FMC Corp.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FMC Corporation and Textile Workers Union of America, AFL-CIO, and Linda Cecil. Cases 5-CA-6217, 5-CA-6343, and 5-CA-6223 June 20, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 8, 1974, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a memorandum in reply. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) by unlawfully restricting the employees' rights to solicit on behalf of the Union. Initially, we are faced with the no- solicitation rule set forth in the employee handbook. That rule proscribed any "unauthorized solicitation .. , on Company property," and the Respondent concedes that it was unlawfully broad. It contends, however, that the rule was voided in May 1973, that a proper rule was announced to supervisors and employees in a series of meetings in May and June, and that such rule was posted throughout the plant on July 25. However, we find, as did the Administrative Law Judge, that there was no effective repudiation or repeal of the unlawful handbook rule. At all times here relevant that rule remained unchanged in the handbook which was given to all new employees without any notice that the rule had been voided. Further, the July 25 notice does not purport to repeal the handbook rule nor to announce a new rule. Rather that notice on its face is primarily concerned with announcing that certain employees had been warned for union solicitation on worktime and others disciplined for threatening fellow employees. But there is nothing in the notice stating that the handbook rule was voided or rescinded, or that the language of the notice was the "new rule." The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence To be sure, the notice did state, although in passing, that "employees are not permitted to engage in soliciting or union organizing activities during work time . . . [which] includes all paid time except breaks and meal periods." While such language on its face would appear to be presumptively valid as a no-solicitation rule if so contended, it was not the same as the rule announced by Respondent's industrial relations manager to supervisors and employees at the May-June meetings, which, as he explained it in his testimony, provided that "solicita- tion on company property was not permitted except in non-work areas and non-working time." (Emphasis supplied.) Even there, additional restrictions were placed on employees' solicitation so that employees could not solicit in all nonwork areas and on all breaktimes. The plant manager testified that the rule did not permit solicitation during smoking breaks which were taken in a smoking area. A smoke break, he explained, is company time. In fact, breaktime under the rule was, as the industrial relations manager stated, limited to two established 10-minute breaks, the scheduled lunch period, and before and after shifts, and such seems to be the understanding of supervisors and at least some employees concern- ing the limits of the rule. Consequently, if there was a "new rule" it was not what was spelled out in the July 25 notices, and a fair reading of management's testimony suggests under the "new rule" that solicitation was prohibited at all times in work areas, a presumptively unlawful limitation when imposed on free time, and was permitted only in nonwork areas during some but not all breaks , again a presumptively unlawful limitation.2 Finally, during the period here in question, and according to credited testimony, employees were in effect warned against soliciting for the Union, while in another instance a supervisor threatened an employee with discharge if she said "anything about a union." In view of all the foregoing, we conclude that Respondent did not effectively rescind the unlawful handbook rule, that it did not establish or announce any lawful no-solicitation rule, and that its manage- ment and supervision did not act in accordance with any such lawful rule. For these reasons, we agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) by publication and mainte- nance of unlawful no-solicitation rules. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 Compare Essex International, 211 NLRB No. 112. 211 NLRB No. 113 FMC CORPORATION Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that FMC Corporation, Radford, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order. DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: This consolidated proceeding involves complaints issued by the General Counsel on September 12 and 20 and November 1, 1973, alleging violations of Section 8(a)(1) and (3) of the Act. Respondent filed answers denying the violations alleged, and a hearing thereon was held in Radford, Virginia, on November 14-16, 1973. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs,' I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT FMC Corporation, Respondent herein, is a Delaware corporation engaging in the manufacture of yarn in Radford, Virginia; its interstate purchases and sales respectively exceed $50,000, yearly. Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent began operations with some 40 employees at its Radford plant in April 1972; it reached full capacity by December of that year with a working complement of approximately 300 employees. The Union has been attempting to organize the plant since 1972; it renewed such activities in spring of 1973 and filed a representation petition on October 26, 1973, in Case 5-RC-8759.2 On July 21, 1973,3 Respondent terminated employees Lorna Bowman and Ronald Day for allegedly threatening employees; 3 days later it suspended Florence Ann Whittaker, originally for purportedly soliciting for the Union and then for allegedly making "indirect" threats. The General Counsel alleges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging or otherwise disciplining these three employees and that it further violated Section 8(a)(1) by engaging in other alleged conduct. I should like to acknowledge the very competent briefs submitted by the General Counsel and the Respondent. 2 1 take official notice that an election in that case was held on January 11, 1974, after the close of the hearing in the present case, with the following results: 108 employees voted for the Union, and 190 voted against. 771 A. Interference, Restraint, and Coercion At all times at the Radford plant, Respondent has given, and still gives, each newly hired employee a copy of its employee handbook. This handbook states, as Respondent is entitled to state, that "this is a non-union plant. We believe that you and we will fare better if the plant remains non-union. We intend to oppose unionization by all proper means." Disciplinary rule no. 14 in the handbook prohibits "Unauthorized soliciting or collection of contributions for any purpose on Company property." Mr. Tom George became Respondent's industrial relations manager' on May 1, having been transferred from a position as training director. George testified, in substance, that he realized the above-mentioned rule 14 was unlawfully broad and that the rule was modified and has not been enforced in its original form. George thus further testified that immediately upon becoming industri- al relations manager in May, he advised all supervisors that "solicitation on company property was not permitted except in non-work areas and non-working time, which was their break. Two 10-minute breaks, a scheduled lunch, and before and after the shift." Some, but the record does not establish that all, employees were concurrently in- formed to a similar effect. But not until July 25 did Respondent advise the general employee body to such effect by a notice on the bulletin board. Respondent nevertheless still gives newly hired employees the employee handbook containing the original version of rule 14 and admittedly without indicating to them that the rule has been deleted or revised. It also appears that employees are permitted to take additional smoke breaks in working areas and Plant Manager Byers testified that union discussions are prohibited at such times and places under Respon- dent's purportedly revised regulations. The record thus establishes that Respondent prohibited union discussion and solicitation during nonworking time on company property; and that while it later posted a notice telling employees that they could engage in such activities during lunch periods and the two 10-minute break times, Respondent nevertheless has continued distributing original rule no. 14 to new employees and also prohibits all employees from such activities during addi- tional smoking breaks in working areas. At best, as the General Counsel contends, Respondent left its employees in an ambiguous situation as to whether company rules permitted them to discuss and solicit in behalf of the Union on company premises.4 There was nothing ambiguous about Foreman Darrell Reed's state- ment to Linda Cecil as Cecil was about to leave for a 10- minute break sometime in May. Reed adverted to a union matter involving a wage increase at the time, and Cecil credibly testified without contradiction that Reed then said that Cecil would "go out the door . . . if I ever catch you saying anything about a union," and it is also undenied that Reed's statement did not distinguish between working and nonworking times. Linda Cecil joined the Union early 3 All dates hereinafter are in 1973 unless otherwise stated. 4 It is interesting to note that several supervisors testified that ever since 1972 the Company has permitted employees to solicit during nonworking time on plant premises. As indicated above, this is inconsistent with Respondent's own position herein. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1973 and also distributed union cards during break periods. On an occasion in June or July, Cecil was summoned to the office where Industrial Relations Manager George told her in the presence of Supervisors Michael Ware and Tom Neal that he had heard she had been soliciting for the Union. Employee Rhonda East also credibly testified that she was called to the office, and Byers told her that her name had come up as having solicited for the Union. It was East's understanding that employees were prohibited from soliciting at any time on company premises. Michael Ware is the texturizing manager. Ware called employee Sharon Burton to his office on July 25. They discussed a matter of Burton's absenteeism and suspension therefor. At the end of the conversation on that occasion, according to Burton's credible-albeit denied-testimony, Ware asked Burton whether she had signed a union card. Burton replied it was "none of his damn business." Another instance of interrogation occurred on or about August 1, when Supervisor Guy Wohlford observed employee Toby Caldwell wearing a union T-shirt. Remark- ing first about the shirt, Wohlford then asked Caldwell, according to the latter's denied but credible testimony, whether she got "a little blue card too," which in context referred to a union authorization card. In April Foreman Annie McPeak and employee Hazel Boback were standing together in the plant when they observed employee Lawrence Underwood in the aisle. According to Boback's credible and uncontroverted testimony, McPeak told Boback that Underwood was attempting to organize the employees for the Union and McPeak asked whether Boback knew anything about it. In mid-June, while leaflets were being distributed at the plant gate, McPeak told Boback "to watch and see if I saw anybody in the plant passing out leaflets or cards at any time in the plant, and to let her know." Boback told McPeak not to discuss union matters with her again. About August 14, McPeak observed that the members of a four-man tieover crew were wearing union T-shirts. McPeak thereupon told Boback, again according to the undenied and otherwise credible testimony of Boback, that she (McPeak) was going to "write up" the crew and have them fired for such display of prounion sentiment. The record establishes that Respondent also engaged in surveillance of union activities or gave employees the impression it was doing so. Thus, on the morning following employee Rex Caldwell's attendance at a union meeting in the summer of 1973, Jerry Viers asked Caldwell about the meeting. Viers is head of the shipping department and Caldwell's supervisor. Caldwell then inquired how * iers learned about Caldwell's attendance at the meeting, whereupon Viers replied that he had followed Caldwell on that occasion. Caldwell's credible testimony is undenied in this regard. Former employee Debbie Sifford also credibly testified and Supervisor Ermond Bryant denied, that she had attended a union meeting late in July and that Bryant approached her the following morning with the comment that "I can tell you all who went to the union meeting last night." Sifford replied that she was free to attend as it was on her own time, whereupon Bryant rejoined that he "could call" Sifford's supervisor, Guy Wohlford. During the period of the Union's organization campaign in the summer of 1973, Respondent's supervisors also conducted periodic meetings of small groups of employees to present Respondent's views concerning the Union. At one such meeting, according to employee Joy Nestor's and employee Linda Buck's credible testimony, Supervisor Harold Baxter stated that, if the employees voted the Union in as their bargaining representative, they would have "to start all over from scratch."5 Baxter testified that he told employees "there was always [the] possibility" they would receive less wages as a result of negotiations "if the Union got in," and he mentioned the experience of another plant in the area. Baxter's explanatory testimony concern- ing this other plant is in part, as follows: A. The information I had was that we had another plant in the area-I cannot recall the name at this time, unless it would happen to be Electrotech, which was non-unionized. They became unionized, and I don't know what the wages were or what happened, but the information I had was that they ended up by getting less than they were getting before. We used that as an example of something that had happened, expressing the idea that we always had that possibility. But I really don't know what happened. Concerning another June meeting conducted by Supervi- sors Baxter and Conrad Mattherly, employee Phyllis McCormack credibly testified that employee Connie Quesenberry asked Mattherly on that occasion whether Respondent would let the employees strike if the Union "got in." Mattherly said it would, and Quesenberry then asked whether Respondent would close down the plant. Mattherly replied that Respondent "will do anything to keep the union out," 6 and that the employees didn't need a union for the Company was going to be "good" to them. At still another meeting in July, Supervisor Hicks told assembled employees, according to Toby Caldwell's credible and undenied testimony in this respect, that Respondent would cut the work force if the Union "came in" and "we would be time studied and heavier work loads would be put on us." In addition to adducing testimony to support other similar allegations of interference, restraint, and coercion as interrogation, surveillance, and threats of economic loss, the General Counsel adduced supportive testimony for an allegation that Respondent further violated Section 8(a)(1) of the Act by a wage increase on July 1, 1973. Even if allegations as to these additional matters were sustained, the ultimate conclusions of law and remedial provisions 5 The General Counsel does not claim the use of this phrase is itself a 6 Mattherly recalled having discussed union matters with Quesenberry in separate unfair labor practice, he contends, rather, that it is only part of the private conversations on other occasions, but he denied McCormack's supportive circumstances for an allegation that Respondent threatened to testimony that she raised such matters at a group meeting reduce wages should the Union become the statutory representative. FMC CORPORATION would be unaffected. I therefore find it unnecessary to discuss and resolve them.? B. The Discharges Lorna Bowman was called into the office of Plant Manager George Byers on July 21, 1973. Byers told Bowman she had been accused of making threats to other employees, and Bowman denied to Byers that she had threatened anyone. Byers then summarily fired her for such purported reason. Byers refused Bowman's request for the names of her accusers or otherwise to give her an opportunity to present her side of the situation. Industrial Relations Manager George handed Bowman her check and said he "no longer wanted" her on company property. Ronald Day received a similar summons that same day, and Byers fired him for the same purported reason. Byers told Day that he, Byers, had been receiving reports concerning threats by Day for a long time and that Respondent had "testimony" that "you have been threat- ening [employees] because they don't see the Union the same way you do." Day denied to Byers that he had made any threats and he asked why Byers had not done anything about the matter earlier if, as Byers claimed, Byers had been receiving these reports for a long time. Byers did not reply, nor was Day given the names of his accusers. Day received his termination check, and Byers told Day "never to set foot on FMC property again." Bowman was hired by Respondent in October 1972. The following spring she became active in the Union's effort to organize the plant; she passed out union cards and attended union meetings. Tom Neal was Bowman's supervisor, and it is undisputed that by May 1973 he knew of Bowman's prounion sentiments. On July 20, 1973, the day before Bowman's discharge, Industrial Relations Manager George called her into his office and inquired about her "likes and dislikes" about the Company. They discussed the Union at some length and George told Bowman that signing a union card is "like signing a blank check. You didn't know how much it was going to cost you." Although George denied doing so, I am satisfied on the basis of Bowman's credible testimony that George asked Bowman during this conversation whether she was "for the Union" and that he also mentioned that someone had told him she was a "spot." Bowman replied she was for the Union; she said nothing regarding George's "spot" comment for, as she testified, she was then unfamiliar with the meaning of the term. (The record explains the word "spot" in this context to mean an employee planted in a company in order to organize employees for a union.) George testified in effect that he spoke to Bowman on this occasion in order to ameliorate antagonistic problems between some employees, and that he assured Bowman at the end of the conversation that he would attempt to work out these problems. Day has had two periods of employment with Respon- dent; the first was from April 1972 until terminated in July 1972 by "mutual agreement" for reasons unrelated to union matters , and the second period began in November 773 1972 and lasted until July 21, 1973. Day signed a union card in May 1973 and became active in the Union's organizational efforts-attending meetings and soliciting and signing up other employees. Plant Manager George Byers testified that on July 20 employees Nancy Powell and Edna Lamb came to see him concerning a situation involving purported threats by Bowman and Day in connection with the latter employees' union efforts. Byers and other management representatives discussed the matter with Powell and Lamb. Byers testified that he thereupon decided to discharge Bowman and Day on the basis of what Powell and Lamb told him, and that he consulted corporate, advisors and superiors before doing so. Byers also testified that he does not usually become involved in rank-and-file disciplinary problems and that he could not recall being personally involved in any other discharge situation; his testimony explaining his departure from practice was that the Bowman-Day situation was of "vital importance" to the Company and "it was one that I did not want to ask a subordinate to carry out." Byers also testified that neither he nor any of his subordinate supervisors had discussed the Powell-Lamb charges with either Bowman or Day before deciding to discharge Day and Bowman, and, as stated above, he did not discuss the merits of the accusations when he discharged them on July 21. According to Byers, he fired Bowman because she had told lamb and Powell that "if they [Lamb-Powell] reported that she [Bowman) had been soliciting them or bothering them on the job, that she would get even with them." Byers testified that he fired Day for having told Lamb-Powell that "if they did not [sign a union card] that he would run over them." Byers further testified that these purported threats were made a week or two before the July 21 discharges. C. The "Threats" Powell and Lamb were called as Respondent witnesses. Powell testified to two conversations with Bowman. On the first occasion, according to Powell, Bowman asked whether she was for the Union and Powell replied she was not. Another employee and Bowman then sought to explain the advantages of a union to Powell, and Powell rejected Bowman's repeated request to sign a union card. Powell testified she was "upset" by Bowman's importunities. The second conversation concerned a question-and-answer session on which occasion employees submit written questions to company officials, and Powell testified that Bowman had asked Powell to write out Bowman's questions which Powell did. Bowman, according to Powell, later gathered up all questions written by employees and told Powell and employee Kathy Dellinger not to tell anyone she had them. However, Dellinger did inform Supervisor Tom Neal, according to Powell. Bowman shortly walked up to Powell, who was standing in the smoking area with Lamb. Bowman inquired who had informed Neal about Bowman's conduct as to the questions and, according to Powell, Bowman then "got up in our faces and said that she would fix anybody that r Except, of course, to the extent that any such matters are involved in the discharge and suspension cases discussed hereinafter. i 14 DECISIONS OF NATIONAL LABOR RFLATIONS BOARD talked on her." Lamb's testimony is that Bowman was concerned about someone reporting her union solicitation activities to management , and Lamb testified that Bowman "pointed her finger" in Lamb's and Powell's faces and said that "if anyone says anything about her soliciting or talking about the Union while on the floor, .. . she would fix them." Bowman testified she was "all out" for the Union and that she had spoken to Lamb and Powell about the organization . Bowman denied having threatened anyone, and she further explained that "as for me telling Nancy Powell I'd get even with her for telling the Company I was talking Union, that's ridiculous . Tom Neal already knew I was for the Union and I had nothing to hide." Bowman testified that the phrase "getting even" was mere "shop talk." In their discussion with plant management on July 20, both Lamb and Powell also told Byers, and as they testified here, that a week or two earlier Day had unsuccessfully solicited their support for the Union, that they discussed the matter "back and forth" and that Day told them when the conversation ended at the shift change, that "I guess I will have to run over you" if they wouldn't change their minds. Day denied the "run over" statement attributed to him. Lamb testified about a subsequent incident with Day a day or two before his discharge. On this occasion she and Day were assigned to the same machine and there was some "wrap" on her portion of the equipment which condition she reported to a supervisor . The supervisor neglected to remove the wrap and then Lamb mentioned the matter to Day. Day then offered to help Lamb and he did assist her in removing the wrap. Lamb and Day laughed and joked together at the time and, according to Lamb, Day "was right nice about it." Lamb and Powell testified that they became so disturbed by the statements of Day and Bowman as to be unable to do their work properly and that they accordingly reported the matter to Byers on July 20. D. The Whittaker Suspension Florence Whittaker was hired in April 1973. She signed a union card, attended organizational meetings , and handed out union leaflets at the plant gate. In the plant cafeteria before work on July 23, employee Donald Beasley gave Whittaker his signed union card to hand in, and Whittaker observed employees Kay Viers and Rita Baines sitting nearby and that they saw her receive Beasley's card. Later that day Whittaker told Ellen Beasley, Donald Beasley's sister, that Viers and Baines had seen her brother give her a union card and Whittaker expressed a concern that Viers and Baines would report the matter to management representatives . Whittaker told Beasley that Viers and Baines could not to trusted and that "we are going to beat their ass if they don't shut up." This impugning of Viers and Baines' trustworthiness provoked an argument between Whittaker and Beasley, for Beasley was a close friend of theirs. Beasley told Whittaker she (Beasley) would withdraw her own union card, whereupon Beasley tried to persuade her not to do so and the conversation ended. Ellen Beasley reported this conversa- tion to Supervisor Wohlford who called it to the attention of Supervisor Stewart Ringwood . Supervisor Ringwood then asked Ellen Beasley whether Whittaker had been soliciting and Ellen said "not so much trying to sell as she was just talking about it." Ringwood asked Ellen whether she would be willing to tell Plant Manager Byers "about '.his," and she said she would . Ringwood went up to Whittaker a short time later and told her , on Ware's orders, she was suspended for soliciting on company time. She told Ringwood in effect that the Donald Beasley card incident occurred before working hours. The suspension stood, and she left the plant . Ringwood told her at the time that she would be suspended pending an investigation of the soliciting charges and that she would be reimbursed for lost wages should the Company finally determine the charges to be unfounded. The next morning Ellen Beasley recounted the Whittaker conversation to Ware. Ware thereupon determined and in effect advised Whittaker that the solicitation matter was being dropped, but that she would be on suspension for a week (it actually was about 4 days ) for threatening to beat up Viers and Baines. Whittaker returned to work on a Monday and Baines told her in the plant that she, Baines , wanted to fight Whittaker. Whittaker told Baines to "draw back" and reported this incident to Supervisor Ringwood , who said he would look into the matter. He never discussed it again with Whittaker and I do not credit Ringwood 's explana- tion that he dropped the matter because Whittaker purportedly did not prefer charges against Baines. Ring- wood testified in that connection that he immediately discussed the matter with Baines to find out what the facts were. There have been other incidents of "fussing" among the employees, both on and off the premises, but the only other occasion-apart from Whittaker, Day, and Bow- man-that Respondent took any disciplinary action was one involving an actual fight between two employees on plant premises. Ware testified that he suspended both employees for 7 days , but that he then "suspended this suspension due to the fact that there was a tremendous amount of time elapsed [since the incident ] . . . about 10 days or 1 1 /2 weeks." E. Further Findings Employers are entitled to oppose the unionization of their employees, but not by prohibited means. Respondent here has overstepped the bounds and thus violated Section 8(a)(1) of the Act by coercively interrogating employees concerning their union membership and other protected concerted activities, by giving employees the impression of surveillance-if not actually engaging in surveillance-of such activities , by requesting employees to report on union activities of other employees , by threatening to cause the discharge of employees for their prounion sentiments, and by threatening to cut the work force and impose heavier duties on employees and by otherwise threatening econom- ic reprisal for union considerations . N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 616-618 (1969); Hendrix Manufacturing Company, Inc. v. j N.L.R.B., 321 321 F.2d 100, 104 (C.A. 5, 1963). Respondent does not ser- iously j contend, I if I at t all, 'that its rule 14 in the employee FMC CORPORATION 775 handbook did not violate the Act at least before it purportedly revised the rule.- While Respondent thereafter advised employees that they could solicit and discuss union matters on plant premises during their lunch and 10- minute breaks, it continued to distribute rule 14 in its original form. and it did prohibit such activities during other permitted smoke breaks. These circumstances, as well, for example, as Foreman Reed's threat to Linda Cecil, hardly reflect a good-faith and unambiguous publication by Respondent to its employees that rule 14 was revised to comport with their protected rights under the Act. Respondent, I find, has not effectively modified the rule. Rule 14 unduly prohibits union discussion and solicitation during breaks, lunch periods, or other actual nonworking time, and its publication and maintenance is violative of Section 8(a)(1) of the Act. Republic Aviation Corporation v. N .L.R.B., 324 U.S. 793, 893-805; P. R. Mallory & Co., Inc. v. N. L. R B., 389 F.2d 704, 709-710 (C.A. 7, 1967). Now turning to the discharge and suspension cases. Respondent defends its action in these cases solely on the ground that in the course of a union discussion the involved employees threatened bodily harm to other employees, "indirectly" in Whittaker's suspension situa- tion. Day and Bowman deny having made the statement attributed to them. While I find that Day and Bowman made such statements and that Whittaker admitted making the subject statement in her case, I am satisfied that Respondent penalized each of these employees for promot- ing the Union and not because they threatened bodily harm. Firstly, I am not satisfied that the statements of Day and Bowman are threats of bodily harm. "I'll get even with someone" or "I'll fix someone"; "I guess I'll have to run over you." How often in everyday situations do we use seemingly extravagant language to express disapproval or disagreement or frustration. How frequently do we hear someone utter words which, for example, impugn paren- tage if taken literally. Yet how often is it that we truly understand the speaker to intend and the listener to take the phrase "S.O.B." as really meaning anything of the sort? The words "getting even" or "fixing" can mean anything or mean nothing, and the record does not establish that Bowman said in what way she would "fix" or "get even." In my opinion, the subject words do not necessarily mean, they do not unambiguously mean, they cannot be reasonably interpreted to mean in the context of their utterance in this case, that Bowman intended to convey the notion or that Powell or Lamb understood her to mean that she would physically attack anyone. Nor does the record establish any subsequent elucidating conduct by Bowman to support a contrary finding. The phrase "run over" could, but does not necessarily, mean "run over with a vehicle." But did Day intend Powell and Lamb to believe he would do so or did Powell and Lamb really believe he was threatening to do so? I doubt that either is so. Powell and Lamb waited 1 and 2 weeks 8 Although Day and Bowman denied making the statements attributed to them I do not believe that their honesty as witnesses is impugned by my finding that they had made the statements . The words, as I also have found, had no significance in the context of the respective conversations with before such report. Day had been "right nice," according to Lamb, in helping Lamb remove the wrap, and they laughed and joked together at the time . Whatever may have motivated Powell and Lamb in reporting Day's statement, and I reject their explanation therefor, I consider it unreasonable to find that they believed themselves in physical jeopardy from Day and I also reject any claim that Day's remark was intended to instill such fear in them. It was merely an "expression," in my opinion, and I find that Day did not threaten or even suggest bodily harm in conversation with them.8 Whittaker's statement is somewhat different, for it is reasonable to accept the statement in terms of the literal meaning of the words ; and Baines apparently treated them as such, as indicated by her invitation to fight Whittaker on the latter's return from suspension. Even if, arguendo only, all the foregoing statements be considered threats of bodily harm-which I do not as to Day and Bowman-I nevertheless am satisfied that Respondent discharged Day and Bowman and suspended Whittaker for their prounion activity and not because of threats. Other employees had fussed before, and Respon- dent had not disciplined any of them except in the instance of an actual fight. And even in that situation, Respondent "suspended a suspension" because of the lapse of 10 days. Yet, that was the approximate time interval in the Day- Bowman situations. I need not discuss Respondent's union animus and its other unlawful conduct found above, nor is it necessary to repeat the other singular circumstances attending the discharges and suspension involved here. "... if the discharge was motivated , even in part, by union activity, it is illegal despite the existence of adequate cause for firing her." N.L.R.B. v. Historic Smithville Inn, 414 F. 2d 1358, 1361 (C.A. 3, 1969), cert. denied 397 U.S. 908 (1970). I accordingly conclude that Respondent violated Section 8(a)(1) and (3) of the Act in discharging Day and Bowman and suspending Whittaker. CONCLUSIONS OF LAW 1. Respondent is an employer within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by discharging Lorna Bowman and Ronald Day and by suspending Florence Whittaker. 4. Respondent has further violated Section 8(a)(1) of the Act by coercively interrogating employees concerning union matters, threatening reprisal for engaging in union or concerted activities, creating the impression of-if not actually engaging in-surveillance of employees' union activities, requesting employees to report other employees' union activities, and prohibiting employees from union discussion and solicitation during non-work times (includ- ing smoking breaks). Powell and Lamb. There is no particular reason why Bowman and Day should recall uttering the words under consideration and it is therefore understandable to me that they could , in all honesty, deny saying them 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(aXl) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating Bowman and Day and making whole Bowman, Day, and Whittaker, in order to effectuate the policies of the Act. All backpay computations shall be in accordance with F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith. 9 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. 10 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Respondent FMC Corporation, Radford, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, or otherwise discriminating against employees for activities in behalf of Textile Workers Union of America, AFL-CIO, or any other union. (b) Coercively interrogating employees concerning union sentiments or activities , threatening reprisal against em- ployees for engaging in union activities , creating the impression of, or engaging in, surveillance of employees' union activities, and requesting employees to report other employees' union activities. (c) Prohibiting union discussion and solicitation by employees during nonwork times (including smoking breaks). (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their nghts as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Lorna Bowman and Ronald Day reinstate- ment to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them and Florence Whittaker whole as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimination against them. (b) Rescind rule 14 of the employee handbook and advise, in writing, each employee to whom it has given APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE wILL reinstate Lorna Bowman and Ronald Day and make them whole for earnings lost since their discharges, and will also make whole Florence Whit- taker for earnings lost during her suspension. WE WILL advise our employees that they have a right to discuss and to solicit respecting union matters at lunch periods, and during all rest and smoking breaks and at any other time they are not actually working. WE WILL NOT interrogate employees concerning union membership or other union activities or ask employees to report on such matters. WE WILL NOT threaten discharge or other reprisal for union reasons. WE WILL NOT engage in surveillance of union activities or give employees the impression we are doing so. WE WILL NOT discharge, suspend, or otherwise discriminate against employees to discourage or in reprisal for union activities. FMC CORPORATION (Employer) such handbook that rule 14 has been rescinded . Dated By (c) 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 necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (d) Post at its plant in Radford, Virginia, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 5 of the Board, after being duly signed by Respondent, shall be posted by it immediately upon receipt (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 Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201 , Telephone 301-962-2822.