McGraw-Edison Co.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McGraw-Edison Company and International Union , [Direction of Second Election and Excelsior foot- United Automobile, Aerospace, & Agricultural note omitted from publication.] Implement Workers of America, UAW. Cases 17- CA-5918 and 17-RC-7401 February 4, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY ACTING CHAIRMAN FANNING, AND MEMBERS KENNEDY AND PENELLO On September 5, 1974, Administrative Law Judge Thomas S. Wilson issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party-Petitioner filed cross-exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order,' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent McGraw-Edison Company, Kirksville, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(b) of the recommended Order: "(b) Remove from each of the employee personnel files the written reprimands given to the five employees who received such warnings between November 20, 1973, and January 3, 1974." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held herein on February 7, 1974, be, and it hereby is, set aside, and that Case 17-RC-7401 be remanded to the Regional Director for Region 17 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. 216 NLRB No. 82 MEMBER KENNEDY, concurring: I concur in the result. 1 The Respondent contends, inter aha, that the Administrative Law Judge erroneously considered events which occurred before the petition was filed in recommending that the election be set aside. However, not only did the Respondent violate Sec. 8(axl) following the filing of the petition, as the Administrative Law Judge found, thereby interfering with the election and requiring that it be set aside, but in particular its discriminatory interpretation of its no-solicitation rule and its later rule banning all solicitation in the plant were not repudiated and were maintained during the preelection period. The maintenance of unlawful restrictions on union activity is not rendered unobjectionable by the mere circumstance that there are no specific instances of enforcement during the period in question. E.g., National Electric Coil Division, McGraw Edison Company, 188 NLRB 451 (1971). We do not adopt the Administrative Law Judge's comments concerning his ability to interpret precedent. Unlike the Administrative Law Judge, we neither reach not pass upon the impact of showing "The Spnngfield Gun" to employees. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, McGraw-Edison Company, Kirksville, Missouri, violated the National Labor Relations Act, and ordered us to post this notice and to keep our word about what we say in this notice. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. The Board has ordered us to promise you that: WE WILL NOT interfere with your rights. WE WILL NOT ask you whether you are a union member, or are helping International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other union. WE WILL NOT ask you about your union sentiments. WE WILL NOT order our supervisors to issue written warnings to employees suspected of engaging in union activities. WE WILL NOT instruct our employees not to accept union leaflets. WE WILL NOT maintain surveillance over employees suspected of engaging in union activi- ties. MCGRAW-EDISON CO. 461 WE WILL NOT order employees to promptly report any union solicitation. WE WILL NOT issue permanent written warn- ings, contrary to past plant practice, to union sympathizers when suspected of engaging in union activities. WE WILL NOT otherwise threaten union sympa- thizers with discharge for engaging in union activities. WE WILL NOT harass our employees suspected of engaging in restroom "union meetings." WE WILL rescind our illegally broad no-solicita- tion rule. WE WILL NOT disparately enforce our no- solicitation rule to ban prounion solicitation but to encourage antiunion solicitation. WE WILL NOT interrogate our employees about union activities. WE WILL NOT solicit grievances from union sympathizers with a promise to correct them. WE WILL NOT tighten up plant rules in order to discourage union activities. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees for the purpose of interfering with the rights of the employees to engage in union activities as guaranteed in Section 7 of the Act. WE WILL NOT discharge you, lay you off, transfer you to other jobs, or otherwise discrimi- nate against you because you are a member of the aforementioned Union, or any other union, or because you have supported such a union. WE WILL remove from the personnel folders of five union employees the written warnings issued by us between November 20, 1973, and January 3, 1974. WE WILL offer to David L. Lewis his former job or, if that job no longer exists, a substantially equivalent position, without any loss of seniority or other rights and privileges. WE WILL reimburse David L. Lewis and Delbert L. Downen for any loss of earnings they may have suffered because of our discrimination against them, together with interest thereon at 6 percent per annum. MCGRAW-EDISON COMPANY (Employer) DECISION AND REPORT ON OBJECTIONS STATEMENT OF THE CASE THOMAS S. WILSON, Administrative Law Judge: Upon a charge duly filed on February 1, 1974, and amended on February 6, 1974, and again on March 11, 1974, by International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America, UAW, herein referred to as the Charging Party or the Union, the General Counsel of the National Labor Relations Board, referred to herein as the General Counsel I and the Board, respectively, by the Regional Director for Region 17 (Kansas City, Missouri), issued its complaint dated March 19, 1974, against McGraw-Edison Company, herein referred to as the Respondent or Employer. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. By order dated March 21, 1974, the Regional Director for Region 17 consolidated the above cases for the purposes of hearing, ruling, and decision by an Adminis- trative Law Judge on the merits of the Union's objections to the election held February 7, 1974, pursuant to a Stipulation for Certification Upon Consent Election filed by said Union and approved by the said Regional Director on January 14, 1974. At the hearing, the Union withdrew all objections to that election other than those charged as unfair labor practices in the complaint and the showing by Respondent on February 4 of the movie entitled "The Springfield Gun" to all its employees. Pursuant to notice, a hearing on such issues was held before me in Kirksville, Missouri, on April 16, 17, 18, and 19 and May 6, 7, and 8, 1974. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence and material pertinent to the issues.2 At the conclusion of the hearing, oral argument was waived. Briefs were received from General Counsel, Respondent, and the Union on June 21, 1974. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT The complaint alleged, the answer admits, and I find that: At all times material herein, McGraw-Edison Company, a Missouri corporation, has maintained a facility (herein called the plant) in Kirksville, Missouri, where it is engaged i This term specifically includes the attorneys appearing for the General Counsel at the hearing. 2 Both Respondent and General Counsel have filed motions to correct the record in various respects. No objections having been filed to either motion, the motions are hereby granted. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the manufacture of electrical appliances. Respondent in the course and conduct of its business at the plant annually purchases goods and materials valued in excess of $50,000 directly from suppliers outside the State of Missouri. Respondent annually makes sales from the plant valued in excess of $50,000 directly to customers located outside the State of Missouri. Accordingly, I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America, UAW, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Interference, restraint, and coercion a. November 19, 1973 On November 18, 1973, UAW Organizer Elnora Purcell met with seven of Respondent's employees in Kirksville, Missouri. At this meeting the group discussed the possibili- ty of organizing the employees of Respondent 's plant into the Union. They decided to start such an organizing campaign. They discussed the method of proceeding with such campaign. The seven employees organized themselves into an in-plant organizing committee and elected Kenneth Santee as the chairman of the dayshift organizing commit- tee and employee Roberta Thompson as the chairperson of the night shift organizing committee . They also decided to notify Respondent by letter of their intent and of the names of the employees constituting the in-plant organiz- ing committee. At 8:15 a.m. on November 19, Respondent received the following special delivery, registered, return receipt letter on union stationery over the signature of Elnora R. Purcell: This is to inform you that a Union organizing campaign is in progress at the McGraw-Edison Kirksville Plant on behalf of the International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW. Roberta Thompson, Janet Johnson, Kenneth Santee, Delbert Downen, Jim Ownbey, Bobby Kirkpatrick, and Gerald Hughes are members of the UAW in-plant organizing committee. Other employees will be added from time to time without formal notice. This commit- tee and other employees will be soliciting signatures on authorization cards, distributing union literature and participating in other protected activities. If the company acting by and through its officers and/or agents, restrains , coerces, or otherwise inter- feres with its employees in the exercise of their rights under Section 7 of the Act, charges will be filed by UAW. Thus began what Plant Manager Floyd Winter described as a "bad day." Winter has been Respondent's plant manager at the Kirksville plant since its inception some 19 years before. He had experienced union organizing campaigns before, particularly in 1967 when IBEW unsuccessfully attempted to organize the Kirksville em- ployees as part of a divisionwide organizing effort by that union. He came through that campaign unscathed and was proud of the fact that the Board found that no unfair labor practices were committed at Kirksville. As soon as possible after the receipt of this letter, Winter was on the telephone with Respondent's labor relation attorney in St. Louis requesting, among other things, that said attorney send him a list of "Do's and Don'ts" for supervisory personnel during a union organizing campaign. At 5 p.m. on November 19, Winter had his whole supervisory staff down to foreman and assistant foreman assembled for a meeting in the lunchroom. He first read the assembled supervisors the above letter, including the names of the employees on the in-plant organizing committee. Winter had with him the company rule book containing the code of conduct for employees. He began his talk by saying "Gentlemen, we want to do everything that is legal. We want to do nothing that is illegal. I do not have the information that I will have for you tomorrow morning." He then informed the group that his labor attorney was sending him a complete list of "Do's and Don'ts" of permissible supervisor's activities during organ- izing campaigns which he would distribute to them the following day. He passed out copies of the rule book to the supervisors for their use. Winter specifically called atten- tion to rules 2, 17, and 23 which read as follows: 2 - Deliberately restricting output. 17 - Working time is for work. Therefore, there shall be no soliciting of membership, pledges, circulating petitions or distributing handbills during work time. 23 - Unauthorized posting or removal of notices or tampering with bulletin boards in any way. Winter admits telling the group that "we will give warning slips wherever necessary and wherever justified to keep the people in their own departments and on their jobs and at their machines." Eldon Clay, then a foreman who was discharged on December 28, testified that Winter also stated that "those people organizing this are not that smart, I think we can get rid of them by giving warning slips wherever necessary."3 In answer to a question about the right to pass out literature, Winter told the group the Union "could pass out literature on company premises before work, on coffee break, at lunch hour, after work, but they could not pass out literature on company property on company time, and to remember that." With that the three- quarter-hour meeting adjourned. 3 In the light of Winter's own actions the following day, I have to credit the testimony of Clay who also convinced me that he was a truthful witness. MCGRAW-EDISON CO. 463 b. November 20 - Kenneth Santee At 3:40 p.m. the next day, November 20, as though to fit his actions to his words, Winter found trucker Kenneth Santee in the packing department talking to employee Jeanne Meyers about 20 yards outside Santee's working area. As Santee was leaving, Winter caught him by the arm and said, "If I catch you out of your department again, I will fire your god damned ass." Winter thereupon walked to Plant Superintendent Heaberlin's office, filled out a written warning slip, had Heaberlin sign it also, and gave it to Santee. Admittedly, this was, at most, only the third written warning Winter had ever given in his 19 years as plant manager. Winter testified that prior to catching Santee's arm, he had "timed" Santee's conversation at between 5 to 8 minutes. Winter knew from the union letter that Santee was one of the organizing committee which had not made him happy. He made no effort to determine the subject matter of the conversation. On the other hand, Santee testified that on this occasion he was delivering a message from Meyers' mother-in-law that Meyers telephone her home before 4 p.m. There were no rules against talking or against delivering such messages to employees. About a week thereafter, Santee was transferred from his trucking job, which permitted him to travel around the plant as required, to a welding job which paid him about $1 more per day but also restricted him to one location in the plant. Winter acknowledged that he had not been "happy" to learn that Santee was a member of the union committee. He also thought, incorrectly in fact, that Santee was engaged in union activities at the time. Hence it is clear that Winter gave Santee this written reprimand in order to apprise him of Winter's unhappiness and to warn him of the dangers inherent in engaging in union activities. The reprimand thus was an attempt to interfere, restrain, and coerce in violation of Section 8(ax 1). Winter's reprimand of November 20 also demonstrated to the supervisory staff exactly what he had meant on November 19 by his orders about giving written repri- mands "when necessary." Actions often speak louder than words. Furthermore, the giving of a written reprimand for a first '.offense" also amounted to a definite change in working conditions in the plant as it had long been the general practice to give several oral warnings before resorting to a written reprimand. This was merely the first rule Winter tightened up upon being advised of the advent of the union campaign. Later that afternoon , Winter distributed copies of "Do's and Don'ts" to all his supervisory staff. c. 7-minute rules On or very soon after November 20, Winter issued orders that the doors to the entrances to the plant were to remain locked until 7 minutes prior to the beginning of a shift. For years Respondent had had the following notice posted in the plants: Federal Government regulations prevent us from allowing employees to be in the plant more than 7 minutes before their work shift starts and more than 7 minutes after their work shift ends. Also the lunchroom is to be used only during break periods and specified lunch hour periods. We ask your cooperation in these matters. This regulation had not been enforced for years. As Winter pointed out at the hearing, the enforcement of such rules tends to be relaxed over a period of time. At or about the time aforementioned, Winter chose to order its strict enforcement thereafter. At the hearing, Respondent testified this change was required by Respondent's insurance company. Its strict enforcement at this time tended also to restrict communi- cations among the employees. d. Donaldson goons One evening in late November or early December as the day shift ended, Winter noted from his office window that some Donaldson Company employees had gathered at the exits of Respondent's parking lot and were distributing union literature to the departing Respondent employees. Donaldson had been organized by UAW some time before. Winter immediately picked up the public address system resting on his desk which would carry his voice throughout the plant. Over this system Winter admitted making the following ad-lib announcement: We have some of the Donaldson Goons out here, and it looks like they are going to pass out some literature, and if you don't want to take the literature, you don't have to. If you roll your windows up, they can't stick it in your car. If they try to block the aisles and get in front of you, one of them might get hit or hurt. Lewis, Santee, Downen, and Mathes all heard Winter's remarks over the loudspeaker. According to Lewis, he heard Winter say: There were Union Goons out in the parking lot passing out papers, there were Donaldson's Goons out there and that we didn't have to stop and get the papers, we could roll up our windows and go on by, that they were on private property, and that you had the right to run over them if they were in your way. The other three witnesses testified similarly that Winter's statements were instructive rather than conditional. Although Winter denied encouraging the employees to run over anyone, every witness agreed that something was said about the possibility of the "goons" being hit. Winter's talk on this occasion in effect constituted instructions to Respondent's employees not to accept union literature and thus constituted an interference with 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees' right to engage in union activities and thus violated Section 8(a)(1) of the Act. In the light of the fact that it was apparent from the announcement that Winter already had the area under surveillance these instructions not to accept the union literature would have been most effective as his employees would have suspected that Winter would continue to keep the area under surveillance and could, or would, know which employees violated his instructions. Although Winter did mention the possibility of hitting the distributors of the union literature in his talk, I cannot believe that Winter intended to "induce and encourage employees to assault" anybody. At most Winter just did not care .4 e. The no-solicitation rule (1) Its promulgation On-November 19 Winter, in speaking to his supervisors about giving written reprimands, called specific attention to rule 17 of Respondent's printed rules of conduct which reads as follows: 17 - Working time is for work. Therefore, there shall be no soliciting of membership, pledges, circulating petitions or distributing handbills during work time.5 Sometime in early December Respondent posted the following rule: Fellow workers, in the past we have overlooked certain rules and regulations pertaining to merchandise being brought into the plant and being sold in the plant, however, due to the help shortage and the extra heavy work schedule being assigned to the Kirksville plant, the Company feels we can no longer permit this practice. Effective at once, there will be no sales or solicitations allowed in the plant. [Emphasis supplied.] The last sentence of this new rule would appear to ban all solicitation at all times in the plant. This is an illegal no- solicitation rule. However, Respondent contends that it posted this new rule because employee Ms. Morgensterne who was peddling jewelry to the employees in the plant suffered a loss or theft of some of her merchandise and so the posted rule was intended by Respondent to apply only to the sale of merchandise in the plant. This argument creates the impression that Respondent's printed no-solicitation rule may well have been restricted by Respondent in its application to union solicitation only, which would also violate Section 8(a)(1) because such rules, in order to be valid, must apply to solicitations indiscriminately. Applying the well-established rule that all doubts about a rule must be resolved against its promulgator , I must hold Respondent's no-solicitation rule, as amended or supersed- 4 This incident was pleaded in the General Counsel's complaint as follows (f) Induce and encourage employees to assault union organizers engaged in distribution of union literature... However, despite the inartistic pleading, this incident was fully litigated at the hearing. ed by the posted notice above, to be illegal and a violation of Section 8(a)(1) of the Act. If Respondent intended the rule to apply to sales of merchandise in the plant only, it was incumbent upon the rulemaker, Respondent, to say so clearly. This Respondent did not do. Consequently, it must be here held that Respondent's no-solicitation rule was illegal and violative of Section 8(a)(1) of the Act in its promulgation. (2) Enforcement Foreman Hendricks and Foreman Kinney of the maintenance department each interpreted Respondent's no-solicitation rule by their individual enforcement there- of. These interpretations are illuminating. On or about December 20, employee Ruthie Winstead had passed out some union leaflets by the front door before work. She had 20 or 30 such leaflets still undistribut- ed at check-in time so she brought the undistributed copies into her work place and laid them on her workbench underneath her lunch, coffee cup, purse, and other personal property. The plant provided no lockers for such personal property. As Winstead returned to her work place at the end of the 8:30 p.m. break period, Foreman Hendricks ordered her to remove the batch of leaflets from the table. When Winstead protested that she had the right to organize for UAW, Hendricks ordered her to place the leaflets inside her purse out of sight. He ended the episode by ordering Winstead that "from that night on, [she] was not to bring any more UAW literature, or anything concerning the UAW, back into the plant, that [she] was to keep it in [her] damn car where it belonged." Upon receiving a report from Winstead of this encoun- ter, employer organizer Roberta Thompson thereafter would not allow Winstead to take any UAW material into the plant for fear Winstead would be discharged if she disobeyed this order of Hendricks. Thus, Foreman Hen- dricks kept UAW material out of the plant. This enforcement of the rule as far as union materials were concerned must be compared with Maintenance Foreman Kinney's enforcement of that rule in regard to antiunion materials. Soon after the announcement of the union campaign, employee Dixon requested some paint from Foreman Kinney. Kinney asked what it was to be used for. Dixon answered by pointing to a "Vote No" button he was wearing and said, "for some of these." Kinney informed Dixon where the paint was and Dixon left with some. Thereafter and throughout the campaign, to Kinney's knowledge and without his objection, a supply of antiunion buttons was maintained in employee Sandretto's toolbox in the maintenance department for distribution to any employee who wanted one. Kinney and the other employ- ees of the department offered and distributed such antiunion materials from these supplies. S Prior to the recent decision of the Board in Litho Press of San Antonio, 211 NLRB 1014 (1974), this rule containing the ambiguous phrase "work time" without specific exception for breaktimes, lunch or meal times, etc , was presumptively invalid because of its ambiguity as to time. Litho may well have changed this longstanding Board law. 6 Respondent has a foreman with this same last name McGRAW-EDISON CO. 465 In fact Kinney himself admittedly wore an antiunion button throughout the campaign. Kinney maintained that the no-solicitation rule did not prevent him from such a display pf his sentiments but only prevented his distribu- tion of such insignia to others . Winter raised no objection to Kinney's display of the antiunion button nor to the distribution of such antiunion materials to others. The evidence is quite clear that, despite Kinney's denial thereof, Kinney himself solicited others to display these antiunion buttons. In fact, he made no objection when employee Wood in the plant distributed antiunion stickers to Winter and himself nor did Winter. In fact Kinney offered such to employee Lewis. Hence, it is perfectly clear that Respondent's enforce- ment of its no-solicitation rule was completely disparate: no distribution of union literature but free distribution of antiunion materials . Such disparate enforcement of this rule constitutes a violation of Section 8(a)(l) of the Act. f. Roberta Thompson Roberta Thompson and Flora Sizemore constituted a team of welder and loader. Respondent's safety rules required the employee doing welding to wear safety glasses but not so the loader. Thompson, of course, was an original member of the Union's in-plant organizing committee and, in fact the chairman of the second shift of that committee . Sizemore had signed a union authorization card on November 20 and thereafter also wore an organizing committee button at all times. Early in December, Sizemore, while welding, failed to wear her safety glasses. Foreman Danny Williams of that department spoke to her about this failure. On December 7, Sizemore once again failed to use her glasses while welding. This time, after consulting and approval of night Superintendent White, Williams gave Sizemore a written warning for such failure. Written warnings go into the employee's file for possible future use. Due to her display of the union insignia , Sizemore's union affiliation was publicly known. This might create an implication that she was given the written warning for this admitted safety regulation violation because of her union affiliation. However, safety regulations are applicable to all employees regardless of union affiliation. Foreman Wil- liams had, in this instance, followed prior plant practice of giving at least one oral warning, if not more, prior to issuing the written warning. Thus, even though Sizemore was a known union button wearer , these warnings complied with the plant's past practices and were given for reasons of safety. On December 19, Foreman Williams saw Thompson welding without her safety glasses on. Investigation by Williams determined that Foreman Walker of another department had also seen Thompson welding without glasses. Williams thereupon walked to the superintendent's office where Foreman Snider was and had Snider check the fact that Thompson was in fact welding without glasses. Williams spoke to Superintendent White about giving a written reprimand for this violation and thereafter made out a written warning for that violation. Williams then walked to Thompson's work place and handed her the written reprimand. If safety were Williams' primary concern in this instance, then safety required that Williams call the admitted violation to Thompson's attention immediately even though only orally. The admitted facts here are that Williams deliberately delayed this warning in order to get confirmation from Foremen Walker and Snider, as well as for subsequent consultation with Superintendent White before making out the written reprimand for Thompson. This considerable delay on a safety matter proves that safety was at best a secondary consideration in this instance. The fact that an accident could have occurred during all this investigation, consultation, and writing of the reprimand indicates that safety was merely a pretext by which to place a written reprimand in the files of the known chairperson of the Union's second-shift organizing committee for possible future use. When the written reprimand was handed to Thompson, it listed two offenses: (1) Safety violation, and (2) "Disobedience." Thompson objected to the inclusion of this second element to White who thereupon returned to his office and changed the second element to a violation of "carelessness." These facts together with Thompson's known member- ship and activities on behalf of the Union and with the elimination of the prior practice of previous oral warnings proved that Respondent here was engaged in a course of conduct intended to coerce and intimidate a known member of the organizing committee in her activities on behalf of the UAW in violation of Section 8(a)(1). Safety rules should be applied strictly in the interest of personal safety and not, as here, as an attempt to intimidate and coerce employees because of their union activities. It exemplifies what Winter intended with the use of the phrase "when necessary" on November 19. g. Lonnie Winn Lonnie Winn, a diesetter for Respondent since August 1970, signed a union authorization card on December 4 and began wearing his union button publicly on December 11. Respondent's rule book contains a rule that employees are not to use company telephones without the permission of their foreman. However, Winn, who worked the second shift, had in fact used an office telephone openly and without such permission several times per week throughout his employment with the knowledge of and without objections from his supervisors. The evidence shows that other employees did likewise. Obviously the telephone rule was not being enforced by Respondent prior to the union campaign. On Friday, December 14, Foreman Williams noted Winn using the office telephone as usual. He reported this fact to Superintendent White. For reasons known only to himself, White decided not to issue either an oral or written reprimand at the time. He did, however, write out a written reprimand for using the telephone without permission. The date on this reprimand was left blank. He instructed Williams to watch Winn. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the evening of Monday, December 17, Winn again used the office telephone. This time Williams walked in and handed Winn the prepared, but undated, wntten reprimand for such unauthorized use of the telephone. There had been no oral warnings given Winn about the use of the telephone previously. Respondent's duplicate original of this written repri- mand contained the date of "12-17-73." This does not appear upon the copy given to Winn on that date. Here again, the reprimand appears to have been given for the purpose of coercion and intimidation because of the recipient's known union affiliation and sympathy in violation of Section 8(a)(l). In fact, here, it might even be said that Respondent deliberately entrapped a union supporter for just that purpose. Winter made the point that over the years the enforce- ment of rules become lax. From this and other incidents cited here, it becomes apparent that Winter thought that the commencement of the union organizing campaign was the appropriate time to require strict enforcement of the rules again with or without announcement to that effect, particularly if the offender was a known union sympathizer or a member of its organizing committee. h. Betty Ferguson Betty Ferguson, an 8-year veteran welding employee of Respondent, signed a union authorization card on Novem- ber 20, and thereafter wore a union organizing committee button at all times. About 10:20 a.m. on December 18 after the morning break, Foreman Leavitt came to Ferguson's work place, handed her a written reprimand for having "engaged in unnecessary conversation" and said, "Betty, I hate to give it to you but you [were seen ] sitting and talking." Ferguson answered that she "probably asked for this." Ferguson acknowledged that she had in fact carried on a conversation with employees Diana Dimmit and Elsie Woods and Assistant Foreman Orland Dimmit for a few minutes beyond the conclusion of the 10 a,m. break period on matters unrelated to the Union. Leavitt acknowledged that he had no idea of the subject of the conversation. Hence it is hard to know how he established that this conversation was "unnecessary," especially with an assist- ant foreman present and participating therein. It is notable that Ferguson was the only union button wearing conversationalist involved and also that she was the only recipient of a warning for this allegedly "unne- cessary conversation." Leavitt's attempted explanation for this phenomenon was that Ferguson was the only employee "away from her work station" during this "unnecessary conversation." This, however, appears to be a completely different offense from that for which she was reprimanded. 7 Leavitt purported to recall little, if any, of Winter's instructions at the November 19 meeting in regard to written reprimands. In this, Leavitt's lack of memory coincided almost exactly with the memories of most, if not all, of the other supervisors who attended that November 19 meeting and who, incidentally, happened to be sitting in the courtroom while Winter testified regarding his instructions to them on that occasion. 8 During the direct examination of Mathes on motion by Respondent, I Respondent then attempted to shore up Leavitt's position by showing that on January 3, 1974, Leavitt had given employee Van Dyke, who wore no union button either, a written reprimand for "lateness." However, the facts developed that January 3 was not the first time Van Dyke had been guilty of being late, that she had been spoken to about the matter previously, the number of such previous oral reprimands Leavitt was unable to estimate. Thus the facts indicate that Ferguson was reprimanded for "unnecessary conversation" only because she was wearing a union button as the other conversationalists without buttons were not reprimanded. It also appears clear that the Ferguson reprimand was given pursuant to Winter's November 19 instructions to the foremen and was for the discriminatory purpose of attempting to coerce and intimidate a known union sympathizer in violation of Section 8(a)(1).7 i. David Mathes During his 4 years of 'employment with Respondent, David Mathes has been a final inspector of fans and heaters prior to shipment. His job is to plug the fans into a board to check the oscillation and then into another board to check the "ampage" [amperage?]. Mathes signed a union authorization card during the morning break period oti November 20 for Barbara Santee, the wife of Kenneth Santee of the organizing committee. He did not wear a union button. In fact, except for asking two employees to sign union authorization cards unsuc- cessfully early in December, Mathes' union activity appears to have been negligible. A little before noon on January 14, Jerry Winter, son of Floyd Winter, brought a fan with a loose blade back to Mathes to have the blade fastened tighter. This Mathes did. Mathes inquired why some fans on the board in front of Mathes were not oscillating. Mathes answered that he was at that time helping a woman on the assembly line and was not yet checking those fans for oscillation. Mathes explained that he was helping this woman on the assembly line because they both were paid on a piecework basis so that the more they made the greater was their pay.8 At about 3:45 p.m. that same day, as a result of a conversation with Jerry Winter concerning Mathes' alleged failure to check the fans for oscillation, Foreman James Clinton, after watching Mathes for a period of time from a distance, came up to him at his work station and accused Mathes of not having checked the fans for oscillation and said, "God damn it, you know better than that." Clinton then walked away. According to Clinton, he then went to another vantage point from which he could watch Mathes at work. According to Clinton, Mathes continued not to test for oscillation. struck this testimony as to the conversation with Jerry Winter on the grounds of immateriality . Respondent's subsequent examination of Fore- man James Clinton made this Winter/Mathes conversation material. However, I failed to reverse my ruling regarding the striking of the original conversation. In view of my ultimate resolution here, I find no reason to believe that making findings on this stricken testimony will in any way work to the disadvantage of Respondent. MCGRAW-EDISON CO. Then just before 5 p.m. Clinton handed Mathes a written warning slip to the effect that Mathes "had failed to test all operations of 10 inch OSC fans - not checking for oscillation of each and every fan ." This slip was counter- signed by Heaberlin. This was Mathes' first and only warning. The issuance of this reprimand to Mathes appears to follow the same pattern of reprimands as was suggested by Winter at the November 19 meeting. However, there are two difficulties . The first is that Mathes' union activities appeared to have been minimal, if not nonexistent . The interference of Jerry Winter suggests that perhaps his father suspected Mathes was more active than the testimony proved . However, my evidentiary ruling noted above eliminated that aspect from this incident. Hence I will dismiss this portion of the case even though the fact is that these allegedly uninspected fans were thereafter boxed and shipped without further inspection by Respondent. j. Solicitation for and against On or about December 20, button-wearing union activists Karen Gunnels, Carol Hines, and Carolyn Ray went to Winter's office to inquire if they could be excused for I hour the following Friday in order to participate in their children's school Christmas celebration without losing their own Christmas holiday pay. After granting this request, Winter remarked that he already knew that Gunnels was in favor of the Union.9 She and the other two employees acknowledged that each of them had signed union authorization cards. Then Winter inquired why the employees felt they needed a union in the plant and what was wrong with things as they were. The employees cited a number of complaints they had in their department which they had taken up with Foreman Sayre without success which led them to the conclusion that a union was necessary in order to correct the situation. The question of wages came up. Winter then showed the employees two union contracts as proof that the Union could not help them especially if they believed they could get a large wage increase. Winter then added, "Well, I told them that Mr. Winslow, who is our time study engineer, cost accountant, and I were going through the rates and that we would be setting the new rates reflecting the increase in the base rates . . . I mentioned that the rates were set, that the average worker should be able to make a 25 percent bonus, based on the incentive or top day rate. A good extra worker should be able to make 30 percent or 35, and an exceptionally above average worker could even make 40 percent, and that we were reviewing the rates." The discussion lasted an hour or so and ended with Winter's assurance that he would check into their complaints and do something about them. About 4:30 that afternoon, Sayre ordered Gunnels, Hines, and Ray to report with him at Winter's office. At Winter's request, the employees repeated some of the complaints they had made against Sayre earlier that day. During the course of this discussion, Sayre accused 9 Foreman Sayre had previously reported to Winter that Gunnels was wearing a union button. 10 This alleged "timing" of "12 to 15 minutes" like the timing in the 467 Gunnels of having solicited employees Johnson and McFarland to sign union authorization cards during "working hours." This Gunnels denied. However, the meeting ended amicably. But no changes were made in the department as a result of the discussion. Regarding the alleged solicitation, both Johnson and McFarland testified at the hearing that just prior to the 10 a.m. break one morning in December (about December-7) Gunnels had in fact inquired of both, while all three were working, if they would help the Union by signing an authorization card. Both men responded in the negative. Within minutes thereafter, Johnson and McFarland reported the alleged solicitations to Sayre. It is undenied that early in the union campaign Sayre had ordered Johnson, at least, to report immediately to him if he were ever solicited to join the Union "during working hours." Thus it appears that Foreman Sayre had set up a network of informers in order to keep union activities under surveillance in his department at least. Such surreptitious surveillance over union activities violates Section 8(a)(1) of the Act. Also Winter's solicitation of grievances and gripes from employees coupled with a promise to "take care of them during a union campaign also violates Section 8(a)(1). Winter's talk about the new wage rates without the necessity of a union constituted an implied promise of benefit in violation of Section 8(a)(1) of the Act as did his promise to take care of the complaints in the department. k. Barbara Ownbey Barbara Ownbey is not only an employee of Respondent but also the wife of Jim Ownbey who was listed as one of the Union's organizing committee in the letter of Novem- ber 19. She signed a union card on November 20 and thereafter wore a union organizing committee button. On December 27 Winter wrote out a warning slip for Barbara Ownbey for a "conduct" offense because of her "congregating with other employees and spending exces- sive time in rest rooms." Winter testified that, as he happened to be in the maintenance department, he saw Mrs. Ownbey going into the restroom. Having previously heard "rumors" from his supervisory staff that "union meetings were being held in the rest rooms," Winter glanced at the clock. According to his "timing" Ownbey came out of the restroom some "12 to 15 minutes" later.ia Winter promptly wrote out the above written reprimand and had Foreman Stanek deliver same after he also had signed it. When he handed the reprimand to Ownbey, Foreman Stanek said, "I guess they are watching you" and explained that someone had "timed" her in the restroom for 14 minutes. When Ownbey asked who had timed her, Stanek purported not to know. Ownbey then remarked that she did not know there was a limit on the number or length of visits to the restroom. Stanek did not know either. So Ownbey suggested that Stanek find out from Winter what those limitations were. Santee case of a conversation of "5 to 8 minutes" appears to have been in 3- minute estimates rather than by the watch 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As they were leaving the plant together after 5 o'clock, Stanek reported that Winter had answered this question by saying that it was "just long enough to do yourjob and not to be holding any union meeting." 11 It is thus quite clear that Winter issued this written reprimand to Ownbey, a button wearer and the wife of a known member of the organizing committee, in an effort to prevent the holding of any "union meeting" in the restroom rather than upon an estimated "timing" of 12 to 15 minutes. The very wording of Winter's reprimand of "congregating with other employees" tends to corroborate the above. Thus this reprimand also violates Section 8(axl) of the Act. The evidence in this case makes it very clear that the "holding of union meetings" in restrooms bothered Respondent considerably as night Superintendent White, Foreman Hendricks, and other foremen began promptly after notice of the organizational campaign to follow button-wearing employees such as Ruthie Winstead and LaVera Drummond, among others, to the restrooms. Obviously Respondent recognized that restrooms are often fertile soil for union organizational endeavors and reacted accordingly. Thus Respondent chose to keep known union sympathizers under surveillance in order to keep "union meetings" at a minimum. 1. Anna Yauk About 5 p.m. on January 14, 1974, Anna Yauk, an employee of Respondent since 1959 , asked Winter's permission to use the phone to call a taxi . As Yauk completed the call, Winter called her into his office because he wanted to talk to her. Winter inquired, "Anna, what's wrong out there? What is so wrong that the people and you think we need a Union?" Yauk thought a union would do some good, at least in her department. When Winter persisted in his inquiry, Yauk suggested that, if Winter wanted to know the answer, he should get a few employees from each department, discuss it with them, and get the answers . He said he would do that but persisted in questioning Yauk as to why she and the employees thought a union was needed. Yauk refused to discuss the matter further. Thereupon, Winter said, "Annie, you know we have been pretty good to you. We have done you a lot of favors." Winter specifically recalled a plane ticket to the West Coast he had arranged for Yauk some time previously. Yauk said that she was grateful but wanted to be through and finished with favors. Winter thereupon stated that it had been reported to him that she was having a lot of repairs and rejects returned to her and that it had also been reported to him that her "eyesight isn't as good as it should be." He then added, "you know we have a lot of older women just like you out there that we kind of take care of, that are getting fairly old." After Yauk denied the report about her failing eyesight , the conversation ended. For some time prior to this conversation, at Winter's orders Foreman Jody Sayre had had repairs and rejects by it This testimony was undemed as Respondent did not call Stanek as a witness. 12 Employee Lillian Cima testified to an even more explicit conversation with Winter on November 20 where, according to her, Winter threatened union sympathizers with ternunation and solicited Cima's assistance against Yauk and some of the others stored alongside Yauk's work place instead of having them repaired on the daily basis as was customary. That same evening this conversation "bothered" Yauk so much that she had to telephone a fellow employee and discuss the event with her. Winter denied that he had made any threat to discharge Yauk. Technically Winter's answer was correct in that the word "discharge" was never uttered during the conversation. Winter was too subtle for that. However, the implications of his remarks about both Yauk, her rejects, and her eyesight, as well as the other "older women" in the department who thought that a union was needed were so clear as to require the finding, here made, that Winter threatened both Yauk and the other prounion "older women" in the department with possible loss of employ- ment because of their belief that a union was necessary in the plant. As Winter must have anticipated, Yauk passed on that threat to her friends in the department. Thereby Respondent interfered with, restrained, and coerced its employees because of their union sympathies in violation of Section 8(a)(1) of the Act.12 Conclusions Throughout this Decision there are numerous conclu- sionary findings of violations of Section 8(a)(1) which may appear curt or cursory. Because of this it might be well to expand a bit on such conclusionary findings. Respondent here has filed a 36-page brief in which it sets forth innocent explanations on each of some 17 separate incidents. By the use of the well-known technique of examining each such incident in isolation, deciding that in itself such incident was innocent or justified and therefore abandoning it, the brief reaches the natural conclusion that this whole case should therefore be dismissed. Nothing distorts a picture better or faster than examining isolated parts thereof and throwing them away. However, one thing does stand out like the proverbial sore thumb in Respondent's brief: While it necessarily mentions the events of November 19 in passing, the brief attempts no innocent explanation thereof nor could it. The closest the brief comes to giving such an innocent explanation is its comment, relating to a totally different incident, that "Mr. Winter may be an impulsive individual and there is no doubt that he was not in favor of the Union organizing the plant" 13 The key to this whole case lies in Winter's immediate reaction to the Union's letter of November 19 notifying him of the inception of its campaign to organize the employees of his Kirksville plant. His reaction was immediate and decisive. It permeated events thereafter. He called his supervisory staff together at 5 p.m. that same afternoon and, after reading to them the Union's letter, including the names of the members of the union organizing committee, gave orders that they were 'thereaf- the Union. A pure credibility question arose when Winter denied any conversation about the Union . I choose not to resolve this credibility conflict because, even if found, the evidence would merely be cumulative 13 I concur fully with this appraisal on both counts MCGRAW-EDISON CO. ter to give out written reprimands "whenever necessary" and suggested that thereby the supervisors could get rid of them as they weren't too smart.14 At this time Winter even pointed out to his supervisors the three rules of employee conduct which he thought would be the most efficacious for the purpose. Winter was in such a hurry to begin his campaign against the Union that he could not even wait in giving these instructions until the "Do's and Don'ts" of legal supervisory conduct during union campaigns could arrive by mail from his attorney in Kansas City. On November 19, legality was definitely a secondary consider- ation in Winter's mind. Lest any supervisor mistake the meaning of his instruc- tions, the very next day Winter himself issued the first such written warning to organizing committee member Kenneth Santee, who was at the time 60 feet from his area delivering a phone message to a fellow employee as he had done many times before. In the phraseology of Respondent's brief, Winter "concluded that Mr . Santee was wasting time and engaging in unprotected union activities for which he was entitled to receive a warning slip." So admittedly, union activities, protected or unprotected, actual or suspected, played an integral part in this first reprimand. Thus it it instructive to note that seven of the written reprimands issued during this period of time were given to known prounion employees, of whom two were listed as members of the organizing committee and a third was the wife of another such listed member thereof. In addition, a fourth member of the committee promptly lost his overtime. Also during the period, only one nonunion employee received such a written warning but that came only after she had been warned orally on numerous occasions for previous latenesses. Winter's instructions to his supervisors on this occasion violated the general practice in the plant which was that written reprimands were given only after several previous oral warnings. This was in line with Winter's tightening up of all plant rules upon notice of the Union's organizing campaign, at least as they were applicable to union button wearing employees. Respondent's brief would have us believe that the only difference between oral and written reprimands was the permanency of the record of the latter . However, if so, Respondent's employees were not so notified . It is a well- known phenomenon that many an employee has been discharged for accumulating too many written warnings permanently placed in his employment file. Hence the change to written warnings in lieu of oral ones was coercive in fact. No one wants to run the risk of discharge. Having thus given his supervisors the word on November 19, so Winter in late November or early December used an opportunity to give the same word to employees by notifying them over the loudspeaker of the presence of "Donaldson Goons" distributing union literature at the plant gates and instructing the departing employees to roll up their windows so that they would not have to take the union literature and even adding remarks that sounded as 14 Winter alone as a witness attempted to give an innocent explanation of this by contending that he ordered such written reprimands only "when necessary," as the brief puts it, "to keep employees at their jobs or at work." Winter was a credible witness especially as to major events . He was by far 469 though it might be all right to run the "goons" down if they got in the way. Respondent's innocent explanation of this announce- ment is that it "would not be interference, restraint and coercion of employees of the Company" because these remarks were "directed at the distributors of the literature who were not employees of the Company." This explana- tion among other things ignores Winter's orders not to take the union literature offered which were directed to the employees of the Company. In addition, it was also clear from the warning given that Winter had the scene under surveillance and hence would, or could, know which Respondent employees accepted such forbidden literature. As noted above, Winter promptly tightened up all the rules of the plant to the disadvantage of the Union. No one was to be allowed to enter the plant more than than 7 minutes before the shift began, which would interfere with communications on union matters. No one could use the phone without permission, particularly if he wore a union button, as did Winn, and no one was to work during rest periods because Respondent was preparing its cost accountant records so that, as Winter suggested, the employees would soon be able to add a 25- /or 30-percent bonus to their wages. This last definitely implied an illegal promise of benefit. Even Respondent's no-solicitation rule prohibiting solici- tation during "work time" was changed by a posted notice that "effective at once, there will be no sales or solicitation allowed in the plant. " (Emphasis supplied.) If the printed no-solicitation rule was legal, the posted one was not. These were all unilateral changes in working conditions made to combat the organizational campaign. Even if we assume the printed no-solicitation rule to be valid under the present Board law, its enforcement by Respondent was so disparate as to violate Section 8(a)(l) of the Act in any event. Winter would permit no union literature to be brought into the plant. On the other hand, Foreman Kinney of the maintenance department not only permitted a supply of antiunion buttons to be kept permanently in his maintenance department for distribu- tion to employees, but he personally solicited employees to wear them, even as he did. Furthermore, Winter solicited grievances and gripes from known union sympathizers Winstead, Ray, and Hines with a promise "to take care" of them. Such promise to take care of solicited gripes and grievances during a campaign is a well-recognized violation of the Act. 2. Discrimination in hire and tenure a. Delbert Downen Delbert Downen attended the meeting with organizer Purcell on November 18. He was listed in the union letter dated November 19 as one of the union in-plant organizing committee. Downen apparently did not sign a union card until November 20 during the morning break at then Foreman Eldon Clay's desk. He then began wearing an the most honest witness of all Respondent's supervisors. However, Winter was not above adding a few details to make his conduct a bit more palatable as in the example above. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizing committee button and/or an organizing com- mittee pocket pencil holder . Although Downen was not very active in soliciting signatures on union authorization cards, it was well known by Respondent that he was a member of the Union's in-plant organizing committee. In fact Winter took occasion to remind Foreman Don Atchley of that fact. Since sometime in 1966, Downen had regularly worked a 9-hour day with 5 hours more overtime on Saturday. During these 7 years, Downen spent the regular 8-hour day, 7 a.m. - 4 p.m., in the degreasing department and then from 4 - 5 p.m. at overtime pay carting and stacking fan guards in boxes in the warehouse during the fan season or during the heater season, which began about the middle of December each year, cleaned racks, or chrome-stripped or anything else which needed doing under Foreman Atchley. Also during these years since 1966, Downen also regularly worked 5 hours overtime on Saturday , which apparently was performed under then Foreman Eldon Clay. Sometime in December, Downen reported to Atchley that he had to have more help in stacking boxes during his 4 - 5 p.m. overtime work. It was universally agreed that stacking boxes at a height of 15 feet required more than one man. Stacking boxes at lower heights could be done by one man working alone. On December 11,15 after perhaps talking to Heaberlin, Don Atchley 16 came to Downen prior to his 4 - 5 p.m. work in the warehouse and told him that he , Atchley, did not have anyone to help Downen at the time, could not find a place for employees Rod Kiger and Mike Peavler, and so he was going to have them do Downen's overtime work full time so that he would not need Downen between 4 - 5 p.m. any longer. This conversation also apparently ended Downen's 5 hours of overtime on Saturday as the records show that thereafter Downen worked no Saturdays either. Thereafter Downen's overtime work was performed by Kiger, Peavler, Clark, Rusk, and/or Dixon at least until on or about February 16, 1974, when Respondent saw fit to restore Downen's 1 hour of overtime daily and 5 hours on Saturday. As noted, Downen had worked this daily 1 hour overtime and 5 hours on Saturday continuously for the period since 1966. Downen was well known to Respondent and Atchley as a member of the union organizing committee through Winter's reminder and through his wearing of the union organizing committee button. It was also well known to Atchley that Downen's replacements were all employees who either wore no buttons or wore antiunion buttons. In fact one of them, Dixon, had at one time wom a union button but had, to Atchley's knowledge, switched to a "Vote No" button prior to Downen's loss of overtime and replacement by Dixon. Atchley's varied explanations for this precipitous change were confused, confusing, and contradictory. 15 Both Pownen and Atchley agreed that this conversation occurred the day Downen lost his overtime work. Atchley originally attempted to pick a date for the conversation prior to November 19, whereas Downen thought it occurred in the middle of December. The payroll records show that Atchley's first explanation was that Downen , being in the degreasing department , had no seniority for working in Atchley's plating department. The sudden discovery of this alleged lack of seniority after 7 years appears somewhat farfetched. Next, Atchley maintained that he could find nobody to assist Downen but then suddenly was having trouble finding work for the five employees mentioned above. Allegedly these employees became available be- cause work "tapered down" with the changeover from heaters to fans. But then Atchley had to admit that the 1974 changeover in this regard differed in no way from the similar changeovers in 1970,'71,'72, or'73 when Downen's overtime work remained unaffected thereby. Finally, on February 16, 1974, 9 days after the Union lost the election and Downen had removed his union button, Downen's overtime was suddenly restored again without explanation. The circumstantial evidence here together with the shifting explanations therefor, even in the absence of the "smoking gun," is so overwhelming as to compel the finding, here made, that Respondent deliberately discrimi- nated against union-minded Delbert Downen by removing his overtime work in retaliation for his known sympathy and activities for and on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. b. David Lewis On or about October 16, David Lewis applied for work in Respondent's maintenance department. He was inter- viewed for this job by Floyd Winter who told Lewis that he was looking for an electrical supervisor on the night shift. Lewis denied that he was an electrician although acknowl- edging that he had done a little wiring of 110 and 220 but none of the 440 variety. Lewis told Winter he was not qualified for the job Winter had suggested. However, Winter hired Lewis for a maintenance department job. At this time janitor and maintenance employee Thompson was on sick leave for an operation from which he did not return to work until January 7, 1974 . Lewis began work October 17. On November 20, Lewis signed a union application card for Kenneth Santee but never wore a button of any sort. After his employment began as a maintenance man, Foreman Lloyd Kinney assigned him to a large part of Thompson's janitorial duties and other things throughout the plant as assigned. A day or two after Lewis was hired, Winter employed a North Eastern Missouri University student named Amin Rahdar as the electrician to wire the newly reconstructed offices. On occasion Lewis was assigned to assist Rahdar in this wiring. On or about December 10, employee Guy Dixon came into the maintenance department asking for paint. When asked what the paint was wanted for , Dixon pointed to a "Vote No" button he was wearing and said to "make some of these" in the presence of Kinney, Lewis, and employee December I I was the first day Downen worked only 8 hours and hence that must have been the date of this conversation. 1s Atchley was a most indefinite witness and was prone to include "probably" in many of his answers. McGRAW-EDISON CO. Mike Peavler. Foreman Kinney then told Dixon where the paint was which Dixon got and departed. A day or so later, Kinney asked Lewis in the presence of employees Albert Sandretto and John Johnson if Lewis wanted a "Vote No" button to wear. Lewis refused on the ground that he did not want to antagonize anyone. Sandretto kept a number of such "Vote No" buttons in his workbox in the maintenance department to the knowledge of Kinney. Employees who came into the department were asked by Kinney or others if they wanted such a button . Other employees came into the department in Kinney's presence, went to Sandretto's box, and took out buttons without objection from Kinney.17 The mainte- nance department appears to have been the headquarters of the antiunion forces for, in addition to the distribution of the "Vote No" buttons, every member of the depart- ment, including Kinney, wore a "Vote No" button. To his knowledge, Kinney was the only foreman wearing such a button although he knew of assistant foremen who were wearing them. On December 13, employee Wood walked into the office where Winter, John Johnson, Kinney, and Lewis were present. As he did so, Winter greeted him with a remark, "There's my hero." Wood passed out antiunion stickers to both Winter and Kinney who accepted them. When Lewis asked Kinney the meaning of the "my hero" greeting, Kinney explained that Wood "made up all the anti-union buttons that he had." 18 On the morning of December 14, an employee came into the maintenance department and offered those present there, Foreman Kinney with employees John Johnson, Sandretto, Chuck Mathes, and Lewis "Vote No" stickers to be stuck upon their clothing or hardhats . All present except Lewis accepted the offer. About 4:45 that afternoon, after consultation with Winter, Kinney informed Lewis that "I'm going to have to let you go." Kinney explained that Winter thought that Lewis was loafing and "goofing off and not spending enough time in his department." Kinney added that he "hated to let him go but I can't fight [Winter ], he's higher up than I am." After denying that Winter's reasons were the reason for his discharge , Lewis departed. When Lewis applied for unemployment compensation, Respondent answered the inquiry of the Missouri State Unemployment Office by claiming that Lewis had volun- tarily quir and had not been discharged . Thereupon Lewis went personally to Winter and inquired if he had been fired or had quit voluntarily because, if he had quit, he wanted his job back. Winter explained that Respondent's report was in error and that Lewis had in fact been fired. When asked why he had been discharged, Winter first attributed that to the fact that Lewis was not a "top electrician" but later added the fact that Lewis "didn't spend enough time in [his ] own department and loafed around and goofed off, talked to other people." Thereafter, Respondent corrected its answer to the unemployment office, acknowledging that Lewis had been discharged.19 17 Kinney testified that he saw no violation of Respondent's no- solicitation rule in these activities. He made no effort to stop these practices and, in fact, participated therein. is Winter candidly acknowledged having made this "my hero " greeting 471 Respondent's internal discharge report on Lewis, admit- tedly based on Kinney's evaluations, rated Lewis as "fair" in ability, attendance, and production but "poor" in conduct so that he was not to be rehired. The accuracy of these evaluations of Lewis by Kinney became questionable when Kinney had to admit that Lewis had no attendance problem even though Kinney had rated him only "fair" in attendance. Kinney also "thought" that he had reprimanded Lewis once before during his employment for talking but was not at all sure when, if ever. Kinney acknowledged that he, a foreman, wore an antiunion button as did at least one assistant foreman in the plant. Kinney advanced the rather novel theory that, as a foreman, he could display this insignia under Respond- ent's no-solicitation rule but could not distribute such buttons to employees. He also contended that it was no violation of the rule to permit employee Sandretto to maintain a distribution center of such antiunion buttons in the maintenance department. The evidence proved in addition that Kinney also engaged in such distribution. This interpretation contrasts sharply with that of Foreman Charles Hendricks about the union leaflets in Ruthie Winstead's possession. Respondent needed a more uniform interpretation and enforcement of its no-solicitation rule than is obvious in this case. Respondent's enforcement of the rule was so disparate as to constitute a violation of Section 8(axl) of the Act. Kinney was not a believable witness unless corroborated. He preferred to argue, rather than to answer, the question put to him. His memory was sharp in his arguments. But he suffered an almost total loss of recall when required to answer the question asked. Winter acknowledged that he informed Lewis that Respondent had discharged him for "goofing off," "holdi- ng the wall up a lot of times, leaning against it," because he was not a top electrician, and because his services were no longer needed. The trouble here is that admittedly Lewis told Winter during his prehire interview that he was not an electrician, much less a top electrician. In the light of Winter's demonstrated character, it is highly unlikely that he could have watched Lewis "goofing off' by "holding up the wall a lot of times," as Winter described it, without having once criticized Lewis for such inactivity. The record proves Winter was neither passive nor reticent in the plant. Nor was he such either in the courtroom or as a witness. Yet this record fails to disclose that Winter ever reprimanded Lewis for any such dereliction of duty. Such passivity was not in Winter's character. I therefore cannot credit Winter in either of the above regards. Winter also contended that Lewis' services were no longer needed. The record shows that, in fact, Lewis was hired as a replacement for janitor Thompson who was on sick leave for a period of time due to an operation. The facts show also that, although Lewis was discharged on and that it was due to the fact that Wood had made up the first antiunion buttons. However, he testified that the remark was made "jokingly." 19 Winter blamed this error on the firm which was handling Respond- ent's personnel matters at that time. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 14, Thompson did not return to work at least until January 7. On the other hand, both Winter and Kinney knew that Lewis had refused to accept or wear antiunion insignia. In fact, they each knew that Lewis was the only employee of the maintenance department who was not a staunch and rabid antiunionist as the maintenance department was the headquarters of the antiunionist group in the plant. A suspected prounion employee in that atmosphere could be dangerous. In the light of the Respondent's untrue and shifting defenses regarding the Lewis discharge and the danger of having a suspected prounion employee in the maintenance department, I am convinced, and therefore find, that Respondent discharged Lewis because it knew or suspected that he was prounion in violation of Section 8(axl) and (3) of the Act. 3. Objections to election In 'addition to the unfair labor practices found hereto- fore, the only other objection made by the Union to the election of February 7 is that just 3 days before the election of February 7 Respondent admittedly showed the right-to- work committee's movie entitled "The Springfield Gun" (hereinafter Gun) to captive audiences composed of all Respondent's employees on company, or "work," time on company property for which the employees were paid. Gun, like its predecessor, "And Women Must Weep" (Women), purports to portray a true event which occurred during an unsuccessful union strike20 where a disgruntled union sympathizer in the dead of night suddenly fires a revolver shot through a lighted window in the home of a nonstriking fellow employee resulting in the death or permanent maiming of a young child. Both movies are intensely dramatic, making excellent use of all the dramatic techniques used so effectively so many years ago by actor Paul Robeson in his performance of "The Emperor Jones." Both movies are antiunion propaganda at its effective best in creating feelings of revulsion and fear of unions and of the tactics of union sympathizers. The decision to show Gun to a captive audience just prior to the election was a decision deliberately made by Winter and Respondent's counsel about a month prior to February 4. As Respondent is not in the entertainment business, the only conceivable purpose of Respondent's showing Gun to this captive audience on company time and property was to solicit votes against union representa- tion in the election 3 days following the showing of the movie. Gun's effectiveness for that purpose rested upon its effectiveness in creating those feelings of revulsion and fear in members of the audience. Feelings frequently speak louder than words. Administrative Law Judges of course, are bound by Board law. Theoretically so too are employers, labor organizations, and their respective counsel. 20 The incident portrayed in Gun allegedly occurred at a strike at the Royal Typewriter plant in Springfield, Missouri, whereas the almost exact same incident portrayed in Women purportedly occurred at a strike in Princeton, Indiana. 2i This Litho decision rather epitomizes the present era of Board dissent. There are in that decision no less than three different majority decisions on However, today, knowing what the Board law is on a subject is often a matter of pure speculation. With the advent of the Board's new Chairman, the era of dissent descended upon the Board. As each new Board member joined the Board thereafter, this volume of dissent increased proportionately. Today, Board decisions are filled with dissenting opinions not only on the law but also the facts, credibility of witnesses, pleading, due process, and other matters to such an extent that a unanimous decision of the Board has become almost unique. The Board law as to Gun is a case in point. On May 9, 1974, in Sylacauga Garment Company, 210 NLRB 501, a panel of the Board adopted Administrative Law Judge Wagman's determination that: Accordingly, I find that the showing of "The Spring- field Gun" interfered, coerced, and restrained employ- ees in their Section 7 rights and thus violated Section 8(a)(1) of the Act. Southwire Company, supra at 1021. Accord: Spartus Corporation, supra at 135, fn. 5. Footnote 2 of that decision reads as follows: Chairman Miller would not base any violation findings on Respondent's exhibition of the film entitled "The Springfield Gun" - one characterized by the Administrative Law Judge as containing essentially the same message as "And Women Must Weep." See Heckethorne Manufacturing Co., 208 NLRB 302, wherein a showing of the latter film was found by a unanimous panel not to constitute an 8(a)(1) violation, even in a context of other 8(a)(1) violations. About 6 weeks thereafter, on June 25, 1974, the full Board decided the case of Litho Press of San Antonio, 211 NLRB 1014. This case involved the showing of Women as a possible violation of Section 8(a)(1). The majority decision on that issue reads in pertinent part as follows: After thorough consideration of the record, Chair- man Miller, Member Kennedy, and Member Penello conclude that the showing of the film "And Women Must Weep" is neither violative of the Act nor a sufficient basis for setting aside an election. All prior decisions which are inconsistent with this conclusion are hereby overruled. There are two partially dissenting opinions expressed to this item of the decision.21 So, at the moment, Board law appears to be that showing Gun is a violation of Section 8(axl) and constitutes a valid objection to an election whereas the showing of Women is neither a violation nor a valid objection and that all decisions to the contrary are retroactively overruled. With this choice of law before me and with perfect confidence that, when faced with the Gun issue, this same majority triumvirate of Board members will decide the, three separate issues with the composition of the majority differing in each instance. One of those majority decisions in Litho has already been mentioned herein; namely, on the question of whether the oral statement "while people are working" clears up the ambiguity caused by the phrase that there is to be no solicitation "on company time." The other majority opinion in Litho is not in point here. MCGRAW-EDISON CO. 473 issue of Gun the same way it did with Women, I am here going to anticipate that decision, without consideration of the merits, by holding that the showing of Gun here does not constitute a valid objection to the election. As Respondent further correctly points out, the Board law is that only matters occurring between the filing of the representation petition and the holding of the election can be considered in support of objections to the election. In its brief, Respondent also contends that only four events occurred after December 21, 1973, the date the petition was filed. The Winter-Yauk conversation of January 14, the warning slips given to Ownbey and Mathes on December 27 and January 3, respectively, and the actions of Supervisors White and Hendricks in timing and/or following union activists Roberta Thompson, Ruthie Winstead, and others to the restrooms to prevent the rumored "union meetings" being held there. I agree with Respondent's argument that the above- enumerated events are the only events which specifically occurred within the critical time period and that, perhaps in, of, and by themselves individually, they were probably insufficently serious to upset the election of February 7. The defect in Respondent's argument here is that there were other instances of violations of Section 8(a)(1) which originally occurred prior to December 21, in fact as early as November 19 and 20, which continued unabated throughout the whole critical period in a continuing pattern of, such interference, restraint, and coercion. For instance, Winter's instructions on November 19 to his supervisory staff to give out written warnings "whenever necessary" in accordance with his own practice as demonstrated in the Santee case remained in full force and effect with its continuing coercive effect upon the employ- ees' right to engage in union affairs . The same is true as to Respondent's change in working conditions which original- ly occurred late in November or early December but continued throughout the whole period. The written warnings given by supervisors to the seven union sympa- thizers as permanent records in the files of these supporters continued as threats to their continued employment if they should continue, in Respondent's belief, to engage in suspected union activities . Winter's own December 27 written reprimand to Ownbey for allegedly having taken enough time in the restroom "to hold a union meeting" was not only coercive as to Ownbey but served also as a reminder to all the employees that engaging in suspected union activities continued unabatedly to be a threat to one's continued employment. Also, throughout the whole critical period here involved , the discriminatory enforce- ment of Respondent's longstanding no-solicitation rule remained unchanged . No union solicitation was allowed in the plant but antiunion solicitation and activities remained unhampered as exemplified in the maintenance depart- ment. Although not an unfair labor practice under recent Board decisions as found above, even Respondent's showing of the movie Gun to its captive audience in the plant gave notice to all employees that antiunion solicita- tion remained permissible in the plant whereas prounion solicitation remained banned . Thus, the very existence of the rule continued to hamper legitimate organizational activity of its employees and infringed upon the laboratory conditions requisite to the holding of a fair election. The four acknowledged incidents above thus were not isolated, one-time occurrences but were in fact reminders of Respondent's continuing policy to interfere, restrain, and coerce any employee suspected of engaging in union activities. Thus the aura of such Respondent interference remained in the plant throughout the whole critical period. Respondent's studied maintenance of this aura of a continuing practice of interference, restraint, and coercion in order to prevent union activities throughout the whole critical period by the very occurrence of the four events acknowledged above by Respondent to have occurred within the critical period require the findings, here made, that Respondent thereby prevented its employees from their right to vote their own free and untrammeled desires in the election of February 7, 1974, thus precluding the holding of a fair election. As Respondent's unfair labor practices here thus tended to interfere with the employee's free choice of a bargaining representative on February 7, I will order that the election held that day be set aside. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section II, above, and occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of David L. Lewis by discharging him on December 14, 1973, and by depriving Delbert L. Downen of his overtime work on December 11, 1973, because of their membership and activities on behalf of International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America, UAW, in violation of Section 8(a)(l) and (3) of the Act, I will order that Respondent offer David L. Lewis full and immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges and that Respondent make David L. Lewis and Delbert L. Downen whole for any loss of pay each may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of Respondent's offer of reinstatement or the return of his overtime work less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent per annum. Because of the type and extent of the unfair labor practices engaged in by Respondent, it is clear that 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has an opposition to the policies of the Act in general and, therefore, I deem it necessary to order Respondent to cease and desist from in any manner interfering with the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record herein , I make the following: CONCLUSIONS OF LAW 1. McGraw-Edison Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of David L. Lewis by discharging him on December 14, 1973, and of Delbert L. Downen by depriving him of his overtime work on December 11, 1973, because of their membership and activities on behalf of said Union in order to discourage such membership and activities among its employees, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 4. Respondent has interfered with, restrained, and coerced its employees in the rights guaranteed them in Section 7 of the Act in violation of Section 8(a)(1) of the Act by: (a) Ordering supervisors to issue written warnings to employees suspected of engaging in union activities. (b) Instructing its employees not to accept union leaflets. (c) Maintaining surveillance over employees suspected of engaging in union activities. (d) Ordering employees to promptly report any union solicitation to Respondent. (e) Issuing permanent written warnings, contrary to past plant practice, to union sympathizers when suspected of engaging in union activities. (f) Otherwise threatening union sympathizers with discharge for engaging in union activities. (g) Harassing employees suspect of engaging in restroom "union meetings." (h) Promulgating an illegally broad no-solicitation rule. (i) Disparately enforcing Respondent's no-solicitation rule to ban prounion solicitation but to encourage antiunion solicitation. (j) Interrogating employees about union activities. (k) Soliciting grievances from union sympathizers with a promise to correct them. (1) Tightening up plant rules in order to discourage union activities among its employees. (m) In any manner interfering with, restraining, or coercing its employees for the purpose of interfering with the rights of the employees to engage in union activities as guaranteed in Section 7 of the Act. 22 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. 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 22 Respondent, McGraw-Edison Company, Kirksville, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, or in any other labor organization, by discharging or otherwise threatening to discriminate against any employee in any manner with regard to their hire, tenure, or other term or condition of employment because of their support for or activities on behalf of a union. (b) Interfering with, restraining, and coercing its employ- ees 'in the rights guaranteed them in Section 7 of the Act by: (1) Ordering supervisors to issue written warnings to employees suspected of engaging in union activities. (2) Instructing its employees not to accept union leaflets. (3) Maintaining surveillance over employees suspected of engaging in union activities. (4) Ordering employees to promptly report any union solicitation to Respondent. (5) Issuing permanent written warnings , contrary to past plant practice, to union sympathizers when suspected of engaging ip union activities. (6) Otherwise threatening union sympathizers with discharge. for engaging in union activities. (7) Harassing employees suspected of engaging in restroom "union meetings." (8) Promulgating an illegally broad no-solicitation rule. (9) Disparately enforcing its no-solicitation rule to ban prounion solicitation but to encourage antiunion solicita- tion. (10) Interrogating employees about union activities. (11) Soliciting grievances from union sympathizers with a promise to correct them. (12) Tightening up enforcement of plant rules in order to discourage union activities among its employees. (c) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, loin, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their' own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer David L. Lewis immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make David L. Lewis and Delbert L. Downen, who was discriminatorily denied overtime work from December 11, 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. MCGRAW-EDISON CO. 1973, to February 16, 1974, whole for any loss of pay each may have suffered by reason of said discrimination against him by payment to each of a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of Respondent's offer of reinstatement in Lewis' case and to February 16, 1974, in Downen's case, less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent per annum. (b) Remove from each of the employee personnel files the written reprimands given to the seven employees abovementioned who received such warnings between November 20, 1973, and January 3, 1974. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. 23 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a 475 (d) Post at its Kirksville, Missouri, plant copies of the attached notice marked "Appendix." 23 Copies of said notice on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election held on February 7, 1974, be, and it is hereby, set aside and Case 17-RC-7401 is hereby remanded to the Regional Director of Region 17 for further processing. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."