Bralco Metals, Inc.

BRALCO METALS, INC. 143 Bralco Metals, Inc. and Sherry Reed and Freight Handlers, Clerks & Helpers Local 357, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Cases 21-CA- 12309 and 21-CA-12422 October 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 13, 1974, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed cross-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 I of the Administrative Law Judge and to adopt his recommended Order. cember 12, 1973, as amended on January 18, 1974, and a charge filed by the Union named above in Case 21-CA- 12422 on February 5, 1974, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 21, on Feb- ruary 26, 1974, issued an order consolidating these cases and a consolidated complaint against Bralco Metals, Inc., herein called the Respondent, alleging that the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, herein called the Act. Respondent filed an an- swer denying the commission of the alleged unfair labor practices. A hearing was held on April 2 and 3, 1974. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Bralco Metals, Inc., the Respondent, is a California cor- poration engaged in the manufacture and sale of metal products in Pico Rivera, California, where it annually pur- chases and receives supplies valued in excess of $50,000 from suppliers located in California, each of whom, in turn, purchases and' receives these supplies directly from suppliers located outside California. The Respondent ad- mits it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Bralco Metals, Inc., Pico Rivera, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 Member Fanning would additionally find that Morrow's statements to employees Sampson and Jorgenson on November.l, 1973, the day before the election, to the effect that he did not know if they would have j )bs the following Monday if the Union won the.election were coercive ane' there- fore violative of Sec. 8(a)(l). Member Penello finds it unnecessary to pass on whether the Union either acquiesced or waived the right to bargain over the unilateral change: in the disciplinary system and elimination of the 8 a.m. catering truck. Since he would find these unilateral changes violative of Sec. 8(a)(3), the remedy as set forth by the Administrative Law Judge does not depend upon finding these changes also violated Sec. 8(a)(5). For this redson he does not adopt those findings of 8(a)(5) violations, involving as they do close questions of acquiescence and waiver. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: Upon a charge filed by Sherry Reed in Case 21-CA-12309 on De- II. THE LABOR ORGANIZATION INVOLVED Freight Handlers, Clerks & Helpers Local 357, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, is admittedly a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues The Respondent for about 20 years has been in the busi- ness of selling ferrous and nonferrous metals to business enterprises. It maintains a warehouse and an adjacent of- fice where during the times material to this case it em- ployed approximately 20 warehousemen, 7 office clericals, and 3 or 4 inside salesmen. The employees involved in this case are the office clericals who are supervised by Myrl Boden, the Company's office and credit manager. The in- side salesmen are supervised by William Morrow, the Company's vice president in charge of sales. The Company's principal official is its president, Claude Cohn. The warehouse employees have been unionized for about 15 years and are covered under the terms'of *a collec- tive-bargaining agreement between the Respondent and Teamsters Local Union 986. The office clerical employees and the inside salesmen prior to November 2, 1973, were 1 All dates hereafter, unless otherwise specified, refer to 1973. 214 NLRB No. 20 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not unionized . In September , the Union commenced a campaign to organize these employees . It filed a petition with the Board for a representation election which was conducted on November 2. Respondent admittedly was opposed to the unionization of its office clericals and inside salesmen. On the day before the election, Vice President Morrow met with these employees and expressed the Company's opposition to the Union . Nevertheless, the Union secured a majority of the votes , 6 to 4, and on No- vember 12 it was certified by the Board as the exclusive collective-bargaining representative of the office clerical employees and inside salesmen. The General Counsel alleges that immediately following the employees ' designation of the Union as their bargain- ing agent that , to punish the office clericals for having sup- ported the Union , the Respondent made certain changes in its policies which adversely affected their conditions of em- ployment and made these changes without first bargaining with the Union , all of which conduct the General Counsel alleges constitutes a violation of Section 8 (a)(1), (3), and (5) of the Act. The General Counsel also contends that Re- spondent issued written warnings to, and suspended, office clerical Sherry Reed because of her activities on behalf of the Union, in violation of Section 8(a)(1) and (3) of the Act. Lastly, it is alleged that the Respondent , through vari- ous members of management , made oral statements to em- ployees reasonably calculated to interfere with, restrain, or coerce the employees from supporting the Union. B. The Alleged Interference, Restraint, and Coercion Paragraph 13 of the consolidated complaint alleges that Respondent, through President Cohn and Office Manager Boden, in violation of Section 8(a)(1) of the Act, "made statements to employees creating the impression that their selection of the Union as their representative for purposes of collective bargaining was futile." Office clerical Dorothy Jorgenson testified that in late November or early Decem- ber, while outside the open door of the office in which Boden was interviewing an applicant for employment, she overheard Boden tell the applicant that "the office has vot- ed in the Union-was becoming unionized, but that Cohn had said that he would not sign a contract." This was all that Jorgenson overheard. She was unable to place the re- mark in its context. Boden, in effect, specifically denied making this remark but admitted that, after the Union won the election, he told applicants for employment that a union represented the office clerical employees, a contract was being negotiated, and there was a.possibility that they would be required to join the Union. I credit Boden's testi- mony and, accordingly, shall recommend that this portion of the consolidated complaint be dismissed. Paragraph 14 of the consolidated complaint alleges that the Respondent violated Section 8(a)(1) when its sales manager, Jack Siever, "threatened employees with dis- charge if they selected the Union as their. collective bar- gaining representative." Office clerical employee, Jorgen- son, testified that on November 1, the day before the elec- tion, Siever spoke to Inside Salesman Bernard Turner in the presence of Jorgenson and Inside Salesmen Don Carr and Robert Cohn. Siever, according to Jorgenson, "asked Turner how he felt Cheryl King [an office clerical] would vote in the election [and] Bernie [referring to Turner] said that he felt Cheryl King was a definite yes and Jack Siever said, well that is another one we will have to get rid of." Siever, whose testimony was substantially corroborated by Turner, denied that this incident occurred. The General Counsel failed to call either Carr or Cohn to corroborate Jorgenson. I credit Siever's testimony and, accordingly, shall recommend that this portion of the consolidated com- plaint be dismissed. Paragraph 15(a) of the consolidated complaint alleges that the Respondent violated Section 8(a)(1) when Vice President Morrow "threatened employees with discharge if the Union was selected as their collective-bargaining repre- sentative." Office clerical employee Linda Sampson testi- fied that on November 1, the day before the election, she initiated a conversation with Morrow at which time she asked "what would happen if the Union was voted in." Morrow answered "there would be a whole, brand new, ball game." Then, Sampson asked "if the Union did or did not get voted in, could [Morrow] assure our jobs come Monday morning." Morrow replied "he could not answer that." Morrow admitted the first portion of the conversa- tion as described above and testified that, by using the phrase "new ball game," he was referring to the fact that if the employees voted in the Union, the Company could no longer deal directly with the employees. He specifically de- nies that Sampson questioned him about the employees' job security. In any event, even if Sampson's version of the conversation is credited, the evidence is insufficient to sup- port this allegation of the consolidated complaint. Like- wise, I -do not believe that Morrow on November 1, as described below, by telling employee Jorgenson, in effect, that he did not know whether the office clerical employees would have jobs if the Union won the election, is the type of conduct sufficient to support this allegation of the com- plaint., As in the case of Sampson's similar inquiry, the subject was brought up by Jorgenson without any prompt- ing by Morrow, who was not the person in charge of the office clerical employees and whose ambiguous answer to the question, under the circumstances, was not reasonably calculated to coerce the employees. For the foregoing rea- sons, I shall recommend that this allegation of the consoli- dated complaint be dismissed. Paragraphs 15(b) through (d) of the consolidated com- plaint, in substance, allege that Respondent violated Sec- tion 8(a)(1) when Vice President Morrow threatened em- ployees with discharge if the election resulted in a tie vote, threatened employees with reprisals for supporting the Union when they sought other employment, and promised employees increased economic benefits to discourage them from supporting the Union. Office clerical employees, King and Jorgenson, testified in support of these allega- tions. King testified that on November 1, the day before the election, she initiated a conversation with Morrow and asked the following questions: Whether she would have a job and the employees would receive an increase in pay if BRALCO METALS, INC. the Union lost the election. Morrow, according to King, replied he would have to check with President Cohn and then stated that, if there was a tie vote, someone would have to be "let go," and warned that if any of the office clericals were to look for a job with another employer, the fact that they had tried to organize a union while employed by the Respondent would be held against them. Morrow allegedly ended the conversation by promising to let King know the next morning, before the scheduled election, what Cohn had agreed upon. King's initial testimony that Morrow, in answer to her question, did not promise a wage increase was later changed by King, who then testified that Morrow unequivocally stated that the employees would be given a wage increase if the Union was either voted out or there was a tie vote. King, when she testified about this conversation, was not a convincing witness. Morrow ad- mitted that on the day before the election King initiated a meeting with him; he met with King but, in effect, denies that he made any of the above-described remarks. Morrow gives a different version of his visit with King. I credit Morrow. Jorgenson testified that the day before the election Mor- row spoke to Jorgenson, King, and Reed and that "for a time" Office Manager Boden was present. During the course of the conversation, according to Jorgenson, Mor- row asked the three office clerical employees why they were dissatisfied with the Company. Jorgenson testified that she answered that the Company had eliminated giving the employees their birthday off with pay and they were not happy about the increase in the work loads. Morrow allegedly replied that if the Union did not win the election, the employees would be given an opportunity to meet with President Cohn and to voice their grievances and that Morrow would talk to Cohn that very night concerning the wage increases and the employees' working conditions. Neither Reed nor King, both of whom testified for the General Counsel, were called upon to corroborate Jorgenson's testimony and I presume that their testimony would not have been favorable. Morrow admits that he spoke to Jorgenson the day before the election but in effect denies her version of the conversation. Morrow testified that Jorgenson asked whether the employees would have a job if the election went in favor of the Union and Morrow replied that he did not know. Also, Jorgenson complained that the Company had eliminated the employees' paid birthday which Morrow knew nothing about and stated he would communicate the complaint to Cohn. I credit Mor- row. For the foregoing reasons, I shall recommend that paragraphs 15(b) through (d) of the consolidated com- plaint be dismissed. C. The Alleged Changes in Employees' Working Conditions 1. The Respondent discontinues the 8 a.m . catering truck, changes the time for the morning and afternoon breaks, prohibits personal conversation and the use of the company telephone , and requires that the timeclock be punched during the lunch hour The General. Counsel alleges in paragraph 8(b) through (c), in substance, that the Respondent on November 5, the 145 first working day after the election of Friday, November 2, changed certain terms and conditions of employment of the office clerical employees without giving the Union an opportunity to bargain over the changes, thereby violating Section 8(a)(5) and (1) of the Act. Additionally, the Gener- al Counsel contends that in making such changes the Re- spondent was motivated by a desire to punish the office clericals for supporting the Union and to undermine the Union. I shall set out and evaluate the pertinent evidence relating to each one of the alleged unlawful changes 2 inso- far as it relates to the General Counsel's case-in-chief, then determine whether a prima facie case of a violation has been made out, and then evaluate the evidence adduced by the Respondent to justify these changes and its alleged fail- ure to first bargain with the Union before instituting the changes. a. The General Counsel's case-in-chief The representation election took place on Friday, No- vember 2, between 11:30 a.m. and 12 noon, at which time a majority of the Respondent's office clericals and inside salesmen , by a vote of 6 to 4, designated the Union as their exclusive bargaining representative. The Respondent ad- mittedly was opposed to the unionization of these employ- ees and on the day before the election its vice president, Morrow, met with them and openly voiced the Respondent's opposition. Presumably, the Respondent was not happy over the results of the election but, more than that, the evidence establishes that Respondent's principal official, President Cohn, was very unhappy over the union- ization of the office clericals and inside salesmen and was of the opinion that the office clericals were responsible for the Union's victory. One week after the election, Cohn, while in the office of Sales Manager Siever, in Siever's pres- ence, asked Ben Charles, a sales representative for_one of Respondent's customers, rather jokingly "if he had heard about his Pearl Harbor." Charles asked Cohn what he was talking about and, in a not so joking manner, Cohn an- swered that "he had a bunch of mercenaries in his employ; that the Union had been voted in to represent his employ- ees, and that most of the girls 3 had only been there a few months and had pulled that kind of shit on him." ' On Friday, November 2, in the afternoon within I to 3 hours after learning that a majority of the employees had voted for the Union, Office Manager Boden notified the office clerical employees that effective Monday, November 5, the following changes would be made in existing compa- ny policy:' The time for coffeebreaks would become pre- 2 The change involving the written warning and progressive discipline system is dealt with separately in another section of this Decision. 3 An obvious reference to the office clericals. 4 Based on the undenied and credible testimony of office clerical Paula Holt, a very impressive witness. Siever was unable to specifically deny the conversation, testifying " 1 don't remember that conversation." 5 Based on the credible testimony of employee Paula Holt, whose testimo- ny is substantially corroborated by the credible testimony of clerical Linda Sampson as well as by clericals Dorothy Jorgenson and Sherry Reed, who, in substance, credibly testified that both Sampson and Holt on Friday. November 2, told them that Boden had notified them about certain rule changes . I reject Boden 's testimony to the effect that he did not announce Continued 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determined-from 10 a.m. to 10:15 a.m.; personal phone calls would be allowed only in the case of an extreme emer- gency; personal conversation during working time was ab- solutely forbidden; the 8 a.m. catering truck would be dis- continued; the timeclock must be punched during the lunch period .6 No prior warning had been given about these changes and Boden did not explain to the office cleri- cals the reason that the Company felt that it was necessary to institute the changes, as will be shown below, in long- standing company policies. I shall describe in pertinent detail each one of the changes announced by Boden on November 2 which are challenged by the General Counsel as being unlawfully motivated and unlawful by virtue of the manner in which they were instituted. (1) The cancellation of the 8 a.m. catering truck service For a period of 10 years up through the date of the elec- tion, the practice was for a catering truck which sold re- freshments-coffee, tea, sweet rolls, etc.-to park outside the Company anywhere from 8 to 10 a.m. but normally it arrived at 8:05 a.m., at which time the office clericals, along with the inside salesmen and management, would go outside and purchase some refreshment, i.e., tea, coffee, and perhaps a sweet roll. This was during working hours since 8 a.m . was starting time. The catering truck was lo- cated about 60 feet from the office clericals' work area and it generally took them between 2 and 4 minutes to leave their work stations, make their purchases, and return to their work station. In short, for 10 years the office clericals had the privilege of leaving the premises during work hours for refreshments. Since Monday, November 5, in accor- dance with Boden's instruction, this catering truck has stopped visiting the Company. Now the office clericals, if they desire an early morning cup of coffee or sweet roll, must purchase them on their way to work or get to work prior to 8 a.m. and make coffee in the' Company's kitchen facility before they start work. Boden testified "I told them [the office clericals] they could make [coffee] before 8 a.m. I would object to them making it after 8 a.m., taking the time away from their desks." Simultaneous with the dis- continuance of the 8 a.m. catering truck, the Respondent purchased a coffee pot for the use of the inside salesmen- and management which, in part, was necessitated, Boden admitted, by the discontinuance of the catering truck. Re- spondent made no similar purchase for the office clericals and Boden's testimony that he assumed the office' clericals always had such a pot in the Company's kitchen was not convincing. Clerical Reed credibly testified that prior to November 5 there was no coffeemaking equipment in the kitchen. On that date, apparently after being informed of any of the rule changes until November 5 or 6. In general , on the subject of the alleged rule changes , Boden did not impress me as being a reliable or truthful witness. 6 When Boden announced the rule changes to Holt and Sampson, I find that he did so with the intent that this information was to be passed along to the other clericals. In this regard , Boden , in connection with his notification to employees Reed and King of the new,progressive system of discipline, testified, in effect, that he intended that the rest of the employees would learn about the new system from Reed and King. the Company's decision to eliminate the catering truck, an employee brought in a coffeemaker. Respondent's indiffer- ence to the effect that the elimination of the catering truck would have on the office clericals stands in sharp contrast to its conduct toward the inside salesmen for whom, as described earlier, Respondent purchased a coffee pot. This indifference is further illustrated by Boden's remark to clerical Holt on November 2 when Holt expressed concern to Boden that perhaps under the new rules the clericals would not be able to secure coffee from the catering truck even during the morning and afternoon breaks. Boden, as Holt credibly testified, answered that management could not be concerned whether the clerical employees had cof- fee during their breaks. (2) The change in the starting time for the morning and the afternoon break For a period of about 20 years until immediately after the November 2 election, the office clericals had no prede- termined time for taking their midmorning and midafter- noon breaks. These breaks coincided with the arrival of the catering truck which generally arrived between approxi- mately 9:50 a.m. and 10:10 a.m., and 2:55 p.m. and 3:05 p.m. The switchboard operator announced its arrival over the PA system and all of the office clerical employees gen- erally would leave their work stations and visit the catering truck. One-half of the office clericals would at this time take a 15-minute break, the remainder would return to their work stations and begin their 15-minute break when the others returned. The employees kept track of the time themselves. Since Monday, November 5, consistent with Boden's prior announcement, all of the clericals are re- quired to take their breaks at the same time which in the morning is 10 a.m . and in the afternoon, 3'p.m. Daily at 10 a.m. and 3 p.m., the switchboard operator announces over the PA system that it is breaktime and at the end of 15 minutes, announces that breaktime is over. The office cleri- cals have not lost any breaktime. They still receive 30 min- utes a day under the present system, but they are inconve- nienced on those occasions when the catering truck arrives before and after the starting time for breaks. (3) The requirement that the timeclock be punched at lunch time The office clericals, who are hourly paid, have I hour for lunch which is uniformly 12 noon to 1 p.m. Prior to No- vember 5, there was no requirement that they punch the timeclock during the lunch period and they did not do so. Since Monday, November 5, they have been required to punch the timeclock at lunch hour. The timeclock is locat- ed about 25 to 35 feet from their work stations. Under this circumstance, the requirement that they punch the time- clock at lunch has not resulted in any inconvenience other than using a different exit if they desire to leave the plant for lunch and perhaps having 'to wait momentarily in a short line to punch the timeclock. BRALCO METALS, INC. 147 (4) The prohibition of personal conversation It has been the Company's policy for the past 20 years to tell office clerical employees at the time they are hired, as Boden testified, "that visiting [referring to personal conver- sations during working time] is not restricted completely, but we do ask them to keep it to a minimum." Boden testi- fied that this request "is very seldom adhered to" and that throughout the years he found it necessary to speak to the office clerical employees on "numerous occasions" on this subject. It is clear that office clerical employees had histori- cally been allowed to discuss personal matters during working time despite the fact that .they constantly abuse the privilege. This policy ended temporarily 2 weeks prior to the election of November 2 when, according to Boden, the Respondent's president, Cohn, told Boden that he had observed excessive talking among the office clericals and asked why it was being allowed to continue. It was suggest- ed by Cohn that because of Boden's preoccupation with other matters that Sales Manager Siever assume a supervi- sory role in connection with the office clericals. As a result of this conversation, Siever was given the authority to dis- cipline office clericals and Boden spoke to them in a group, told them that Cohn had observed an excessive amount of talking, that it would have to stop and that the only con- versations among the employees allowed during working time would be business talk. He told them personal conver- sations were absolutely forbidden.? To sum up, 2 weeks before the election Boden for the first time in about 20 years absolutely put a stop to person- al conversation during working time by the office clericals and, as.he testified, he immediately realized that this was not a workable policy: "They are all girls. I understand that they talk, . . . that's why I realized that the statement of no more talking was unreasonable. It might work with men, but not with women." Accordingly, Boden within 3 or 5 days after announcing the blanket prohibition against personal talk, rescinded it and informed all of the office clericals that he did not expect them to refrain completely from visiting but to keep it to a minimum. However, about I week later, a few hours after the employees had voted in the Union, Boden, as described above, notified the office clericals of certain policy changes, one of which was a rule prohibiting all personal conversations during working time. Although there are indications in the record that Respon- dent has been lax in enforcing the rule, it is plain that Boden' in fact enforces the rule as it was announced on November 2. Thus, in mid-November, according to the credible testimony of office clerical Reed, Boden told her to tell the other office clericals "that if the talking did not 7 Boden's testimony at certain points indicates that Cohn complained to him as early as July or August or September about excessive talking by the office clericals. I have rejected this testimony since it conflicts with his other more credible testimony that Cohn's complaint was made about 2 weeks prior to the election and 'that at this time Boden spoke to the clericals absolutely prohibiting personal talk. Moreover, clericals Holt, Reed, and Jorgenson credibly testified that Boden spoke to the clerical employees on this matter about 2 weeks before the election. Jorgenson also credibly testi- fied that at this time Boden , in effect, also personally informed her that Cohn had delegated to Sales Manager Siever authority over the office cleri- cals. cease in the office, that he would be forced to issue all of them warning letters." (5) The prohibition against personal phone calls The Respondent for 20 years up until September 20 had allowed all employees to make personal phone calls with- out objection so long as they did not abuse this privilege. On September 20, Boden prepared and posted the follow- ing notice addressed "to all employees": Due to the press of business and the resulting in- crease in phone activity and the requirement of all phone lines for business calls. All personal calls, must of necessity be eliminated, exception will be for very brief emergency situations only. Boden testified that this requirement was directed to all employees-warehousemen, inside salesmen, and office clericals-and that the following circumstances led to his issuing the order. Over 90 percent of the Company's sales are, made over the telephone and, starting in May, and particularly since June, its sales have increased drastically, thereby creating a shortage of phone lines needed to con- duct normal business operations. In September, Boden tes- tified, based upon complaints from customers, salesmen, and members of management who had difficulty phoning the Company-all lines were busy-he drafted and posted the above notice. But the switchboard operator, Linda Sampson, the clerical who typed the notice for Boden, credibly testified that in response to her inquiry about the notice, that Boden told her the notice had nothing to 'do with "you girls," that it just applied-to the approximately 20 warehousemen-there are only seven office clericals- who were placing and receiving too many personal phone calls .I That Boden did not intend to prohibit the office clericals from using the phones is further supported by what took place after the posting of the September 20 no- tice. Office clericals Reed and Holt, in effect, credibly testi- fied that throughout their employment; which included the period 'of time following September 20, they continued, without objection, to make nonemergency type personal phone calls. I am convinced that, as he later did in the case of the prohibition against personal conversations, Boden realized that the absolute prohibition against personal phone calls was "unreasonable" as far as the "girls" were concerned and for this reason the rule was never main- tained against this group of employees. Boden's knowledge that the "girls" (office clericals) were not obeying the Sep- tember 20 notice and that he never intended to enforce the prohibition against them is conclusively demonstrated by s f reject Boden's testimony that , in effect, he told Sampson personally and all the office clericals in a group that the posted rule applied to them. Boden, as I have already indicated, generally in presenting his testimony on the subject of rule changes impressed ' me as an unreliable and insincere witness . Sampson, on the other hand, on this matter. was a convincing wit- ness. Also,,the credible testimony of clericals Reed and Holt is to the effect that Boden never informed them either personally or at a meeting that they could not make personal phone calls. Moreover, as described above, the whole record demonstrates that Boden did not intend that the September 20 notice apply to the office clericals... 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his conduct on November 2 when, shortly after the elec- tion, he notified the office clericals that there would be several rule changes effective the next working day, one of which was the prohibition against personal phone calls ex- cept in the case of an extreme emergency. This announce- ment would not have been necessary if Boden was of the opinion that the September 20 prohibition applied to the office clericals. (6) An evaluation of the General Counsel's case=in-chief To sum up, the General Counsel established that, despite the Respondent's opposition to the unionization of its of- fice clericals and inside salesmen, the Union was designat- ed by a majority of these employees as their bargaining' representative. Respondent, unhappy over the Union's vic- tory, believed that the office clerical employees were the ones who had voted for the Union and, within 3 hours after learning the results of the election, the Respondent abrupt- ly and with no advance warning or explanation notified the office clericals that effective the next working day it was instituting the following changes: The early morning cater- ing truck would be eliminated, thereby effectively with- drawing the clericals' privilege of leaving the premises dur- ing working hours for refreshments; the break periods would begin at predetermined times rather than commenc- ing with the arrival of the catering truck; the timeclock would have to be punched during the lunch hour; personal conversations were prohibited during working time; and the use of the Company's telephone was prohibited except in extreme emergencies. These pronouncements each in- volved changes of existing company policy and, in my opinion, the changes, when considered severally or in their totality, resulted in more stringent or onerous terms or con- ditions of employment. Also, it is undisputed that, rather than notify the Union about these changes and give it an adequate opportunity to bargain over these matters, the Respondent, within 3 hours after the Union had been se- lected by the employees as their bargaining representative, informed the employees that these changes were effective immediately. For the foregoing reasons, I am satisfied that the record establishes a strong prima facie case of unlawful discriminatory motivation on the part of the Respondent in making these changes, as well as a prima facie showing that Respondent did not fulfill its bargaining obligation under the Act. I shall set out and evaluate the Respondent's case-in- chief. b. The Respondent's case-iri-chief The person who made the decision to institute the changes described above was the office clerical employees' supervisor, Office Manager Boden, who has occupied this position for 20 years. Although at one point Boden testified that he consulted with President Cohn, it is clear from his entire testimony that Boden initiated the changes and con- sulted with Cohn only after the fact to get his stamp of approval. Boden testified that after the election he eliminated the early morning catering truck, changed. the starting time for the daily breaks, and instituted the requirement that the timeclock be punched during lunch hour, all for the pur- pose of increasing the efficiency and productivity of the clericals. Boden gave no explanation for prohibiting per- sonal conversations or phone calls inasmuch, as he testi- fied, no such changes were instituted after the election. I have previously discredited this testimony. I agree with Boden that the record establishes that, in allowing the office clericals for 10 years to leave their work station at the start of the day during working hours to purchase refreshments and for 20 years in allowing em- ployees to take their daily coffeebreaks when the catering truck arrived, Respondent was operating inefficiently. But, in the circumstances of this case, how the requirement that the employees punch a timeclock at lunch time increases efficiency or productivity escapes me. In justifying his deci- sion to have the clericals punch the timeclock at lunch time, Boden testified "I felt it would eliminate the necessity of wondering where they were and how soon they were going to be back if we instituted this type of thing [refer- ring to the requirement that they punch the timeclock]." Since all of the clericals leave for lunch at the same time, from 12 noon to 1 p.m., this explanation rings false. More- over, it is undisputed that the clericals only rarely, if ever, overstay the allotted hour for lunch. Boden admitted that the only times when the clericals overstayed their lunch hour, which he testified "did not happen too often," was if they all went to lunch together and had trouble getting waited on. Under the circumstances, I find that the reason advanced by Boden to justify changing Respondent's long- standing practice of not requiring the office clericals to punch a timeclock during lunch hour to be so insubstantial as to indicate that it was not the real reason. Assuming arguendo, that the employees' failure to clock out and back in during the lunch hour was inefficient and unproductive as was the Company's policy of allowing them to leave their work station during working hours to go to the catering truck for refreshments and to take the coffeebreaks when the catering truck arrived at the prem- ises, the question remains why did the Respondent tolerate this inefficiency for so long. In response to this question, Boden testified "we have never had a need or did not have a situation like we have now and have had since . . . June or July." This refers to the fact that in May the Respondent purchased the assets and business.of another metals com- pany, Turner Metals, which caused a drastic increase in its sales and as a result the work load of the office clericals increased dramatically. But the testimony of Boden and office clericals Holt and Jorgenson, whose testimony is consistent with the Respondent's records, establishes that by June or no later than July, at least 2 months prior to the advent of the Union, Boden realized that the increased vol- ume of paper work involving the office clericals necessitat- ed an increase in efficiency and productivity on their part if the Respondent was to succeed in handling the addition- al volume of paper work. Nevertheless, Boden tolerated this condition for several weeks and acted only when the office clericals voted in the Union. In this regard, I shall set out certain portions of Boden's testimony which are not all inclusive but are merely illustrative of Respondent's tolera- tion. BRALCO METALS, INC. Q. How long a period of time did you observe this going on and not getting to work because of the [8 a.m.] coffee truck? A. Of course, it was going on ever since we moved into the building [10 years] ago, but it has never been an issue or problem, really, until our increase of busi- ness and need for efficiency became apparent. We probably didn't pay too much attention to it until- like in the last six, seven, eight months. Q. That, would be starting approximately when, sir? A. July, something like that. Q. You tell me what you did in July to try to put an end to this problem [involving the 8 a.m. coffee truck]. A. I don't recall any action made at that time. Q. Did you speak to any of the girls concerning it at that time? A. I don't recall any specific instances. I know there were times probably two or three that I did have to mention that there was too much visiting going on in the morning. .. . Q. Directing your attention to the break problem involved of overstaying the break period . How long was this problem in existence before you did some- thing about it? A. The same as the coffee truck, continually. Q. When was the first time that you tried to do something about that? A. The first change that was made was right after the election. Q. Before the election , did you make any effort to try to get the girls to stick with their break period and not overstep it? A. There were times prior that it would either come to my attention or be brought to my attention that they were overstaying their fifteen minutes and I would have to go in and tell them that they were over- staying and get them back to work. Q. How many times did this happen , as far as you personally were concerned that you had to go and tell them they were overstaying their break? A. In the last couple of years I would say probably three or four times. Based on the foregoing, I am convinced that the long- standing practices of the clericals leaving their work station during working hours to get refreshments from the catering truck, of timing the start of their breaks to coincide with the arrival of the catering truck , and of not punching the timeclock during the lunch hour, all became intolerable to the Respondent only when the employees on November 2 voted in the Union and not because these practices were either inefficient or interfered with the clericals ' productiv- ity. In evaluating the Respondent's defense, I have carefully considered the testimony of the Respondent 's labor rela- tions consultant, Ray Stiers, that he had a series of tele- phone conversations with the president of the Respondent, Cohn, over a period of "several weeks" before the election 149 and that Cohn had told him that Boden was complaining that the early morning catering truck was interfering with the clericals' productivity and efficiency and that Cohn had expressed to Stiers the desire to discontinue this truck. Stiers testified he advised Cohn not to do this until after the election, otherwise such conduct might result in an un- fair labor practice charge. Cohn because of illness was un- able to testify for the Respondent. This is unfortunate be- cause Stiers, whose testimony on this point was not corrob- orated, was, in general, not an impressive witness. In any event, I am convinced that, if this were a factor in the Respondent's delay in not discontinuing the catering truck until immediately after the election, Boden would have mentioned this important consideration in his testimony. Yet Boden, the person who made the decision, did not even indicate that it was to avoid possible unfair labor practice charges that caused the Respondent to wait until immedi- ately after the election to discontinue the catering truck or make any of the other changes. Furthermore, it is clear that President Cohn, when he believed that the Company's poli- cies needed to be changed in order to get the office cleri- cals to work more efficiently, did not let the pending elec- tion prevent him from implementing such changes. For, as previously described, 2 weeks before the election, at Cohn's suggestion Boden temporarily rescinded the Company's longstanding policy of allowing personal conversation dur- ing working time and issued an absolute prohibition against such conversation by the clericals. For these rea- sons, I reject Stiers' testimony that at his advice Cohn post- poned the elimination of the catering truck until after the election because of the threat of a possible unfair labor practice charge or objections to the election. c. Ultimate findings To recapitulate, I find that the Respondent offered no justification for its postelection prohibition of personal conversations and phone calls, and find that its justifica- tion for eliminating the catering truck, changing the start- ing time for breaks, and requiring the clericals to punch the timeclock at lunch, were patently pretextual. These circum- stances, when viewed in the context of the evidence which establishes the General Counsel's prima facie case, convinc- es me that, in making each one of these changes in the office clerical employees' terms and conditions of employ- ment, the Respondent was motivated by a desire to punish them for having voted in the Union and to undermine the Union. By engaging in this conduct, the Respondent vio- lated Section 8(1)(1) and (3) of the Act. I further find that, by making the above-described changes in the office cleri- cal employees' terms and conditions of employment 9 with- I have carefully considered whether each one of the changes involved ' terms or conditions of employment within the meaning of Sec. 8(d) of the Act and find that each one of the changes covers subjects over which the Respondent was obligated to bargain. There is some doubt in my mind. however, whether the timeclock requirement or the change in method of starting breaks affects terms and conditions of employment. But, in any event, I am convinced that it would be unrealistic to view each change separately but believe all changes instituted immediately after the election must be viewed in the manner instituted by Respondent, as part of one Continued 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out first notifying the Union and giving the Union an ade- quate opportunity to bargain over the matters, but rather immediately after the Union's election victory, informing the employees that the changes would be effective the next working day, the Respondent violated Section 8(a)(5) and (1) of the Act. Mike O'Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701. In reaching the conclusion that the Respondent by its unilateral conduct failed to fulfill its bargaining obligation under the Act, I have carefully considered whether its ac- tion can be excused by reason of waiver or acquiescence of the Union. The Union was put on notice as to only one of the above-described changes; namely, the elimination of the catering truck. On either Monday, November 5, or Tuesday, November 6, the Union's representative, O'Hare, as the result of complaints by employees, phoned the Respondent's labor, relations consultant, Stiers, and asked if it were true that the Respondent had discontinued the early morning catering truck. Stiers acknowledged that this vas correct and, when O'Hare asked for an explanation, old him that the Respondent's president, Cohn, had want- ed to discontinue the catering truck because it interfered with the office clericals' productivity but, upon Stiers' ad- vice, Cohn agreed to wait until after the election to act on the matter. O'Hare did not ask that the Respondent place this matter upon the bargaining table but, in my view, he was not obligated to do this where, as here, he was faced with a fail accompli. Indeed, at the hearing O'Hare, in justi- fying his refusal to object to Stiers that the truck had been eliminated, testified "I didn't have no choice." Since the Respondent never gave the Union any prior notice and an opportunity to bargain about its decision to eliminate the coffee truck before implementing it on November 5, it is my opinion that it was the Respondent who had to indicate to the Union that the discontinuance of the catering truck was not an irrevocable decision. O'Hare was perfectly justi- fied in treating the matter as a fail accompli. But, even assuming that Stiers' response to O'Hare's question was negotiative in purpose rather than simply informative, where, as here, Stiers' explanation was not the true reason for the Respondent's action, it obviously did not satisfy the Respondent's obligation to bargain over the matter. Before leaving the "waiver" issue, I realize that the Board excuses what otherwise constitutes unlawful unila- teral conduct by an employer if the circumstances establish either waiver or acquiescence on the part of the union. The Respondent in its posthearing brief urges that the circum- stances of this case indicate that the Union has in effect waived or acquiesced in the Respondent's unilateral con- duct, citing several Board decisions. I have considered the decisions cited by Respondent and believe they are not apposite. My reasons for refusing to find that the circum- stances of this case establish that the Union either waived a statutory right or acquiesced in the Respondent's action have been set out above for all the changes, except the disciplinary warning procedure discussed later in this Deci- sion. Additionally, the cases cited by Respondent involve package , which when taken together constitute a very substantial effect on the office clerical employees' terms and conditions of employment. unilateral conduct motivated by legitimate business con- siderations . In the instant case, each unilateral change made by the Respondent was motivated by a desire to pun- ish the office clerical employees for having designated the Union as their bargaining representative and to undermine the Union. Finally, in evaluating the Respondent's position on this issue, I have considered that O'Hare, the Union's representative, was not aware that the Union was a charg- ing party in this proceeding-the Union's lawyer filed the charge-and initially testified that he had no objection to the Respondent's action in instituting the changes involved in this case. O'Hare's later testimony, however, indicates that he did object to the Respondent's acting unilaterally before instituting the changes, rather than placing the changes on the negotiating table as part of the overall bar- gaining for a collective -bargaining agreement . In this re- gard, when asked if he objected to the Respondent's failure to give him an opportunity to negotiate about each of the changes, O'Hare testified: "My understanding of the whole entire situation is that we were in the throes of negotiating a contract, which would take priority over what I'term these as plant policy. Under normal situations, I would say I object. I think the company should negotiate with the Union under normal situations on starting time changes, on coffee, on everything." Under the circumstances, I do not believe that the record establishes that O'Hare at the hearing on April 3, 1974, unequivocally acquiesced in the Respondent's unilateral conduct which occurred Novem- ber 5, 1973. Even so, it would be no defense to the Respondent's violation of Section 8(a)(3) or the remedy for this violation. Regarding the violation of Section 8(a)(5), if the Respondent is correct and the Union has no objection to the Company's unilateral conduct involved in this case, the Union at the bargaining table will not resist all or only a portion of Respondent's changes. Of course, the Respon- dent cannot successfully contend that O'Hare's testimony at the unfair labor practice hearing in April 1974 led the Respondent to its detriment to believe that the Union would not object in November 1973 to its unilateral action. Plainly, if the Respondent thought that the Union would not desire to bargain over the changes, it could have tested the Union by the simple device of a phone call prior to instituting the changes. For all of these reasons, I am con- vinced that the record does not establish either a waiver or acquiescence by the Union to the Respondent's unlawful unilateral conduct. 2. The Respondent extends its written warning and progressive disciplinary procedure to cover the office clerical employees The'Respondent for approximately 14 years has used a written warning and progressive disciplinary procedure for its warehouse employees who during this period have been represented by Teamsters Union Local 986. The procedure embodies the concept of progressive discipline, after three written warnings an employee is suspended for 3 days and after a fourth written warning is discharged. It is clear from the testimony of Labor Relations Consultant Stiers and Office Manager Boden that this disciplinary procedure was instituted to cover the warehouse employees because they BRALCO METALS, INC. 151 were represented by a labor organization. The office cleri- cal employees who were not unionized were not subjected to this procedure until immediately after they voted the Union in on November 2. Stiers admitted that on Novem- ber 2, immediately after the election, the Respondent de- cided to apply "the progressive discipline and employee warning notice [to the] employees in the office unit." I fur- ther find that this decision was reached on November 2 at the same time the Respondent decided to institute the un- lawful changes described earlier in this Decision.10 The clerical employees were not told about the new pro- gressive discipline procedure until the issuance of the first written warning which was given to employee Reed by Bo- den on November 15. Boden, in substance, testified that he expected that employees who were issued written warnings would publicize the existence of the procedure to the re- mainder of the clericals." With no advance notice, Reed was abruptly given a written warning at which time Boden informed her of the mistake she had made and, as Reed credibly testified, "he told me that since the Union had been voted in, he had the right, or the company had the right to issue warning letters and that three warning letters meant suspension for three days without pay. A fourth let- ter meant termination. He asked me to sign it. I did so." 12 The warning notice issued to Reed is identical in content to the ones generally used by the Company and notifies the employee that "this warning notice has been given you so that you may know such action cannot be tolerated, and that any further violation of the Company rules will result in appropriate disciplinary action." The warning notice on its face provides for the employee's signature and indicates, that a copy is being retained in the Company's personnel office. Boden testified that clericals Reed and King "some 10 In this regard , Stiers initially testified he was present at the Company during the election on November 2 which ended at 12 noon and that after the election he met with Cohn , at which time it was decided to institute the written warning and progressive disciplinary procedure for the office cleri- cals. Stiers testified he did not recall whether Boden was present at this meeting. It is plain from the record that Boden was at the plant throughout November 2 and was with Cohn shortly after the election . Nevertheless. Stiers testified to the effect that it was not until 3 or 4 days after November 2 that he phoned Boden and spoke to him about instituting the progressive disciplinary procedure. Boden was vague and evasive as to when he spoke to Stiers about instituting the progressive disciplinary procedure. He was also vague and evasive as to what conversations , if any, he had with Cohn about this matter. I am convinced that the reason for Boden's evasiveness and ambiguity and Stiers' inability to recall whether Boden was present when he met with Cohn on November 2 is that the truth of the matter is that Boden was present at this meeting, as befits his position of supervisor over the office clericals , at which time it was decided to institute all of the changes involved in this case. 11 In this connection , to the extent that Linda Sampson testified that the written warning procedure was included among the changes Boden told her about on the afternoon of November 2, 1 am of the opinion she was mistak- en. In all other respects , her testimony that Boden at that time notified her about certain changes which were to be instituted on November 5 impressed me as being credible and was consistent with the credible testimony of employee Holt. 1 Based on the credible testimony of Reed , who testified in a straightfor- ward and candid manner and impressed me as being an honest witness. Boden , who testified that he told Reed "the system was put into effect because of the fact we had [it] at the warehouse, [which] had been union for many years. We were doing it to keep it the same as the warehouse, devoid of discrimination," was not an impressive witness. time" after the issuance of the first warning notices came to Boden and asked why the progressive disciplinary proce- dure had been instigated and, according to Boden, "I ex- plained to them it was done in an effort to make it the same as the warehouse, which had the system for fifteen years or ever since the inception of the Union back there." Continuing, Boden testified "I told them that I felt it was more fair and asked them if they felt that they would rather have it the other way where we could discharge without giving notices." Boden, in effect, testified that he made the decision to extend the coverage of the' progressive disciplinary proce- dure to the clericals as the result of a phone call received by him from Labor Relations Consultant Stiers. Boden was vague and evasive about the date he received this call, whether he spoke with Stiers before or after the election. Likewise, Boden was vague and evasive about what was said during this alleged conversation and at one point indi- cated he was not even positive he was the person who dis- cussed this matter with Stiers-"l guess I had the call, it might have been discussed with Cohn prior to that I don't know." When Boden testified about the Respondent's mo- tive for extending the progressive disciplinary procedure to the clerical employees and about the manner in which the decision was reached, he was not a convincing witness. In manner and bearing he gave me the impression that he was concealing something. Boden testified that the only reason the progressive dis- ciplinary procedure was extended to cover the clericals was because the Respondent wanted to treat them fairly, ex- plaining that prior to this an office clerical employee was subject to discharge for making just one mistake "if it was serious enough." Likewise, Boden testified that, when Stiers spoke to him and recommended that the progressive disciplinary procedure be applied to the clericals, Stiers' reason for making this recommendation was that it would. eliminate discrimination between the office clerical em- ployees and the warehouse employees by placing them un- der the same disciplinary procedure and that it would be a fair system because the clericals would no longer be subject to summary discharge.13 In, short, according to Boden, the reason for extending the progressive disciplinary procedure to cover the clericals was to avoid discriminating against them in favor of the warehouse employees and to give them a fairer system of discipline. As put by Respondent in its posthearing brief: "the company was trying to be fair. It was trying not to discriminate by having a system of sum- mary action without warning for office personnel and a far more employee protective system for the warehouse em- ployees." This rings false . Why had the Respondent in the matter of disciplinary procedure for almost 15 years seen fit to discriminate against its office clericals and treat them unfairly and suddenly decide to right this wrong immedi- ately after learning that the clericals had voted in the Union. 13 The inference that under the progressive disciplinary procedure em- ployees cannot be summarily discharged is patently false. Respondent's posted rules and regulations list about 27 separate offenses for which sum- mary discharge is possible at the discretion of management. In fact. clerical Sampson was discharged in January 1974 even though she had previously received only one written warning. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When asked "why did you wait until after the Union won the election to do this [institute the progressive disci- plinary procedure]," Boden testified "on the advice of Ray Stiers that he felt it was the thing to install in an effort to make it the same as we had in the warehouse over many, many years." Labor Relations Consultant Stiers, on the other hand, testified that the reason for the delay was the danger of unfair labor practice charges or charges that the Respondent had interfered with the conduct of the election if the progressive disciplinary procedure was instituted prior to the election. Boden, however, at no time in his testimony indicated that the failure of the Company to act earlier was in any way related-to the filing of an unfair labor practice charge or the danger it might be charged with destroying the conditions for a fair election. I am con- vinced that if this was a consideration for not extending the progressive disciplinary procedure to the clericals until im- mediately after the election, Boden would have mentioned this important fact in his testimony. Stiers' testimony, that about 2 to 4 weeks prior to the election President Cohn told him he wanted to put this disciplinary procedure into effect for the clericals, was not given in a convincing man- ner and smacks of a fabrication. According to Stiers, Cohn made "numerous" phone calls to Stiers from 2 to 4 weeks before the election complaining that the office clericals were talking excessively and constantly making errors and Cohn, according to Stiers, finally told him "I cannot put up with it any longer I have to do something about it what about using the warning notice [procedure]." Stiers testi- fied he told Cohn he would have to wait until after the election so as to avoid an unfair labor practice charge. Bo- den, who for 20 years has been in charge of the office clericals, was very vague when questioned about conversa- tions he had with Cohn. He does not corroborate Stiers' assertion that Cohn prior to the election had decided to extend the progressive disciplinary procedure to the cleri- cals but delayed doing so only because of the risk of being charged with interfering with the. election. Contrariwise, Boden's testimony is to the effect that it was Boden who decided to extend the progressive disciplinary procedure to the clericals and that he only consulted with Cohn after the fact. Moreover, Stiers' testimony, to the effect that Cohn wanted the progressive disciplinary procedure extended to the clericals because he regarded it as an effective method of discipline to be used to put a stop to the excessive talk- ing and constant errors by the clericals, hardly jibes with Boden's testimony that the reason for the procedure was to end the discrimination against the clericals and to treat them fairer in the matter of discipline. Also, as described earlier, President Cohn showed no fear that his conduct would be grounds for unfair labor practice charges when 2 weeks before the election he caused Boden to impose an absolute prohibition on personal conversation by the office clericals. For all of these. reasons, including the fact that Stiers did not impress me as a reliable witness when he testified about his alleged conversations with Cohn, I reject his testimony that the reason for the delay in extending the progressive disciplinary procedure to the clericals was based upon his recommendation that it might possibly re- sult in unfair labor practice charges against the Respon- dent. For the foregoing reasons, I conclude that the justifica- tion advanced by the Respondent for deciding on Novem- ber 2 to extend its written warning and progressive discipli- nary procedure to the office clerical employees is'pretex- tual and that the true reason for this action is revealed by Office Manager Boden's initial explanation given to cleri- cal Reed: "Since the Union had been voted in the Compa- ny has the right to issue warning letters." To sum up, the insubstantial reasons advanced by the Respondent for extending the written warning and pro- gressive disciplinary procedure to the clericals, when con- sidered in the context of its opposition to the Union and its belief that the office, clericals were responsible for the Union's election victory and the fact that the decision to apply the procedure to the clericals was made immediately after the Respondent had learned the Union won the elec- tion and at the same time as Respondent decided upon several other changes in the clericals' working conditions, all previously found to have been motivated by its opposi- tion to the Union, convinces me that the General Counsel has established by a preponderance of the evidence that, in violation of Section 8(a)(1) and (3), the Respondent, in ex- tending its written warning and progressive disciplinary procedure to the office clericals was motivated by a desire to punish them for voting in the Union and to undermine the Union.14 I further find that the extension of the written warning and progressive disciplinary procedure to the office clerical employees was a substantial departure from prevailing practice and constituted a unilateral change in a term or condition of employment without affording the Union an adequate opportunity to bargain about the matter.15 In this connection, Tom O'Hare, the Union's business representa- tive, after being informed by clericals King and Reed that they felt they had been unjustly issued certain written warnings, at the first negotiation meeting with Respondent held on November 28, in addition to questioning the Respondent's negotiator, Stiers, about the merits of these 14 Also relevant in assessing the Respondent's motivation is its unex- plained failure to immediately notify and explain the new disciplinary pro- cedure to the clericals rather than without warning abruptly issue the first written warning. Boden's explanation for not immediately announcing and explaining the new procedure is incredible: "An oversight I guess. or hope- fully that it [referring to the disciplinary procedure] would never have been used ." I am convinced that if the extension of the written warning and progressive disciplinary procedure to the clericals, a substantial and impor- tant change in dicsiplinary procedure, had been motivated by legitimate business considerations, the Respondent would have promptly announced and explained to them the reasons for this new procedure. 15 Stiers, based on his 28 years of experience as a labor relations consult- ant, testified that the extension of the written warning and progressive disci- plinary procedure to the clericals was "absolutely" a subject for collective bargaining. In this regard, I reject any implication from Boden's of Stiers' testimony that this procedure had no adverse impact or effect on the em- ployees' terms and conditions of employment. It is undisputed that clerical employee Reed prior to the new procedure had made several mistakes for which she had not even been verbally threatened with discipline, let alone issued a written warning. After the institution of the written warning and progressive disciplinary procedure, Reed, in quick succession, was issued three written warnings and suspended. There is no indication that these warnings will ever be removed from her personnel file. Moreover, as de- scribed above, according to Stiers it was the opinion of President Cohn that the new disciplinary procedure would have a coercive effect on the clericals. thereby causing them to do less talking and make less mistakes. BRALCO METALS, INC. two warnings, first asked him if he knew that the Company had a disciplinary warning procedure and, if so, to explain to him how the procedure operated. Stiers replied he was not aware of the procedure and would investigate the mat- ter.tb Stiers thereafter never did explain the procedure to the Union. Admittedly, the Union did not object to the Company's extension of the written warning and progres- sive disciplinary procedure to the clericals, nor did it ask the Company to bargain over the subject. However, at the time the Union raised the subject at the parties' first nego- tiation meeting, it was a fait accompli, the Company had unilaterally instituted the procedure 23 days earlier. Nor at this meeting, nor at any other time, did the Respondent indicate to the Union that it was willing to bargain freely about the matter or give consideration to restoring the sta- tus quo. The Union was not even given an opportunity to intelligently consider the matter because of the inability of the Respondent's negotiator to explain the procedure to Union Representative O'Hare. For all of these reasons, I find that the evidence does not establish that the Union acquiesced in the Respondent's unilateral action in extend- ing the written warning and progressive disciplinary proce- dure to the office clericals, and further find that by this unilateral conduct Respondent violated Section 8(a)(5) and (1) of the Act. D. The Alleged Discrimination Against Employee Sherry Reed It is undisputed that the Respondent issued written warnings to Sherry Reed, an office clerical, on November 15 and December 4 and 11, and that pursuant to the Company's progressive disciplinary policy, Reed upon re- ceipt of the third warning was suspended from work for 3 days. The suspension, however, was immediately reduced to I day. The consolidated complaint alleges, in substance, that the Respondent issued these written warnings and sus- pended Reed because she engaged in union activities. The only evidence of Reed's union activity is- that sometime in September or October she attended a union organizational meeting with about six other employees held after work at a restaurant. The Respondent, of course, could discipline Reed for good, bad, or no cause whatsoever without violating the Act, so long as it was not motivated by antiunion reasons. And the burden is on the General Counsel to prove by a fair preponderance of the credible evidence that the disci- pline of Reed was motivated by animus toward her be- cause of her union activity or sentiments. Here, the Gener- al Counsel did not meet this burden for "knowledge by the company of a dischargee's union membership is a prerequi- site to a finding that the discharge was made for that rea- son and the [General Counsel] has the burden of proving this knowledge beyond mere suspicion or surmise." N.L.R.B. v. Lexington Chair Company, 361 F.2d 283, 291 (C.A. 4, 1966). tv Based on the credible testimony of O'Hare, who impressed me as an honest witness. Stiers testified he did not "recall" that O'Hare questioned him about the Company's disciplinary procedure. Of the two, O'Hare im- pressed me as the more credible. 153 The General Counsel in the instant case failed to offer direct evidence that the Respondent was aware of Reed's support for the Union. Nor do the circumstances establish an inference that the Respondent knew that Reed was a union adherent. The only evidence of her support for the Union was that she attended a union meeting with other employees held in a restaurant. Under these circumstances, "the mere fact that [the company] plant is of a small size does not permit a finding that [the Company] had knowl- edge of the union activities of [Reed] absent supporting evidence that the union activities [of Reed] were carried on in such a manner, or at times that in the normal course of events, [the Company] must have noticed them." Hadley Mfg. Corp., 108 NLRB 1641, 1650. Also, see N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 882 (C.A. 1, 1966) (small plant doctrine has "no application to off-hour, off prem- ises' activities"). For the above reasons, I conclude that there is insuffi- cient evidence that the Respondent knew or believed that Reed was a union adherent and acted on this knowledge in issuing the written warnings which resulted in Reed's sus- pension. In reaching this conclusion, I have carefully considered the evidence which establishes that, following the issuance of the second warning but before the third warning which resulted in Reed's suspension, Office Manager Boden, as the result of a phone conversation with the Company's La- bor Relations Consultant Stiers, knew That Reed had grieved to the Union that the first warning issued to her was not justified. Specifically, Boden knew that Reed and employee King had told the Union that it was King's mis- take which resulted in Reed's first warning. Also, the rec- ord indicates that Boden made no real investigation of these contentions until after he had suspended Reed and was notified that she intended to file unfair labor practice charges with the Board. Nevertheless, I am convinced that the record does not preponderate in favor of a finding that in issuing the third warning the Respondent was motivated by the fact that Reed had grieved to the Union or because it believed that she was a union adherent. In this regard, there is no contention that Respondent discriminated against employee King, who Boden had learned grieved to the Union over a warning issued to her, and it is undisput- ed that the third warning issued Reed was based on an error made by Reed which inconvenienced a customer. The above findings do not completely lay to rest the issue of the legality of Reed's 1-day suspension without pay. As discussed previously, the consolidated complaint alleges, and I have found, that the institution of the'written warning and progressive disciplinary procedure which re- sulted in Reed's suspension was by itself unlawful; it was motivated, by Respondent's desire to punish Reed and the other office clerical employees for supporting the Union. I am of the view, for the reasons set out below, that the evidence establishes that Reed's suspension was the direct result of the Respondent's unlawfully motivated discipli- nary procedure. This matter was not specifically alleged -in the consolidated complaint but I am of the opinion that the matter was fully litigated in connection with the alleged discriminatory treatment given Reed in the issuance of the written warnings which resulted in the suspension and that, 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, no additional specific allegation is required as a prerequisite to a finding that the suspension constituted a violation of Section 8(a)(3) and ( 1) of the Act. Moreover, because the suspension of Reed is germane to the Respondent's alleged unlawful institution of the written warning and progressive disciplinary procedure , the recom- mended order for that unlawful conduct can provide, as it does, a remedy which relates to the suspension of Reed as a part of the remedy to expunge the effects of the illegal disciplinary procedure. The record shows that in the 4 months Reed was em- ployed prior to the date the Respondent decided to extend the written warning and progressive disciplinary procedure to the clericals , Reed had committed clerical errors on a number of occasions yet had never been threatened with discipline, let alone issued a written warning or suspended. Office Manager Boden simply explained to Reed that it was important that her entries be made accurately. On No- vember 2, I have found, the Respondent decided to extend its written warning and progressive disciplinary procedure to Reed and the other office clericals to punish them for voting in the Union . On November 15, Reed received the first written warning issued to a clerical under the new procedure, at which time Boden told Reed "that since the Union had been voted in . . . the company had the right to issue warning letters." In quick succession, Reed was is- sued two more written warnings 'for clerical errors and, under the progressive disciplinary procedure, the third written warning resulted in her suspension . Boden, in ef- fect, admitted that, under the Company's written warning and progressive disciplinary procedure , he had no other alternative but to suspend Reed upon the issuance of the third warning. To sum up, the evidence shows, despite the number of mistakes made during her first 4 months of employment, that Reed was never threatened with discipline; but with the institution by the Respondent .of the illegally motivated disciplinary procedure , Reed in quick succession was is-, sued three written warnings which resulted in her automat- ic suspension from work without pay on December 11. These circumstances, in my opinion, establish prima facie that Reed's suspension was a direct result. of the Respondent's progressive disciplinary procedure which was designed to punish Reed and the other clericals for having supported the Union . In reaching this conclusion, I have carefully considered Boden's self-serving testimony, given in response to a leading question, that even without the new disciplinary procedure Reed "would have been discharged by the second [warning], at least." I believe I would be naive in accepting at face value this self-serving testimony where, as previously indicated , I have observed that Boden's testimony on the subject of the Respondent's disciplinary procedure was in general unreliable and not trustworthy. Moreover, Boden's other testimony casts doubt on his unequivocal assertion that Reed, absent the progressive disciplinary procedure , would have been dis- charged by him "at least". by the time she received the second written warning. When later .during the hearing he was asked "have you ever discharged a clerical employee, suspended a clerical employee for making a posting mis- take [this is the type of error , committed 'by Reed] ," Boden answered "I have discharged employees for making mis- takes and even posting mistakes where it was happening very often . I would not be able to give any details on it, however." Upon further examination it was established that during the past 17 years Boden had discharged only four clerical employees solely for making excessive or con- sistent mistakes, all of whom except one were discharged within 2 or 3 months of their initial employment for the reason of "incompetency ." Moreover, Boden admits that in the past he had condoned errors by. clericals which might ordinarily result in discipline . Finally, there is no contention or evidence that, prior to Reed's suspension, the Respondent had ever used suspension as a method of dis- ciplining an office clerical . I am convinced, because of the foregoing, that it is entirely speculative or uncertain wheth- er Reed during the normal course of business would have been suspended or discharged by Respondent on Decem- ber 11 or prior thereto and that where, as here, the evi- dence prima facie establishes that the suspension was a di- rect result of the Respondent's illegal disciplinary proce- dure that the Respondent, rather than Reed, must assume the ri ik of the uncertainty. For it is the Respondent by its unlawful conduct that created the uncertainty . According- ly, fo:- all of these reasons, I find that, by suspending Reed on Dccember 11 for 1 day without pay, Respondent violat- ed Section 8(a)(3) and ( 1) of the Act. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Bralco Metals, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. • 2. Freight Handlers, Clerks & Helpers Local 357, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office clerical employees, including inside sales employees and PBX operators, employed by the Respon- dent at its 8321 Canford Street, Pico ' Rivera, California, facility, excluding all other employees, outside sales em- ployees, professional employees , guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 2, 1973, the Union has been, and is now, the exclusive representative of all the employees in the aforesaid bargaining unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. On November 5, 1973, by making the changes which are listed immediately below in its existing practices with- out affording the Union an opportunity to bargain about such matters and for the purpose of punishing its office clerical employees for supporting the Union and to under- mine the Union , the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act: discontinuing the 8 a.m. catering truck and thereby withdrawing the privilege of the office clerical em- ployees of leaving the premises during working hours for refreshments ; requiring the office clerical employees to BRALCO METALS, INC. 155 take their midmorning and midafternoon breaks at a fixed time rather than when the catering truck arrived at the premises; requiring the office clerical employees to punch the timeclock during the lunch hour; prohibiting the office clerical employees from using a telephone on its premises except in an emergency; prohibiting personal conversation among the office clerical employees during working hours; and instituting a written warning and progressive discipli- nary procedure for the office clerical employees. 6. By suspending Sherry Reed from work on December 11, 1973, for 1 day without pay, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8. The Respondent has not otherwise violated theAct. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the purposes of the Act. Having found that the Respondent violated ' Section 8(a)(1), (3), and (5) of the Act by its unilateral changes on November 5, 1973, in certain employment practices affect- ing its office clerical employees which were made for the purpose of punishing them for having designated the Union as their bargaining representative and without af- fording the Union an opportunity to bargain over the mat- ters, I shall , among other things, recommend that the Re- spondent be ordered to return to its former mode of opera- tion as it existed prior to November 5, 1973, and to rescind and expunge from its records all written warnings issued to the office clerical employees on and since November 5, 1973, pursuant to its written warning and progressive disci- plinary procedure instituted on that date . Also, having found that the 1-day suspension of Sherry Reed was the direct result of the operation of this illegally instituted dis- ciplinary procedure and in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Respondent reimburse her for any loss of earnings suffered as the result of her 1-day suspension without pay at the rate of 6-per- cent interest per annum : In the circumstances of this case involving as it does, not simply unilateral conduct by the Respondent, but conduct which was designed to punish the employees for designating the Union as their bargaining representative and to undermine the Union, I am con- vinced that the only remedy which will effectuate the pur- poses of the Act is the restoration of the status 'quo ante which will prevent the Respondent from gaining advantage by its unfair labor practices . Moreover, it also secures to the injured parties freedom in the exercise of their statutory rights by assuring them that the law, despite inevitable de- lays in enforcement, will put them as nearly as possible in the-same situation as if the law had been obeyed. Finally, in ordering a return to the status quo in connection with the requirement that the office clerical employees use the time- clock during the lunch hour , I have carefully considered Respondent's contention that such a requirement, in effect, will force the Respondent to violate the laws of the State of California. The applicable California legislation, as codi- fied by the regulations promulgated by the California In- dustrial Welfare Commission-Industrial Welfare Com- mission Minimum Wage Order No. 1-74 adopted January 1, 1974, effective March 4, 1974-in my opinion only re- quires that the Respondent "shall keep accurate informa- tion with respect to [the office clerical employees] .. . schedules of meal periods." It does not expressly or by implication require that the Respondent have its employees punch the timeclock during the lunch hour. As the unfair labor practices committed by the Respon- dent are of a character which go to the very heart of the Act, I shall'recommend an order requiring the Respondent to cease and desist therefrom and to cease and desist from infringing iri any other manner on the rights of employees guaranteed by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant-to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent, Bralco Metals, Inc., Pico Rivera, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making unilateral changes in employees' terms and conditions of employment without notifying and affording an opportunity to bargain to Freight Handlers, Clerks & Helpers Local 357, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, or in any other similar or related manner refusing to bar- gain collectively with the aforesaid Union as the exclusive bargaining agent of all office clerical employees, including inside sales employees and PBX operators; excluding all other employees, outside sales employees, professional em- ployees, guards, and supervisors as defined in the Act. (b) Discouraging membership in the above-named Union, or in any other labor organization of its employees, by suspending employees or by withdrawing from employ- ees benefits and privileges previously enjoyed or imposing upon employees onerous terms and conditions of employ- ment or by otherwise discriminating with respect to its em- ployees' terms'and conditions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed in Section 7 of 'the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as' authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Notify a catering truck service it has no objection to " 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. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such a truck visiting its premises daily at 8 a.m., or shortly thereafter, as was the practice prior to November 5, 1973, and restore the privilege of the office clerical employees of leaving its premises during working hours to visit this ca- tering truck for refreshments. (b) Restore the practice of allowing the office clerical employees to commence their midmorning and midafter- noon break periods upon the arrival of a catering truck. (c) Restore its practices, as they existed immediately prior to November 5, 1973, of allowing personal conversa- tion among the office clerical employees during working time and allowing them to use its telephone for personal calls. (d) Restore its practice of not requiring the office cleri- cal employees to punch the timeclock during the lunch hour. (e) Rescind the written warning and progressive discipli- nary procedure which it extended to cover the office cleri- cal employees, and rescind and expunge from its files and from the personnel files of employees all written warning notices issued to the office clerical employees on and after November 5, 1973. (f) Upon request, bargain collectively with Freight Han- dlers, Clerks & Helpers Local 357, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all the em- ployees in the above-described appropriate unit with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody any agreement reached in a signed contract. (g) Make Sherry Reed whole for any loss of earnings suffered by reason of her 1-day suspension, together with 6-percent interest per annum and expunge said suspension from its records. (h) 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, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (i) Post at its place of business in Pico Rivera, Califor- nia, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Respondent's representative, shall be posted by Respon- dent 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 Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (j) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the consolidated complaint be dismissed insofar as it alleges violations of the Act not spe- cifically 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT make unilateral changes in employees' terms and conditions of employment without notify- ing and affording an opportunity to bargain to Freight Handlers, Clerks & Helpers Local 357, or in any other similar or related manner refuse to bargain collectively with the aforenamed Union as the exclusive bargain- ing agent of all office clerical employees, including in- side sales employees and PBX operators, excluding all other employees, outside sales employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT discourage membership in the above- named Union, or in any-other labor organization of our employees, by suspending employees or by with- drawing from employees benefits and privileges previ- ously enjoyed or imposing upon employees onerous terms and conditions of employment or by otherwise discriminating with respect to its employees' terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL notify a catering truck service that we have no objection to such a truck visiting our premises daily at 8 a.m., or shortly thereafter, as was the practice prior to November 5, 1973, and WE WILL restore the privilege of the office clerical employees of leaving the premises during working hours to visit this catering truck for refreshments. WE WILL restore the practice of allowing the office clerical employees to commence their midmorning and midafternoon break periods upon the arrival of a catering truck. WE WILL restore the practices, as they existed imme- diately prior to November 5, 1973, of allowing person- al conversation among the office clerical employees during working time and allowing them to use the tele- phones for personal calls. WE WILL restore the practice of not requiring the office clerical employees to punch the timeclock dur- ing the lunch hour. WE WILL rescind the written warning and progres- sive disciplinary procedure which was extended to cover the office clerical employees, and rescind and expunge from our files and from the personnel files of employees all written warning notices issued to its of- fice clerical employees on and after November 5, 1973. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive representative of BRALCO METALS, INC. 157 all the employees in the above-described appropriate WE WILL make Sherry Reed whole for any loss of unit with respect to rates of pay, wages , hours of em- earnings suffered by reason of her 1-day suspension, ployment, and other terms and conditions of employ- together with 6-percent interest per annum, and ex- ment, and embody any agreement reached in a signed punge such suspension from her personnel record. contract. BRALCO METALS, INC.