Drum Parts, Inc.

DRUM PARTS, INC. 511 Drum Parts, Inc. and Pedro Gonzalez Drum Parts, Inc. and Warehouse, Industrial & Service Employees Union Local 752, Petitioner Drum Parts, Inc., Employer-Petitioner, and Ware- house, Industrial & Service Employees Union Local 752. Cases 8-CA-8737, 8-RC-9636, and 8-RM-712 January 22, 1976 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION By MEMBERS FANNING, JENKINS, AND PENELLO On September 30, 1975, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The, Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found, and we agree, that, by General Foreman O'Kelly's interroga- tion of employee Lindeman and Production Fore- man Collette's interrogation of employee Pekar, re- garding activities protected under Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act. 2. The Administrative Law Judge found, and we agree, that by promulgating and posting a no-solici- tation, no-distribution rule on August 29, 1974; 2 by promulgating and maintaining a second no-solicita- tion, no-distribution rule on August 30; by repri- manding and issuing a warning notice to employee Pedro Gonzalez on October 24, in part because he violated the August' 30 no-solicitation, no-distribu- tion rule; and by Collette's cautioning of employee Fixel and another employee on about October 24 not to talk together about the Union, Respondent violat- ed Section 8(a)(1) of the Act .3 For the reasons set i The Board hereby corrects certain inadvertent errors of the Administra- tive Law Judge, which do not affect the results herein. The hearing in this matter was held on April 10 and 11, 1975, in Cleveland, Ohio, rather than in Columbus, Ohio. The interrogation of employee Pekar was conducted by Production Foreman Collette rather than by General Foreman O'Kelly 2 All dates herein are 1974 unless otherwise indicated. 3 Consistent with their dissenting opinion in Essex International, Inc, 211 forth by the Administrative Law Judge, we agree with these findings. 3. The General Counsel has excepted to the' Ad- ministrative Law Judge's findings that Respondent did not violate Section 8(a)(3) and (1) of the Act by assigning- Gonzalez to work on the large welding ma- chine on November 11 or by thereafter suspending Gonzalez for a period of 3 days after he refused to work on the large welding machine and left the plant. We find merit in these exceptions. When Gonzalez reported to work on the morning of November 11, he was instructed by Collette to take over the operation of the large welding machine which had been operated by employee Bester for 12 years. Gonzalez, who had operated the - automatic rolling machine for approximately 5 years, had never operated the large welding machine, although he had operated all of the Respondent's other welding ma- chines. After attempting to operate the large welder for approximately 15 minutes, Gonzalez complained to Collette that the fumes affected him and he could not do the work. Collette informed him that "[t]his is what I have for you." Gonzalez asked to speak to General Manager Tiernan, but he was informed by Collette that Tiernan was out of town. Collette had previously informed Gonzalez that his assignment was pursuant to instructions from O'Kelly. At this point, Gonzalez went to the timeclock to punch out and leave. Collette approached Gonzalez at the time- clock and asked him what he was doing there. Gon- zalez told Collette that he was not going to do the job because his back hurt .4 When Collette requested Gonzalez to perform the work until O'Kelly arrived, Gonzalez responded that he was not going to do the job. Collette then stated that "If you leave the shop, as far as I am concerned, you are finished here." Gonzalez punched out and left the shop. Thereafter, Gonzalez received a telephone call from Collette who informed him that he was suspended for 3 days. A short time later, Gonzalez received a letter from Re- spondent confirming his suspension. When Gonzalez returned to work,' he brought with him a statement from his doctor attesting that he had a history of asthma attacks and advising that a change in jobs may be beneficial. Nevertheless, Gonzalez was again assigned to the same large welding machine. NLRB 749 (1974), Members Fanning and Jenkins find that the August 30 no-solicitation, no-distribution rule is ambiguous and therefore impermissi- bly broad. Member Penello finds, consistent with his concurring opinion in Essex, that the August 30 rule is invalid since the language of the notice that accompanied the rule, which included a reference to the "plant working day," clarified the rule and extended its prohibition beyond "paid working time " 4 The record reveals that Gonzalez regarded his asthma condition and the pain in his back as one and the same physical hmitation . He felt that his back pain was caused by his breathing in of the smoke fumes which were emitted by the large welding machine 222 NLRB No. 78 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on the following facts, we find that Respon- dent violated Section 8(a)(3) and (1) by discriminato- rily assigning Gonzalez to work at a job it knew was physically difficult for him to perform, because he had openly expressed a prounion attitude. The fact that Respondent had knowledge of Gon- zalez' prounion attitude is clear from the record. On October 24, Gonzalez received a verbal reprimand and a written warning after another employee had complained to Respondent that Gonzalez had been bothering her about the Union. As noted above, we have found that these actions violated Section 8(a)(1) of the Act because they were, at least in part, the result of the Respondent's application of an unlawful no-solicitation rule. Respondent also made reference to its disciplining of Gonzalez in a notice which it posted on October 24. This notice stated, in part, that "just prior to my posting of this notice, it has been brought to my attention that-one of our male em- ployees who is an apparent strong Union supporter has intimidated another employee in regard to her position in election matters. This person has been given a disciplinary reprimand in regard to this in- fraction. This employee and all others are hereby put on notice that Drum Parts will not tolerate any such conduct and will issue severe disciplinary actions if any such activities become known." It is also evident from the record that Respondent had prior knowledge of the fact that it would be physically difficult for Gonzalez to work on the large welding machine. Thus, as found by the Administra- tive Law Judge, Respondent had known for some time that Gonzalez had allergy and breathing prob- lems. Additionally, the record reveals that the large welding machine emits more smoke fumes than the Respondent's other welding machines and its opera- tion, unlike the other welding machines, requires the operator to be in a sitting position which makes it difficult to avoid breathing in the smoke fumes. When Gonzalez complained to Collette that the fumes affected him and that he could not do the work, Collette's only response was that "[t]his is what I have for you." This unaccommodating treatment of Gonzalez, when viewed in light of the following facts, supports our finding that Gonzalez' assignment was discriminatory. Gonzalez was an employee of com- paratively long standing with the Respondent and he had an outstanding work attendance record. Further, he was able to perform any of the various duties of the regular production employees and he had always willingly accepted, without question, any assignment given to him. This treatment is also in sharp contrast to the more favorable treatment that Respondent had recently given to two known antiunion employ- ees who had complained about stress. Finally, this treatment is inconsistent with the accommodating at- titude that Respondent had exhibited toward Gonza- lez' health problems in the past. Thus, during the pre- vious summer, Gonzalez had complained that his breathing was affected by certain fans in the plant which were blowing air on him. The fans were redi- rected and Gonzalez was given permission by Re- spondent to turn them off whenever he wished. That Gonzalez' assignment was discriminatory is also supported by the fact that he was reassigned to the large welding machine when he returned to work after his suspension. This conclusion is supported by the fact that the reassignment was made even though Gonzalez had given Respondent a letter from his doctor which described his asthma condition and ad- vised that a change in jobs may be beneficial. Gonza- lez had been informed by Respondent in the letter confirming his suspension that a certified doctor's statement would be necessary if he had a health problem which prohibited him from performing "various jobs in [his] general production capacity." Finally, we are not persuaded by the Respondent's alleged reason for assigning Gonzalez to the large welding machine on November 11. Respondent claims that it removed employee Bester from the large welder and transferred Gonzalez from the auto- matic rolling machine because it was believed by management that Bester was holding up production. However, as found by the Administrative Law Judge, no evidence confirming a falloff in production was introduced. Further, in late October or early Novem- ber, Lindeman had complained to O'Kelly that she felt that Bester was literally loading her down with work and she could not keep up with him. We also find that Respondent violated the Act by suspending Gonzalez for 3 days after he refused to continue to work on the large welding machine and left the plant. As set forth above, Respondent dis- criminatorily assigned Gonzalez to a job that it knew was physically difficult for him to perform. By so doing, Respondent effectively forced Gonzalez to take the action that he took. The fact that Collette told Gonzalez to stay and at least perform the work until O'Kelly arrived does not alter our finding since Collette had previously informed Gonzalez that his assignment was pursuant to O'Kelly's instructions. We note in this regard that Gonzalez asked to speak to General Manager Tiernan but was told by Collette that Tiernan was out of town. Under these circum- stances, we find that Respondent was not justified in suspending Gonzalez since, as a result of its discrimi- natory assignment, it forced Gonzalez to leave the plant. Accordingly, we find that Respondent violated Section 8(a)(3) and (1) by suspending Gonzalez for 3 days. DRUM PARTS, INC. 513 4. Inasmuch as we have found that Respondent has committed violations of Section 8(a)(l) and (3) during the relevant period between the first Board election on October 11 and the second Board elec- tion on February 6, 1975, we shall set the second election aside and direct a third election. ADDITIONAL CONCLUSION OF LAW Insert the following after paragraph 3 of the Ad- ministrative Law Judge's Conclusions of Law and renumber the remaining paragraphs accordingly. "4. By discriminatorily assigning Pedro Gonzalez to work on the large welding machine on November 11 and by thereafter suspending him for 3 days, be- cause he engaged in protected union activity, Re- spondent has violated Section 8(a)(3) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Drum Parts, Inc., Garfield Heights, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union sympathies or activities, or those of fellow em- ployees. (b) Promulgating, maintaining, and enforcing any rule which prohibits employees from soliciting or dis- tributing literature on behalf of a labor organization on the premises of Drum Parts, Inc., during non- working time. (c) Forbidding employees to engage in conversa- tions concerning any union, disciplining employees for such activities, or threatening employees with dis- cipline or discharge for engaging in such activities. (d) Discriminatorily assigning employees to jobs because they have engaged in protected union activi- ties. (e) Suspending employees because they have en- gaged in protected union activities. (f) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to loin or assist Warehouse, Industrial & Ser- vice Employees Union Local 752, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in other protected concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Remove from its bulletin board and rescind the notices and revoke the no-solicitation, no-distri- bution rules posted August 29 and 30, 1974, and re- posted on October 24, 1974, and revoke and with- draw the disciplinary warning notice given to Pedro Gonzalez on October 24, 1974. (b) Offer Pedro Gonzalez immediate reinstate- ment to his former job on the automatic rolling ma- chine or, if no such job exists, to a substantially equivalent job that he is physically suited to perform, without prejudice to his seniority or other rights and privileges, and make Pedro Gonzalez whole for any loss of earnings he may have suffered by reason of the discrimination against him from the date of his suspension on November 11, 1974, until he resumed employment on November 15, 1974, by payment to him of the sum of money he would have earned dur- ing this period, less net earnings, if any, to be com- puted in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), to- gether with interest thereon at rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (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 other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant at Garfield Heights, Ohio, copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Re- gional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material, (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the rerun election in Cases 8-RC-9636 and 8-RM-712 conducted on February 6, 1975, be, and it hereby is, set aside, and s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the case be remanded to the Regional Director for Region 8 for the purpose of conducting a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargaining representative. IT IS FURTHER ORDERED that in all other respects the complaint be, and it hereby is, dismissed. [Direction of Third Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL revoke the no-solicitation, no-distri- bution rules promulgated in the bulletin board notices of August 29 and August 30, 1974, re- posted on October 24, 1974, and maintained by us on the employee bulletin board and enforced by us against our employees. WE WILL withdraw the disciplinary warning given Pedro Gonzalez on October 24, 1974, and the posted notice of the same date which ad- vised the employees of the disciplinary action taken against Gonzalez, and the reposted Au- gust 30 notice. WE WILL NOT promulgate, maintain, or enforce any rule which prohibits our employees from soliciting or distributing literature on behalf of any labor organization on the premises of Drum Parts, Inc., during nonworking time which in- cludes breaktime and lunchtime as well as be- fore they punch their worktime cards. WE WILL NOT forbid employees to engage in conversations concerning any union or threaten employees with discipline or discharge for doing so. WE WILL NOT question, interrogate, or inter- view our employees concerning their own and/ or other employees' union membership, activi- ties, and desires. WE WILL NOT discriminatorily assign employ- ees to jobs or suspend employees because they have engaged in protected union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the-right to self-organization, to join labor organizations, to join or assist Warehouse, Industrial & Service Employees Union Local 752, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other protected concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, as guaran- teed in Section 7 of the Act, or to refrain from any and all such activities. WE WILL offer Pedro Gonzalez immediate re- instatement to his former job on the automatic rolling machine or, if no such job exists, to a substantially equivalent job that he is physically suited to perform, without prejudice to his se- niority or other rights and privileges and WE WILL make Pedro Gonzalez whole for any loss in earnings- ie may have suffered by reason of our discrimination against him. DRUM PARTS, INC. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: Upon due notice, this consolidated proceeding under Sections 9 and 10(c) of the National Labor Relations Act, as amend- ed (29 U.S.C. 151, et seq.), hereinafter referred to as the Act, was heard before me at Columbus, Ohio, on April 10 and 11, 1975. Hearing was pursuant to an order consolidat- ing cases issued on April 7, 1975, by the Regional Director of the National Labor Relations Board for Region 8 in- volving, in Case 8-CA-8737, a complaint issued on Febru- ary 24, 1975, amended on March 19, 1975, presenting alle- gations that Drum Parts, Inc., hereinafter referred to as Respondent, engaged in conduct violative of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, based on charges filed on November 11, 1974, and, in Cases 8-RC-9636 and 8-RM-712, issues raised by objections to a second election, based on the same alleged unlawful con- duct concerning which a hearing was ordered on April 4, 1975, by direction of the National Labor Relations Board. Respondent filed an answer denying that it committed un- fair labor practices. Representatives of all parties were pre- sent and participated at the hearing, and Respondent and General Counsel thereafter filed timely briefs. Based on the entire record, including my observation of witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION Respondent, an Ohio corporation, with its principal of- fice and place of business at Garfield Heights, Ohio, is engaged in the manufacture of drum locks. Respondent admits that in the operation of this business it annually ships products valued in excess of $50,000 directly to points located outside the State of Ohio. I find that Re- spondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in operations DRUM PARTS, INC. 515 affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION I find that Warehouse, Industrial & Service Employees Union Local 752, herein called the Union, is now, and has been at all times material herein, a labor organization with- m the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent engaged in unlawful interroga- tion of its employees in regard to union activities, sympa- thies, and membership. 2. Whether Respondent promulgated, posted, and en- forced an unlawful no-solicitation rule. 3. Whether Respondent engaged in unlawful discrimi- nation against an employee in his job assignment and sus- pension because of his union sympathies and activities. 4. Whether any of the foregoing- conduct warrants set- ting aside the second election. B. Background Respondent makes locking rings which are the steel bands that go around the top of steel barrels to hold covers in place. Using in this operation steel ranging from 12 to 20 gauge, Respondent utilizes rolling machines where the rings are formed, six resistance welders where component parts are affixed to rolled and formed rings, and riveters to attach fixings. Respondent also has a painting system, a bundling machine, and auxiliary shipping and mainte- nance departments. Most of the approximately 25 employ- ees are able to perform any of the production functions and are shifted occasionally from one process to another as the need arises. The exception is the three setup men who generally operate the rolling machines which require their tooling skills. An election was conducted by the Board in Cases 8-RC-9636 and 8-RM-712 on October 11, 1974, but was thereafter set aside and a new election was conducted on February 6, 1975. The objections under consideration here- in relate only to the February 6, 1975, election and em- brace conduct alleged to be violations of the Act occurring between October 11, 1974, and February 6, 1975.' C. The Alleged Violations 1. Interrogation Employee Jacqueline Lindeman testified that a couple of weeks after the October 11, 1974, election she engaged in a conversation with Gary O'Kelly, general foreman, in an effort to refute a rumor that it was the women employees who had started passing out union cards. In this conversa- t The Singer Company, 161 NLRB 956 (1966). tion she told O'Kelly that it was Pedro Gonzalez who had given her the card and O'Kelly asked her if she had signed it, but she did not tell him one way or the other. Lindeman stated that around that time she had several conversations with O'Kelly involving the Union. One such conversation involved an interview for the purpose of giving a signed statement as to what had transpired during the October.1 l election. In that interview, or another about the same time, O 'Kelly asked her if any of the employees were distributing union cards, where and when these cards were passed out, who was passing the cards, and if she had signed one of these cards. O'Kelly testified that there were five or six conversations with Lindeman in which the Union was discussed. The first of these occurred around the first week in November after the first election when Lindeman was upset because of alle- gations that the women in the plant had started the union drive and she wanted to assure him that the women had not started it. On that occasion Lindeman told him she had been asked to sign a card. Assertedly, he told her that if she had signed it, not to worry about it, because nothing could happen to her from either side, and that it was strictly her privilege, and he did not want to know. O'Kelly gave no testimony as to other four or five conversations concerning the Union. Lindeman appeared under subpena and, although she was in a laid-off status at the time of the hearing, is'still employed by Respondent. It is undisputed that employee witnesses subpenaed by the General Counsel were uncoop- erative and that the General Counsel was not afforded an opportunity to interview them concerning their testimony until about 10 minutes before the hearing. Lmdeman's de- meanor was that of a reluctant witness and I attribute cer- tam self-contradiction and confusion appearing in her tes- timony, and her repeated assertions that she had not told Respondent whether or not she had` signed a card, to her attempts not to offend Respondent by her testimony. To the extent that there is a conflict between her version of the conversation concerning who started the Union and O'Kelly's self-serving recollection, I credit Lindeman. On the basis of her testimony, I find that O'Kelly unlaw- fully interrogated Lindeman both in a conversation con- cerning who started the Union and in a later one when O'Kelly asked Lindeman if any of the employees were dis- tributing union cards, where and when these cards were passed out, who was passing out the cards, and if she had signed one of these cards. Maintenance man, Joe Pekar, testified that a "couple of months" before the October 11 election, Collette asked him if he "got a union card" or if he "had seen one," and he replied in the negative. About 2 weeks to a month before that election he had another conversation with Collette in which the question of whom the union supporters were was discussed and he gave Collette the names of employees he thought were union supporters. Collette denied that he inquired of Pekar who was for the Union, but admitted that Pekar did bring to his atten- tion the names of a few employees that he had found out were for the Union. Collette further testified that he once asked Pekar did he see, or had anybody approached him to offer a union card, or did he get one, or did he see anybody 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand them out on the job, and that Pekar responded in the negative. Although Pekar's testimony consisted substantially of declarations of lack of memory, Collette's own testimony establishes that he engaged in unlawful interrogation of Pekar. Respondent argues that, even if found to have occurred, each of these incidents were isolated and should not be regarded as supporting a finding of a violation . However, each incident cannot be regarded as isolated from similar conduct or from other Respondent conduct. In these cir- cumstances, I find that Respondent violated Section 8(a)(1) by O'Kelly's interrogating Lindeman as to whether she had signed the card which she reported was given her by Gonzalez and in the later conversation as to the union card distribution activities of other employees as well; and by O'Kelly's similar interrogation of Pekar. 2. The no-solicitation rules Martin J. Tiernan, Respondent's general manager, testi- fied that a no-solicitation rule dated January 11, 1972, was posted on the employees bulletin board on that date. It remained posted for a period of from 4 to 6 weeks and did not appear on the bulletin board at any time thereafter. Tiernan was unable to supply the reason for, or circum- stances surrounding, its removal from the bulletin board .2 From the time of its removal until the August 29 period there was no notice on the employee bulletin board. Ac- cording to Tiernan, during that period the Company had a policy "that the employees would not congregate during paid working time, would not pass material to one another; but would stay in their working positions during working time." On August 29, 1974, Letcher Collette, the shop fore- man, informed Tiernan of a report that union cards were being passed out among the employees. Tiernan drafted and posted the following rule: TO ALL EMPLOYEES: It has just been brought to my attention that certain employees of Drum Parts, have been involved in talk- ing about Union membership and passing out Union cards during working hours. 2 The no-solicitation rule posted in 1972 was in the form of a notice which reads as follows. It has been brought to my attention that one or more of our shop employees is soliciting his fellow employees with regard to their prefer- ence concerning a union in our plant It should go without a necessity of the writer formerly mentioning this matter by official bulletin board notice that it is against the rules and policy of the employer to permit or condone any union activities during paid working time. All members of supervision are to strictly enforce this policy which will cause the imposition of severe disciplinary penalties to any viola- tors. We believe that it is reasonable that the company have full control over its paid working time. It is difficult for the undersigned to comprehend the interest in a union, especially at this particular tune because of the two current facts of life. # I Employees may not receive raises in excess of 5 1/2% during the year due to the economic stabilization program rules, and, #2 In view of the opening recently of our southern division opera- tion in lower wage area, any further increases will make for a lesser job security. I want to make it very clear, that such activity is completely unlawful and should any employee be seen promoting any Union activity, he will be punished by immediate dismissal. After the employees left at the end of the workday on Au- gust 29, Tiernan contacted the Company's labor consult- ant. As a result of this conversation the consultant under- took the task of composing a new notice. Tiernan purchased a new glass enclosed bulletin board, assertedly because his August 29 notice had been removed by persons unknown from the open cork-style bulletin board, and on the morning of August 30, posted the following notice: ATTENTION ALL EMPLOYEES Unfortunately, we now find it necessary to once again repost our prior brief bulletin board notice re- garding certain improper and company prohibited ac- tivities. This has been brought to management's atten- tion already by several employees who report they are starting to be high pressured, during their plant work- ing day, by a few other employees, concerning obtain- ing their support for a Union. Contrary to common sense, normal company regu- lations, and totally without any right or authorization to do so, someone promptly removed this prior com- pany notice from the bulletin board posting area. Of course, such removal is contrary to any company's work rules, permitting any employees who disagrees with a posted company policy to take it upon himself to remove, deface or otherwise obliterate, change or destroy posted employer policy positions . Please note carefully: Failure of any employee to fully observe this common place rule of employee conduct will cause such employee's immediate discharge if caught violating same. Due to the substantial importance of this prior post- ed rule, the company shall now, once again, restate this employer's very logical work regulation. This writer has been advised that it is entirely lawful and completely proper for any employer to prohibit the distribution of any materials, such as Union Authori- zation Cards, or other Union campaign literature of any type, or the expenditure of any employee time thru the verbal efforts of any employee to sign up or other- wise pressure a fellow employee to support the union effort, whenever any of these things are done while any of the employees concerned are then on company paid working time. Also prohibited is the distributing of union litera- ture of any kind where it is passed out, read and/or discussed in the plant working area, so as to similarly cause a violation thru misuse of "the company's paid working time," as set forth herein above, where it may well create, or tend logically to cause other employee distractions from the employee's normal paid working time efforts, or other related possible personnel prob- lems of work interference , or the impeding of normal plant production, safety, etc. We close by once again stating that this notice is nothing more than a careful re-statement of this company's or, indeed, any other employer's clear law- DRUM PARTS, INC. 517 ful right to a presumptively valid work rule against letting certain employees use the plant work time of either or both themselves and/or their fellow employ- ees to circulate or discuss matters at our plant, while they are receiving company wages for what the em- ployer has every right to expect to be solely employer paid working time which he must reasonably regulate in order to efficiently control. On October 24, 1974, Pedro Gonzalez was called into the office of O'Kelly and given the following Employee Warn- ing Notice: VERBAL WRITTEN WARNING Using coercive and intimidative tactics to fellow employees in violation of previously posted notices. Any further violations of this nature will result in more severe disciplinary action. Pedro Gonzalez testified that before they punched the timeclock that morning he had told Maryann Glasko the Union wanted to talk to her because she had been talking to the Company one day and another day she was talking to the Union. He stated to her that "Maybe he wants to bring you in court to testify to the truth." Gonzalez denied that he told her at that time the Union had tapes of her conversation with the business agent 3 and was going to take her to jail because she had lied.4 He also denied that he said anything to Glasko about this after he punched in. Maryann Glasko testified that, before she punched the timecard on October 24, Gonzalez was jumping around saying that the Union was throwing her in jail because she did not go to some union meeting. She tried to ask him what meeting he was talking about but he just said they were throwing her in jail. After she punched in and went to work "it just kept going on all morning until I was just so nervous I didn't know what to expect." After the mid- morning break she went to see Collette and told him what Gonzalez had said to her; that he had continued telling her this from the time she had punched her work card; and that she was so nervous that maybe she should go home. Collette took her, instead, to O'Kelly's office and had her repeat what she had reported to him. When she suggested she should go home, O'Kelly told her he would talk to Gonzalez and she should go back to her job. Glasko fur- ther testified that during the morning Maryann Fixel who worked with Gonzalez said to her, "Pedro is really after you with the union, they are going to throw you in jail." Fixel testified that it was about 6:45 a.m., near the women's lunchroom just before she punched the timeclock, that she overheard the conversation in which Gonzalez told Glasko something about some tapes that he had heard and that she was going to be in trouble about it. Fixel 3 It appears that when the union agents called upon Glasko in her home during the preelection campaign they had with them answering service equipment, and that Glasko had thought it was a small radio but on reflec- tion concluded it could have been a tape recorder. 4 According to his affidavit, and his admission thereof at the hearing "a couple of days before the October 11, election," Gonzalez told Glasko that "the union was waiting to talk to her, because she was talking on two sides for the company and for the union, and maybe he was going to bring a case in court about her talking one day for the union and one day for the compa- further testified that during the period between the two elections "mostly everyone" was talking about the Union during company paid time. Around the time when the inci- dent between Gonzalez and Glasko took place, Collette came to her work station and spoke to her and another employee, telling them not to talk together about the Union because it was causing trouble. According to Collette, when Gonzalez came into the of- fice he was asked about his statements to Glasko and he did not deny the conversation. When he was asked about the things he was talking to her about, he said, "You will see, you will see. She can't play two sides at the same time." So they gave him the warning slip. O'Kelly testified that, when they brought Gonzalez into the office, he told Gonzalez that he was brought in for "the allegation" to Glasko that morning, for disrupting produc- tion, and for speaking to Glasko with threatening accusa- tions, and that he was being given a written reprimand. Gonzalez agreed he had made "the allegation" to Glasko, asserting that she could not say the things that she had been saying and that she would go to jail for it. O'Kelly told Gonzalez that it was not his concern; he would be paid to work and she was paid to work; and that he was not allowed to do this on company time because of the postings. Tiernan testified that he had overheard the conversation with Glasko from his office across the hall. After she re- turned to work "they" had a meeting in O'Kelly's office where it was decided to give a warning notice to Gonzalez. They typed up a "verbal written notice." When Gonzalez came into the office Tiernan stood by the door. O'Kelly told Gonzalez he had in front of him a "formal written verbal notice' and then proceeded to read the notice to Gonzalez. Pedro responded that what he said to Glasko "was true and that they would find out that she was a liar; she lies to the company and she lies to the union. She can- not do this. She will go to jail." Tiernan then interjected, "Pedro, Maryann and you and everyone else in this plant is paid to make rings. Whether or not Maryann is a liar is none of your concern, and you should not, and you cannot continue this type of wording to her. Do your job and go home and be paid for it. That is all you have to worry about." Gonzalez signed the slip, took his carbon copy and went back to work. Tiernan asserted that at no time did Gonzalez express a denial of the accusations. Gonzalez recalled that when he entered O'Kelly's office he was invited to sit down and, when Tiernan came, O'Kel- ly said he was giving Gonzalez a warning slip because he was talking to Glasko but did not mention specifically what he was supposed to have said to Glasko. Then Tier- nan said that he was not allowed to talk at the Company; "he said, no talk to the ladies." Gonzalez explained, that he worked the rolling machine, he had to tell the ladies what to do once in a while; "I am responsible for the job, I must explain to lady." On October 24, 1974, the following notice was posted: ATTENTION: ALL EMPLOYEES It has been brought to the attention of the Produc- tion Foreman, Letcher Collette, and the writer, as General Foreman,_ that certain individuals who are ex- 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceptionally strong supporters of the petitioning Union are roaming around the plant areas away from their normal work stations and duties engaging during Company paid working hours and attempting to elec- tioneer and otherwise pressure their fellow employees with regard to supporting the Union. A previous notice prohibiting such activities on paid working time was posted on August 30, 1974 and is now by this notice reposted, in view to the objections to the election which are presently pending. EVERY PLANT EMPLOYEE IS HEREWITH AND HEREBY DI- RECTED TO CEASE ALL WANDERINGS ABOUT THE PLANT RE- LATING TO UNION MATTERS OR ELECTION MATTERS COV- ERED BY THIS NOTICE. THIS SHALL APPLY EQUALLY TO ANY EMPLOYEE WHO SPENDS HIS PAID WORKING TIME ENGAGING IN UNION CAMPAIGNING OR ELECTIONEERING. DISCUSSIONS WITH OTHER[ EMPLOYEES, REGARDLESS OF WHETHER SUCH EMPLOYEE MAY BE TALKING FAVORABLE TO THE UNION OR FAVORABLE TO THE COMPANY'S POSITION. JUST PRIOR TO MY POSTING OF THIS NOTICE, IT HAS BEEN BROUGHT TO MY ATTENTION THAT ONE OF OUR MALE EMPLOYEES WHO IS AN APPARENT STRONG UNION SUPPORTER HAS INTIMIDATED ANOTHER EMPLOYEE IN REGARD TO HER POSITION IN ELEC- TION MATTERS. THIS PERSON HAS BEEN GIVEN A DISCIPLI- NARY REPRIMAND IN REGARD TO THIS INFRACTION. THIS EMPLOYEE AND ALL OTHERS ARE HEREBY PUT ON NOTICE THAT DRUM PARTS WILL NOT TOLERATE ANY SUCH CON- DUCT AND WILL ISSUE SEVERE DISCIPLINARY ACTIONS IF ANY SUCH ACTIVITIES BECOME KNOWN. Generally, with respect to enforcement of the no-solici- tation rule, Tiernan testified that no employee has been warned, reprimanded for congregating, soliciting, or dis- tributing on company time. Collette testified that he ex- pects everybody to stay on his job during working time. If a man leaves his job and is talking to somebody else on the job Collette asks him to go back to his position. "That is all." He asserted that he has issued warnings to employees for talking during paid working time. No written warnings were supplied in support of this assertion and no particu- lars of any such incident were supplied. It is not suggested by the testimony of any witness that Respondent had a rule against employees talking to one another while they were working or in their normal work contact, other than the no-solicitation rule. During the union campaign T-shirts with union slogans were worn by some union adherents. At the request of em- ployees opposed to the Union, Respondent purchased and printed on the backs of vests a legend representing a union election ballot with an "X" in the "No" box. These were made available to employees to wear. The T-shirts and vests were worn by employees at their work stations during their working hours.5 The General Counsel contends that both of the rules promulgated and posted on August 29 and 30, 1974, are presumptively unlawful since they reasonably could be in- terpreted by employees as restricting protected activity 5 At the hearing I reserved ruling on Respondent's objection to testimony concerning the jackets and on a motion to strike such testimony Inasmuch as such evidence arguably relates to the areas of application of the no- during lunch and break time: The August 29 notice be- cause it was patently illegal, prohibiting on its face solicita- tion during "working hours"; and the August 30 notice because it was ambiguous and served as a reposting and republication of the August 29 notice. Respondent asserts that the August 29 notice was only posted for approximate- ly 2-1/2 hours before it was removed and was never en- forced, therefore its effect was de minimis, unworthy of a finding of a violation; and that the rule posted on August 30 is presumptively valid on its face, and no discriminatory or disparate enforcement has been shown. Both the General Counsel and Respondent rely upon the Board's decision in Essex International, Inc., 211 NLRB 749 (1974), as support for their respective positions. In that case the Board held 6 that a rule which prohibited union solicitation or distribution during "working time" or "worktime" would be considered valid on its face and that the party attempting to invalidate the rule must show by extrinsic evidence that in the context of the particular case, the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during breaktime or other periods when employees were not ac- tively at work. On the other hand, a rule .that prohibits union solicitation or distribution during "working hours," unless its impact on lunch and breaktime is clarified, is considered prima facie susceptible of the interpretation that the prohibition applies to all business hours and is unduly restrictive of Section 7 rights. In that case the Board will find such a rule invalid unless the employer shows by ex- trinsic evidence that, in the context of the particular case, the "working hours" rule was communicated or applied in such a way as to convey the intent clearly to permit solici- tation during breaktime or other periods when employees are not actively working. The August 29 notice containing reference only to "working hours" is, under the Essex rationale, unlawful on its face. The fact that it actually remained posted for a period of less than a half day, in itself, does not remove the coercive effect or nullify the notice. Respondent not only did not take steps to withdraw this rule, it did not even remove the posted notice. That notice disappeared from the bulletin board by the end of the workday and it was clear at the hearing herein that the Respondent entertained a suspicion of its removal by an employee, as employees passed the bulletin board when they punched the timeclock at the end of the day. In these circumstances, I find that the promulgation and posting of the August 29 no-solicita- tion, no-distribution rule was a violation of Section 8(a)(1) of the Act. The language contained in the August 30 notice, set out in italics and designated as a restatement of the prior post- ed rule, uses the phrase "on company paid working time." Standing alone, this rule could be said to be valid on its face under the tests set forth in Essex. It'would not appear appropriate, however, in evaluating the rule, to consider the phrases used as in isolation from the context of the entire notice in which the rule is set forth. The General Counsel points to the preceding paragraphs of the notice, particularly the opening sentence, as establishing that this solicitation rule I find that it is relevant, and deny the motion to strike 6 Members Fanning and Jenkins dissenting. DRUM PARTS, INC. 519 was a reposting and reiteration of the unlawful rule posted the previous day, which carried forward and continued in effect the unlawful aspects of the prior -rule.? This view ignores the fact that the Board's approach to the evaluation of the language in a rule permits clarification of the lan- guage by delimiting the area of its impact. While such clar- ification is referred to in Essex only with respect to phrases considered prima facie susceptible to an unlawfully broad interpretation, it is not thinkable that the Board intended a phrase, considered valid on its face, to stand in isolation and thereby become immunized from pronouncements de- signating the areas of impact as going beyond lawful limits. Thus, although in the August 30 notice Respondent pro- claimed it was restating the rule and proceeded to do so with phrases designated as lawful in Essex, in the same notice Respondent indicated the areas of impact as includ- ing "employees . . . plant working day," and "the distribu- tion of union literature . . . where it is passed out, read and/or discussed in the plant working area, so as to simi- larly cause a violation thru misuse of `the company's paid working time,' . . . where it-may well create, or tend logi- cally to cause other employees distractions from the employee's normal paid working time effort, or other relat- ed possible personnel problems...." etc. These phrases constitute the context in which the August 30 rule was communicated to employees. I view them as clarifications of the impact area of that rule, which I find extends the rule beyond the individual participating in employee's "paid working time" conduct to include union activities engaged in during breaktime, lunch, or other peri- ods when not actively at work, where such activity might possibly instigate or result in a chain of effects culminating, not only in union activity by others during "paid working time," but also in distractions, possible personnel prob- lems, etc.' Viewed in this light, I find that the August 30 rule, as clarified by the context in which it was communicated, is unduly restrictive of employees' Section 7 rights.9 Accord- 7 The language of the notice makes it clear that reference was to the August 29 rule which had been removed from the bulletin board and not to the 1972 rule or any unwritten interim rule referred to in testimony of various witnesses of Respondent. The evidence reveals, and I find, that the 1972 rule was abandoned after it had served its purpose and there was no such rule in effect at the time of the August 29 posting. 8 Although I rejected Respondents contention that the only extrinsic evi- dence relevant is of the rule's discriminatory application or disparate en- forcement, and I received evidence of its application or lack thereof as relevant in applying the Essex standards of evaluation and interpretation, I have found it unnecessary and therefore have not` relied upon evidence of the rule's application in determining the scope and coercive impact of the rule itself 9 That this was indeed the intent of the rule, if one need look further, is demonstrated by the subsequent application of the rule to the Gonzalez- Glasko incident wherein comments concerning union activity made by Gonzalez to Glasko before either had punched their work timecards, which resulted in Glasko becoming nervous and asking her foreman to go home, was the basis for a written warning notice of violation of the rule issued on October 24, to Gonzalez. In'this conneetion,t on the record and demeanor of the witnesses, I find that Gonzalez did not in, fact continue -making those statements to Glasko after their working time commenced. Glasko was not one of the girls who worked directly with Gonzalez and there is no testimony indicating that either went to the other's work station after the shift began. I credit Gonza- lez in this respect. Fixel who did work with Gonzalez was not asked about this although she was a witness and testified concerning the initial conversa- ingly, I find that, by promulgating and maintaining that rule, Respondent violated Section 8(a)(1) of the Act. ° 3. Enforcement of the rule Enforcement of the foregoing rule is also urged as a vio- lation of the Act, specifically in the issuance of a warning notice to Gonzalez and in the cautioning of Fixel and an- other employee not to talk about the Union. With respect to the Gonzalez warning notice of October 24, 1974, it is clear that such notice was regarded by Re- spondent as being issued, at least in part, for violating its no-solicitation rule. Not only does the written warning slip refer specifically to a "violation of previously posted no- tices," (and the evidence fails to establish that any notices of rules other than no-solicitation no-distribution rules ex- isted), but also to make sure that the message of the rule's application reached the employees the Respondent, that very day, posted a "notice" on the bulletin board purport- ing to repost the August 30, 1974, notice. Included in the October 24 notice was Respondent's publication of the fact that a disciplinary reprimand had been given to "a male employee," a "strong union supporter" for an infraction of the rule, and a warning to employees that "severe discipli- nary actions" would befall others if any such infractions become known. As the no-solicitation rule as communicated to employ- ees was itself unlawful, the application of that rule was also unlawful.! I Even if it were arguable that application of the rule was only a part of the reason for the disciplinary warn- ing given Gonzalez, the illegality of the rule taints the ac- tion taken by Respondent as unlawful." Accordingly, I find that the reprimand of Gonzalez on October 24, 1974, given in the form, of an oral confrontation in Respondent's office with plant officials and the issuance of the warning slip constituted unlawful interference, restraint, and coer- cion within,the meaning of Section 8(a)(1) of the Act. Although the comment by Foreman Collette to Fixel and her working companion, that they should not talk to- gether about the Union because it was causing trouble, occurred during working time at her machine, this circum- stance is insufficient to limit his instruction to "working time." Even if so regarded it was contrary to the normal pattern during, the entire period between the October 11 and February 6, 1975, elections of "mostly everyone" talk- ing about the Union during company paid-time. If this cautioning arose because of Fixel's comment to Glasko, clearly there was disparate treatment which could be at- tion before work. Further, Fixel, according to Glasko's undenied testimony, did make a comment to Glasko during the morning repeating in part what Gonzales had said earlier, but Fixel did not receive a warning for this "working time" comment Indeed the question of whether Gonzalez in fact made any statement during the "working time" of either employee was so insignificant to Respondent that it did not even inquire into the matter of timing and place of the remarks, either before it decided upon and prepared the warning slip or before it delivered the reprimand to Gonzalez and publi- cized the fact on the bulletin board as a reaffirmation of the no-solicitation no-distribution rule 1° See Pepsi-Cola Bottling Co of Los Angeles, 211 NLRB 870 (1974), ap- plying the Essex, supra, standard of evaluation to unfair labor practice pro- ceedings. See Groendyke Transport, Inc., 211 NLRB 921 (1974). i2 See Leon Ferenbach Inc., 213 NLRB 373 (1974) 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributable only to Respondent's knowledge that Gonzalez was a "strong" union adherent. In any event, the restriction of an employee's conversations about the Union in the face of an unlawful no-solicitation rule is unlawful and violative of Section 8(a)(1) of the Act.13 4. The suspension of Gonzalez Pedro Gonzalez was an employee of comparatively long standing with Respondent, who, according to his supervi- sors, had an outstanding work attendance record, was able to perform any of the various duties assigned to regular production employees, and had always willingly accepted any assignment given him without question. His primary work assignment for some 5 years, however, had been on the automatic rolling machine. According to the testimony of Gonzalez and other em- ployees whom I credit in this respect, when Gonzalez re- ported at the plant on the morning of November 11, 1974, he was instructed by Foreman Collette to take over opera- tion of the large welding machine regularly operated for some 12 years by employee George Bester. This is a low machine at which the operator must be seated, generally used for welding the heaviest gauge steel, and was the only welder in the plant that Gonzalez had not previously oper- ated. Because of the heavier gauge steel involved in its op- eration, and the comparatively longer period of heat con- tact required thereby, this welder gives off many more smoke fumes than do the other welders which require only an instantaneous spark touch and consequently give off little or no smoke, and at which the operator is able to stand to operate placing him in a more advantageous as- pect in relation to any fumes. Gonzalez attempted to operate the machine for some 15 minutes, in the meantime complaining to Collette that the fumes from the machine affected him and that he could not do the job. Collette informed Gonzalez that "This is what I have for you." Because in making the initial assign- ment Collette had stated it was pursuant to instructions by General Foreman O'Kelly, Gonzalez then asked to speak to the plant manager and Collette said that Tiernan was out of town that day. At 7:15 Gonzalez went to the time- clock to punch out and leave. Uncontradicted testimony of Collette indicates that he approached Gonzalez at the timeclock and inquired what he was doing there. Gonzalez stated he was not going to do the job. Collette asked him why, and Gonzalez replied that his back hurt. Collette told him to at least do the job until O'Kelly arrived at the plant. Gonzalez responded that he was not going to do the job. Collette then said, "If you leave the shop, as far as I am concerned, you are finished here." Gonzalez punched his timecard, left the shop, and went directly to the National Labor Relations Board Regional Office and filed the complaint herein. Later that day he received a call from Collette advising him that he was sus- pended for 3 days, and a letter confirming this followed. When Gonzalez reported to work after the suspension he 13 Ling Products Company, Inc, 212 NLRB 152 (1974) brought with him a statement from his doctor attesting that Gonzalez had a history of asthma attacks. Nevertheless he was again assigned to the same welding machine about which he had complained. Gonzalez testified that he was able to operate the big welder during this period of assign- ment because, having seen his doctor during his suspen- sion, he was then taking his allergy pills.14 It is clear from his testimony that Gonzalez regarded his allergy, his asthma, and his pain in the back as one and the same physical limitation. He explained that the position required in operating that particular welding machine forced him to be close to the weldmg spot; that he has to have his mouth open to get air to breathe; and that the smoke fumes from the heat contact go inside and affect his back, causing a lot of pain in his back. He concludes that the pain in his back is caused by his asthma. Respondent presented testimony that the reason for re- moving George Bester from his regular welding job and assigning Gonzalez to operate it was because a production lag had developed on that line and it was believed by man- agement that George Bester was slowing down and holding up production; and that Gonzalez was chosen to take Bester's place because he was able to operate any of the machinery and had never before taken exception to an as- signment. No evidence confirming a falling off of produc- tion on that or any other line was presented to verify this assertion. Additionally, it appears that, in late October or early November 1974, Lindeman was at the front door intent upon quitting because, as she reported to O'Kelly, she felt she was being abused on the production line by George Bester who was deliberately working beyond his normal speed and literally loading her down with work at her sec- ondary operation, and she could not keep up with him. O'Kelly told Lindeman not to quit but to go home for the rest of the day and cool off, which she did. This happened again and he persuaded her to take some time at the plant to cool off in the women's lounge rather than go home. Similarly, in contrast to the Respondent's reaction to Gon- zalez' claim of physical problems on the job assignment, efforts were made by Respondent, in the Glasko-Gonzalez incident discussed above, to rectify the situation and to keep Glasko on the job despite her desire to go home be- cause of her nervous condition. Despite Respondent's knowledge of Gonzalez' prounion attitude and its unaccommodating attitude toward his health complaints in contrast to the treatment accorded the complaints concerning stress by Lindeman and Glasko, both of whom had displayed their antiunion attitude in requesting and wearing the company vests and in reporting to Respondent officials on union activities, I am not per- 14 Respondent asserts that the doctor's statement presented after the sus- pension was the first knowledge it had of Gonzalez' asthma. I view its knowledge of the specific diagnosis as irrelevant, since all three supervisors involved in the suspension decision had notice that Gonzalez had allergy and breathing difficulties from an incident the previous summer when Gon- zalez complained to both Collette and O'Kelly about the fans which were affecting his breathing and told them of his allergy. At that time O'Kelly merely said he also had an allergy, and left the fan in a position where it hit Gonzalez Upon his appeal to Tiernan because of his allergy and the latter's investigation of the situation, Tiernan ordered the fan redirected and told Gonzalez he could turn the fan off anytime. DRUM PARTS, INC. 521 suaded that the initial assignment given Gonzalez was made for. discriminatory reasons. I cannot, therefore, find on the evidence presented here that Gonzalez' assignment to the Bester welder was unlawful. Similarly, in spite of these contrasts in treatment and cognizant of Respondent's apparently unreasonable and vindictive attitude in assigning Gonzalez the same welding machine for a period of time upon his return from his sus- pension after it had medical proof of his physical impair- ment, I do not find his 3-day suspension to have been for unlawful reasons. Unlike the situation with respect to Lindeman and Glasko, Gonzalez walked off the job rather than wait and take the matter up with a higher official-a reasonable request in view of Collette's initial representa- tion to Gonzalez that the assignment was on O'Kelly's or- ders. In the face of this, Gonzalez left the premises under threat of discharge if he did so. His belief that talking to O'Kelly would be a futile gesture because it was repre- sented to him as O'Kelly's initial decision does not dimin- ish his responsibility for leaving the plant against the direct orders of his supervisor. What, to him, was reasonable or futile is not the test of the issue here. Rather, we are con- cerned with the motive for Respondent's actions. In the circumstances, I find that an unlawful motive, although suspected, is not established. Accordingly, I shall recommend dismissal of the allega- tions of an 8(a)(3) violation. IV. THE OBJECTIONAL ELECTION CONDUCT Having found that during the relevant period between October 11, 1974, and the second Board election conduct- ed on February 6, 1975, Respondent engaged in unlawful interrogation of Lindeman,15 and promulgated, main- tained, and enforced an unlawful no-solicitation no-distri- bution rule, each and all constituting interference, re- straint, and coercion of employees in the exercise of their Section 7 rights, I find that such conduct interfered with exercise of a free choice by employees in the February 6, 1975, election. Accordingly, I recommend that the Board set the election aside and that a new election be ordered. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is, and has been at all times material to this proceeding, an employer within the meaning of Sec- tion 2(2) of the Act engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has committed unfair labor practices within the meaning of Section 8(a)(1) of the Act by interro- gating its employees with respect to activities protected by Section 7 of the Act, and by promulgating, maintaining, and enforcing no-solicitation no-distribution rules which are unduly broad, thereby interfering with the rights guar- anteed in Section 7 of the Act. 4. The aforesaid unlawful conduct constitutes unfair la- bor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The aforesaid unfair labor practices interfered with the freedom of choice in the election conducted on Febru- ary 6, 1975, under Section 9 of the Act, and warrant setting that election aside. 15 Because it is not specifically established that the admitted part of the unlawful interrogation of Pekar occurred during the relevant election period I have not relied upon that conduct as a basis for setting aside the February 6, 1975, election . In this connection in such interrogation as occurred con- current with or during Respondent's interviews for procurement of state- ments relating to the conduct of the first election, I find no merit in Respondent's defense of privilege for the purpose of developing its objec- tions. Such questions were clearly irrelevant to any such inquiry. To the extent that its defense is Respondent's efforts to enforce its no-solicitation no-distribution rule, suffice it to note that those rules have been found unlawful. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain specific ac- tion set forth below in the recommended Order designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]