Gray Flooring

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern and Western Lumber Company d/b/a Gray Flooring and United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Decorators Local Union 1759, AFL-CIO. Case 6-CA-6979 July 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 29, 1974, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting 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 and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, except as modified below. The complaint alleged that Respondent violated Section 8(a)(1), (3), and (5) of the Act. The Adminis- trative Law Judge found no violations and recom- mended that the complaint be dismissed in its entirety. The General Counsel excepts, inter alia, to the failure to find certain interrogations to violate Section 8(a)(1) and the discharge of James Kelly on September 24, 1974, to violate Section 8(a)(3) and (1). We find merit in these exceptions. In early September 1973,' Kelly got in touch with the Union concerning organizing Respondent's em- ployees. He thereafter received some authorization cards, and he and certain other employees set about getting Respondent's other employees to sign up with the Union. There is no evidence that Respondent knew at any time of Kelly's role in these activities. On September 18, Union Agent Poplowski sent Respon- dent a letter requesting recognition and on the follow- ing day talked to Respondent's president, Gray, stating that the Union represented a majority of Respondent's employees. On September 20, Poplow- ski asked Kelly to get him the names and addresses of Respondent's employees so he could send them a let- ter concerning a union meeting to be held on Septem- ber 24. September 22 was a Saturday and Kelly worked in Respondent's warehouse till shortly after noon. In the warehouse is the production office where are located ' All dates are 1973 the desks of supervisors Linderman and Fuscaldo. Employees have free access to the office to get coffee, to use a city map, to get work assignments and time- cards, and for just visiting with the supervisors. Also the supervisors' desks are usually covered with vari- ous papers which employees may use in the course of their work. Sometime during the morning Kelly asked Linder- man for a thumbtack to put a notice on the bulletin board on the outside wall of the warehouse office. Linderman told him he would find a tack on the bulle- tin board. Kelly then posted a copy of Union Agent Poplowski's letter to all employees, concerning a union meeting for September 24, and its enclosure- one of this Board's "Notices to Employees" outlining certain employee rights under the Act. Linderman did not actually observe the posting of the letter and no- tice, but he did read them just after Kelly put them up on the bulletin board. Shortly after he stopped work at noon and also shortly after Linderman had left for the day, Kelly went into the warehouse office and began copying names of employees from a schedule roster hanging by Linderman's desk. Employee Griffin, who hap- pened to be in the office at the time, asked Kelly what he was doing and, on being told, asked if he needed telephone numbers. When Kelly said he guessed they would help, Griffin handed Kelly some index cards containing employees' names and telephone numbers. Usually the cards are kept in a pigeonhole over Linderman's desk; however, Griffin testified that that day he had picked them up off the top of Linderman's desk. In any event, Kelly proceeded to write down the employees names and telephone numbers. After having given Kelly the cards, Griffin left the office only to return a few munutes later to warn Kelly that Franskousky, Respondent's vice president and supervisor, was in the warehouse. Kelly said that was all right as he was doing nothing wrong. Griffin left. Shortly thereafter Franskousky came into the office, saw Kelly copying the cards, and asked if Linderman knew Kelly was theie. Kelly replied in the negative and added that he was not doing anything wrong. After vainly trying to get Linderman, Franskousky took the cards. The next day he telephoned Respondent's president, Gray, about the matter, and on the morning of Monday, September 24, took Kelly to Gray's office. There Gray asked Kelly if anyone had told him to copy down the employees' names and telephone numbers. Kelly said, "No." Gray then asked if Kelly wanted to think about his "statement." Kelly replied he did not understand; Gray repeated his question and Kelly's reply was again "No." Then Gray said: "You're fired for pilfering from company records." 212 NLRB No. 107 GRAY FLOORING 669 The General Counsel, as noted, contends that the discharge of Kelly violated Section 8(a)(3) and (1) of the Act and that the above questioning by Gray at the exit interview was unlawful interrogation. The Ad- ministrative Law Judge did conclude-and properly so-that "Respondent's sole reason for discharging Kelly was the fact that it caught him using its records without its permission to make a list of its employees' names and telephone numbers for the Union." And in reaching this result he rejected the Respondent's claim that it had no knowledge of Kelly's prounion activities, noting in this regard Supervisor Linderman's reading of prounion material posted by Kelly. He then brushed aside as incredible the testi- mony by Franskousky and Gray to the effect that despite the context of union activity in the plant it never entered their minds that Kelly was copying data for the Union. Nevertheless, he found no violation in the discharge even though he found, correctly in our view, that Kelly was clearly engaged in a concerted, union activity. Instead, he held that activity unpro- tected as it involved copying employees' names and telephone numbers "surreptitiously from Respondent's private records." Having held the activ- ity unprotected, the Administrative Law Judge then found that Gray's questioning Kelly at the "exit inter- view" about that activity was not unlawful. We can- not, as we have indicated, accept the Administrative Law Judge's ultimate results here because the record evidence does not support his finding that Kelly "sur- reptitiously" copied the cards, and because we find that the cards were not, in any meaningful sense, "pri- vate records." With respect to the former matter, Kelly's conduct was, throughout the incident, open and frank. He did not sneak into the office and the office was not one where he had no right to be. Also he did not go there to copy the cards. In fact it was Griffin's suggestion, not Kelly's initial purpose, that resulted in the cards being copied. Also neither when warned by Griffin that Supervisor Franskousky was in the warehouse nor when Franskousky entered the office did Kelly attempt to cover up what he was doing or otherwise attempt to dissemble. Thus, we obviously do not have here a situation where an employee sought by devious means to obtain his employer's confidential or private information. But even more, the information sought did not, as we have stated, involve confidential or private rec- ords. First, it is clear that the Respondent had had no announced policy concerning the use of the note cards by employees-at least prior to the incidents involved in this proceeding. Second, the cards were not maintained in a place or manner that would indi- cate management considered them to be of a private or confidential nature. On the contrary, as the facts show they were located in an office frequented by employees for various reasons-both social and work-related-and were normally kept there either in an open pigeonhole or on the top of desk regularly visited by employees to get for themselves, without supervision or the asking of permission, various pa- pers and other information. Finally, there obviously was nothing in the nature of the information on the cards-that is, in the employees' names and telephone numbers-to suggest to anyone that management considered the cards to be "confidential" or "private" records. In fact, the employees' names were openly listed on the schedule roster hanging beside the desk where the cards were kept. Certainly management had no obligation to supply Kelly or the Union with information useful in orga- nizing its operations 2 and could, had it desired to do so, properly have considered and treated all such in- formation it had compiled as confidential and private records unavailable to others. However, in view of the foregoing, we believe it is quite obvious that manage- ment did not in fact consider the note cards to be either confidential or private records, nor put its per- sonnel on notice that they were to be so regarded by others. In view of the casual way the cards were han- dled and in the absence of any announced contrary policy the employees-and specifically Kelly-had no reason to believe that any such policy of confiden- tiality existed. We therefore find that Kelly's conduct in issue here was not unprotected.' Accordingly, we find that Kelly's discharge on September 24 for engaging in concerted union activity violated Section 8(a)(3) and (1) of the Act. Also in view of our conclusion and findings here, and in the absence of proper justifica- tion, we further find that Gray's interrogation of Kel- ly on September 24 concerning who asked Kelly to compile the list of the employees violated Section 8(a)(1). CONCLUSIONS OF LAW In adopting the Administrative Law Judge's Con- clusions of Law, we substitute for those numbered 3 and 4 the following: "3. By discharging James A. Kelly on September 24, 1973, for engaging in protected concerted activi- ties, Respondent violated Section 8(a)(3) and (1) of the Act. "4. By interrogating James A. Kelly on September 2 With, of course, the hunted exception provided by our rule set forth in Excelsior Underwear Inc, 156 NLRB 1236 (1966). 3 See, for example, Ridgely Manufacturing Company, 207 NLRB No 32 (1973). 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 24, 1973, concerning who had asked Kelly to engage in certain protected concerted activities, Respondent violated Section 8(a)(1) of the Act." THE REMEDY Having found that the Respondent has violated Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Also having found the discharge of James A. Kelly to be unlawful , we shall order Respondent to offer Kelly immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by paying him a sum of money he would have earned from the date of his unlawful discharge to the date Respondent offers reinstatement, less net earnings during that period. Backpay shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest therein at the rate of 6 percent per annum as provided in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). Since a discriminatory discharge of an employee goes to the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 129 F.2d 532, 536 (C.A. 4, 1941)) we shall order that the Respondent cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Southern and Western Lumber Company d/b/a Gray Flooring, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because he engages in protected concerted activity on behalf of United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Decorators Local Union 1759, AFL-CIO, or any other labor organization. (b) Interrogating employees concerning their pro- tected concerted activities in a manner constituting interference, restraint, or coercion. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, as amended. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: (a) Offer James A. Kelly immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent one, with- out prejudice to his seniority or other rights or privi- leges, and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimina- tion against him, with interest at the rate of 6 percent, as provided in the section of the Board's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount, if any, of backpay due under the terms of this Order. (c) Post at its premises at Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees for engaging in union or other protected concerted activities on behalf of United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Dec- orators Local Union 1759, AFL-CIO, or any other labor organization. GRAY FLOORING 671 WE WILL NOT coercively question our employ- ees concerning their union or other protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, or to form, join, or assist the United Brotherhood of Carpenters and Joiners of America, Floor Cover- ers and Decorators Local Union 1759, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in all such activities. WE WILL offer James A. Kelly immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent one, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his discharge, with interest at the rate of 6 percent per annum. SOUTHERN AND WESTERN LUMBER COMPANY d/b/a GRAY FLOORING (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in this case was filed on September 19, 1973,1 and amended on September 24 and November 30. The com- plaint was issued on November 30 and amended at the hearing. The hearing was held on February 6 and 7, 1974, in Pittsburgh, Pennsylvania. i Dates are 1973 unless otherwise indicated. The principal issue litigated was whether Respondent vio- lated Section 8(a)(3) and (1) of the National Labor Rela- tions Act, as amended, by discharging James A. Kelly on September 24. For the reasons set forth below, I find that it did not and that, therefore, Respondent did not commit a Gissel-type 2 violation of Section 8(a)(5) and (1) of the Act. (Respondent's motion to dismiss, which I took under ad- visement at the conclusion of the hearing, is disposed of by my findings below. Its motion to correct trial transcript is hereby granted.) Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of oral argument and briefs, I make the following: FINDINGS OF FACT I JURISDICTION Respondent, a Pennsylvania corporation, is engaged in Pittsburgh, Pennsylvania, in the business of selling and in- stalling flooring and carpeting. During the year just prior to issuance of the complaint, it provided services valued in excess of $50,000 to Ryan Homes and other employers di- rectly engaged in interstate commerce. II THE UNFAIR LABOR PRACTICES A. Facts The following facts are essentially undisputed: James Kelly contacted Joseph Poplowski (frequently misspelled Potlowski in the transcript ), business representa- tive for Local 1759, in early September about representation of Respondent's employees. Poplowski mailed Kelly ap- proximately 35 blank authorization cards. Kelly signed one himself on September 6 and, with the help of four other employees, circulated others among Respondent's employ- ees. On September 18 Poplowski mailed a letter to Respon- dent in which he claimed to represent a majority of Respondent's "floor covering and warehousing employees" and demanded recognition. That same morning Poplowski and a colleague went to Respondent's office and asked to see G. Richard Gray, Jr., Respondent's president. Poplow- ski had with him valid authorization cards 3 executed by 19 of Respondent's 30 production and maintenance employ- ees. (He subsequently acquired four more.) He was told that he could not see Gray without an appointment. Later that day Poplowski called Gray's office and made an appoint- ment for September 19. On September 19 Poplowski and a colleague returned to Gray's office. As they waited in the anteroom, the demand letter which Poplowski had mailed the day before was deliv- 2 N L R B v Gissel Packing Co., Inc, 395 U S. 575. 3 G C Exh 2(e), an authorization card executed by Charles J Lang on September 7, and G C hxh 2(f), an undated authorization card executed by Russell Earl on September 7, were rejected on February 6, 1974. However, they were received into evidence the next day after being properly authenti- cated by the General Counsel Each bears a reporter 's stamp which correctly shows that it was identified and received into evidence . However, they are contained in a file labeled "Rejected Exlubits." I hereby order that they be transferred to the file labeled "General Counsel 's Exhibits." 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ered. When they were ushered into Gray's office, the opened letter was lying on Gray's desk. Gray's holstered gun was hanging behind the desk. Poplowski introduced himself and stated his business. Gray replied that Respondent would only deal with Poplowski through the Labor Board. Poplowski went directly to the Regional Office and filed the initial charge in this case, alleging a violation of Section 8(a)(5) and (1) of the Act. After Poplowski left, Gray called a meeting of all Respondent's supervisors. He informed them that Local 1759 was attempting to organize Respondent's employees. He instructed them not to discuss the Union with employees and not to, do anything about the situation, whether pro- or anti-Union. On September 20 Poplowski prepared a letter to Respondent's employees announcing a meeting to be held on the evening of September 24 "in order to further discuss the present organizing of your shop." With each copy of the letter he enclosed a copy of a form captioned "NOTICE TO EMPLOYEES from the National Labor Relations Board" which listed employees' Section 7 rights and some "exam- ples of conduct which interfere with the rights of employ- ees." He asked Kelly to get him the names and addresses of Respondent's employees so that he could mail the letter to those employees whose addresses he did not yet have. Kelly worked overtime on the morning of Saturday, Sep- tember 22, in Respondent's warehouse. In the warehouse is a production office which is shared by John Linderman (misspelled Lindeman throughout the transcript), Respondent's supervisor of installation for ceramic , resil- ient, and hardwood flooring, i.e., floors and floor coverings other than carpets, and Bruce Fuscaldo, supervisor of Respondent's truckdrivers. Each has a desk in the office. The room is open to employees who freely enter it to get coffee, use a map of the city which hangs on one wall, get work assignments or timecards , or simply pass the time of day with Linderman and/or Fuscaldo. Blank timecards are kept in a rack on top of Fuscaldo's desk. Both desks are usually covered with papers relating to work. Employees, on occasion, use these papers in the course of their work with- out special permission from Linderman or Fuscaldo. Linderman was also in the warehouse on the morning of September 22. During the course of the morning, Kelly posted a copy of Poplowski's September 20 letter and the enclosure on a bulletin board which hangs on the outside wall of the production office near the door. Before he posted them, he asked Linderman for a thumbtack. Linderman told him there were some on the bulletin board. Linderman was not aware of what Kelly was planning to post when he asked for a thumbtack. He did not see Kelly post the letter and notice. However, a few minutes after Kelly posted them, Linderman came out of the office and read them. (I do not consider Linderman's "no" answers to question whether he saw Kelly put the letter on ,the bulletin board or had any knowledge that Kelly was active on behalf of the Union prior to his discharge denials of Kelly's testimony. Since, as Respondent's brief makes clear, they were so in- tended, I credit Kelly over Linderman.) A few minutes after he finished work at noon Kelly went into the production office. Linderman had left for the day shortly before. James Griffin, a truckdriver, was in the of- fice. Kelly began copying the names of Respondent's em- ployees from work schedules which are posted over Linderman's desk. Griffin asked Kelly if he needed the telephone numbers of the men. Kelly replied, "Well, I guess it would help." Griffin handed Kelly a packet of five or six filing cards held together with a paper clip which list the names and home telephone numbers of all employees. Grif- fin picked them up from the top of Linderman's desk. They are normally kept in a pigeon hole at the back of Linderman's desk. Griffin left the office as Kelly was copying names and telephone numbers from the cards. In the warehouse, he saw Regis Franskousky (misspelled Franskowski throughout the transcript), Respondent's vice president and supervisor of carpet sales and installation. Griffin returned to the office to warn Kelly that Franskousky was in the warehouse. Grif- fin said, "Jim, Reg is back there." Kelly said, "That's OK. I'm not doing anything wrong." Griffin said, "Yeah, but I know what you have to do is about the Union." Kelly said, "OK, I'm still not doing anything wrong." Griffin said, "OK, I'm going home" and left. Franskousky walked into the office and caught Kelly copying information from the cards. Franskousky said, "Does John [Linderman] know you're in here?" Kelly said, "No, he doesn't." Frightened by Franskousky's angry look, Kelly added, "Reg, I'm not doing anything bad." Franskousky went to the intercom system in the ware- house. He called for Linderman but was informed that he had left for the day. He returned to the office and took the cards away from Kelly. Kelly left, taking his list with him. (The record does not indicate whether it was complete or not.) Franskousky telephoned Gray at home on Sunday eve- ning and told him what had happened. On the morning of Monday, September 24, Franskousky came to the warehouse and took Kelly to Gray's office. Linderman was already there. Gray asked Kelly what he had been doing in Linderman's office on Saturday. Kelly said that he had been copying down a list of employees' names and phone numbers. Gray said, "Did anyone tell you to do that?" Kelly said, "No, sir." Gray said, "Do you want to think about that statement?" Kelly said, "I don't understand." Gray said, "Do you want to think about that statement?" Kelly said, "No." Gray said, "You're fired for pilfering from company re- cords." Later that morning, Kelly telephoned Poplowski and told him he had been discharged and that the reason he had been given was pilfering from company records. Poplowski im- mediately amended the charge in this case to add an 8(a)(3) and (1) allegation. The next morning approximately 25 of Respondent's em- ployees struck. When they tried to see Gray, they were told he was unavailable that morning but would meet with a delegation of four of them that afternoon. They telephoned this news to Poplowski. Poplowski instructed them to insist either on a meeting with Gray which all of them would be GRAY FLOORING 673 permitted to attend or one in which four of them would be accompanied by Poplowski. They relayed this position to Gray. Gray refused to see all of them in a group or Poplow- ski under any circumstances. No meeting with Gray took place, either that day or subsequently. Poplowski attempted to contact Gray by telephone without success during the strike. On September 26 Gray sent each striker a letter which read: This letter is not an effort to dissuade you from your views. It is simply to notify you that the Company is contin- uing its operations and that there is work for you here now, as there has been in the past. The men began picketing Respondent's place of business on the morning of Wednesday, September 26. They picket- ed through the following Monday. They returned to work on the morning of Tuesday, October 2. As Wilbert Klaas (misspelled Kloas throughout the transcript), manager of Respondent's home remodeling division , was passing out job sheets to the men under his supervision, he said, "I don't think you fellows are going about this the right way. I think if you went to see Rich [Gray], he would give you something pretty good." (This finding is based on the testimony of Charles Kaib, a carpenter. Klaas' version of the comment he made at that time was "I think this matter could have been handled like the matters before, Rich Gray could have handled this matter." I do not consider this a denial of Kaib's testimony or significantly different from Kaib's ver- sion of what Klaas said. Since, as Respondent's brief makes clear, it was so intended, I credit Kaib over Klass.) B. Analysis and Conclusions 1. Allegations of independent 8(a)(1) violations Mark Miksic testified that on an unspecified Saturday following September 24, Gray approached him in the store and asked him how the Union was going. Miksic, busy with a customer at the time, simply shrugged and answered, "Fine." The General Counsel thereupon moved to amend the complaint to add an allegation of interrogation of em- ployees "concerning their union membership, activities and sympathies, and the union membership, activities and sym- pathies of their fellow employees" by Gray "on or about November 1973." The General Counsel admitted that he knew about this evidence prior to opening of the hearing. Since he had not moved to amend the complaint in this regard at the opening of the hearing, I denied his motion on the ground that it was untimely made. I hereby reaffirm that ruling. Even if this incident falls within the allegations of paragraph 6(a) of the complaint that Gray, Linderman, and Franskousky engaged in such interrogation on September 24 and Klaas on October 2, I would find nothing coercive and, therefore, nothing illegal in this exchange. The September 24 interrogation allegation is predicated on Kelly's discharge interview that day. My reasons for finding that Kelly's discharge did not violate Section 8(a)(3) and (1) because he was discharged for engaging in an unpro- tected union activity are set forth in the next section. In view of that conclusion , I find nothing coercive in the sense that they would constitute an independent violation of Section 8(a)(1) about the questions which Gray put to Kelly on September 24. The October 2 interrogation allegation is predicated on Klaas' statement to employees that morning that Gray would give them something pretty good if they went to him. It is obviously not interrogation in any sense of that term of art. I can only assume the complaint is framed that way because the General Counsel anticipated a different re- sponse from his witness. However, the words Klaas spoke are susceptible of the interpretation that Respondent was making an implied promise of benefits to employees if they ceased or refrained from union activities, as much an inde- pendent violation of Section 8(a)(1) as interrogation. Even if I were to find such a violation, I would not recommend an order or remedy since, in view of my findings as to all the other allegations of the complaint, it would be an isolat- ed incident. In view of the possible due process problem created by the muddled nature of the General Counsel's pleading, I find Respondent, in the person of Wilbert Klass, did not violate Section 8(a)(1) of the Act by interrogating employees on or about October 2. At the conclusion of the General Counsel's case in chief, I granted Respondent's motion to dismiss an allegation that Respondent had, on or about December 20, "threatened employees with a reduction of available work if they select- ed the Union as their collective-bargaining representative," on the ground that the General Counsel had failed to make out a prima facie case. I hereby reaffirm that ruling. This allegation was predicated on a speech Gray made to the employees on December 20 in which, in the context of references to the history of the Company, the fact it had always been one, big, happy family, and the cloud which the Union had placed over it, he said there was no way Respon- dent could compete if it had to pay union wages. (More precisely, the three separate versions of this remark in the -record are "they couldn't have a union in the company because we bid so close on those jobs" (James Griffin), "they bid the jobs really close to be competitive and that if the union would get it, possibly we might lose contractors" (Ronald Trader), and "there was no way he could compete with other flooring companies if he had to pay us union wages" (John Windisch).) This was a prediction of a future event over which Respondent had no control and not a threat of an action inimical to employees within Respondent's control. 2. The discharge of James Kelly The General Counsel contends, first, that this is a routine pretext case, i.e., that Respondent discharged Kelly because of animosity growing out of his efforts to organize Respondent's employees, whether those activities be his leadership in the organizing campaign, his posting of the Union's letter and notice on the bulletin board, or his copy- ing of names and telephone numbers from Respondent's record, and that the reason advanced by Respondent is a pretext masking its real motive. There is no merit to such an 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument. There is no evidence in the record on which to base a finding that Respondent was aware Kelly had taken the initiative in contacting the Union or had been responsi- ble for introducing authorization cards into its shop. While there is evidence of anti-union animus in the sense that Respondent is opposed to organization of its employees, there is little evidence such as independent 8(a)(1) violations to indicate that Respondent was so violently opposed that it would break the law by discharging the leader as a warn- ing to other employees. On the contrary, it is significant in this respect that, according to Kelly's credited testimony, Linderman merely read the letter and notice soon after Kelly posted them. If Respondent's "animus" was of a level to explain its discharge of Kelly, I have no doubt Linderman would have removed letter and notice as soon as he saw them on the bulletin board. Most important, there is no evidence of any disparate application in Kelly's case of the reason given by Respondent for discharging Kelly. "Pilfering from company records" was the reason given to Kelly when he was discharged. It is the reason advanced by Respondent throughout the hearing. By it, Respondent simply means that it discharged Kelly for copying names and telephone numbers of its employees from the cards kept on Linderman's desk. Despite the fact that Respondent's answer is couched in terms of "unauthorized and clandes- tine entry into the office of supervisory employees of Re- spondent . . . without Respondent's knowledge and consent," it is a fact, as stressed by the General Counsel, that Kelly's being in the office a few minutes after noon on September 22 when neither Linderman nor Fuscaldo was there was nothing unusual. It is also a fact, also stressed by the General Counsel, that it is not unusual for employees to look at or even use the papers on Linderman's and Fuscaldo's desks in connection with their work. The only evidence, however, that would create a true disparity would relate to use of the materials on the desks without Respondent's permission for a purpose not related to an employee's work. In that regard, the only evidence in the record is the testimony of James Griffin that he once got the telephone number of John Windisch from the cards in order to call Windisch on a matter unrelated to their work. How- ever, Griffin conceded, and Linderman corroborated, that Griffin did so only after first asking Linderman's permission to use his cards. It is clear, therefore, that no inference can be drawn from this record on the basis of disparity of treat- ment accorded Kelly and other employees by Respondent when employees have used its records for nonwork purpos- es. A major element of Respondent's defense is its conten- tion that it had no knowledge of Kelly's union activities when it discharged him; therefore, it could not have been motivated by them. I have already found it was unaware of the scope of those activities. However, it is clear, from Kelly's uncontradicted account of asking Linderman for a thumbtack, posting letter and notice on the bulletin board, and watching Linderman read them a few minutes later, that Respondent had knowledge of that particular union activity prior to discharging Kelly. More germane to the issue posed by this case is whether Respondent was aware Kelly was copying information from its records for the Union. To this end, Franskousky and Gray each testified the thought never crossed his mind in connection with the discharge of Kelly that Kelly was copying data for the Union. Gray testified, affirmatively, that the thoughts which did occur to him related to an effort of a competitor some years ago to steal his employees and some recent burglaries in which records such as bids were taken. I do not believe either one of them. Franskousky and Gray are high- ly intelligent, sophisticated businessmen. That they would have caught Kelly making a list of Respondent's employees' names and telephone numbers only 3 days after Poplowski's demand for recognition and only 2 days after receipt of a copy of the original charge in this case and not immediately have surmised Kelly was working for the Union strains my credulity beyond the breaking point. Anserphone of Michi- gan, Inc., 184 NLRB 305 (1970). I find, therefore, Respondent's sole reason for discharging Kelly was the fact that it caught him using its records without its permission to make a list of its employees' names and telephone num- bers for the Union. Making a list of names and telephone numbers for the Union is obviously a concerted and union activity. Wheth- er, under all the circumstances of this case, it is also a protected activity, as the General Counsel contends, is what this case is really all about. Clearwater Finishing Co., 100 NLRB 1473, enforcement denied 203 F.2d 938 (C.A. 4), is the strongest case cited by the General Counsel for the proposition that it is. There, the Trial Examiner found viola- tions of Section 8(a)(3) and (1) in the discharges of one Livingston and one Hutto where Livingston, a clerk, copied company maintenance records at the behest of Hutto, a union official, in anticipation of the respondent's defense in a prior unfair labor practice case. The Board reversed as to Livingston, sustained as to Hutto, saying: Although superficially the cases of Hutto and Liv- ingston might appear to be similar, we believe there are several important points of distinction. It was not shown that Livingston was, or was sus- pected to be, a member of the Union. Moreover, at the time of Livingston's discharge, the Respondent had not been apprised by Hutto of his purpose in obtaining the list. Unlike Hutto, Livingston was not a plant employ- ee, but was a clerk, charged with the proper custody of the Employer's records . It was clearly inconsistent with the performance of his duties for Livingston to disclose such records, whether or not of a confidential nature, to Hutto. Such an indiscretion on Livingston's part might well be deemed by the Respondent to demon- strate his lack of fitness for his job as custodian of the Respondent's records, as the Respondent was entitled to have such a position occupied by an employee in whose discretion it had implicit confidence . In view of all these circumstances, particularly the lack of evi- dence that the Respondent knew, at the time it dis- charged Livingston, of the purpose of the list, and the fact that Livingston himself was unaware of its pur- pose, we find, unlike the Trial Examiner, that Living- ston was not discharged for engaging in concerted activities, and that his discharge did not violate the Act. Hutto, however, was an officer of the Union, and, as GRAY FLOORING 675 found by the Trial Examiner, this fact was known to the Respondent before his discharge . Moreover, the Respondent was apprised by Hutto, before it dis- charged him on December 16, of his purpose in obtain- ing the list of AFE jobs. Unlike Livingston, Hutto's conduct in obtaining the list had no bearing on his future usefulness in his job, which was that of mill- wright. The Respondent contends that he was dis- charged solely because he procured the disclosure of confidential information. The Trial Examiner found, however, that this was not the true reason for Hutto's discharge but that he was, in fact, discharged for engag- ing in activity designed to aid the Union to obtain evidence to be used in the then pending unfair labor practice case (Case 10-CA-620). We agree. Like the. Trial Examiner, we are not persuaded that the Respondent actually regarded the list of its AFE jobs as confidential information , or had any business reasons for objecting to the disclosure of such informa- tion. This is underscored by the fact that the same information had been posted on plant bulletin boards at various intervals during that period . There was no evidence, or contention, that this information was in the nature of a "trade secret," or that the Respondent could have been prejudiced in any way by the release of the list except for its possible use as evidence in Case 10-CA-620. As the only reason alleged by the Respon- dent for Hutto's discharge is not, in our opinion, credi- ble, and as there is no other apparent reason for the discharge except the Respondent's opposition to his activity on behalf of the Union in preparing and ob- taining evidence in support of the 1949 charge , we find, like the Trial Examiner, that Hutto's discharge violated Section 8(a)(3) and (1) of the Act. [Footnotes omitted.] Here, without doubt, Kelly is more akin to Hutto than to Livingston. Kelly did not occupy the sort of clerk position that would have entitled Respondent to an employee in whose discretion it had implicit confidence . Thus, by copy- ing Respondent's records, Kelly did not demonstrate his lack of fitness for his job. Also, the records Kelly copied were in no sense confidential. Gray's claimed thought pro- cesses to the contrary notwithstanding, names and tele- phone numbers of employees are not a trade secret and there is no way Respondent could have been prejudiced by their release except for their possible use as an aid in the Union's efforts to organize its employees. In fact, it would be difficult to imagine anything more innocuous for Kelly to "pilfer." Given the small size of the unit involved here, Kelly could easily have asked any employees not already known to him by name what their names were. The numbers (and, for that matter, addresses, the information Poplowski was most interested in and the one thing not contained on the cards) he could have looked up in a telephone book. The fact that Respondent did not keep the cards under lock and key but left them openly on top of Linderman's desk so that Linderman could use them to call employees at home to direct them whatjob to go on is a measure of the importance Respondent attached to the cards. However, the legal prin- ciple at issue does not turn on the importance of the records involved. Clearwater is cited most recently in Ridgely Manufactur- ing Company, 207'NLRB 193 (1973), where the Board af- firmed Administrative Law Judge Jennie M . Sarrica without comment. That case involved the discharge of one Durban, who had the temerity to ask the respondent for a list of its employees' names and addressed for union orga- nizing purposes. Judge Sarnca wrote: Although the purpose of this activity was for use by the Union in organizing and was clearly concerted ac- tivity, the question remains whether it was also protect- ed activity. The applicable rule of thumb seems to be that employees are entitled to use for self-organiza- tional purposes information and knowledge which comes to their attention in the normal course of work activity and association but are not entitled to their Employer's private or confidential records.9 Thus, Re- spondent could rightly deny Durban the list of its em- ployees and their addresses and he would not be protected in obtaining such list from Respondent's re- cords surreptitiously. He was, however, protected in his actions of requesting such list from the top official in charge of the plant. Thus, protection for such activity depends on the question of whether timecards located by the timeclock fall into the category of private or confidential records of the Employer or constitute information available to all employees in the course of their normal work rela- tionship. I place them in the latter category as a source through which any employee may learn 'the names of his fellow employees as rightfully as through personal in-plant contact. Accordingly,1 conclude that when he was memorizing the names of fellow employees from the timecards for the purpose of contacting them con- cerning union representatioii, he was engaged in pro- tected activity. 9 See Murray-Ohio Manufacturing Company, 148 NLRB 1541, enfd 358 F.2d 948 (C.A. 6); Steele Apparel Company, Inc., 172 NLRB 903, 912-913 , enfd. in pertinent part 437 Fi2d 933; Anserphone of Michigan, Inc., 184 NLRB No. 31, compare, e.g., The Hoover Company, 12 NLRB 902, Clearwater Finishing Company, 100 NLRB 1473; Vitronic, Incorpo- rated, 183 NLRB No. 103, and Farlow Rubber Supply, Inc., 193 NLRB 570. Here, Kelly did not attempt to memorize names of em- ployees from timecards or, an analogous source, posted work schedules. He attempted to copy them and telephone numbers surreptitiously from Respondent's private records. I find, therefore, that the activity for which he was dis- charged on September 24 was unprotected and Respondent did not violate Section 8(a)(3) and (1) of the Act. ° Other cases cited by the General Counsel in oral argument and/or in his brief are inapposite. Whiten Machine Works, 100 NLRB 279, involved the misleading of employees about the use to which a paper on which they were asked to write their names and addresses was to be put Murray-Ohio Manu- facturing Company, supra, involved the discharge of a timekeeper who re- quested lists of employees from other timekeepers . Cello-Foil Products, Inc, Continued 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to bargain The only unfair labor practice I could find on this record is one that Respondent interfered with, restrained, and coerced employees in the exercise of their Section 7 rights on October 2 when Wilbert Klaas impliedly promised them benefits if they ceased or refrained from union activities. Even the General Counsel does not contend that this alone is sufficient to support a Gissel theory that Respondent, by its unfair labor practices, has made a fair election unlikely or authorization cards a more reliable test of the desires of Respondent's employees as to union representation. I find, therefore, that Respondent has not violated Section 8(a)(5) and (1) of the Act by refusing, at all times since on or about September 19, to recognize and bargain with the Union. Respondent raised a defense at the hearing to the 8(a)(5) aspect of this case which, in light of this finding, I technical- ly do not reach. I turn to it nonetheless so that this decision will resolve all the issues raised. The complaint alleges, and the answer admits, that all production and maintenance employees of Respondent at its Freeport Road, Pittsburgh, Pennsylvania, location, in- cluding floor covering installers, helpers, drivers, ware- housemen, yardmen, remodelers, and laborers; excluding salesmen, store clerks, office clerical employees and guards, professional employees and supervisors as defined in the Act, constitute an appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. However, Respondent contended that there is a fatal variance between a unit so described and the unit of "floor covering and warehousing employees" demanded by Po- plowski in his letter of September 18 and on the occasion of his visit to Gray's office on September 19. Respondent advanced two grounds to support this argument. First, Respondent pointed out that, while drivers and remodelers are properly included in an appropriate unit, Poplowski's "floor covering and warehousing employees" 171 NLRB 1189, involved the discharge of a nonstriking office employee who was suspected of keeping strikers informed about what was going on in the plant Steele Apparel Company, supra, like Ridgely, supra, involved the copy- ing of names from timecards. The distinction drawn in Rrdgely between the protection afforded by the Act to an employee who copies names from timecards which are displayed for all to see and the lack of protection for an employee who copies "private records" is the distinction on which this case turns. News-Texan, Inc, 174 NLRB 1035, involved information obtained by an employee in the course of a conversation with her foreman about the employer's business plans Anserphone of Michigan. Inc, supra. involved the discharge of an office manager for forwarding lists of employees to a union as a pretext for getting rid of a union adherent This is not a pretext case phrase does not include them. Second, and more strenuous- ly, Respondent contended that Poplowski did not intend to include Respondent's ceramic tile setters in his request be- cause that particular craft falls under the jurisdiction of a sister local in the Pittsburgh area. Neither position is fully developed in the record. What little evidence there is does, in fact, show a sufficient community of interest between drivers and remodelers on the one hand and "floor covering and warehousing employees" on the other to make their inclusion appropriate. I do not think Poplowski's failure to spell out them or, for that matter, any other specific inclu- sions in his demand letter is a sufficient variance from the more precise language of the complaint to render the Union's demand for recognition legally inoperative. As to the ceramic tile setters issue, whatever the facts are as to jurisdictional lines and trade practices with respect to car- penters in the Pittsburgh area, it is clear that Respondent's employees in the classification do, at times, put ceramic tile on floors. Consequently, they are encompassed in Poplowski's "floor covering ... employees." I find, there- fore, that the Union demanded recognition from Respon- dent on September 19 as the collective-bargaining representative of an appropriate unit of Respondent's em- ployees at a time when the Union represented a majority of the employees in that unit. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Southern and Western Lumber Company d/b/a Gray Flooring and Ryan Homes are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, Floor Coverers and Decorators Local Union 1759, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent vio- lated Section 8(a)(1) of the Act by interrogating employees on or about September 24 and October 2, 1973, and by threatening them on or about December 20, 1973, have not been sustained. 4. The allegation of the complaint that Respondent has violated Section 8(a)(3) and (1) of the Act by discharging James A. Kelly on or about September 24, 1973, has not been sustained. 5. The allegation of the complaint that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union at all times since September 19, 1973, has not been sustained. [Recommended Order omitted from publication.]