Uniflite, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Uniflite, Inc. and UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases I I-CA- 6829 and 11 -RC-4282 December 12, 1977 DECISION, ORDER, AND CERTIFICATION OF RESULTS BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 22, 1977, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief.1 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. 2 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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the objections in Case I 1-RC-4282 be overruled. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. t The Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 2 No exceptions were filed in the representation case. 233 NLRB No. 159 DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: Upon a charge filed on November 23, 1976, a complaint issued on January 4, 1977, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by suspending an employee without pay in reprisal for his union or protected activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Pursuant to a representation petition filed on November 11, 1976, in Case I l-RC-4282, and a stipulation for certification upon consent election agreement approved on November 23, 1976, a secret ballot election was conducted on December 17, 1976, among employees in the appropri- ate unit. The tally of ballots showed that, of approximately 135 eligible voters, 32 ballots were cast for, and 84 against, the Petitioner. There were 16 challenged ballots which were insufficient to affect the results. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. On January 17, 1977, the Regional Director for Region 11 issued a Report on Objections, Direction and Order Consolidating Cases, indicating that said objections raised material issues of fact warranting a hearing, and concluding that, as a complaint had issued on unfair labor practice charges in Case 1 I-CA-6829, said objections be consolidated with Case 11 CA-6829 for hearing, ruling, and decision by an Administrative Law Judge. On March 29, 1977, a hearing was conducted in the consolidated proceeding before me in Jacksonville, North Carolina. After close of the hearing, briefs were filed by the General Counsel and Respondent Employer. Upon the entire record in this proceeding, including my observation of the witnesses while testifying, and consider- ation of the posthearing briefs, I find as follows: FINDINGS OF FACT I. JURISDICTION Respondent Employer is incorporated in the State of Washington and is engaged in the manufacture of boats at its Swansboro, North Carolina, plant. In the course of said operations, during the 12-month period preceding issuance of the complaint, a representative period, Respondent purchased and received from points directly outside the State of North Carolina goods and raw materials exceeding $50,000 in value, and additionally Respondent Employer sold and shipped goods valued in excess of $50,000 from said facility directly to points outside the State of North Carolina. The complaint alleges, the answer admits, and I find that Respondent Employer is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer in substance admits, and I find that UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is, and has been at all times material, 1108 UNIFLITE, INC. a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue This complaint raises the limited question of whether Respondent violated Section 8(a)(3) and (1) of the Act by issuing a 3-day suspension without pay to Timothy Sullivan because of the latter's purported violation of an established rule barring solicitation on "actual working time." B. Concluding Findings A published employee handbook maintained by Respon- dent includes the following rule: SOLICITATIONS AND DISTRIBUTIONS: NO SOLICITATION RULE. Persons not in the employ of this Company are not allowed to solicit this Company's employees or anyone else on Company property for any purpose. No employee will be allowed to solicit for any reason while he is on the job and on Company time. This rule applies only to actual working time, not to break time, lunch time or before or after work. All types of solicitations on Company time are prohibited by this rule, including solicitations on behalf of or in opposition to any labor organization. Anyone who violates this rule and who thereby neglects his own work or interferes with the work of any other employee will be subject to immediate discipline up to and including discharge. At the outset of organizational activity, the Union on October 81 forwarded a telegram to Respondent reporting the Union's campaign to organize Respondent's employ- ees. The telegram named eight employees, declared to be members of the inplant organizing committee. Included was employee Timothy Sullivan, the alleged discriminatee in this case. Upon receipt of the telegram, a notice was posted in the plant by Respondent, reproducing the above no-solicitation, no-distribution rule, and also listing the names of the inplant organizing committee. The notice expressed the Company's assumption that the Union was authorized to use the names of those employees, and stated that the designated members of the inplant organizing committee would be subject to discipline for enforcement of plant rules to the same extent as any other employee. The incident which triggered the suspension of Sullivan took place on November 15. Earlier that morning Peggy Turner, a recently hired employee, who had worked only 2 to 3 days, was engaged in wood finishing in the interior of a boat. Sullivan was assigned to take measurements on that boat that morning. He entered the boat with a legal pad I Unless otherwise indicated, all dates refer to 1976. 2 I credit the testimony of Sullivan that he entered the boat with the tape and pad. Although Turner testified that she did not see such implements, she acknowledges that Sullivan might have taken measurements while on the boat, and it is the sense of her testimony that it was possible that Sullivan possessed these items at the time. and measuring tape.2 Sullivan admittedly had never before seen Turner. He asked her if she was new and if she had knowledge of the unionization effort. She replied that she was a new employee but knew nothing of union activity. He then asked whether at the time of her hire anyone in the office mentioned the union effort; Turner gave a negative response. Sullivan then advised Turner that he could get her a union card, and suggested that he have Pat Waggoner, another employee on the inplant organizing committee, talk to her should she need more information. Turner rejected this offer, stating that as she was a new employee she did not want to get involved. With this, the conversation ended, and Sullivan left the boat.3 A dispute exists as to whether the discussion involved a disruption of work. Sullivan claims that during the conversation he continued to take measurements, and that he did not see Turner doing anything while he was on the boat. It is the sense of Turner's testimony that Sullivan addressed her directly and was not taking measurements during their conversation, although he could have been engaged in work at other times during his presence on the boat that morning. Turner admits that she continued to do her work during the conversation. I consider it unlikely that during this confrontation with a new employee, concerning the Union, Sullivan gave undivided attention to his work. It is my belief, consistent with the probabilities, that he addressed Turner directly. Although any disruption that might have occurred was at best momentary and of no measurable impact upon output, I am convinced that Sullivan was not continuously engaged in work during the conversation in question. After Sullivan left the boat, Ron Meadows, Turner's supervisor, returned to the boat. Turner asked Meadows if "something could be done about people pestering her on working time." Meadows indicated that it depended on what occurred. Turner reported that a fellow employee had come on the boat and questioned her about the Union, whether she would like to sign a card, and whether she wished to speak to another employee about the Union during her lunch break. After Turner identified Sullivan, Meadows contacted Tommy Robinson, the assistant plant superintendent, under whose authority Sullivan had been working, relaying Turner's report. Robinson then appar- ently reported the incident to John Henry, Respondent's personnel manager. Henry then contacted Joe Sanders, the plant manager, reporting the possibility that a violation of the no-solicitation rule had occurred. Sanders instructed Henry to investigate and ascertain whether that was the case. Henry then contacted the Company's attorneys and, after doing so, discussed the matter with Meadows, asking the latter if Turner would be willing to give a statement concerning the incident. Later, Turner, in her own handwriting, furnished the following statement: I Peggy J. Turner was working at the time I was ask [sic] about the Union it was not on my own time or 3 The foregoing is based on a composite of believable elements of the testimony of Sullivan and Turner. Although Sullivan's account omits reference to his offer to obtain an authorization card for Turner, I believe Turner's testimony that this in fact occurred. Otherwise, except as indicated below, the essentials of their testimony are not the subject of material conflict. 1109 DECISIONS OF NATIONAL LABOR RELATIONS BOARD break period. Tim Sullivan came to me when my Surior [sic] went for a light bulb. And when I was not interested he wanted to send some one else to talk to me about the Union. He interrupted for about 5 minutes of my work this was 1 1-15-76 Peggy J. Turner On November 16, Henry discussed with Robinson the alternative forms of discipline that were available. Both decided that a 3-day layoff would be appropriate, being of the view that a discharge was too harsh, and a written warning too lenient. Following the discussion with Robin- son, Henry, who had already prepared a written report of the incident, went to the office of Sanders informing the latter of the various disciplinary alternatives that were available, and recommending the 3-day layoff. Sanders wanted time to think about the matter,4 but by the next morning he had decided to approve the recommendation. That day, November 17, Robinson called Sullivan to his office, with C. R. Brinkley, the production superintendent, also in attendance. Robinson handed "a rule infraction report" to Sullivan, which recited as follows: Uniflite is in receipt of a signed statement which alleges that you did, on or about 11/15/76 at this plant during regular working hours and not during a scheduled break or lunch period, violate this Conpany's [sic] "No Solicitation" Rule which is published on page fourteen of the Uniflite employee handbook and which was also posted verbatim on bulletin boards and in public places throughout the plant during the period 10/8/76 thru 11/13/76, by interrupting your work and the work of another employee for the discussion of union matters. As a result of an investigation conducted on 1I 1/16/76, it is felt that the allegation is true. Accordingly, you are suspended without pay for a period of three days effective today. You may report for work on 11/22/76. At Robinson's request, Sullivan read and signed the report. Sullivan testified that during the meeting with Robinson he could not recall the incident and asked if he could see a copy of the statement referred to in the report. Robinson indicated that this would probably be in order but indicated that Henry had the statement. However, Robin- son telephoned Henry and was advised that Sullivan would not be permitted to view the statement. Robinson informed Sullivan of this, but Sullivan insisted that he would find out from Henry why he could not see the statement. Both then went to Henry's office and, in the ensuing discussion, Sullivan demanded the statement, Henry refused, and Sullivan threatened to file suit. An argument ensued which 4 Errors in the transcript have been noted and corrected. 5 See, e.g., Peyton Packing Company, Inc.. 49 NLRB 828, 843 (1943); Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803-804 (1945). 6 See. e.g., N.L.R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d 948 (C.A. 6, 1966); Singer Company v. N.LR.B., 429 F.2d 172 (C.A. 8, 1970); Wellman Industries, 201 NLRB 958, 961 (1973); Dayton Tire d Rubber Company, 216 NLRB 1003 (1975); Montgomery Ward d Co., 224 NLRB 104 (1976); Maremont Corporation, 229 NLRB 746-753 (1977). 7 These terms distinguish Wellman Industries, supra, a case heavily relied upon by the General Counsel in support of his claim that there was no violation of the no-solicitation rule in this case. In Wellman, the rule only ended with Henry's comment to Sullivan, as the latter was leaving, "[G ]ood luck, you asshole, you." The General Counsel, in claiming that the 3-day suspension violated Section 8(aX3) and (I), concedes that the rule under which Sullivan was disciplined was pre- sumptively lawful. Under established Board policy, while such a rule may be enforced to assure plant discipline,5 it may not lawfully be seized upon as a device to obstruct or impede self-organization. Consistent therewith, the Board has found 8(aX3) and (1) violations in varying factual contexts, in which it condemned discipline under a lawful rule, where seized upon as a device to selectively punish union adherents, or to otherwise thwart organizational activity. 6 These decisions furnish the predicate for the General Counsel's theory of discrimination in this case. In support of his position, the General Counsel cites the fact (1) that Sullivan was known from the outset of the organization drive to have been one of eight employees serving on the inplant organizing committee, (2) that Respondent reproduced the rule from its employee hand- book and posted it throughout the plant when informed that the organization drive was in progress, (3) that no employee previously had been suspended or disciplined for violation of the no-solicitation rule despite the fact that worktime solicitation for various other causes had occurred in the past, and (4) that Respondent opposed the unionization of its employees. In addition to the foregoing, the General Counsel also argues that there was no disruption of work as a consequence of the Sullivan-Turner encounter, and that therefore his conduct did not violate the no-solicitation rule. In my opinion, the General Counsel's position is not supported by the record. First, there is no merit in the assertion that Sullivan did not violate the rule. By its very terms the operative restriction applies to those who both engage in the lawfully barred solicitation "and who thereby neglects his own work or interferes with the work of any other employee . . ." [Emphasis supplied.]? In the instant case, the conversation between Turner and Sullivan was concerned essentially with the Union, occurred during working time, and did entail a departure, albeit momen- tary, from Sullivan's normal duties during working hours. Respondent, as part of its investigation of the incident, developed evidence in the form of a written statement from Turner indicating that Sullivan interrupted her work for about 5 minutes. The disciplinary notice presented to Sullivan and signed by him at the time he was dealt the 3- day suspension specifically recites that he violated the rule "by interrupting [his] work and the work of another employee for the discussion of union matters."8 Contrary to the General Counsel, the evidence on which discipline was invoked against Sullivan, the formal description of his applied to solicitation "which in any way interferes with the production of the company." In finding that the employer in that case violated Sec. 8(aX3) by enforcing the rule, the Administrative Law Judge first found that the rule, as written, did not proscribe solicitation absent an interference with production, and then concluded that the rule was not violated because the employer acted without evidence that the disciplined employees disrupted production. 8 Cf. Dayton Tire & Rubber Company, 216 NLRB 1003, 1009 (1975), where under substantially identical language appearing in a no-solicitation rule, the Administrative Law Judge found an 8(aX3) and (I) violation with respect to an employee who engaged in worktime solicitation. There, 1110 UNIFLITE, INC. misconduct as furnished by Respondent, and, indeed, what actually occurred during the Sullivan-Turner confrontation fell within the proscriptive scope of the no-solicitation rule. This violation of the no-solicitation rule, in my opinion, formed the predicate for the legitimate exercise of Respon- dent's disciplinary authority. It is true that this infraction resulted in a work disruption of negligible proportions, a factor which concededly the Board has adverted to in concluding that an otherwise lawful rule was discriminato- rily enforced.9 Nonetheless, the negligible degree of any work disruption occasioned by breach of a no-solicitation rule is but one factor to be considered against others in the overall determination as to whether enforcement of the rule was founded upon illicit considerations. For, the Act has not been construed to condition an employer's right to enforce restrictions upon worktime solicitation to those incidents which provoke significant disruptions in work. Violation of a legitimate restriction on worktime activity, regardless of the absence of real impact upon production, if condoned, would hardly promote plant discipline. On the entire record, however, the factors relied upon by the General Counsel are insufficient to place Respondent's conduct in this case under statutory interdict. Although it does not appear that any other employee had been disciplined for violating the rule in question, the evidence demonstrating that Respondent condoned such conduct in the past is limited to two isolated incidents involving low- level supervisors whose digressions from work were for a beneficent cause on the one hand, and an act of employee welfare on the other.i0 Neither reflects the type of widespread worktime solicitation indicative of disparate application of the rule. Nor is the claim of discrimination convincingly enforced by Respondent's posting of the rule immediately upon receiving information that an organiza- tional drive was in progress. Insofar as can be ascertained here, the rule was one of long standing, and, though perhaps relevant to the inquiry, renewed publication thereof is not necessarily inconsistent with a desire, based on fairness, to remind employees of preexisting limitations of their ability to engage in union activity on plant premises."t Finally, it is noted that the indicia of discrimination offered by the General Counsel is not aided by convincing evidence of hostility. The suspension accorded Sullivan was not unduly harsh, and as such did not itself carry a suggestion of Union-inspired discipline. Nor was enforce- ment of the rule effected in the context of other unfair labor practices. Finally, although Respondent actively campaigned against the Union, the record is devoid of union animus of a nature suggesting a propensity on however, the Administrative Law Judge acted on evidence that the employer did not "believe" that the offending employee had either neglected his own work or interfered with that of the other employee. 9 See, e.g., Montgomery Ward d Co.. Incorporated, 224 NLRB 104, 109 (1976). 10 Employee Jesse Downey testified that he purchased a ticket from an individual named Kinder, who was then a foreman on his line, for a chance to win a shotgun. Both Kinder and Downey were supporters of the "little league" and the rame was for the benefit of that project. In the second incident, Sullivan relates that Bud Boyagian, whom Sullivan descnbed as then being a "supervisor," asked Sullivan to make a donation to a fund for the family of a deceased employee. See. e.g.. The May Department Stores Company d/b a Famous-Barr Company, 174 NLRB 770 (1969); Emerson Respondent's part to commit acts of reprisal against employee protagonists of the Union. For the above reasons, I find that the General Counsel has failed to establish by a preponderance of the evidence that Respondent imposed the 3-day suspension upon Sullivan for any reason other than its legitimate interest in enforcing the established and plainly legitimate no-solicita- tion rule. Accordingly, I shall dismiss the complaint in its entirety. IV. THE OBJECTIONS Petitioner's Objections I through 11 were referred to me for hearing, as raising material issues of fact. The evidence adduced in support of the objections was insubstantial and, accordingly, all shall be overruled. More specifically, Objections I through 9 relate to misrepresentations and coercive statements imputed to Plant Manager Joe Sanders during a speech given by the latter on December 16.12 Plant Manager Sanders testified that, in addressing employees at the meeting in question, he read from a prepared text, on a word-for-word basis, with no departure therefrom either by addition or deletion. Personnel Manager John Henry confirmed this, relating that he was present at the meeting, and followed the remarks of Sanders at that meeting from a copy of the prepared text, for the purpose of checking against any deviations. Petitioner called Timothy Sullivan, who con- veyed his recollection of what was said on that occasion.i3 Sullivan concedes that at the time of the speech, he made no record or notation of the words uttered, and it is the sense of his testimony that the information he testified to at the hearing was based solely upon his ability to recall the details of the speech. Sullivan showed a strong tendency to inject his own understanding or interpretation of what was said, and he did not impress me as capable of recalling, precisely, the remarks of Sanders on December 16. Consistent with the testimony of Sanders and Henry- noting that Sullivan's account does reflect a relationship between his version of what was said and ideas actually appearing in the speech-I am convinced that the speech itself constitutes a more reliable source of detailed arguments conveyed to employees by Sanders.14 Having examined Respondent's Exhibit 9, only certain portions thereof arouse cause for concern. Thus, the following segments of the speech are worthy of reproduc- tion as the only phrases approaching a coercive departure from protected campaign argumentation: The way to end all this union talk for good is to vote no tomorrow and send the Union away from here for Electric Co., 187 NLRB 294, fn. 2 (1970); Serv-Air Inc., 175 NLRB 801 (1969); and Atkins Pickle Company, Inc.. 181 NLRB 935 (1970). " Generally speaking the plant environment furnishes the most oppor- tune setting for employee communication relative to the pros and cons of unionization during a campaign, discussions which might arouse controver- sy among employees adversely affecting the quality of their performance under nonmeasurable conditions. 12 The speech ended more than 24 hours before the opening of the polls the next day. 13 A stipulation was also made that if other witnesses were called by Petitioner their testimony would conform with Sullivan's account. 14 The text of the speech is in evidence as Resp. Exh. 9. 1111 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good. When you vote tomorrow, remember that without this union, you have a steady job and a steady paycheck. There is a very, very important fact that all of you need to know and fully understand. .... This Company has almost three million dollars invested here in this Swansboro plant. In the 5 years that Uni-Flite has been here, this plant has not made a profit. In fact this plant has lost $775,000 on Uni-Flite's investment here in Swansboro. This is because it actually costs us more to build a boat here than it costs us to build the same boat in Bellingham even though the hourly pay rates in Bellingham are higher than they are here. We cannot and will not-just because the Union wants us too-increase our existing financial problems and production costs if that means jeopardizing the future of this plant. What you will be voting on tomorrow is not whether you like the sound of fancy union talk but whether you are willing to risk you [sic] steady job and paycheck and the welfare of your family on promises of outside professional union salesmen. .... If you believe that you will be better off without union trouble here; if you do not want to pay dues; if you do not want to give up your personal freedom; if you do not want to take a chance on strikes and lost paychecks and lost jobs; you will make an "X" in the no box ... If we believe we can put in a pay raise at the proper time, as we have done in the past, we will do so. However, we will not let any ridiculous union demands of more money or anything else put us out of business. We do not intend to let any union or anybody else force us to put your jobs in danger; and if the Union call you out on strike to try to force us to do something which we think will hurt our business and effect [sic] your jobs then we will simply face up to a strike and get people in here who do want to work. Considering the above references in the overall context of the speech, although not entirely free from doubt, it is my view that the adverse job consequences referred to therein were adequately linked to legitimate explanation of the Employer's right to replace economic strikers, or to the possibility that the Union would make unreasonable demands. On balance, it is my conclusion that the speech in its entirety embodied fair argumentation protected by Section 8(c) of the Act.15 Accordingly, Objections 1, 2, 4, 5, 6, 7, 8, and 9 shall be overruled. Objection 10 apparently relates to a speech made by Sanders on December 14 which was accompanied by a slide show and question and answer period. The only evidence offered in support of this objection was the testimony of Tim Sullivan to the effect that the slide show depicted the UBC's bad strike record, violence, and financial data on the union officials, including their salaries 15 Insofar as the objections assert that the election should be set aside on the basis of misrepresentations, apart from the lack of merit in such objections under the Board's recent decision in Shopping Kart Food Market, and expense allowances. Sullivan also related that union dues and initiation fees were depicted on slides and discussed. In sum, Sullivan's testimony in support of this objection was vague and in the form of broad descriptions not allowing a substantive finding of misconduct. Accord- ingly, Objection 10 is not substantiated by competent proof and it shall be overruled. Objection 11 charges that on the day of the election a representative of management appeared at the polls seeking to vote though he knew he had no right to do so, thereby destroying the laboratory conditions required for a Board election. Here again, Petitioner's claim is derived from Sullivan, who testified that at a meeting held by the Company on December 14 one Richard Geary indicated that he could not vote because he was "a professional," he was salaried, and he was a controller in charge of computer printouts on boat billings. Geary attempted to vote in the election. The testimony of Sullivan as to what was said by Geary in defining his status at the December 14 meeting constitutes uncorroborated hearsay, and was not compe- tent to bind the Company. Thus, no primary evidence was offered to show that Geary exercised supervisory authority or was in any respect an agent of the Company. It is noted that Geary's name did appear on the election eligibility list. Also in apparent support of this objection, Sullivan testified that Bobby Peterson was a management employee who also appeared at the polls. Here again, there is no evidence that Peterson was a supervisor or agent. Instead Sullivan simply indicated that it was his impression that all professional employees were management employees. Peterson was a quality control inspector, and assuming his ineligibility there is no evidence whatever to establish that he held a status whereby his appearance at the polls would influence freedom of choice. Although not within the strict confines of Objection 11, Sullivan also testified that an employer observer; namely, Charles Patton, had been promoted to the position of "foreman" shortly before the election. Here again, there was no substantial evidence of a primary nature indicating that Patton when serving as an observer possessed or exercised supervisory authority or was a managerial employee. The evidence does not substantiate Objection 11 and, as indicated at the hearing, said objection is overruled. Objection 3 is drafted in "catchall" terms and charges the Employer with conducting "a fear and smear cam- paign" through which it "intended to intimidate and coerce ... employees, and deny them a free and uncoerced choice in the election, said free choice, guaranteed by the Law and the Act." Apart from the evidence heretofore discussed, there is no competent and specific proof tending to substantiate this broad allegation. Accordingly, it is overruled. Having overruled Objections I through 11 inclusively, and having dismissed the complaint in Case I l-CA-6829, it shall be recommended that the results of the election conducted on December 17, 1976, be certified. Inc., 228 NLRB 1311 (1977), the evidence presented in support thereof, while attributing certain low-keyed references to the Employer, does not substantiate any dramatic departures from truth. 1112 UNIFLITE, INC. CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party-Petitioner is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(aX3) and (1) of the Act by issuing a 3-day suspension to employee Tim Sullivan because of his violation of a lawful rule against solicitation during working hours. i6 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. 4. The Respondent Employer engaged in no unfair labor practices or other misconduct warranting that the election conducted on December 17, 1976, be set aside. Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 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. 1113