Sunbeam Corp.

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunbeam Corporation (Dumas Division) and Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Cases 26-CA-4765 and 26-CA-4835 June 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 30, 1974, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief. 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, with the following additions and modifica- tions. 1. Respondent asserts that the Administrative Law Judge's 8(a)(3) finding based on its discontin- uance of employee Bates' paid breakfast break on June 11, 1973, was defective because the Administra- tive Law Judge relied on his "findings heretofore set forth [establishing Bates] as an employee with whose statutory rights Respondent had unlawfully inter- fered," whereas scrutiny of the Administrative Law Judge's Decision does not disclose any such "find- ings heretofore set forth." Like Respondent, we cannot ascertain that the Administrative Law Judge has made such prior findings with respect to Bates. The only incidents mentioned by the Administrative Law Judge with regard to Bates, outside the context of his 8(a)(3) finding, were the May 9 warning given Bates by Supervisor Napier against talking too much to employees, found not to have violated Section 8(a)(1), and the May 3 remark by Plant Manager Ahlgrin to Bates deploring Bates' wearing of a union insignia, which is not set forth as an 8(a)(1) violation,2 nor was this incident alleged as such in the complaint. Taking note of the Administrative Law Judge's reliance on his nonexistent earlier findings, we nonetheless adopt his 8(a)(3) finding as to Bates based on the supporting findings which he i In the absence of exceptions, we adopt, pro forma, the Administrative Law Judge's dismissal of certain 8(a)(1) and (3) allegations of the complaint. 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 enumerates, which we hereinafter articulate more fully. Bates was known by Respondent to be a leader in the union campaign from his openly wearing a union insignia, his solicitation of union memberships in the plant, and his distributing union literature. Plant Manager Ahlgrin had exhibited Respondent's oppo- sition towards Bates activities by expressing his disapproval of Bates' wearing such insignia. The paid breakfast break had been extended to Bates by his supervisor (Napier) some 3 years previously, and Bates had exercised such privilege with Respondent's knowledge and without its objection. It was not until Ahlgrin pressured Napier to discontinue this privi- lege that this was done. It is clear from the foregoing that Ahlgrin's pressure resulted from his union animus as exhibited earlier, at a time when the Union's organizational campaign seemed to be making some headway. As the motivation for discontinuance of Bates' privilege was to discourage union activities of employees, such action was discriminatory and thus violative of Section 8(a)(3) and (1), and we so find. 2. Contrary to the Administrative Law Judge, we find that the preponderance of the record evidence supports the General Counsel's allegation that Respondent's transfer of employee Harrell, on June 7, was made to interfere with and discourage union activities of its employees, and thus violated Section 8(a)(3) and (1). In our view, the transfer from the plant area where Harrell had worked, to the warehouse which was located at some distance, was clearly intended to and did, in fact, diminish Harrell's opportunities as a leading union adherent to contact other employees in order to solicit their union support. That this was at least partial motiva- tion for the transfer is evident from the fact that on May 9, 1973, Supervisor Everett had warned Harrell to stay away from the Union and to "keep his nose clean," and only 5 days before the transfer, Ahlgrin had expressed his concern to employee Hare that Harrell "was working for the Union and was trying to get something going in the plant." We rely also on Hare's uncontradicted testimony, not adverted to by the Administrative Law Judge, that a few days after the transfer, Everett told Hare that the reason for Harrell's transfer was because Everett had all he could stand of a union and it was in the best interest of the Company. The Administrative Law Judge did not discredit Hare in any respect and no other reason appears for not accepting this testimony. In the credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 No exception is taken to the failure to find a violation by this conduct. 211 NLRB No. 75 SUNBEAM CORP. 677 context of other 8(a)(1) and (3) conduct which we are finding, we construe Everett's remark as conveying Respondent's belief that it was not in the Company's interest to have a union, and its willingness to commit unfair labor practices to accomplish this objective. At any rate Everett's admission that one of the reasons for Harrell's transfer was because of Everett's union animus is sufficient to support the finding that Harrell's talking was a pretext and his transfer was an 8(a)(3) and (1) violation, and we so find.3 3. We do not adopt the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) by Ahlgrin's comment to employee Hare on June 2, 1973, that Ahlgrin was told by some of the girls working on the line that Harrell was attending union meetings, and talking with them about the Union. Harr ell's activities, which consisted of openly wearing union buttons on his work attire and attending meetings since the Union's organizational drive began a month before, were overt and well known throughout the plant. Ahlgrin's disclosure to Hare of information of this sort about Harrell, and saying that the information came from some of the girls on the line, without more, did not suggest that Respondent had engaged in spying on Harrell's union activities. We find that Ahlgrin's comments, under the circumstances, were not reasonably de- signed to give the impression that Ahlgrin was engaged in surveillance. Bryant Chucking Grinder Company, 160 NLRB 1526, 1546-47 (Massy) .4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Sunbeam Corporation (Dumas Division), Dumas, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees with respect to their union membership, interests, or activities or those of their fellow employees. (b) Promising its employees sick and bereavement 7 The Chairman, unlike his colleagues, would adopt the Administrative Law Judge's explicit finding that Respondent was justified in transferring Harrell to prevent him from continuing to violate Respondent's admittedly valid and impartially applied no-solicitation rule. In the Chairman's view, the record is replete with instances of Harrell's violations of that rule, and his transfer was a reasonable and temperate exercise of Respondent's right to enforce that rule, even though it may have had some animus with respect to Harrell's union activity generally. There is no evidence of disparate application of this rule, and the Chairman is of the view that it is of dubious propriety for his colleagues to ignore all of the record evidence carefully considered by the Administrative Law Judge and to find an 8(a)(3) violation based substantially on one piece of testimony which the Administrative Law Judge apparently failed to refer to and which , for all we know , he might well have discredited. pay benefits in a context of soliciting opposition to the Union. (c) Interfering with employees' access to Board processes by threatening employees with reprisals for filing unfair labor practices charges. (d) Making threats that it would close the plant or move elsewhere, withdraw certain benefits from its employees, or insist on bargaining from a minimum wage base if the employees selected the Union as their bargaining representative. (e) Engaging in the surveillance of its employees' union activities, soliciting employees to engage in such surveillance, and creating the impression among the employees that they are under such surveillance. (f) Discouraging membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, or any other labor organization, by withdrawing privileges customarily enjoyed by em- ployees and by transferring employees to different jobs. (g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Reinstate the permission to Lamar Bates to absent himself from the plant on early Monday mornings for the period of a half hour for the purpose of procuring breakfast and Sylvester Harrell to his former job or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Post at its Dumas, Arkansas, plant copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respon- dent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in 4 We agree with the Administrative Law Judge's finding that Supervisor Hurst's threat to take reprisals against employee Knight because Knight had filed charges with the Board was violative of Sec. 8(a)(1) because this constituted interference with employees' freedom to avail themselves of Board processes. However, we do not adopt his finding that such conduct constituted discrimination within the meaning of Sec. 8(a)(4). At most, this amounted merely to a threat to discriminate ; no action was taken against Knight. 5 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." 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing, within 20 days from the date of this Order, SUNBEAM CORPORATION what steps the Respondent has taken to comply (DUMAS DIVISION) herewith. (Employer) IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations which have not been found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate our employees concerning their union membership, interests, or activities or those of their fellow employees. WE WILL NOT promise our employees that we will give them sick and bereavement pay if they oppose the Union. WE WILL NOT threaten to close or move our plant, to withhold benefits, or to insist on bargaining from minimum wage rates if the Union is selected by our employees. WE WILL NOT engage in the surveillance of our employees' union activities , solicit others to do so in our behalf, or give the impression to employees that they are under surveillance. WE WILL NOT interfere with employees' access to Board processes by threatening them with reprisals for filing unfair labor practice charges. WE WILL NOT discourage membership in the Union, International Union of Electrical, Radio and Machine Workers , AFL-CIO-CLC, or any other labor organization, by withdrawing privi- leges customarily engaged in by employees or by transferring employees to different jobs. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by the National Labor Relations Act. WE WILL reinstitute permission to Lamar Bates to absent himself from the plant on early Monday mornings for the period of a half hour for the purpose of procuring breakfast and Sylvester Harrell to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. All of you, our employees, are free to remain, withdraw from membership in, or become or refrain from becoming members of International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, or any other labor organization. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law Judge: Upon charges and amendments thereto filed on June 8, August 22, and July 13 and September 10 and 28, 1973, respectively, by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, against Sunbeam Corporation (Dumas Division), Respondent herein, the Regional Director for Region 26 of the National Labor Relations Board, herein called the Board , issued a complaint on behalf of the General Counsel of the Board on October 4, 1973, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C., § 151, et seq. ), herein called the Act. In its duly filed answer Respondent, while admitting certain allega- tions of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Pine Bluff, Arkansas, whereat all parties were present, repre- sented by counsel, and afforded full opportunity to call and cross-examine witnesses, to present oral argument, and file briefs. Briefs were filed by counsel for the Respondent and the General Counsel on December 5, 1973. Upon consideration of the entire record, including the briefs filed with me, and specifically upon consideration of the testimony of each witness appearing before me, as well as a consideration of his or her demeanor,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation doing business in the State of Arkansas with an office and factory located at Dumas, Arkansas, where it is engaged in the manufacture of electrical appliances. During the past 12 months, in the course and conduct of its business operations, Respondent purchased and received at its Dumas, Arkansas, location products valued in excess of $50,000 from points located I Bishop and Malco, Inc, 159 NLRB 1159,116 1. SUNBEAM CORP. 679 outside the State of Arkansas , and during the same period it sold and shipped from its Dumas , Arkansas, location products valued in excess of $50,000 directly to points located outside the State of Arkansas. Upon the foregoing admitted facts I conclude and find Respondent to be an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I accordingly conclude and find International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, to be a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Commencing in early April 1973 interest in self-orgam- zation was generated among Respondent's employees. This resulted largely through the efforts of the Union's business representative, George Clark, Sr., assisted by a number of employees who were designated as members of an organizing committee. Among the employees actively participating in the efforts of this group were Lamar Bates, Verlene Hare, Sylvester Harrell, Jake Knight, and Glyn Overton. These, with the admitted full knowledge of the Respondent's officials and supervisors, distributed leaflets, wore prominently displayed insignia, solicited employees to join the Union, and publicized up-coming union meetings. 1. Interference, restraint, and coercion As this activity developed Respondent's officials and supervisors initiated counteraction consistent with its stated opposition to the Union and to the organizing of the employees 2 that is alleged in the Complaint to constitute interference, restraint and coercion with the employees and their efforts to organize. Employee Sylvester Harrell appears to have been the first to have engaged in conversation about the Union with any of the supervisors. Thus on May 9, a week after he had begun wearing a union pocket pencil clip and after two organizing meetings had been held, Harrell initiated a conversation with Foreman Jimmy Everett asking him if the supervisors had discussed the Union in their meeting. Replying that they did Everett continued to tell Harrell that he should stay away from the Union, that they (unions) were no good, that he should try to keep his nose clean. He then told Harrell that he had stuck his neck out to get Harrell the job he had and he would hate to see him mess it up.3 About the same time Employee Lamar Bates, one of the organizing committee wearing a union insignia, was sought 2 Plant Manager Peter Ahlgrim testified that employees, including those about to be hired, have been informed by him and other officials of the Company that it is opposed to the Union and does not want it at Sunbeam. This fact is confirmed by the testimony of Personnel Manager Diane Daniels and stated as Company policy in a folio of instructions presently distributed to newly hired employees. 3 The credited testimony of Harrell . Everett testified that he had had such a conversation in which he voiced his opposition to the Union. No out by Supervisor Larry Napier and told by him that he was spending too much time talking to one of the employees and that he was thus impeding that employee from making production. Napier, when called to testify, confirmed the contents of this conversation, explaining that he had received a complaint from Supervisor Clarence Hurst that Bates was spending an excessive amount of time talking to his employees and he thereupon warned Bates. Hurst confirmed this, testifying that an employee in his section, naming her, when chided for poor production told him that it was being caused by interruptions from Bates. Whereupon Hurst reported the matter to Bates' supervisor, Napier, who then gave Bates the warning complained of. Significantly, Napier testified that he had first learned that Bates was indulging in excessive talking sometime in April, a month before he was spoken to. In fact, Napier stated, "this had been going on for a good while." About a month later, beginning on June 2, Respondent's opposition to the Union intensified. Thus, on or about that date Plant Manager Ahlgrim sought out Employee Verlene Hare at her workplace and engaged her in a conversation concerning the benefits that would be available to employees without the assistance of the Union. Employee Hare enumerated the benefits which they were not then receiving, such as sick pay and bereavement pay. In reply Ahlgrim assured her that a union would not be necessary to get these and she should tell the other employees that the Company was already working on a plan to institute them.4 During this same conversation Hare and Ahlgrim discussed Employee Sylvester Harrell and his interest in the Union. It appears that at a recent company-employee conference Harrell had asked Ahlgrim "Why there were no blacks as foremen." Ahlgrim was reported to have replied that none were qualified. In the conversation with Hare Ahlgrim denied making such a statement and then asked her what had motivated Harrell's question. When Hare suggested it was curiosity Ahlgrim volunteered that he had to ask the question because he "was working for the Union and that he was trying to get something going in the plant." This he knew, he stated, because he had been told by some of the girls working on the line that Harrell had been attending union meetings and talking about the Union with them .5 Later in June, on or about the 22, Employee Hare went to the office of Personnel Manager Diane Daniel to complain about a faulty restroom door. In the course of the conversation which followed Mrs. Daniel asked Employee Hare if she had seen a recently distributed union handbill in which the relative sizes of the office and plant restrooms were criticized, the latter being compared to a privy. Hare then asked Daniels "how she thought the Union was getting along in the plant." Daniel replied that she had no way of knowing but that she hoped that it was not coming mention was made, however, of the caution not to "mess up." 4 Ahlgrim recalled the conversation and described it a rambling one, but he did not recall saying anything about sick and bereavement pay and denied having told Hare that the employees did not need a union to get it. I find Hare to be a credible witness and do not credit Ahlgrim's denial of testimony attributed to him by her. 5 The credited testimony of Employee Hare which Ahlgrim substantially admits. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD along well because if it got into the plant the plant might close and that would put all of them out of jobs and cause much personal suffering among the employees .6 Several days earlier, on June 19, a similar suggestion of plant closure had been made to Employee William Smith by Foreman Leon Chapman. Thus, according to Smith's credited account, Chapman stated to him and to other employees present that if the Union got in the plant would probably close down or move, and that if this occurred Chapman's newly purchased home could not be paid for.7 About the same time Employee Gene Love engaged in conversations with both Foreman Don Nuckols and Jimmy Everett. In the first one, with Nuckols, he pointed to the union button Love was wearing and asked him why he was wearing it. To which Love replied that it was because he was for the Union. Later in the day Everett approached Love near the assembly line and told him he thought he was against the Union. Love replied that he had some doubts but these have been resolved in the Union's favor. Everett then asked him if this was a result of the union meeting he had attended the night before. Everett then went on to question Love as to what was wrong with the Company, suggesting that if he had any complaints he should bring them to him, and not get involved with the Union. Everett also asked Love what he planned to do and how he would manage if the Union called a strike.8 By late June, it is clear, the Union's campaign was in full bloom. Periodic meetings were being held and Respon- dent's supervisors were countering the Union's efforts in the various ways heretofore described. The events sur- rounding one of the meetings generated considerable attention and significance. This one was held on the evening of July 5, in a meeting room at the Delta Lodge, the only motel in Dumas, Arkansas. Testimony on this subject was ample; so much so, in fact, I saw fit to expedite the hearing by making a finding on the record. On the basis of all of the testimony I found that Supervisor Don Nuckols was present on the Delta Lodge premises on July 5, at the time the union meeting was in progress, that he observed the breaking up of the union meeting which he knew to be such, and that he recognized certain individuals in attendance , as he so testified at the hearing. All that appears to have been in dispute was Nuckols' motive and intent in being present at that particular time. Nuckols credibly explained at the trial that he appeared at the motel by prearrangement to meet a friend staying there, with the intention of going on elsewhere with him. He was seen on the premises by any number of employees, and others, and he admittedly saw them, and he knew them to be union members attending a union meeting. Other facts also emerged. The Delta Lodge is the only 6 The credited testimony of Employee Hare. Mrs. Daniels corroborated her testimony as to the conversation, excepting only the statement concerning the closing of the plant. This she did not "remember" having said ; to her "recollection" she said nothing like that . I do not credit this half-hearted denial. I I do not credit Foreman Chapman's denial that this conversation took place. R The credited testimony of Employee Love. Everett's testimony substantially agrees with it except that he does not recall anything being said about strikes. Nuckols did not testify respecting the conversation attributed to him by Love. Two other conversations with supervisors at this time , one involving motel in town, and maintains the town's only restaurant. Here all the business people have lunch and have their coffeebreaks, and many of them, including a number testifying, frequent the restaurant weekly for dinner. The union meeting was one of the weekly ones widely publicized throughout the plant, some of the more active members wearing placards announcing the time and place. In essence therefore, Nuckols, in the usual course of his affairs, happened upon something that was common knowledge, and I so conclude and find. The complaint alleges as follows: Respondent, by its supervisors and agent, Don Nuck- ols, on or about July 5, 1973, kept under surveillance the meeting place of the Union at the Delta Lodge in Dumas, Arkansas, and observed the employees in attendance at the meeting. Upon all of the foregoing findings I am satisfied that Nuckols was not motivated in either keeping a meeting under surveillance or observing who was there, particularly since it was common knowledge in the first place. And, parenthetically, it might be noted that in assessing this incident its significance is farfetched. Even counsel for the Respondent, by his own admission, could have been charged with the same sort of surveillance, his assigned motel room when in Dumas being located only several doors away from the meeting room in question. On the contrary, I know of no rule that proscribes company supervisors and officials from frequenting public places lest they be accused of surveillance; nor am I aware of a rule that makes their presence unlawful surveillance, per se. Although there appears to have been no evidence of unlawful surveillance at the Delta Lodge, other incidents in early and mid-August do suggest efforts of that nature. On August 6 Employee Jake Knight, who was doing mainte- nance work in the vicinity of Employee Overton's workplace, observed that when Mrs. Overton left her place to go to the restroom her supervisor, Dean Shields, immediately went to where Employee Peacock was working, tapped her on the shoulder, and pointed in the direction of employee Overton who was then approaching the restroom. Employee Peacock immediately followed her into the restroom.9 Knight shortly thereafter told Mrs. Overton she was being followed, and this, according to her credited version of the incident, confirmed her own suspicions of being spied upon. On the same day, she further testified, Supervisor Shields came to Overton's workstation and accused her of going around and talking Union and harassing the employees when she was being paid to work. When Mrs. Overton protested that she was Employee Jake Knight and the other employee Glyn Overton, were submitted as evidence of unlawful interrogation . Knight was party to a conversation with Supervisor Dean Shields who made disparaging remarks about unions in general and the Meatcutters Union in particular, and concluded by saying "What do you think of that?" I put this statement in the same rhetorical category as the expression, "How about that? " Similarly, Overton was wearing a union placard on her shoulder, announcing the time of the union meeting. Shields asked her, "What is that you are wearing there?" In such a context I consider Shields' remarks too innocuous to constitute anything but a poor effort at ridicule, and nothing else. 9 The credited testimony of Employee Knight. SUNBEAM CORP. not doing what Shields had accused her of he replied, "Well, I know I have a lot of sleepers in here, that I don't know who are for the- Union and who are against it, but one thing I do know is that you are for it because you wear the button, organizing button." 10 - Employee Sylvester Harrell, as will be evident hereafter, was the most active of Respondent's employees in behalf of the Union and a synthesis of all the testimony in the record would support a conclusion that he was constantly talking to people about the Union on his own, and frequently on their working time, and was frequently reprimanded for it. In addition, it is clear that he had frequent conversations about the Union with the supervi- sory personnel, sometimes on his own initiative, other times on theirs. In the course of his union agitation it appears that he frequently permitted his enthusiasm to run away with itself. Thus, on at least one occasion he came to work wearing various union insignia on all parts of his wearing apparel, front, back, pant legs, sleeve, and shoulders, and he even pasted a union sticker on his forehead; all this by his own admission. When Harrell was so adorned on July 18, Supervisor Nucklos came up to him and in the presence of several employees told Harrell that, decorated as he was, he "looked like a G- d- clown." 11 Harrell's description of himself covered with union propaganda stickers certainly depicted a departure from the orthodox, even for a heated campaign. Accordingly, I fail to understand why fair comment on his bizzare appearance would constitute, in and of itself, harassment or derision. This is not a situation where a reference to the Union was introduced into an incident and thus gave the incident an antiunion flavor. Here, to be sure, the man was covered with something more than mere buttons. They were union buttons. But if he looked like a clown it was quite obvious it was not so much for what was written on the buttons, as for the way he looked. I accordingly recommend the dismissal of so much of the complaint as alleges comment on Harrell's appearance to be unlawful. Later on the same day Harrell had another conversation with Nuckols. On this occasion Nuckols came to him and asked him what he was going to do if the Union did not get in. To which Harrell replied, "I still plan to work." He then asked Harrell if the Union were having a meeting on that evening and at what time.12 Later, on August 20, Harrell was having another one of his many conversations with supervisors. Present this time were General Foreman Everett and Supervisors Nuckols and Thurman, and a number of employees. As the conversation progressed Supervisor Don Nuckols asked Harrell, "What can the Union get me?" to which Harrell replied, "better benefits." Whereupon Supervisor Thurman contributed to this discussion by saying that, if the Union got in, negotiations for everyone would start at $1.50 per hour. Harrell disagreed, insisting that bargaining would IU Following the incident involving Peacock's surveillance of Overton in the restroom on August 6, a number of employees , including Knight and Overton, were discussing the incident on their coffee break In the course of this conversation employee Knight quoted an employee, Outzs, as saying that Supervisor Sherwood Blount `had come to her asking her to spy on Overton as had Peacock. As Employee Outzs was never called as a witness I am not disposed to accept this hearsay report of Blount's activity as 681 began at the present pay level. Thurman continued to maintain this point of view vigorously. Opposition to the Union appears also to have been generated among many of the employees. This opposition was manifest by the wearing of small signs and buttons with the inscription "No Union." Plant Manager Ahlgrim and Superintendent Delano Butcher vigorously disavowed any responsibility on Respondent's part for this activity, however, citing the action taken with respect to one of the employees whom witnesses testifying at the trial had singled out for her union activities-Elsie Tong.13 Superin- tendent Butcher credibly described the reprimand he gave to Employee Tong on June 27 for passing out anti-union literature during working hours and produced for the record a copy of a file memoranda reflecting this action. I am accordingly satisfied that Respondent, contrary to the allegation of the complaint, did not disparately enforce its distribution rules. In addition to the Tong incident there is credible testimony that other employees actively supported a "no- union" movement. Although employee Overton credibly testified that on several different occasions Supervisors Nuckols, Shields, or Blount were standing nearby when such distribution of no-union material was taking place, I find nothing in the record to support the allegation that this was otherwise approved by Respondent. I do find, however, as stated above, that on the one occasion referred to by employee Overton-the Tong incident-Superinten- dent Butcher did take appropriate remedial action. Accordingly, I have not been persuaded by the overall evidence, considering the constant barrage of distribution and conversation in favor of the Union, that Respondent gave either tacit or direct approval to the no-union activity. Finally there are several episodes involving employee Jake Knight prior to his assignment to other duties, to be considered hereafter (infra ). As will be discussed in greater detail later, Knight's alleged reassignment to other duties resulted in the filing of a charge respecting an allegation in this complaint, subsequently issued, stating as follows: 23. Respondent, on or about June 22, 1973, assigned its Employee Jake Knight more arduous work. On July 24, Knight was approached by Supervisor Clarence Hurst who told him he had better stop talking about the Union to employees on company time. He said he had seen the charges that had been filed against the Company and they included Knight's name as among those being discriminated against, as well as the names of Harrell and Bates. Hurst told employee Knight that for all of Knight's union activity he (Hurst) had reason to file charges against him, as well. To quote Hurst directly, according to Knight, "If you don't stop talking union shop probative evidence and would recommend the dismissal of so much of the complaint as alleged Blount's August 6 conduct as a violation of the Act 11 Nuckols' account of the incident substantially agrees with Harrell's excepting only that he demed the vulgarity attributed to him 12 Nuckols did not testify with respect to this question attributed to him. 13 Employee Glyn Overton credibly described Employee Tong's distri- bution of no-union buttons and placards. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to these people on Company time I'll file charges against you." 14 Shortly thereafter, on or about August 7, Knight was engaged in a road-sweeping assignment together with two other members of the maintenance department in anticipa- tion of an expected visit of out-of-town officials. The work detail was under the working supervision of Supervisor Richard Fleming. The incident, it is to be noted, occurred sometime after -the charge had been filed against Respon- dent alleging that Knight had been assigned to "arduous labor," supra. When some of the employees working inside the plant looked out of the window and observed the sweeping detail at work they observed that of the four individuals involved Supervisor Fleming and two employ- ees were busy at their sweeping, and the third employee, Jake Knight, was simply standing by. This intrigued the employees and in a short time everyone was at the window observing Knight, still in a position of nonwork . Whereup- on an unidentified employee took a photograph of the scene, and inscribed the word "arduous labor" at the top of the picture, with an arrow pointing at Knight. It was then brought to the desk of Personnel Manager Daniel . Word of the picture spread throughout the plant and numerous employees came by to see it. By then so much interest had developed over the picture that Mrs . Daniel, finding the situation amusing, posted it on the cafeteria bulletin board where it remained for several days. 2. Conclusions Enumerated above in substantially chronological order are a series of incidents relating to those of Respondent's employees most active in the Union's effort to organize its employees. It is claimed by counsel for the General Counsel that these incidents, viewed against a backdrop of Respondent's admitted antipathy to the Union, manifest interference with, and restraint and coercion of, the employees in their rights to self-organization. A summary of these findings hardly seems necessary at this juncture. But a reading of them discloses a variety of categories which the Board and the courts have traditional- ly found to violate Section 8(a)(1) of the Act. Thus between April and August numerous employees were questioned by supervisors, in some cases as part of a general conversa- tion, in others by direct confrontation; frequently on a minor point, other times on elements of union activity not at all minor. Regardless of this variety, one common factor emerges. Respondent, admittedly opposed to the unioniza- tion of its employees, has thus constantly intruded itself into the affairs of its individual employees by the action of its supervisors, in an area in which it has no business; namely, their union sentiments and activities and those of their associates . Citation of authority is unnecessary to establish such instances of interrogation as employee interference, restraint, and coercion in violation of Section 8(a)(1) of the Act and I so conclude and find. Recounted earlier are conversations with the Respon- dent's supervisory employees, Gill, Daniel, Everett, Chap- man, and Thurman, wherein reference was made dire consequences to the employees , or to themselves personal- ly, should the Union get into the plant. These included such things as possible plant closing, loss of benefits, and commencement of wage negotiations from the minimum allowable wage. It goes without saying that such statements by supervisors, even though they be solicited by employees, and however casual or friendly they may be, carry with them the weight of authority and suggest employer thinking on the subject. This has always been held to have undue influence upon employees and as such constitutes unlawful interference, restraint, and coercion. I according- ly conclude and find the statements of supervisors which constitute threats of unfavorable consequences if the Union is selected by the employees to be further violations of Section 8(aXl). The same applies to alleged promises of benefit. Thus it has been found that Plant Manager Ahlgrim in the course of an extended and rambling general conversation, told employee Hare that the sick and bereavement pay which she insisted that was needed would be forthcoming and that a Union would not be necessary to get it. It goes without saying that a plant manager's assurance that fringe pay benefits will be granted without union intercession would certainly convince the employees that the Union that they were seeking was actually not necessary. This is the sort of interference consistently proscribed by Board and courts and I conclude and find it to be a further violation of Section 8(aXl). Throughout the findings I have made there runs a thread of curiosity on Respondent's part that is inconsistent with the employees' rights guaranteed by Section 7 of the Act. Thus, on three distinct occasions, Respondent's representa- tives sought to give, if they did not actually give, the impression that a given employee's activities had been found out. Thus, Plant Manager Ahlgrim told employee Hare of things he had learned about Sylvester Harrell's union activities ; Supervisor Everett pointedly asked em- ployee Love questions concerning the union meeting "he had attended the night before"; and Supervisor Chapman told Sylvester Harrell that it had been reported to him that he had been talking union to the employees. In addition, is the effort to enlist spying activity manifest when Employee Peacock was "tapped" to follow Employee Overton to the restroom. All of the foregoing amply support the allegations in the complaint directed to Respondent's solicitation of an employee to surveil the employees union activities and the impressions it gave to other employees that surveillance was being carried on. This is a well-recognized form of employee interference, restraint, and coercion and I conclude and find that it further violates Section 8(a)(l).15 One other incident noted in my findings merits com- ment, the conversation between Supervisor Hurst and employee Jake Knight where Knight's part in the filing of charges against Respondent with the Board prompted 14 Hurst's account of the conversation was substantially the same but 15 In such findings and conclusions relating to surveillances as I have related Knight's union activity to a recently reported solicitation of an made I do not include Nuckols' alleged surveillance at the Delta Lodge nor employee, Hill, to him. Thus, "You have an unfair labor practice against us the hearsay evidence to the effect that Supervisor Blount solicited an saying we broke the law . . . now you know that you are breaking it if you employee to surveil. try to sign him [Hill I up during working hours." SUNBEAM CORP. 683 Hurst to threaten Knight that he would, or should, file charges against him. This is clearly an effort at reprisal directed at Knight for whatever part he had in taking action before the Board against Respondent, here in the form of the filed charge. As this conduct clearly constitutes threatened action "against an employee because he has filed charges with the Board" I conclude and find that it not only interferes with, restrains, and coerces the employee in violation of Section 8(a)(1) but is discrimina- tion in violation of Section 8(a)(4), as well. In addition to the foregoing there are other incidents set forth in my findings in which it has not, in my judgement, been established that there is unlawful interference, restraint, or coercion. Specifically, I reject the contention that warning employee Lamar Bates not to talk to a stated employee was a violation. The record abounds in testimo- ny of solicitation of employees by other employees all over the plant during working hours, and of Respondent's efforts to control it. This incident I view to be such an effort and I consider it permissible. Nor am I persuaded that Respondent's efforts at enforcing its solicitation rule was disparately applied. No evidence has been advanced to show Respondent's support of the employees' no-union campaign and, on the positive side, a reprimand was given in the only specific incident mentioned in the record. Finally I am not persuaded that the published photo of employee Jake Knight in the company of his working foreman and two associates nor the reference to employee Sylvester Harrell as a clown when decorated with union insignia constituted in either case a deprivation of their respective statutory rights. It is quite conceivable that each may have been embarassed, but I would suggest that in each case the source of their embarassment was of their own doing. In summary, accordingly, I would recommend the dismissal of the complaint, insofar as it alleges the foregoing incidents to constitute violations of Act. B. Respondent's Discrimination 1. Sylvester Harrell Heretofore Sylvester Harrell's activities have been set forth in considerable detail. Specifically, he was the leader among the employees supporting the Union and spent much of his spare time in soliciting among the employees and distributing union literature. Nor can it be said that his efforts in behalf of the Union were restricted to his and respective listener's nonworking time. Indeed, the nature of Harrell's job, a trucker or supplier to employees on the assembly line, was such as would bring him in continuing contact with the employees on the line as well as in the supply areas and other production areas from which he would transport materials to the line which he served. Nothing in Harrell's testimony or elsewhere suggests him to be the epitome of silence. On the contrary the record is replete with evidence that Harrell was the living model of Tennyson's brook during everyone's working time, includ- ing his own. In his own testimony Harrell conceded that he frequently talked to employees on the assembly line and that he was reprimanded for it. But I do not accept as credible, however, Harrell's qualification that not only was this conversation on his breaktime, after he had wandered back to the line, but on the breaktime of the line employees as well. In summary, I conclude and find upon all of the evidence, and particularly upon the testimony of each of Respondent's supervisors who testified from first-hand observation, that Sylvester Harrell was continually en- gaged in talking with employees during his and/or their working time from at least April 1973. On June 7, 1973, Harrell was transferred from his job as trucker in the production area, to an assignment in the warehouse, located some distance from the plant. At this new location Harrell did not, he testified, have the same opportunities to visit with his fellow employees, but he did travel back and forth between warehouse and plant in the handling of supplies, and on his lunch breaks he likewise visited in the plant. . I According to Foreman Everett and to Plant Manager Ahlgrim, who made the final decision, Harrell's transfer was the culmination of a series of events. It was found that he had been neglecting his work by failing to keep the aisle at the assembly line clear of skids, by not keeping the floor in the area clean, and by not cleaning up the conveyor belt. And on one occasion close to the time of his transfer he failed to clean an electric motor at the line, after having been instructed to do so. All of this, according to Everett and Ahlgrim, was in addition to Harrell's predisposition towards conversation with the employees. In support of its assigned reasons for transferring Harrell Respondent introduced into the record memoranda prepared and filed on various dates prior to his transfer and signed by Supervisors Everett, Nuckols, and Blount, corroborating the conditions which they had cited in support of the transfer. After reasonable evaluation of all the testimony relating to Harrell's activities, including his own testimony, it certainly cannot be denied that he was behaving in the nature of a gadfly and was a source of confusion in the production area. I am aware of nothing that requires an employer to tolerate such interference with the orderly operation of his plant simply because the individual involved is a union leader or the subject matter of the interruptions happens to be the Union. In other words, Harrell had no special immunity. That is not to say that Harrell's transfer could not have been effected specifically to counter the Union. But although Respondent was admittedly opposed to the Union this conclusion does not necessarily follow. Until the beginning of the Union's campaign Harrell was shown to have been a well-oriented employee with potential for improvement. Thus it cannot be said that his conversational habits had been previously condoned. They were not. In fact, as soon as his activities began to interrupt the work of others he was promptly spoken to, as was Respondent's right. Accordingly, I am persuaded that Respondent took the only course open to it, transferring Harrell to a location where he would least disturb the plant operations by his talking, be it union or baseball. In a word, I conclude and find that as Harrell was transferred, at no loss of pay incidentally, for interfering with employees, among the other things noted above, and as the subject matter, union talk, has not been shown to have been the specific determinate of Respondent's 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision, no discrimination has been visited upon him. As I have thereby concluded that Sylvester Harrell was trans- ferred for due cause shown on the record I will recommend that the complaint be dismissed as to him. talk to him and instruct him not to bother other people while they were working. 2. Jake Knight Employee Jake Knight was a journeyman electrician assigned to the maintenance department and active in the organization of the Union, as previously described. Included among his duties was the repair of machinery throughout the plant, frequently necessitating that he consult with the operator-employees.16 It was this talking with employees that generated the difficulties in which Knight ultimately found himself. Knight admitted that he had frequently talked with employees, and that he had been spoken to about it by supervisors. Thus he described a reprimand by Supervisor Fleming and the explanation he (Knight) gave Fleming-that he was talking to the employees about the problems involved in the machinery he was fixing. But, Knight insisted, when he spoke to employees in such situations it was "no more than necessary to do my job," and he never stood around and talked to them. I do not credit this limitation which Knight places upon his conversations. His own testimony contra- dicts him. Thus, for example, he stated that while installing some burnishing valves he was talking to the operator-"I was talking about his going back to school, going to college." At this point in his testimony he was denying that he was talking about the Union. Indeed it is almost inconceivable that an employee as loquacious as Knight appeared to me to be could be constantly in the presence of other employees and fail to converse with them on something other than the immediate job at hand. I accordingly conclude and find, contrary to Knight's denials, that during the period prior to June 22 he frequently engaged employees in conversations and stood by as he talked with them, as reported by Supervisor Hurst to Superintendent Butcher, and as observed by Butcher independently. On June 22 Employee Knight was assigned to the roof of the plant to scrape paint from an air-conditioning unit and to otherwise prepare it for repainting. I have credited the testimony of Superintendent Delano Butcher, whose version of this incident follows: A. I had received complaints about Jake not working, that he was standing around talking to employees while they were working, bothering them, and couldn't we do something about it. a s s s s Q. From whom did you receive these reports? A. Mr. Dean Shields, Clarence Hurst, I believe Jimmy Everett, and after I had received several complaints, I went to Richard Fleming and I told him he was to put Jake to work, that he was to put in eight hours a day like everyone else, and would he please go Q. You had actual observation of him on your own part, or were you relying exclusively on reports of others? A. I saw him on several occasions myself. Q. What did you do? A. I instructed Dick to talk to Jake and tell him not to be bothering the people while they were at work. Q. After you'd given these instructions and Mr. Fleming had reported back to you on talking to Jake Knight, what happened thereafter? A. It appeared that Jake wasn't going to quit his talking to the employees to me, that was my personal observation, and I told him Dick, I said "Send him up on the roof and have him scrape those air-conditioning units that we have been trying to paint for two years, scrape them down and repaint them." Furthermore, in my own independent assessment of the alleged discrimination involved here, I have given consid- eration to the following statement of Butcher which I likewise credit: A. From talking to Dick Fleming, Dick related to me that Jake was definitely for the Union, trying to push it. Q. Now did this fact that he was for the Union influence your decision to send him on the roof? A. No sir. The very fact that he wasn't doing anything and talking to the employees was the only reason. Q. Was there any report made to you of what he was talking to the employees about? A. I do not know the substance of these conversa- tions. Finally, I credit Butcher's testimony that Knight's assign- ment was not entirely unusual; two other employees, Johnson and Nichols , having spent most of the spring and summer on the roof repairing air conditioners. Upon consideration of all of the foregoing it is obvious, of course, that Knight's enthusiasm for talking with the employees, even after having been warned , was the sole reason for his assignment to the roof . At the outset it must be recognized that Knight enjoys no immunity from such discipline, which I find it to be simply because he was a known leader in the Union's campaign, or because he happened to be talking about the Union . The simple facts are that he was talking, that his talking was reasonably deemed to be interruptive of production, that he was warned to stop it, that he did not do so. I have no alternative on these facts but to conclude and find as I do that Knight's transfer to the roof was for just cause and not for any discriminatory motive established on this record. I will accordingly recommend that so much of the complaint that relates to Knight's transfer to the roof be dismissed. 16 Superintendent Delano Butcher credibly testified that Knight's maintenance duties were not limited to those in the electrical field. SUNBEAM CORP. 685 3. Lamar Bates Findings set forth heretofore establish Lamar Bates as one of the leaders of the Union's campaign and as an employee with whose statutory rights Respondent had unlawfully interfered. In addition, Bates became involved in an incident alleged to have been unlawful discrimina- tion. Bates, an employee with 6 years' service with the Company was employed in the plating department. His job required his arrival at the plant on Monday mornings at 3 a.m. The purpose of this was to insure that the boilers and air conditioners in the plating department be turned on and raised to the required levels after having been shutdown for the weekend; the nature of the operations of this department being such as to require critical attention to proper temperature control of the laboratory and of the solutions being used. After Bates had attended to these details on a typical Monday morning it was his custom to leave the plant for a period of a half hour, during which time he went home for breakfast. This arrangement, according to Bates' credited testimony, was made with Larry Napier 3 years previously, shortly after Napier had assumed the duties of processing engineer, and it continued until June 11, 1973. On that day, a Monday morning, Bates appeared as usual at 3 a.m., turned on his boilers, and attended to the other routine Monday morning details, and at 5 a.m. left for home. As was his approved custom he did not clock out. Upon his return at approximately 5:40 a.m.,17 he came upon Napier in the cafeteria as he was passing through. Bates credibly states that he does not recall Napier coming in early before this time. Napier called him to his table and asked him if he had clocked out. When he stated that he had not, Napier then asked him if he were not aware that it was contrary to the rules to leave the plant without clocking out. Bates assured Napier that he was aware of this rule but reminded him that he had been told by him (Napier) 3 years ago that he could go home for breakfast and he had been doing it ever since; the reason for this permission being that Bates could not keep food in the department refrigerator as he had done before receiving the permission to go home for breakfast. Napier told Bates that Plant Manager Ahlgrim had put pressure on him and he had to take the action he was taking; namely, enforcing the clocking-out rule henceforth. Reference to the findings made earlier indicates that Bates was one of the ones singled out by Plant Manager Ahlgrim on May 3, when, upon noticing his penholder in his pocket, Ahlgrim told him that he was ashamed of him and that he thought that he could depend upon him. On a later occurrence Bates was told not to talk with employees (supra) . Since the June 11 incident Bates has not been permitted to follow his previous custom of going home on Monday mornings for breakfast. Supervisor Napier substantially confirms Bates' account of the June 11 confrontation. He denies, however, that he told Bates that he was being pressured from above or that he otherwise suggested the action was being taken for reasons of Bates' union activities or talking with employ- ees. Similarly he denies that he ever gave Bates permission to go home on Monday mornings-in -the first place. I do not credit Napier's testimony. According to Bates, this disputed permission was given when Supervisor Dean Shields was in overall charge of his department and with his knowledge. Since that time Clarence Hurst has replaced Shields. Shields was never called to testify in denial of the knowledge and tacit approval attributed to him, and Hurst was not questioned on this subject, but only on the subject of warning Bates against talking to employees. Bates, on the other hand, testified that the Monday morning practice had been going on for 3 years. It would seem, therefore, that Napier was either woefully unfamiliar with what was going on his department, not knowing of Bates practice, or that he actually knew that Bates was going home for breakfast. I find and conclude that he was aware of the practice. Being aware of the practice, Napier's testimony that he had learned of it from employee Jackson does not make sense, if believed. Nor do I place credence upon Napier's reliance upon the plant rules to justify to Bates at the time, and to me at the trial, that Bates was a wrongdoer. Rule 11 states as grounds for discipline: Leaving Company premises during working hours, except in the regular course of duty, without permission of the supervisor. Napier's efforts to relate this rule to Bates' situation completely begs the question; for, assuming Bates to have had permission, which I do, the rule would have no application to his case. When this interpretation was presented to Napier at the trial, his explanation became unintelligible. For all of the foregoing, including the contradictory and confused nature of some of Napier's replies, I do not accept his denials that Bates had absented himself on June 11 under a longstanding arrangement to which Napier had been a party. Upon consideration of all that has been discussed herein, and with particular reference to the earlier findings that Bates' union activities had been known to Respondent and deplored, and that he had already been warned for talking Union to employees, I am persuaded that the restrictions placed upon him respecting his Monday breakfast was done not for the reasons advanced by Respondent but in reprisal for Bates' union activities. This I conclude and find to constitute a discrimination against Lamar Bates in violation of Section 8(a)(3) of the Act and to unlawfully interfere with, restrain, and coerce him and his fellow employees in violation of Section 8(a)(1). III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth herein have been found to have occurred in connection with Respondent's operations as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to 10 Nowhere does it appear in the record that Bates' extension of his breakfast period by 10 minutes was a factor in the action that was thereafter taken 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY I have found that Respondent has interfered with, restrained, and coerced its employees by interrogating them with respect to their union membership , interests, and activities and those of their fellow employees , by threaten- ing the possible closure of the plant, the loss of benefits, and the loss of present wages, if the Union were selected by them, by making a promise of benefit in the form of fringe pay if they do not select the Union, and by indulging in the surveillance of employees' union activities, the solicitation of an employee to engage in such surveillance, and by creating the impression with individual employees that the union activities are being under surveillance. I have likewise found that Respondent has discriminated against employee Jake Knight for having recourse to the Board's processes and against Lamar Bates for his union activities. I shall recommend that Respondent cease and desist from this conduct and from in any like or related manner interfering with, restraining, or coercing its employees in the exercise of their statutory rights. Affirmatively, I shall recommend that Respondent resume its practice of permitting employee Lamar Bates to absent himself on early Monday mornings for a period of half hour during which he may leave the plant for breakfast, and that Respondent post notice of compliance with such notice as the Board issues. [Recommended Order omitted from publication.]