QIC Corp.

QIC CORPORATION QIC Corporation and Teamsters Union Local No. 7, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 7-CA-10370 June 27, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On September 26, 1973, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the Respondent and the Gen- eral Counsel filed exceptions and supporting briefs. The Charging Party filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge and to adopt his recommended Or- der,2 as modified herein. The Respondent excepts to the Administrative Law Judge's finding that it violated Section 8(a)(1) of the Act by maintaining a rule which prohibited solicita- tion "during working time." In the absence of any evidence that the rule was adopted for a discriminato- ry purpose, or that it was discriminatorily enforced, or that it was communicated or applied in such a way as to inhibit solicitation during an employee's free time during the workday, such a rule would not be unlaw- ful.' Since no such evidence was adduced here, we find that the no-solicitation rule did not violate Sec- tion 8(a)(1) of the Act and will modify the recom- mended Order accordingly.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent , QIC Cor- poration,, Stevensville, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Delete paragraph 1(c) and reletter the remaining paragraph. 2. Insert the following as paragraph 2(b) and relet- 63 ter the remaining paragraphs accordingly: "(b) Make whole Dorothy Aldrich and Janet Cul- breath for any loss they may have suffered between the date of their discriminatory discharge and the date of the misconduct which bars their reinstatement. Backpay for the foregoing employees otherwise shall be computed in the manner set forth in the section of this Decision entitled "The Remedy." 3. Substitute the attached notice for that of the Administrative Law Judge. 1 In adopting the Administrative Law Judge's conclusion that Respondent discharged Robinson for engaging in protected concerted activity , we do not rely on his finding that Garland testified he could not recall, but did not deny, a conversation with Robinson on April 13, 1973, in which he acceded to her request to withdraw her resignation previously submitted . We also note that the Administrative Law Judge erred in finding that criminal charges were filed by the "Company" against the strikers; they were filed by nonstrikers. 2 The-General Counsel excepts to the Administrative Law Judge 's failure to recommend that employees Dorothy Aldrich and Janet Culbreath be awarded backpay at least from the date of their unlawful discharge until the date of their subsequent misconduct. While we agree with the Administrative Law Judge that Aldrich and Culbreath engaged in misconduct which pre- cludes their reinstatement, we find merit in the General Counsel's exception that those two employees are entitled to backpay from the date of their discharge until the date of such disqualifying misconduct. See Pepsi Cola Bottling Company of Lumberton, Inc., 203 NLRB No 37. We will modify the recommended Order accordingly 3 Essex International, Inc, 211 NLRB No. 112. If a rule prohibiting solici- tation "during working time" is applied in such a way as to inhibit solicitation during an employee's nonworking time, Member Penello would find unlaw- ful the application of the rule, but not the rule itself. a In reaching his finding, the Administrative Law Judge relied in part on The Ohio Masonic Home, 205 NLRB No. 65. Chairman Miller and Member Penello distinguish the instant case from The Ohio Masonic Home on the grounds that the rule in the latter case was an oral prohibition of solicitation and distribution "on company time" as well as "on working time." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Team- sters Union Local No. 7, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union, by discharging or otherwise discriminating against our employees because of their union or concert- ed activities. WE WILL NOT coercively, or otherwise unlawful- ly, interrogate our employees as to their union activities. WE WILL offer Marilyn Robinson, Alma Allen, Sandra Christopher, Cathy Cloinger, and Wilda Swope immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- 212 NLRB No. 9 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dice to their seniority or other rights and privi- leges, and make them and Dorothy Aldrich and Janet Culbreath whole for any loss of pay suf- fered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, - to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. QIC CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313- 226-3200. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN. Administrative Law Judge: This case was heard on August 14 and 15, 1973 , in St. Joseph, Michi- gan, pursuant to charges duly filed and served,' and a com- plaint issued on June 18, 1973. The complaint presents questions as to whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent conced- ed certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the trial, the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, and to file briefs. At the conclusion of the trial, oral argument was had by counsel for the General Counsel and the Respond- ent. The Respondent also submitted a brief. Upon the entire 1 The original charge was filed on May 10 , 1973 An amended charge was filed on May 29, 1973 record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT i THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation with its princi- pal office in St. Joseph, Michigan, is engaged in the business of assembling electronic equipment and related products at two plants, one located in St. Joseph (known as plant No. 1) and the other about 1-1/2 miles distant at Stevensville (known as plant No. 2). Most of the events here in question occurred at the latter location. During the last calendar year, a representative period, the Respondent manufac- tured, sold, and distributed products valued in excess of $90,000. Of this amount, products valued in excess of $50,000 were furnished to the Heath Company which, in turn, annually purchases and receives goods and supplies valued in excess of $50,000 from points located outside the State of Michigan and annually sells products and supplies valued in excess of $50,000 directly to customers located outside the State of Michigan. Upon the foregoing facts, the Respondent concedes, and I find, that QIC Corporation is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 7, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Union, or Teamsters, is a labor orga- nization within the meaning of the Act. 111 THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent, incorporated in March 1973, has a com- plement of from 8 to 13 employees at each of its two plants. During all times material herein Henry J. Lott was the corporate president and Michael S. Garland was the man- ager at plant No. 2. QIC was engaged at that time in assem- bly work on a subcontract basis for the Heath Company. In the spring of 1973, all the production employees in the Stevensville plant were assembling oscilloscopes, automatic fine tuners for television sets, stereo high-fidelity audio equipment, and high voltage power supplies. Heath provid- ed all the parts and QIC supplied the labor, with the latter company deriving its entire income from the work per- formed for Heath. On or about April 9, 1973,2 the Respondent effected a change in the method of computing the piece work rate for those who were paid on that basis. This immediately pro- voked much employee dissension. In a meeting with Man- ager Garland on April 13, the employees expressed their dissatisfaction with the changes made and with various other aspects of their working conditions. The next day, seven of them went to a competitor and inquired as to job 2 All dates hereinafter are for the year 1973 unless otherwise specified. QIC CORPORATION prospects there. On April 16, three of them were discharged. The next morning, all seven of these employees began pick- eting the plant. On April 18, the four employees who joined the dischargees on the picket line were dismissed. On April 19, the Teamsters informed the Respondent by telephone and telegram that it represented a majority of the employees and requested recognition as their bargaining agent. The strike lasted 3 weeks and was then abandoned. None of the seven employees involved has been reinstated. B. The No-Solicitation Rule For some while prior to the events in question the Re- spondent had in effect a series of general conduct rules which it posted on bulletin boards throughout the plant. The posted notices stated that corrective discipline for vio- lation of any of the rules would range from a verbal repri- mand to disciplinary suspension and that serious infractions or repeated violations might cause immediate discharge. Rule 8, which bans solicitation, prohibits "Solicitation of any kind by any employee for any purpose during working time in any part of the building or plant property." (Empha- sis supplied.) The Board has held in similar cases that the use of the term "working time" in this context is ambiguous in that it can readily be interpreted by the employees as banning solicitation at any time during the course of the working day. Farah Manufacturing Company, 187 NLRB 601 (1970), and Campbell Soup Company, 159 NLRB 74 (1966). In Farah, the Board held that a rule so phrased "may be readily understood as prohibiting the distribution of union literature by employees on their own time in any part, of the plant premises, including nonworking areas, during the course of the working day." (187 NLRB at 602.) In Campbell, the Board held that a rule against distribution "during employees' working time" and another against so- licitation "during Company working hours" were both un- lawful, because such "adjective phrases . . . are so broad and indefinite as to embrace activities of nonworking em- ployees during the times that others are working." (159 NLRB at 82.) In the present case, it appears that the rule in question is as ambiguous as those which were held unlawful in both Farah and Campbell. Consequently, the holding of the Board in that line of cases must be applied here. "The risk of ambiguity must fall on the framer of the rule and not on the employees who are placed under its proscription." Avon Convalescent Center, Inc., 200 NLRB No. 99 (1972). Accord- ingly, it is found that the Respondent violated Section 8(a)(1) of the Act by maintaining a no-solicitation rule which the employees might reasonably interpret as banning union solicitation during their nonwork time in any part of the plant. The Ohio Masonic Home.' 205 NLRB No. 65 (1973), and cases cited, supra. C. The Alleged Violations of Section 8(a)(3) and (1); Find- ings and Conclusions with Respect Thereto 1. Preliminary facts In the spring of 1973 the Respondent had about eight production employees at the Stevensville plant. All were 65 women. Most of them were paid on a piece rate, but one or two were paid by the hour. On or about April 9, the Compa- ny instituted a new wage structure that affected primarily those paid on a piece rate. Some of the latter were working on a component known throughout the record as a "102" and the others on what was known as an "AFTS." Plant Manager Garland testified that although the change in rate for the latter component would allow the employee in- creased pay for an increase in production, the employees considered the new rate established for assembling the 102 as a reduction. Prior to the rate change, there had been considerable dissension among certain of the employees about problems connected with parts shortages. Prior to starting on the assembly of a component, a stock clerk issued the produc- tion worker the necessary parts. Since some of the products required hundreds of parts, the stock clerk sometimes spent several hours in carefully counting out the required pieces that the assembler would need for her job. One of the latter, Monnie Justen, frequently complained that the stock clerks had miscounted and not given her sufficient pieces to com- plete her work. Dorothy Aldrich and Janet Culbreath, the stock clerks who were responsible for the issuance of the parts, were indignant whenever Justen voiced these com- plaints because they felt that Justen was taking parts out of the plant and assembling units at her home.' Since Justen's complaints required them to spend additional time either recounting the original number issued, or in issuing,more pieces to supplement the original number, Aldrich and Cul- breath frequently complained to Manager Garland about what they characterized as "thievery" on Justen's part. In February, and as a result of Aldrich's allegations, ,Garland endeavored, but without success, to resolve the differences between Justen and those in the stock parts room. Aldrich was extremely vocal in protesting the management's failure to rectify what she charged was stealing by employee Jus- ten.4 After the Respondent changed the piece rate on the 102 assembly, Aldrich, although paid on salary herself, took up the cause of the dissident piece workers who felt they were being subjected to a wage cut. Garland testified that in the week subsequent to April 9, Aldrich's activities caused the employees to band together. According to Garland, the pro- duction workers sided with Aldrich and "the cause was then a common one on their side as far as not only the ... thievery, but the 102 thing." On the afternoon of April 13, a Friday, the employees had an impromptu meeting with Garland. At the hearing, coun- sel stipulated that during this meeting, Aldrich acted as 3 It appears that, for a short while after the plant opened, employees were permitted to do some of the assembly work in their own homes 4 According to Garland, at the time of the dispute in February he told Aldrich and Justen that both of them "were doing a very good job." He further testified that although Aldrich and Culbreath, as stock clerks, were very irritated by Justen's complaints and attributed the shortages to theft on her part, the Company was not greatly concerned because even if the charges were true and Justen had taken some parts, those items by themselves did not constitute anything of great value. Garland's casual attitude as to this matter and his explanation for this indifference were difficult to comprehend. Whether Justen was, in fact, assembling units at home and had the Respondent's permission to do so is a question that is not answered by the record. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spokesman for the employees and that while it was in prog- ress they and Garland discussed thievery within the plant, the new wage rate and break periods for the employees. There was wide discrepancy in the testimony of the witness- es as to the length of this meeting. Garland thought that it lasted about 30 minutes. Several of the employees 5 credibly testified that it lasted between 1 and 2 hours. Garland testi- fied that at the meeting no one mentioned union activities to him. On the other hand, he conceded that in their com- plaints about the Respondent's change in the piece rate, one of the employees, he thought it was Aldrich, stated that the Company was able to effectuate such a wage cut only be- cause the Stevensville plant was a nonunion shop. It is ap- parent from the credible testimony of several employees present that Aldrich made more than a passing reference to their need for a union. Thus, Alma Allen testified that Al- drich told Garland "we needed a union and we was going to try to get one." Wilda Swope testified that Aldrich stated that "we should try to get a union in because of the way they was cutting our wages," and Janet Culbreath testified that Aldrich told Garland that "we was going to try to get a union in there if things didn't straighten up in the shop." That evening employees Aldrich, Allen, Culbreath, Swope, Christopher, Cloinger, and Robinson decided that on the next morning they would go to a plant known as Don's Specialty and inquire about job prospects there. Don's was located in a nearby town and was engaged in subassembly contract work for Heath, just as was the Re- spondent. On the morning of April 14, a Saturday, Aldrich and the six above-named employees went to Don's. There, in a brief conversation with the owner, they were informed that as the result of a telephone call which he had received he would be unable to hire them. Immediately after leaving Don's premises, Aldrich telephoned the Respondent's plant. When Garland answered, she told him that she and the other six employees with her had just met with Don 6 who informed them that he would be unable to hire, them because of a message from a source he did not identify. In her protest to Garland on this occasion, Aldrich implied that the tele- phone call to which Don referred was a communication from the Respondent. Thereafter that weekend the seven employees framed a list of grievances which they typed up and signed. On April 16, and at the beginning of the shift that Monday morning, Culbreath presented this document to Garland, asked that he give it to President Lott, and told him that the employees wanted an answer within 8 hours. Garland said nothing, but took the paper and turned it over to Lott. The list of employee grievances reiterated much of what had been covered at the meeting in the plant that preceding Friday. Thus, the signatories requested, inter alia, that the Respondent reinstate the former piece rate for those work- ing on the 102, that all stockroom employees receive the same rate, that employees known to have committed thiev- ery be dismissed, that President Lott stop checking on em- ployees, that all employees be notified of any benefits given 5 Eg, Alma Allen, Cathy Cloinger, and Janet Culbreath 6 The last name of the owner of Don's Specialty does not appear in the record anyone of their number, and that the employer and the employees prepare a written "agreement book" (sic). In their petition, the signatories described themselves as an "employee's committee." 2. The discharges of Aldrich, Culbreath and Robinson. On the afternoon of April 16, President Lott summoned Marilyn Robinson, Dorothy Aldrich, and Janet Culbreath to his office and told them that they were being terminated. A few days earlier Robinson had informed Garland that she was giving 2 weeks' notice that she planned to resign. Both Aldrich and Culbreath credibly testified that on the morn- ing of April 13, they were present when Robinson told Garland that since she had been unable to find another job, she wanted to withdraw her resignation whereupon Garland acceded to this request? On Monday afternoon, however, Lott told Robinson that since he had heard she planned to resign he would let her go immediately. He gave her no other reason for the termination.8 About midday on April 16, Aldrich had another ex- change with Justen about a parts discrepancy. Thereafter she went to Garland and told him, according to Garland, that "she was quitting, she was fed up with this Monnie Justen and this thieving thing...." Garland testified that at the lime Aldrich was crying and very emotional. He further testified that on an earlier occasion about a month before Aldrich had come to him with a similar declaration and given him a week's notice that she was quitting. In that instance, however, according to Garland, he reassured her that she was doing good work and that "after a couple of days she cooled down . . . and told me that she would just as soon stay there and I says well, fine." Aldrich testified, credibly and without contradiction, that on April 16, when she complained to Garland that Justen had again accused her unjustly of shorting her 50 parts on a "set-up," she told Garland that if he did not take action to eliminate this continuing problem she was going to quit because she could endure no more. According to Aldrich, Garland assured her that as soon as President Lott returned to the plant that afternoon "everything will be settled." 9 Lott testified that after he informed Robinson of her termination, he told Aldrich that since she had quit he was giving her her final pay checks. Lott conceded that Aldrich protested that she had not quit and thereupon "made pretty much of a scene about it." 10 Culbreath, who was present, credibly testified that when Lott told Aldrich she was being terminated, she asked the reason and he told her that it was because she had quit. According to Culbreath, Aldrich thereupon denied that she had done so and when she again asked the reason for her dismissal, Lott concluded the con- versation with the statement that he did not have to give her a reason. Immediately thereafter the Respondent's presi- dent turned to Culbreath and handed her her final pay ' Garland testified that he could not recall this conversation He did not deny that it could have occurred 8 Sometime during the spring of 1973 Robinson married and her name became Marilyn Morgan However, since Robinson was the only name used at the heanng, that usage is maintained throughout this Decision The quotation is from Aldrich's credible testimony 10 The quotation is from Lott's testimony QIC CORPORATION checks while telling her that she was being discharged for absenteeism. The termination of the three employees occurred in Lott's office at the end of the shift that afternoon. While Lott was engaged in the discharge proceedings, Allen, Christopher, Cloinger, and Swope, the four other employees who had signed the grievance petition, appeared at the office door and witnessed the dismissal of their coworkers. All four of these employees credibly testified that after Lott discharged Culbreath, he turned to them and declared that "the compa- ny no longer needs you either," whereupon they left the premises." 3. The strike On the morning of April 17, Aldrich, Culbreath, and Robinson, along with Allen, Christopher, Cloinger, and Swope, appeared at the plant entrance carrying picket signs. President Lott testified that early that morning he saw these seven individuals outside the plant with signs bearing the caption "QIC on Strike" and other banners with similar inscriptions. The picketing of the plant entrances continued for approximately 3 weeks, after which it was discontinued. Aldrich testified that she first contacted the Teamsters on the evening of April 13. It appears from the record, however, that the Teamsters did not participate in the original picket- ing. According to Aldrich, it was the employees themselves who initially prepared the picket signs and organized the picket line. At some point later that week, the Teamsters secured authorization cards from the employees. On about April 19, by telephone and telegram, the Union notified the Respondent that it represented a majority of the production workers at the Stevensville plant and requested recognition as the collective-bargaining agent of a unit made up of those employees. At the same time the Teamsters offered to prove its claim to a majority by submitting the authorization cards to an impartial third party for examination and counting. President Lott testified that after getting the Union's tele- phone call on April 19, he left his office and went into a room at the plant where three technicians and one tester were at work. Lott conceded that thereafter he questioned the four employees as to whether any of them had heard talk of a union and that all of them responded that they had heard nothing of a union recently." Lott testified that on April 18 he discharged Allen, Chris- topher, Cloinger, and Swope for having failed to notify the Company that they would not be at work. Lott conceded that he knew that all of them were on the picket line. Gar- land similarly acknowledged that all of the pickets he saw had signed the grievance petition which Culbreath present- ed to the management on the preceding Monday. Checks for these four employees, dated April 19, and their W-2 forms, were mailed to each of them that week. When under- going cross-examination at the hearing, lant Manager Garland was asked why he thought these last described 11 Lott denied that he discharged these four employees at this time. He conceded, however, that he subsequently fired them for not calling in to work the following day. 12 Lott testified that one of the technicians told him that many months earlier, and at plant No. 1, he had heard some discussion about a union. 67 individuals were striking. In response, he stated that he assumed it was because of the discharge of three of their coworkers on April 16 and because of the list of grievances which the seven employees had presented to him that same day. 4. The Respondent's contentions as to the discharges; concluding findings Lott and Garland testified that they made the decision to terminate Aldrich, Culbreath, and Robinson on Saturday, April 14, and that they reached this conclusion after Aldrich telephoned Garland that morning to tell him that she and six of her colleagues had been rejected in a bid for employ- ment at Don's Specialty. Garland testified that at that point he and Lott decided to terminate Aldrich because she had solicited employees for a competitor, because "She also .. . had sided with the # 102's [piece workers] at the meeting on this pay thing against the Company's system, although she was not affected," and because of her abuse of break peri- ods. Garland testified that the decision to discharge Cul- breath was based on her absenteeism and her association with Aldrich. At one point he testified that the decision to terminate Robinson was based on the fact that several days earlier she had given 2 week's notice of an intention to resign. Later, however, he testified that Robinson was dis- charged for the same reasons as Aldrich and Culbreath. The objection that Aldrich was abusing her break periods was not borne out by the record. The employee conceded that she often extended her break periods, but she also testified credibly that in February and March when Gar- land admonished all the employees to adhere to the time limits on breaks he assured her that she could continue as she had in the past. It was equally clear that the absenteeism charge against Culbreath was without foundation. Cul- breath returned to the plant early in March after having been on maternity leave. Subsequent to her return and be- fore her termination she was absent a total of approximately 10 days. However, she credibly testified that in each in- stance when she was absent she telephoned Garland and secured his permission to be off that day. Garland acknowl- edged that Culbreath had, in fact, done so, and also that, in this connection, as a matter of policy with respect to absenc- es of the female employees he constantly assured them that their "family would come first...." Garland further con- ceded that he had no complaint about the work , habits of either Culbreath or Aldrich. According to Garland, "they worked like dogs. They worked good. I have no complaint about their work...." Lott testified that on April 14 he was concerned with Aldrich because on the preceding day he observed her con- ferring with the other six employees who eventually signed the list of grievances and that he considered this activity as being solicitation in violation of the Company's no-solicita- tion rule. He further testified that he also was concerned because Aldrich had led a group of employees over to Don's, a competitor. Lott conceded that prior to their termi- nation he never discussed the Respondent's reasons for these discharges with Aldrich, Culbreath, or Robinson. It was evident that both Lott and Garland put all three of these employees in the same category. As to Aldrich and 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Culbreath, Lott testified that they worked "side by side" and "they often actedjointly in stirring up troubles." Gar- land similarly characterized Aldrich and testified that she was constantly "causing trouble and ... going to get ev- erything riled up." At the hearing, Garland conceded that terminating Robinson on April 16 was earlier than she in- tended to quit, and went on to say that she was dismissed for "a combination of the ... the same reasons the other girls [Aldrich and Culbreath] were let go." Although Lott and Garland testified that the decision to discharge these three employees was made on Saturday, April 14, no notice to that effect was given to them when they reported for work on April 16, the following Monday morning. At the latter time, as found earlier, Culbreath presented the management with the list of grievances which she and the other six employees had signed and demanded an answer from the Respondent within 8 hours. At the end of the day the employees received the Company response when Lott notified Culbreath, Aldrich, and Robinson of their dismissal and told the remaining four petitioners that "the company no longer needs you either." If, as Lott and Garland testified, the decision to discharge Aldrich, Culbreath, and Robinson was reached on April 14, it seems unlikely that the announcement would have been delayed until the end of the shift on the following Monday. The Respondent's pay period began on Monday and ended on Friday. Had the decision been made on the preceding Saturday, it would appear more likely that the three affected individuals would have been so informed at the time they reported for work on Monday morning so that their sever- ance from the payroll would have been effectuated as of the preceding Friday, the end of a pay period, rather than on Monday afternoon and I day into the next period. On the basis of the foregoing findings it is my conclusion that, notwithstanding the likelihood that the dissatisfaction of Lott and Garland with Aldrich, Culbreath, and Robinson was discussed over the weekend, the decision to discharge them was not made until after Culbreath presented the em- ployees' list of grievances on Monday morning and de- manded an answer to their petition before the end of the day. Although the Respondent conceded that it had no com- plaints about the work performed by Aldrich and Cul- breath, Garland objected to Aldrich because she was "causing trouble" and Lott objected to Culbreath because she and Aldrich "often actedjointly in stirring up troubles." The "troubles" to which both referred, however, were large- ly the protected concerted activity in which both had en- gaged during the preceding week when the seven employees protested about the Respondent's cut back in the piece rate and, on April 13, under Aldrich's leadership, banded to- gether to complain about that and other working condi- tions. It was at this meeting that Aldrich told Garland that the employees needed a union and that they were going to get one. Lott testified that he felt that Aldrich's action that afternoon constituted a violation of the company rule against solicitation, a rule that earlier herein was found to be violative of Section 8(a)(1) of the Act. He further alleged that Aldrich was guilty of disloyalty when she and her co- workers sought employment on April 14 at the plant of a competitor. In support of this contention, however, the Re- spondent offered no evidence of any conduct by Aldrich or the other employees which exceeded the bounds of protect- ed concerted activity and which constituted disloyalty with- in the meaning of any decided cases.13 The employees were bound by no contract to remain with the Respondent and, as a result, were free at any time they wished to exercise economic self-help and seek better payingjobs. On the find- ings set forth above, it is the conclusion of the undersigned that the Respondent's decision to discharge these three em- ployees was not reached until the morning of April 16 when Culbreath, on behalf of herself and the six others, presented to Garland their list of grievances and gave the Respondent 8 hours to submit an answer to their demands. The efforts of Aldrich, Culbreath, and their coworkers to secure a hear- ing from the Respondent's officials during the latter part of the preceding week and on the following Monday were considered "troublemaking" by President Lott and Manag- er Garland. Under the standards established by the statute here involved, hovever, these efforts were also protected concerted activity. On the foregoing findings it is my con- clusion that the primary motive for the dismissal of Aldrich and Culbreath was the Respondent's aversion to this con- certed activity. Consequently, by their discharge, the Re- spondent violated Section 8(a)(1) of the Act. Metal Plating Corporation, 201 NLRB 203 (1973); Southern Pine Electric Cooperative, 104 NLRB 834, 835, (1953) enfd. 218 F.2d 824 (C.A. 5, 1955), cert. denied 350 U.S. 830; N.L.R.B. v. Ken- nametal, Inc., 182 F.2d 817, 818-819 (C.A. 3, 1950). A week earlier, Robinson had first given 2 weeks' notice that she planned to resign and then, as found above, on April 13, she told Garland that she wanted to withdraw that request. On cross-examination, Garland conceded that the cause of her discharge on April 16 "was a combination of ... the same reasons the other girls [Aldrich and Cul- breath] were let go." Since it has already been found that the latter were discriminatorily terminated, it is my further conclusion that by the discharge of Robinson the Respon- dent likewise violated Section 8(a)(1) of the Act. The Respondent denied that it discharged Allen, Cloing- er, Christopher, and Swope on the same afternoon that it terminated Aldrich, Culbreath, and Robinson. Lott testified that the former were terminated on April 18, for having failed to notify the Company that they would not be at work. At that point these four employees had been picketing the plant for 2 days. President Lott conceded that on April 17 and 18 he had seen all four of them on the picket line with their strike banners. Plant Manager Garland acknowledged that he knew these employees were striking and that he 13 Thus, there was no evidence that Aldrich disparaged her employer's product (N L R B v Local Union No 1229, International Brotherhood of Electrical Workers, 346 U S 464, 475-478 (1953), Patterson-Sargent Co, 115 NLRB 1627, 1629-1631 (1956)), promoted an unlawful boycott of the Respondent's merchandise (Hoover Company v N L R B, 191 F 2d 380,382 -390 (C.A 6, 1951)), unlawfully interfered with the Respondent's commer- cial interests (N L R B v Red Top, Inc, 455 F 2d 721, 727-728 (C A. 8, 1972)), or pilfered its office files (N L R B v Clearwater Finishing Co, 203 F 2d 938, 939 (C A 4, 1953)) Nor was her conduct in any manner similar to the unprotected activities of the licensed employment agent involved in Boeing Airplane Co v N L R B, 238 F.2d 188, 189-195 (C A 9, 1956) QIC CORPORATION 69 assumed they were doing so because of the three discharges on April 16 and because of the grievances which the,em- ployees had submitted on that same date. Under these cir- cumstances, it is clear that the employees were engaged in protected concerted activities and, on the basis of the testi- mony offered by the Respondent's principal witnesses, that the Company was well aware of this fact. Consequently, Lott's termination of Allen, Christopher, Cloinger, and Swope constituted a discharge for striking. It is well estab- lished, and the undersigned finds, that by such action the Respondent violated Section 8(a)(1) of the Act. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 13-18 (1962); N.LR.B. v. Tyler Pipe & Foundry Co., 410 F.2d 1061, 1062- 1063 (C.A.D.C., 1969); N.L.R.B. v. City Yellow Cab Com- pany, 344 F.2d 575, 582 (C.A. 6, 1965); N.L.R.B. v. Greens- boro Coca Cola Co., 180 F.2d 840, 843-844 (C.A. 4, 1950); Carter Carburetor Corp. v. N.L.R.B., 140 F.2d 714, 718 (C. A. 8, 1944); N.L.R.B. v. Peter Cailler Kohler Swiss Choco- lates Co., 130 F.2d 503, 505 (C.A. 2, 1942).14 Two other employees, Wanda Shagonaby and Sylvia Spaulding, made brief appearances on the picket line. At the time Shagonaby was on sick leave and Spaulding was on vacation. Neither was discharged. In its brief, the Respond- ent contends that this was because it knew that both of these employees had valid excuses for not being at work. As to Allen, Christopher, Cloinger, and Swope, however, the Re- spondent argues that they violated a plant rule requiring that the Company be notified of a projected absence and, as a consequence, they were lawfully discharged for violat- ing this rule. There is no merit to this argument. In Washing- ton Aluminum, supra, the Supreme Court considered, and rejected, a similar argument by the employer in that case. There the employees involved walked off the job in protest over the abnormal cold that prevailed in their shop on a particular January day when the furnace was not working. The employer argued that they were not discharged for their protected concerted activity in walking off the job, but rath- er for their violation of a shop rule requiring that they secure permission from their foreman before leaving their work. In rejecting this argument, the Supreme Court stated: Section 10(c) of the Act does authorize an employer to discharge an employee for "cause" and our cases have long recognized this right on the part of an employer. (See, e.g., Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45) But this, of course, cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which § 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that for it i4 The complaint also alleged that the Respondent violated Sec. 8(a)(3) by these discharges. However, it was not established that the Respondent was aware that the Teamsters had arrived on the scene until the demand for recognition was made on April 19. Since this was at least a day after President Lott terminated the four strikers, the'record does not support the allegation that the ternnnation of these employees also violated Sec. 8 (aX3). On the other hand, whether their discharge is found to be a violation of Sec 8(a)(3) or (1), the Board has held that the same remedy is necessary to effectuate the policies of the Act. Nemec Combustion Engineers, 100 NLRB 1118, 1119 (1952), enfd. sub nom. N.LR B v. Martin, et al., 207 F 2d 655 (C.A 9, 1953), cert denied 347 U.S. 917. would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the per- mission of the company's foreman was obtained. [370 U.S. at 16-17.1 Earlier, it was found that on April 19, and subsequent to the Union's demand for recognition, President Lott ques- tioned several of the employees who were then in the plant as to whether they knew anything about the Union. In view of the fact that at that point the Respondent had discrimina- torily discharged a total of seven employees for having en- gaged in protected concerted activity, I conclude that Lott's inquiry was coercive and a violation of Section 8(a)(1) of the Act. D. Eligibility of the Strikers for Reinstatement As employees who were discriminatorily discharged, all of the seven here involved are entitled to their former jobs, or substantially equivalent positions, unless by misconduct during their concerted activity they forfeited that right. The Respondent contends that some, at least, engaged in such prohibited conduct. These cases will now be considered. As found earlier, the picketing extended over a 3-week period. President Lott testified that during that time the nonstriking employees often had difficulty getting to work and that on many occasions he had to call the Berrien County sheriff to the scene. Lott's testimony, however, was lacking in specificity and it was largely unsupported by the testimony of other witnesses for the Respondent. Plant Manager Garland testified "I don't remember too much difficulty [entering and leaving the plant] ... I don't re- member standing there and them [the pickets] obstructing me.... " James Keller was a supervisor at plant No. 1 and in the course of his duties often visited the Stevensville factory. He testified that while the strike was in progress he was at the latter plant on 20 or more occasions, but that he never had any trouble crossing the picket line and that no one yelled or cursed at him as he did so. It is my conclusion that the record does not support the Respondent's conten- tion that the pickets either individually, or collectively, en- gaged in unprotected concerted activity by blocking ingress or egress at the plant during the strike.15 Lott also testified that the strikers spread tacks on the driveway. However, he conceded that he had no knowledge as to any individuals who might have been responsible. The strikers who testified credibly denied having thrown any tacks on the roadway. Supervisor Keller, who, as found earlier, visited the plant more than 20 different times during the strike, testified that he never saw any tacks on or about the entrance. Only employee Deckert testified that he had seen tacks on the premises. According to Deckert, about 2 weeks after the strike began he found some tacks in the plant parking lot and he and employee Osgood picked them 15 It appears that during the course of the strike a variety of criminal charges were filed by the Company against the strikers and also by the strikers against certain nonstrikers At the trial of the present case, the parties stipulated that in July 1973, and as the result of an agreement between Counsel for the Respondent and Business Agent Reynolds, all of these charges and countercharges were dropped 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up. Deckert's testimony, however, did not implicate any specific striker. Consequently, the undersigned concludes that the record fails to establish that any employee involved in this case was responsible for placing tacks on or about the plant premises. As often happens during the course of a strike, some of the pickets shouted a variety of epithets at their nonstriking colleagues. This, apparently, occurred more frequently dur- ing the early days of the picketing. Manager Garland testi- fied that subsequent to the outset of the strike the Union assumed direction of the picket line and thereafter the pres- ence of the organizer was, as he described it, "a quieting factor." In any event, among the strikers, Allen and Swope credibly denied that they had engaged in any name calling or the shouting of obsenities. Christopher and Cloinger credibly testified that their vocalizing was limited to des- cribing the nonstrikers as "scabs," "pigs," "bitches" and "sons-of-bitches." Culbreath acknowledged that she had shouted obscenities at most of the employees who entered the plant, characterizing them as "sons-of-bitches," "bitch- es," and "bastards." Aldrich similarly conceded that she often shouted obscenities at the nonstrikers. There was also testimony that Culbreath made obscene hand gestures to some of those entering or leaving the factory.16 In an often quoted passage in Longview Furniture Compa- ny, 100 NLRB 301, 304 (1952), enfd. as modified 206 F.2d 274 (C.A. 4, 1953), the Board stated: Although the Board does not condone the use of abu- sive and intemperate language it is common knowledge in a strike where vital economic issues are at stake, striking employees resent those who cross the picket line and will express their sentiments in language not altogether suited to the pleasantries of the drawing room or even to courtesies of parliamentary disputa- tion. Thus, we believe that to suggest that employees in the heat of picket line animosity must trim their expres- sion of disapproval to some point short of the utteranc- es here in question, would be to ignore the industrial realities of speech in a workday world and to impose a serious stricture upon employees in the exercise of their rights under the Act. See also, Republic Steel Corp v. N L.R.B., 107 F.2d 472, 479 (C.A. 3, 1939), cert. denied 309 U.S. 684; Terry Coach Indus- tries, Inc., 166 NLRB 560, 564 (1967), enfd. 411 F.2d 612 (C.A. 9, 1969); Hugh H. Wilson Corporation v. N.L.R.B., 414 F.2d 1345, 1356, fn. 20 (C.A. 3, 1969), cert denied 397 U.S. 935 (1970). Similarly, in the present case, I conclude that, with the exceptions noted later as to Aldrich and Cul- breath, the vulgar, obscene statements that were made by certain of the pickets, notwithstanding their at times offen- sive character, do not justify the Respondent's refusal to reinstate them. 16 Culbreath likewise testified that at times she called out to the employees who crossed the picket line that she would "whip their ass " At the hearing she credibly testified that she was 5 feet 1 inch tall and that she weighed 94 pounds in view of her obviously diminutive stature it would not appear that whatever she said on the picket line, regardless of its stridency, could have sounded ominous to anyone who saw her at the time the remarks were uttered For a time after the strike started, Lott and Garland were harassed with crank telephone calls. Both handled the situa- tion by securing unlisted numbers. Keller testified that dur- ing the first week of the strike he received a telephone call in which a man whom he could not identify asked that Keller relay a message to Garland that someone was going to beat him up. Keller further testified that in mid-July he received another anonymous telephone call, this time from a woman in which he was asked to tell both Garland and Lott that they were to be beaten. None of the Respondent's officials was able to identify any of these callers. The Incidents Involving Aldrich and Culbreath James L. Deckert, a technician who worked throughout the strike, testified that over a period of 9 weeks he received a series of five telephone calls at night and while at his home, from one whom he recognized as Janet Culbreath. Thus, Deckert testified as follows: In the first call, about one week after the strike began, Culbreath called Deckert "a no good slob," as well as a series of obscene characterizations, and declared "I'm going to kill you." Deckert testified that he did not consider this language serious and at the time "thought it was funny." In the second call, about a week later, Culbreath opened the conversation with the statement "Hi, Jim-How would you like to die tonight?" Thereafter, she called him a "bas- tard" along with several other appellations of a more ob- scene character and concluded with the question "How would you like to have a bomb in your car?" Deckert testi- fied that, in contrast with his reaction to the first call, on this occasion he was alarmed by the conversation and reported the matter to the Berrien County Police Department. About 2 weeks later, Culbreath called again. On this oc- casion, however, Deckert hung up the receiver as soon as he recognized her voice. Shortly thereafter, Deckert received another telephone call from Culbreath and this time she asked that Deckert accompany her to a restaurant. Deckert declined and closed the conversation. At some point during the strike Deckert swore out a misdemeanor complaint against Culbreath charging her with having damaged his car as he was entering the plant driveway. In July he asked that this charge be dropped. Deckert testified that a short while later he received a very brief telephone call from Culbreath in which she stated "Thank you for dropping the charges, you bastard." Culbreath denied that she had ever telephoned Deckert or that she had ever had any of the conversations which he attributed to her. Deckert was a credible witness. His narrative as to the series of telephone conversations was replete with details which withstood a searching cross-examination. There was no apparent reason for Deckert to fabricate the testimony which he gave against his coworker and the manner in which he testified had a persuasive ring of conviction. Al- though Culbreath was a generally credible witness, as has been found earlier in this decision, as to this issue, it is the conclusion of the undersigned that in this instance Deckert was the more credible, that the telephone conversations occurred substantially as he testified, and that Culbreath QIC CORPORATION 71 was the other party involved. Douglas Osgood, another technician and a nonstriker, testified that on about April 21 and after the strike began, he and his fiancee were at a shopping center in the area when Aldrich and Culbreath appeared behind them. Ac- cording to Osgood, both Aldrich and Culbreath followed him and his fiancee to his car, all the while making obscene gestures and remarks. Osgood testified that as he and his friend were leaving the parking lot, Aldrich and Culbreath followed him in an automobile, sounding their horn and bumping into the back of his car. Both Aldrich and Culbreath denied having seen Osgood at the shopping center and they denied having engaged in any of the conduct which he attributed to them. In this instance, however, Osgood was the more credible. It is the conclusion of the undersigned that the incident in question occurred substantially as Osgood described it. During the latter part of June, and after the strike had ended, Aldrich encountered Martha Jenkins, a tester at the plant and an employee who had worked during the strike, as the latter was leaving Ron's Super Market. Aldrich testi- fied that on this question she told Jenkins "some day I was going to come back into QIC and go to work and . . . when I do, Martha, you'll never walk across another damn picket line." Aldrich further testified that she concluded the con- versation by telling Jenkins that "she had better get in her car . . . before I change my mind.... " Jenkins corrobo- rated the foregoing version of what Aldrich said to her. She also added that during the conversation Aldrich stated "Martha, I'm going to whip your ass all over Benton Har- bor... Aldrich was a large woman, substantially larger than Jen- kins. In view of her size, and her obvious animosity, even as she recounted the incident while a witness in the case at bar, Aldnch's threats to Jenkins of a whipping or beating were not to be taken lightly. Earlier herein Culbreath's threats of violence on the picket line were found innocuous. Her threats to Deckert, however, are not to be considered in the same light. Questions such as "How would you like to die tonight?" "How would you like to have a bomb in your car?" and statements such as "I'm going to kill you," made over the telephone and in a night time call to the home of an employee, are obviously menacing in the extreme. The other incident wherein Aldrich and Culbreath were in- volved in an attempt to embarrass nonstriker Osgood, by itself, might not justify denial of reinstatement rights. How- ever, when considered in the light of Aldrich's admitted threat of physical violence against Jenkins and the ominous telephone threats which Culbreath made to Deckert, it is my conclusion that by all of such conduct both have forfeited their right to return to work for the Respondent. Firestone Tire & Rubber Co. v. N.L.R.B., 449 F.2d 511, 512-513 (Whitehead) (C.A. 5, 1971); Kohler Company, 148 NLRB 1434, 1452 (1964), enfd. 345 F.2d 748 (C.A.D.C., 1965), cert. dewed 382 U.S. 836; The Philip Carey Manufacturing Company, 140 NLRB 1103, 1132 (1963), modified and enfd. 331 F.2d 720 (C.A. 6, 1964). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. - 2. By discharging Dorothy Aldrich, Alma Allen, Sandra Christopher, Cathy Cloinger, Janet Culbreath, Wilda Swope, and Marilyn Robinson, thereby discouraging pro- tected concerted activity, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The Respondent further violated Section 8(a)(1) of the Act by maintaining an unduly broad rule against solicita- tion and by interrogating employees concerning union ac- tivities. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. By certain unprotected activity in which they engaged during the course of the strike and thereafter, Dorothy Al- drich and Janet Culbreath forfeited their rights to reinstate- ment. 6. The General Counsel has not proved by a preponder- ance of the evidence that the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights safeguarded by the Act, except by the specific acts and conduct found herein to have been violative. THE REMEDY 4 Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that the Re- spondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily ter- minated Marilyn Robinson on April 16, 1973, and Alma Allen, Sandra Christopher, Cathy Cloinger, and Wilda Swope on April 18, 1973, the Administrative Law Judge will recommend that the Respondent be ordered to offer them immediate and full reinstatement without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered from the time of their discharge to the date of the Respondent's offer of reinstatement. The backpay for the foregoing em- ployees shall be computed in accordance with the formula approved in F. W. Woolworth, Company, 90 NLRB 289 (1950), with interest computed in the manner and amount proscribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). It will also be recommended that the Re- spondent be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the undersigned hereby issues the following recommended: 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER17 QIC Corporation, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employees because of their union or concerted activities. (b) Coercively, or otherwise unlawfully, interrogating its employees as to their union activities. (c) Maintaining a rule forbidding employees from engag- ing in solicitation during their nonwork time in any area of its premises. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Marilyn Robinson, Alma Allen, Sandra 17 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 Christopher, Cathy Cloinger, and Wilda Swope immediate and full reinstatement to their former jobs, or, if any of those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary, or appropriate, to analyze the amount of backpay due. (c) Post at its plant in Stevensville, Michigan, copies of the attached notice marked "Appendix." 18 Copies of the notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's au- thorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 18 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "