9. In the paycheck he received on July 25, Adams' pay was computed at the higher rate and the check included the sum necessary to make that rate retroactive to July 9. Shortly after he received this check, Adams testified, Beckman asked him whether he was satisfied with it; he answered that he was happy with it but, when Beckman asked whether he still intended to pursue his grievance, he said that he did. Wyrebeck testified that on July 23, to carry the Adams grievance to the third step, he arranged a meeting with Homer Harmon, the plant engineer, for Wednesday, the 25th, at 2:30 p.m. At 2 p.m., on Wednesday, however, in 6 The merits of the dispute underlying the grievance, namely, whether Adams was promised $2 96 as his starting rate, is not an issue to be decided herein (see Interboro Contractors, Inc, 157 NLRB 1295 at 1298, In. 7 and cases cited, enfd. 388 F.2d 495, 500 (C.A 2, 1967); Bob Henry Dodge, Inc, 203 NLRB No 1), although in view of Beckman's equivocation it cannot be preparation for the meeting with Harmon, he met with Beckman to obtain additional information. Beckman repeated his statement that he "could not recall either way having stated that George was going to get $2.96 an hour or not and there may have been a misunderstanding." Wyrebeck also testified that Beckman said he "had tried several times and was just not able to make George understand," but that he made no mention of the preparations he had made to fire Adams. After this discussion with Beckman, Wyrebeck testified, he called Harmon and told him that Beckman couldn't "recall either way" having promised that Adams would receive $2.96; that because he felt that the grievance meeting would be "inconclusive", he had decided to drop the grievance and would "talk with George and see if he could understand." He testified, however, that he did not tell Adams about his views or his cancellation of the grievance meeting until Saturday, the 28th, after Adams had been discharged. On Thursday, the 26th, Beckman returned to Trombley's office and, although he admitted that he had not found any other further basis for discharging Adams, he renewed his recommendation that Adams be discharged. He specifical- ly testified that his recommendation on the 26th was based upon the same factors as his recommendation on the 19th. Trombley told him that his own investigation had disclosed Adams' discharge by Borden for sleeping on the job but Beckman admitted that he had known about it because Adams had told him about it at the hiring interview and that he had hired him despite that information. Trombley testified, however, that on the basis of the three items : first, the persistence, the obtusiveness, the uncooperation and the pursuit of this misunderstanding, misinterpretation, on the starting wage ; and secondly, the inconsistencies, or inaccura- cies, or misrepresentations on the applications; and thirdly, the willingness to accept a position where sleeping on the job was not an unreasonable occur- rence, I made the decision to terminate , discharge, Mr. Adams. At 3 p.m. on the 27th, as Adams was about to begin work on the 3-11 p.m. shift, Beckman called him into the office and told him that he was a probationary employee, that during the 60-day probationary period the Company has an opportunity to observe the employee and determine whether he would make a desirable employee, that he, Adams, had been "causing a problem," and that he felt that it would be better if they separated. Adams asked whether he was being fired and Beckman answered that he was. At the same time, Harmon called Wyrebeck and told him that Adams was being discharged by Beckman for having a "poor attitude." At 5:30 that afternoon Bartolo- meo was first informed that Adams had been discharged and that the third-step grievance meeting had not been held. It is undisputed that, throughout the course of these events, everyone involved acted courteously and that there were no raised voices or harsh words. said that Adams' position was entirely without merit. Accordingly, it is ,unnecessary to consider the plant practice in fixing starting rates for recalled, rehired, or entirely new employees or the evidence concerning the actual starting rates of other rehired employees. E. I. DUPONT DE NEMOURS & CO. 773 III. DISCUSSION AND CONCLUSIONS As outlined above, there is no dispute concerning the facts relevant to the determination of the legal issue in this case, i.e., whether Adams was discharged because of his concerted or union activity in pursuing the wage rate grievance,6 as contended by the General Counsel, or for cause, as contended by Respondent. It appears, to me to be beyond question, and I find, that it was Adams' instigation of the grievance and his refusal to have the Union drop it that was the real cause of his discharge. The evidence shows that on July 16, when Adams said that if the Union dropped the grievance he would pursue it himself, Beckman made the firm decision to effect Adams' discharge and that he thereafter exerted constant pressure on Trombley to accomplish it. Moreover, Trombley testified that Adams' insistence on pressing the grievance was one of the principal reasons why he was discharged. The other reason given by Trombley, the inconsistency between Adams' statement, in his application of January, that he had quit Borden, and his statement on his June application that he had been fired, was not only rendered moot by Adams' express disclosure of the facts to Beckman, but it was, I find, a trivial concoction which made no substantial contribution to Adams' discharge.? The other discrepancies on some of the old documents in Adams' file were not mentioned by either Trombley or Beckman in connection with Adams' discharge and do not justify any discussion here. It is also beyond question that, although Adams' claim for the compensation he believed had been promised to him was the basis for the Union's grievance, the statements of Union President Bartolomeo when he authorized its prosecution show that the Union's interest was broader than Adams' claim and encompassed the general question of top limits on the rate of pay for returning employees. The only doubts expressed by Respondent concerning the grievance were related to the question whether Adams, as a probationary employee, had any right under the contract to have his problem made the basis for a grievance by the Union. The relevant provision of the contract,8 however, shows that Adams' claim for compensation was not one of those matters concerning which the Union was precluded from filing a grievance on behalf of a probationary employee. Moreover, Plant Manager Trombley, although it was he who expressed this doubt concerning the Union's right in general to prosecute a grievance for a probationary employee, nevertheless made the considered derision to accept and process the Union's grievance in accordance with the provisions of the contract. 7 This is not to say that Respondent could not discharge Adams for this, or any other reason, however trivial, so long as it was not illegal, but it is to say that this was not the reason 8 Art. X, sec. 2, of the contract provides that: . . During this probationary period of sixty (60) calendar days, a new employee will be subject to transfer, demotion, termination because of lack of work or discharge and such action shall not be considered the basis for a grievance by the UNION 9 Snap-On Tools Corporation, 207 NLRB No. 31, C & I Air Conditioning, Inc., 486 F.2d 977 (C.A. 9, 1973); and Northern Metal Company, 440 F.2d 881 (C.A. 3, 1971). 10 In view of the testimony of Bartolomeo, the Union's president, that he normally handlea grievances at the third step and that he asked Wyrebeck Unlike the factual situations in the cases cited by Respondent,9 therefore, this is not a case in which the activity in question is that of an individual employee and in which the cause involved is one which affects solely or mainly the rights or aims of that employee. On the contrary, although the matter was brought to the attention of the Union by Adams and he stood to benefit by a favorable resolution, the grievance was an authorized and formal grievance prosecuted by the Union through its officials and recognized as such by the Company.10 Although there is absolutely no evidence that Adams was guilty of any misconduct, Respondent's brief states that Adams was discharged "for cause." The only particulariza- tion of this contention is to be found in the statement that "the evidence is replete that Adams was discharged only because of his attitudinal problem as a probationary employee." Adams' "attitudinal problem," as shown above, was entirely confined to his efforts to assure the processing of the Union's grievance on his behalf and, since there is nothing in the Act which denies its protection to a probationary employee,il the reference to Adams' probationary status is irrelevant. Adams' effort, in conjunction with the union officials, to pursue the grievance concerning his wage rate constituted concerted activity and Respondent's action in discharging him for that effort was in violation of Section 8(a)(1) of the Act.12 Since the grievance was filed by the Union and Adams.' efforts were in aid of the Union's grievance, Respondent's action in discharging him also violated Section 8(a)(3) of the Act.13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States ana tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair to handle this one only because he was tied up in Boston in a Board matter, I cannot regard Wyrebeck's testimony that he "decided to drop the grievance" as a considered decision by the Union to abandon the matter. In reaching this conclusion , I also take into consideration the statements of Bartolomeo, when he authorized the filing of the grievance, concerning the pay rates of returning employees as showing that the Union 's interest in this matter was broader than the claim of Adams. Moreover , from Harmon's call to Wyrebeck on Friday afternoon , informing him that Adams was at that moment being discharged, it appears that the Company still regarded the grievance as a vital one . In any event, it cannot be said that concerted or union activity could lose its character in so casual a manner or that Adams' activity, protected to this point, could lose its statutory protection in this manner. Finally, the record is clear that Wyrebeck's action did not come to Adams' notice until after he had been discharged. ii Loose Leaf Metals Company, 181 NLRB 202, 206, in which a probationary employee was discharged for a "bad attitude" in seeking union aid to assert rights See also National Detective Bureau, Inc., 204 NLRB No. 7. 12 W Kelly Gregory, Inc., 207 NLRB No. 96. 13 North Shore Publishing Co., 206 NLRB No. 7. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices, I shall recommend that it cease and desist therefrom and take affirmative action designed to effectu- ate the purposes of the Act. Having found that Respondent, by discharging George R. Adams for engaging in activities protected by the Act and to discourage his membership in the Union, commit- ted unfair labor practices, I shall recommend that it offer him reinstatement to the position he held on July 27, 1973, or, if that position no longer exists, to a position substantially equivalent thereto, without loss of seniority or other rights and benefits, and that it make him whole for any loss of compensation he may have suffered, computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. At the trial, in connection with its motion for summary judgment, the General Counsel requested that "litigation expenses" be assessed against the Respondent. These motions were based upon the contention that, in view of Beckman's admission that Adams had been discharged for utilizing the grievance procedure, further defense by Respondent would be "frivolous." While it has been noted, above, that the facts herein preclude Respondent' s reliance on certain cases involving individual employee activity, its argument on the basis of those cases cannot be termed "frivolous." Accordingly, on the basis of the facts alone,14 I shall not recommend an assessment of litigation expenses. Upon the foregoing findings of fact and upon the entire record herein, I reach 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. At the time of the activities set forth in this Decision, Clifford T. Beckman and Frederick W. Trombley were supervisors of Respondent, within the meaning of Section 2(11) of the Act, and acted as its agents. 3. The Union is a labor organization within the meaning of Section 2(5) of the Act. 4. At the time of the activities set forth in this Decision, Francis Bartolomeo, Raymond Bishop, and William Wyrebeck were officials of the Union and acted as its agents. 5. By discharging George R. Adams for engaging in concerted activities for the purpose of mutual aid and protection, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act and committed an unfair labor practice within he meaning of Section 8(a)(1) of the Act. 14 While the Board, in Tudee Products, Inc., 194 NLR3 1234, held that it had authority to require a party to reimburse the Board for the expenses of litigation where a frivolous defense is interposed-and it did so in that case-this result was reached on the basis of a remand for that purpose from the Court of Appeals for the District of Columbia (426 F.2d 1243, cert. denied 400 U.S. 950). The Board, however, in its decision in Ex-Cell-O Corporation, 185 NLRB 107, which was decided after the court decision in the Tiidee Products case, stated its adherence, notwithstanding that decision, to its earlier policy of not granting compensatory relief to the union and the employees affected by a refusal to bargain. On the question of whether the granting of such relief should turn on the quality of an interposed defense as "frivolous" or "debatable," as suggested by the same court of appeals in United Steelworkers [Quality Rubber Manufacturing Company, Inc] v. G. By discharging George R. Adams for assisting the Union in the prosecution of its grievance concerning his wage rate, Respondent discriminated against him to discourage his membership in, and activities on behalf of, the Union and committed an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 7. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 Respondent, E. I. DuPont de Nemours & Co. (Doyle Works), Leominster, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any employee because he or she engaged in concerted activities for the purpose of mutual aid or protection. (b) Discriminating against any employee to discourage membership in Doyle Works Employees' Union, or any other labor organization, by discharge or otherwise, because he or she assisted such union in the presentation or prosecution of a grievance. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization , to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to George R. Adams immediate and full reinstatement to his former position or, if that position no longer exists, to a position substantially equivalent to that which he held immediately prior to July 27, 1973, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of wages in the manner set forth in the section of the Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records N.L.R.B., 430 F.2d 519, the Board held that such distinction would require a "subjective determination" and become , in itself, "a matter of intense litigation." It appears, on the basis of this rationale, that any asseccment of litigation costs would be contrary to Board policy . (See, on uiiis basic question, Federal Prescription Service et at., 203 NLRB No. 145, and Culinary Alliance & Bartenders Union, Local 703 v. N.L R.B., 488 F.2d 664, (C.A. 9, 1973).) 15 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. E. I. DUPONT DE NEMOURS & CO. 775 necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant at Leominster, Massachusetts, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith. 16 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED 'BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held at Leominster, Massachusetts, on October 16 and 17, 1973, in which we participated and had an opportunity to give evidence, resulted in a decision that, in discharging George R. Adams on July 27, 1973, we had committed unfair labor practices in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT discharge any of our employees because they engage in concerted activities for mutual aid or protection or because they assist Doyle Works Employees' Union, or any other labor organization, in the presentation or prosecution of a grievance. WE WILL offer George R. Adams immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his discharge. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organiza- tions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(aX3) of the Act. Dated By E. I. DUPONT DE NEMOURS & Co. (DOYLE Wow) (Employer) (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 compliance with its provisions may be directed to the Board's Office, Bulfinch Building, 7th Floor, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.