The Scott & Fetzer Co.

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Douglas Division, The Scott & Fetzer Company and International Association of Machinists and Aero- space Workers, AFL-CIO. Case 26-CA-5877 March 22, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On November 4, 1976, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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,' fmdings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order .3 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 Respondent, Douglas Divi- sion, The Scott & Fetzer Company, Walnut Ridge, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, except that the attached notice is substitut- ed for that of the Administrative Law Judge. i Respondent contends it was entitled under the Freedom ofInformation Act to an order from the Administrative Law Judge requiring that counsel for the General Counsel produce all written statements of any witnesses the General Counsel might call to testify. At the hearing, the Administrative Law Judge properly denied Respondent's motion and in his Decision properly found that such denial of Respondent's motion to obtain witnesses' affidavits poor to their testifying at the hearing did not prejudice Respondent. The Administrative Law Judge admitted into evidence Respondent's requests for information under the Freedom of Information Act, directed to the Regional Director and the General Counsel, as well as letters from the Regional Director and the General Counsel denying those requests. The Administra- tive Law Judge admitted those exhibits in order to give Respondent the "evidentiary basis for an appeal." The General Counsel excepts to the Administrative Law Judge's admission of the exhibits, contending that the Board has set forth in Sec. 102.117 of the Board's Rules and Regulations, Series 8, as amended, detailed procedures for parties to make requests for documentation under the Freedom of Information Act. In the instant case, Respondent followed these procedures by making its requests to the Regional Director and appealing the Regional Director's decision to the General Counsel, who in turn denied the appeal. Thus, Respondent exhausted its avenues of appeal in seeking disclosure of documents under the Freedom of Information Act. Its only recourse at this stage would have been to have sought judicial review under the Freedom of Information Act. (5 U.S.C Sec 552(4)(6).) The Board's Rules do not contemplate that Adminis- trative Law Judges should be involved in this process, and the admission of the exhibits in issue provides no additional "evidentiary basis for an appeal." 228 NLRB No. 124 Accordingly, we find that the Administrative Law Judge committed error by admitting into evidence correspondence between Respondent and the Regional Director and General Counsel concerning requests pursuant to the Freedom of Information Act. However, since such error is not prejudicial, we shall not expunge these exhibits from the record. z In the absence of exceptions, we adopt, pro forma the Administrative Law Judge's finding dismissing the allegations of the complaint concerning Respondent's no-solicitation rule. 3 The Administrative Law Judge recommended an order containing broad injunctive language, but inadvertently omitted the requisite language from the notice. We shall correct the notice to conform to the recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with plant closure if they designate or select Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organiza- tion, as their bargaining representative. WE WILL NOT interrogate our employees con- cerning their union membership, activities, or desires. WE WILL NOT give our employees the impres- sion of surveillance of their union or concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their rights to self-organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All of our employees are free to become or remain or to refrain from becoming or remaining members of International Association of Machinists and Aero- space Workers, AFL-CIO, or any other labor organi- zation. DOUGLAS DIVISION, THE SCOTT & FETZER COMPANY DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge: Respon- dent, the Douglas Division of the Scott and Fetzer Company, is engaged in the manufacture of vacuum cleaners and other products at its new and relpcated plant in Walnut Ridge, Arkansas, where it employs approximate- ly 70 employees, mostly women. The Walnut Ridge plant has been unrepresented since its opening in 1972. However, in about late September 1975, DOUGLAS DIVISION the Union, here involved as the Charging Party, com- menced a campaign to organize the Walnut Ridge plant. Respondent sought to combat the union campaign by its own antiunion propaganda letters to its Walnut Ridge employees. In one of these letters, the Company described the Walnut Ridge operation as "just one small part of the Scott & Fetzer Company," the parent Company, which as the letter states has "many plants all over the country, some with unions and plenty without." In a later antiunion letter to its employees , Respondent called attention, as " FACT # I," to what had happened to Respondent's former employees at its predecessor plant at Bronson, Michigan, as follows: The Douglas operations in Walnut Ridge used to be in Bronson, Michigan. Before this [Walnut Ridge] plant opened in 1972, Douglas used to make all of its vacuum cleaners in Bronson, and those cleaner employees were represented by one of the biggest unions in the world. They had a union contract which had wages and benefits and all kinds of other things. And then in 1972, Scott & Fetzer opened this new Douglas plant in Arkansas, and all of a sudden those people up in Michigan lost the most important thing of all - their jobs. That's right, your job used to belong to another person who lives in Michigan, but now you've got it and you're working and earning a living, but that Michigan worker - well, you figure it out. The fact is that when collective bargaining in Bronson pushed the costs of making vacuum cleaners too high, Scott & Fetzer relocated those operations to Walnut Ridge, and all those good people who worked on vacuum cleaners in Michigan lost their jobs. Now its your plant and your job, and you should be very careful before you decide to bring a union in this plant . Think about it. Under the above undisputed background facts, the issues herein under the pleadings, aside from Respondent's separate affirmative defense, are as follows: (1) whether Respondent threatened its employees with plant closure if they supported the Union; (2) whether Respondent en- gaged in unlawful interrogations of its employees; (3) whether Respondent created the impression that its em- ployees' union activities were under surveillance; (4) whether Respondent solicited grievances from its employ- ees in order to dissuade them from supporting the Union; (5) whether Respondent maintained and enforced an invalid no-solicitation rule; and (6) whether Respondent discriminatorily promulgated, maintained, and enforced a notice on the women's restroom limiting the number of occupants, in violation of the Act. The final issue under Respondent's affirmative defense is whether Respondent repudiated its alleged unlawful con- duct. In its answer Respondent sets forth this defense as follows: "Even if Respondent has engaged in any of the unfair labor practices set forth in the complaint, which Respondent denies, such violations were isolated in nature and/or were effectively and fully retracted by Respon- dent." The complaint herein was issued on December 10, 1975, pursuant to an original charge filed on October 24, 1975, and a first amended charge filed on December 18, 1975, 1017 copies of which were duly served upon Respondent. Respondent's answer denies the alleged unfair practices and in addition pleads the affirmative defense set forth above. The case was heard on January 29, 1976. Briefs were duly filed by the parties on March 9, 1976. These have been carefully reviewed and considered. For reasons hereinafter indicated, Respondent will be found in violation of the Act as alleged in the complaint, except as hereinafter noted. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a corporation doing business in the State of Arkansas with an office and place of business located in Walnut Ridge, Arkansas, where it is engaged in the manufacture of vacuum cleaners, carpet cleaners, and custom molded parts. During the 12 months preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, purchased and received at its Walnut Ridge, Arkansas, location, products valued in excess of $50,000 directly from points located outside the State of Arkansas, and during the same period of time Respondent sold and shipped from its Walnut Ridge location products valued in excess of $50,000 directly to points located outside the State of Arkansas; and during the same period of time it had a gross volume of business in excess of $500,000. As admitted, Respondent is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. RULINGS ON MOTIONS FOR PRETRIAL DISCOVERY At the hearing herein, Respondent offered in evidence certain documents relating to its efforts to obtain from the Regional Director before the opening of the hearing herein the names of Respondent's employees whom the General Counsel planned to call as witnesses in substantiation of the allegations of the complaint or, in the alternative, "copies of all written statements, signed or unsigned, contained in the Board's case file . . . for inspection and copying," under the provisions of the Freedom of Information Act. The documents Respondent moved to place in evidence includ- ed Respondent's pretrial discovery requests and the Re- gional Director's denials thereof. Counsel for General Counsel objected to the receipt of the proffered documents in evidence on technical grounds. These objections were overruled and the documents were received in evidence as Respondent's Exhibits 1 to 5, inclusive, in order to give Respondent the evidentiary basis it apparently believes it needs for an appeal on the denial of the pretrial data it requested. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing the record was also left open, upon Respondent's motion, for the additional receipt in evidence of an expected but not yet received related reply from the General Counsel to Respondent's pretrial requests. Shortly after the close of the hearing herein, Respondent received the expected reply in the form of a letter dated January 28, 1976. That reply, like the earlier replies from the Regional Director, denies Respondent's requests. Respondent has submitted to the Administrative Law Judge the said reply of General Counsel along with Respondent's brief herein under a transmittal letter dated March 4, 1976, with a request that the reply from General Counsel be received in evidence as Respondent's Exhibit 8, pursuant to leave granted at the hearing on January 29, 1976. Counsel for General Counsel on March 12, 1976, filed his opposition to the receipt in evidence of Respondent's Exhibit 8, together with a motion for reconsideration of the earlier receipt in evidence of related Exhibits 1 through 5, inclusive. The opposition to Respondent's Exhibit 8 is overruled and the exhibit is received in evidence; t the motion for the reconsideration of the earlier rulings, admitting Respondent's Exhibits 1 through 5 into evidence, is denied. I have allowed Respondent's Exhibit 8 in evidence for the same reasons I have allowed the earlier Respondent's Exhibits 1 through 5 in evidence, that is, to give Respondent the evidentiary basis for an appeal, if desired, on the denial of its requests for pretrial discovery by officials other than the Administrative Law Judge. At the opening of the hearing herein and before any of General Counsel's witnesses were called to testify Respon- dent made the same request , this time by a motion before me, "that counsel for General Counsel be required to produce any and all written statements of any witnesses that he planned to call." That motion was denied under the long-established rule that a respondent is not entitled to such statements by government witnesses until after the conclusion of each witness' direct examination by counsel for General Counsel. Although Respondent's counsel has persistently sought to see the statements of General Counsel 's employee- witnesses in advance of the hearing, the record ironically shows that counsel for Respondent had actually seen the statements of General Counsel's first and lead employee- witness, Henrietta Tate, in advance of the hearing, as she had made the copies of her statements available to her employer's counsel before the hearing started. Moreover, the record shows that Respondent was so well aware of what its employees, Henrietta Tate, Brenda Graither, William F. (Junior) Allen, Mary Ditto, Becky Ditto, Sue Hill, Richard Monroe, and Bonita Webster, would testify to against the Company that Respondent's counsel never even sought to rebut their testimony under paragraphs 7, 8(a) and (b), 9(a) and (b), and 11 of the complaint. i Resp. Exh. 8 has been inserted in the official folder continuing Respondent's exhibits. 2 The complaint does not allege any unlawful promises by the plant manager in reply to such inquiries. From the record as a whole I find that Respondent's defense herein was not in any way prejudiced by the fact that the statements of the Board witnesses were not made available to Respondent's counsel for inspection and preparation for his cross-examination until after the witness had testified in behalf of General Counsel. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Issue as to the Threat To Close Plant if Union got in The complaint under paragraph 10 alleges that Respon- dent Plant Manager Terry McGarry, by a letter dated November 13, 1975, to the employees at the Walnut Ridge plant and by speeches to the employees at or about the same date, threatened that the Company would close its plant if the employees selected the Union as their collective- bargaining representative. As aforenoted the Union started its drive to organize the Walnut Ridge plant in about late September 1975. On about November 6, 1975, a group of about 20 female employees requested and received a meeting with Plant Manager McGarry for the primary purpose of asking him if the employees could get "better insurance and better benefits" from the Company without a union,2 but other questions were also asked. One of the employees asked McGarry about a rumor that the plant would close if the Union got in. It is undisputed that McGarry assured the women at the meeting that "the plant would not shut down" if the Union got in. However, notwithstanding this assurance, McGarry on November 13, 1975, sent a long letter to all of the employees in the plant in which he told them, as PACT # 1, about the closing of the predecessor plant at Bronson, Michigan, because "when collective bargaining in Bronson pushed the costs of making vacuum cleaners too high, Scott & Fetzer relocated those operations to Walnut Ridge, and all those good people who worked on vacuum cleaners in Michigan lost their jobs." 3 The letter also informed the employees that the forthcoming representation election would be by secret ballot and that the employees "can vote against the union even if you have signed a union card or attended union activities." Finally, McGarry in his letter also told the employees that, "If the Company wins the election, I guarantee you that we will not discharge or mistreat any employee who supported the union." McGarry not only sent the above-described letter of November 13 to each of the employees at the plant, but also on the same day personally and publicly read the letter to the employees at three separately called employee meetings in groups of about 20 employees at the plant, in order to make doubly certain that the employees would be made aware of the contents of his letter even before they received the letter. After consultations with labor law attorneys about the legality of the contents of his letter, McGarry on November 26, 1975, sent a followup letter to the employees in which he 3 The above-quoted excerpt is part of the paragraph from McGarry's letter of November 13, 1975, as set forth in full in the opening pages of this Decision. DOUGLAS DIVISION stated his purpose was to, "to clear things up on my own - even though our lawyers would prefer that I keep my mouth shut." In this new letter under the caption "FACT # 1 REVISITED," McGarry stated that, "The Company is not going to close our plant if the union wins the election!" He expressed surprise that he had to reassure the employees on that score in view of the fact that, "when a group of our plant employees asked to meet with me on November 6, somebody asked me if the Company was planning on closing the plant if the union won the election, and I answered `No.' "4 However, after making this reassurance of no plant closure if the Union won the election, McGarry restated and reemphasized in his letter of November 26 the reasons for the closing of the predecessor plant in Bronson, Michigan, practically word for word as he had stated in his earlier letter of November 13 to the employees, as hereto- fore quoted in the opening pages of this Decision. In pertinent part that reiteration appears in the November 26 letter as follows: Now that I've said that [i.e. no plant closing if the Union won the election], I believe I also ought to repeat some of the things I said in Fact # 1 [i.e., in the earlier letter of November 13 ] You see, it really is true that the Douglas operations in Walnut Ridge used to be in Bronson, Michigan. Before our plant opened in 1972, Douglas made all of its vacuum cleaners up in Bronson, and those cleaner employees belonged to one of the biggest unions in the world and they had a fine union contract. And then in 1972, Douglas built this new plant in Arkansas and now we are making all of Douglas' vacuum cleaners, and a lot of nice people up in Michigan lost their jobs. That's right - now it's your plant and your job and your wages and your benefits. And, to be completely truthful, the reason our plant and our jobs are in Arkansas instead of Michigan is because collective bargaining simply pushed the costs of making vacuum cleaners too high, and Douglas couldn't be competitive with other cleaner companies. That's not a threat - it's a fact - and it's FACT # 1. Think about it. Discussion and Conclusions Respondent relies on McGarry's express assurance in his letter of November 26, 1975, that, "The Company is not going to close our plant if the Union wins the election," and McGarry's earlier same but incidental assurance made to a small group of employees, as a complete defense to the allegation of the complaint that he "threatened its [Respon- dent's] employees by telling the employees that Respon- dent would close its plant if the employees selected the Union as their collective-bargaining representative." I find and conclude, however, that McGarry's November 26 letter of assurance of no plant closure, even if the Union won the election, did not remove the coercive effect of McGarry's earlier raw and powerful but indirect threat of November 13, that union representation at the Walnut Ridge plant could cause the Walnut Ridge employees to 4 This statement by McGarry is in accord with a prior finding that at an employee requested meeting with McGarry with respect to the benefits the employees could expect without a union , McGarry in response to a chance 1019 suffer the same fate and loss of jobs the Bronson employees had suffered when Respondent closed the Bronson plant because of the rising costs of operating under collective- bargaining agreements. This conclusion is compelled by the fact that McGarry's November 26 letter not only again reminded the Walnut Ridge employees of the fate of the Bronson employees in the precise words of the earlier letter, but by this very reminder again indirectly rethreatened the Walnut Ridge employees with the possible loss of their jobs if they voted the Union in, notwithstanding McGarry's assurances to the contrary. While I do not discredit McGarry's asserted promise of no immediate plant closure even if the Union was voted in, I find that his reminder to them of the fate of the Bronson employees had a new coercive and deterring effect on the Walnut Ridge employ- ees, designed to make them fear that the selection of the Union as their bargaining representative could be the starting point for the eventual closing of the Walnut Ridge plant. As heretofore shown, McGarry in an earlier letter to the Walnut Ridge plant employees, seeking to stem the union activity at the plant, had indirectly called the attention of the employees to the flexibility of the parent Company to open and close plants in the following words: You know, our Douglas plant in Arkansas is just one small part of the Scott & Fetzer Company. Scott & Fetzer has many plants all over the country, some with unions and plenty without. Although there is a line of cases which holds that an employer may relieve itself of liability for coercive conduct by an unambiguous repudiation, I find that this alleged affirmative defense is not open to Respondent under its disavowal of any intent to immediately close the plant if the Union won the election as stated in its letter of November 26 because that very letter also reiterated the earlier veiled threat of a possible eventual loss of jobs for the Walnut Ridge plant employees on the basis of what had happened to the Bronson plant employees when the Respondent closed the Bronson plant. All other defenses are likewise found without merit. In summary, I find and conclude that Respondent's veiled threats of plant closure in its letters of November 13 and 26, 1975, in the event the employees voted to have union representation, constitute violations of Section 8(a)(1) of the Act. B. Issues as to Unlawful Interrogations and Solicitation of Grievances The complaint alleges numerous allegations of unlawful interrogations of various employees by top management personnel. These interrogations commenced not long after the Union started to organize Respondent's plant sometime in late September 1975. The Company under a letter to its employees, dated October 16, 1975, signed by aforemen- tioned General Manager McGarry, took official notice of the Union's attempt to organize the plant and sought therein to combat the campaign by asking the employees to question gave assurance that the plant would not be closed if the Union won the election. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be wary of "any empty promises that might come from the union." Although the letter itself5 is not alleged to be in violation of the Act, it is indicative of the motivation for the interrogations alleged by the complaint. The record shows that Respondent through its supervi- sors interrogated eight of its employees concerning their union membership activities and desires . These will be taken up generally in the time sequence shown in the complaint. Respondent has not offered any rebuttal defens- es to these interrogations but does assert other defenses thereto. Brenda Graither. Graither has worked at the Walnut Ridge plant for about 3-1/2 years but at the time of the hearing she was in layoff status. Before her layoff she was employed as a timekeeper and quality control inspector. Her direct supervisor was Nathan Howard, personnel manager. Her unrebutted and wholly credited testimony shows the following interrogations. In the morning of October 9, 1975, Howard looked her up at her desk and asked her if she had been approached by other employees in the plant about organizing the plant. She replied she had but declined to answer any further questions about the Union except in the presence of a fellow employee witness. Later that morning Howard called Graither into his office and again sought to question her about the Union because as he said the Company had to know something of what was going on in the plant before they consulted counsel. Graither again politely declined to answer any questions about the Union unless Howard gave her permission to have a coworker present during her interrogation. Howard chose not to press the issue then, but a few moments later he again summoned Graither to the office with notice to her that she could bring a fellow employee with her to witness her interrogation. She asked if she could bring anyone and was told that she could bring any employee except Henrietta Tate and William Allen, Jr., who the record shows Respondent believed were union activists. Graither then selected coworker Debbie Osburn to be her witness at her interrogation. The meeting actually took place in General Manager McGarry's office with both McGarry and Howard present for the interrogation. McGarry asked Graither if the employees were seeking to organize the plant and she said that they were. McGarry then asked why the employees were organizing and Osburn intercepted and replied, "for higher wages, better working conditions and better bene- fits." McGarry then asked how many union authorization cards had been signed and Graither replied that 65 percent of the employees in the plant had signed cards. McGarry also inquired if the Union had filed an election petition and Graither replied that a petition had been filed. Henrietta Tate. Tate has been in the employment of the Company for 4 years and is employed as a service clerk in the shipping department . Her unrebutted and wholly credited testimony shows the following interrogation. On October 20, 1975, Personnel Director Howard approached Tate at the plant and asked her what she thought about Plant Manager McGarry's letter to the employees of October 16, 1976, and about President Kornstein's speech 5 This is the letter also alluded to earlier for the sentences reading, "You know, our Douglas plant in Arkansas isjust one small part of Scott & Fetzer thereon or reading thereof at the employees' meeting of the same date. This was a reference to the letter heretofore referred to in which the Company, in seeking to counteract the union organizational campaign, advised its employees to be wary of "any empty promises that might come from the Union." Sensing that Howard was probing to find out how she now felt about the Union, Tate told Howard "that he didn't really want me to tell him what I thought about the letter." Although the letter bore the signature of Plant Manager McGarry, the record shows that the letter was actually drafted by Howard. I find that Howard's interro- gation of Tate about the letter was a coercive but abortive attempt to find out if the letter was having any adverse effect on the union campaign to organize the plant. William Franklin Allen, Jr. Allen, a young man, worked for the Company as a shipping clerk for about 3-1/2 years, prior to November 1975 when he quit his job to enter the ministry. (He was one of the "two witnesses" who Person- nel Director Howard had told the aforementioned employ- ee Graither would not be acceptable to him as Graither's witness during her interrogation by management about the union activity at the plant.) Allen's unrebutted and wholly credited testimony shows the following interrogations, one by Howard, the aforementioned personnel manager, and another date by Al Stainer, the plant superintendent. In late October 1975, Howard engaged Allen at the plant in a conversation. Howard asked Allen if he had heard Presi- dent Kornstein's speech of October 16, 1975, which consisted primarily of a reading to the assembled employ- ees of Plant Manager McGarry's aforementioned letter of the same date in which the Company warned the employees to be wary of union promises during its campaign to organize the plant. When Allen informed Howard that he was not at the plant when Kornstein spoke to the assembled employees, Howard told Allen, "that Mr. Kornstein said they didn't want a union in the factory." Howard then asked what Allen thought about McGarry's letter. Allen avoided the question by asking Howard "what was I supposed to think about it?" In response , Howard "just kind of laughed," thus ending the conversation. Allen's further unrebutted and wholly credited testimony shows that Plant Supervisor Stainer on October 23, 1975, upon Allen's return to work after a week's vacation, asked Allen how McGarry's above-described letter of October 16 had "grabbed him." Allen in answer merely smiled and shrugged his shoulders and this caused Stainer to ask, "Oh, it didn't grab you, huh?" Allen replied in the affirmative, "Uh-uh," by which I fmd he meant that the McGarry letter did not dissuade him from supporting the Union. Mary Ditto. Ditto has been employed by the Company for somewhat over 2 years as a sort of general helper throughout the plant under General Foreman Bill Mullins. Her unrebutted and wholly credited testimony shows the following interrogation. On an unremembered day in October 1975, Foreman Mullins approached Ditto at work and asked her, "What do you think about the mess that everything's in right now." Although Stainer did not mention the word "union," it is clear from the context of Ditto's unrebutted testimony that Mullins was indirectly Company. Scott & Fetzer has many plants all over the country, some with unions and plenty without." DOUGLAS DIVISION 1021 interrogating her about the union activities at the plant and where her sympathies lay. In reply to Mullins's question, Ditto mentioned that she had lost 3 days' work in the plant due to an improper layoff when an employee of lesser seniority was retained. She went on to tell Mullins that, "If we would have a union . . . I would have got paid for the 3 days that I missed." Becky Ditto. Becky Ditto is a sister-in-law of the aforementioned Mary Ditto. She has been employed at the plant for 2-1/2 years and, like Mary, she is also a general worker around the plant and likewise works under General Foreman Mullins. Her unrebutted and wholly credited testimony shows the following interrogation. In the latter part of October, Mullins approached her in the factory and asked her what she "thought about the problem they was having out there." Although Mullins did not mention the word "union" when he asked Becky for her thoughts "about the problems," I infer and fmd that Mullins was trying to find out how Becky felt about the Union at a time when it was common knowledge among the employees and management personnel that the Union was attempting to organize the plant. Becky avoided the question by saying, "I don't know." Carolyn Sue Hill. Hill, an assembly line worker, has been in the employment of the Company for nearly 4 years and works under the supervision of the aforementioned Plant Superintendent Stainer. Her unrebutted and wholly credit- ed testimony shows the following interrogation. In Novem- ber or possibly in late October 1975, when the Union was engaged in its campaign to organize Respondent's plant, Stainer approached Hill on the assembly line and asked her, "What do you think of our little problem?" without specifically mentioning the Union. She fended the question by asking, "What little problem?" and Stainer did not pursue his interrogation. I infer and fmd that Stainer was attempting to feel Hill out about her sympathies for the Union, as it was common knowledge among the employees at that time that there was quite a bit of excitement at the plant both among the employees and management person- nel about the then current campaign to organize the plant. Richard Monroe. Monroe has been in the employment of the Company as a painter for some 6 months under the supervision of the aforementioned General Foreman Mul- lins. (As shown above, Mullins is the same supervisor who had unlawfully interrogated Mary Ditto and Becky Ditto.) Monroe's unrebutted and wholly credited testimony shows the following interrogation. At an unremembered date after the Union started to organize the plant, probably sometime in October 1975, Mullins approached Monroe and asked him, "what was the trouble in the factory?" I infer from this question and the similar questions Mullins put to Mary and Becky Ditto that Mullins was seeking to interrogate Monroe about his interest in the Union. Monroe replied, "That I didn't really know." Bonita Webster. Webster was briefly employed by Re- spondent in its molding department from about October 1 to about November 15, 1975, when she was laid off and is now employed elsewhere. On the issue of the solicitation of employee grievances by President Vincent Kornstein, 6 As heretofore shown the testimony by other employees shows that Kornstein's speech consisted primarily of a reading of Plant Manager Webster's unrebutted and wholly credited testimony shows the following. On October 17, 1975, she attended an employee meeting at the plant which was addressed by President Kornstein6 on the occasion of his first visit to the plant. During the course of his speech which sought to dissuade the employees from supporting the Union, Korn- stein told the assembled employees that, if they had any "troubles," they should "feel free to come into the office" to discuss them with management as the door to the front office was always open to them as it had been several months ago when some of the women at the plant had signed a petition asking for a review of their wage scale which resulted in an improved wage scale. Webster's testimony further shows that at the time she began her employment with Respondent she was given a copy of an employee handbook, entitled "Policies and Procedures," which under the heading of "Problems" gives each employ- ee the opportunity to discuss any problems he or she has at the plant with the employee's immediate supervisor and, if the problem is not resolved, then with general foremen and, if the problem is still not resolved, then with the plant's general manager. The full test of that section of the handbook reads as follows: PROBLEMS Any employee who has a problem should always feel free to discuss his problem with his immediate foreman or supervisor. If after doing this the employee does not receive an answer or is not satisfied with the answer received from his immediate superior, he should request of such superior that he be permitted to discuss the problem with the general foreman or general supervisor to whom the foreman or supervisor is responsible. Arrangements for such a discussion will be made by the foreman without undue delay. If no answer is received or if the answer received is not satisfactory in this second discussion, the employee may request that his problem be further aired with the next higher management representative, and so on, to the general manager of the Plant. Discussion and Conclusions Respondent's brief seeks to characterize the above-de- scribed interrogations by management personnel of Re- spondent's employees on their union sympathies and activities as "casual inquiries" or as "joking" inquiries and therefore lacking the quality of coercion required for violations of the Act. Respondent also contends that General Foreman Mullins' inquiries of employees on what they thought about the "problem" at the plant or "the mess that everything's in right now" is "too ambiguous and minimal an inquiry to constitute interrogation of employees as to their Union activity." While the record does show that the questions put by management personnel to the employees about their union sympathies were often couched in indirect language and asked in a casual or even joking manner, I find and McGarry's heretofore noted antiunion letter of October 16,1975, to the plant employees. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude from the number of the employees so interrogat- ed, from the number of the top management personnel who engaged in the interrogations, and from the ways the employees by their cautious answers generally regarded the questions to be interrogations into their union sympathies and activities, that the interrogations, individually and collectively, were coercive in intent and were so regarded by the involved employees, despite the casual and indirect manner in which the questions were put. The above fording is reinforced by the fact that Respon- dent did not see fit to call any of the management people involved in the described interrogations to rebut the fact that such interrogations did take place or to deny that the purpose of the interrogations was for any purpose other than to ferret out the employees in the plant who were union sympathizers and activists. The finding is further reinforced by the fact that virtually all of the interrogations took place after the Company had discovered the union activity at its plant and after the Company had taken action to counteract such union activity by Plant Manager McGarry's aforenoted letter of October 16, 1975, to all the plant employees in which he frankly and openly stated the Company's opposition to the Union. The letter by its contents clearly indicates that, as of October 16, the Company had had legal advice as to what it could or could not do under the law to oppose the efforts of the Union to organize its plant.? It is noteworthy that, prior to the date of its letter and obviously before receiving legal advice, Respondent through Plant Manager McGarry engaged in a raw and outright unlawful interrogation of employee Brenda Graither as to the union activity going on at the plant. Thus, as shown above, McGarry, as early as October 9, 1975, asked Graither not only whether the Union was seeking to organize the plant but also the percentage of the workers who had signed union authorization cards. But, thereafter, and obviously following legal advice, the Com- pany's interrogation as to union sympathies and activities became indirect and disguised as questions on the "prob- lem" or the "mess" at the plant, but the purpose remained the same, to ferret out union sympathizers and activists. I further find that these disguised interrogations, whether intended or not, had the coercive effect of making the employees fearful of expressing any union interest because of possible company reprisals. I accordingly find that Respondent's so-called "casual" or "joking" interrogations about the union activity at the plant are interrogations of a coercive nature despite their indirection because they tended to interfere with the employees' exercise of rights guaranteed under the Act. Florida Steel Corporation, 215 NLRB 97 (1974). I also fmd all other defenses to the interrogations to be without merit. In sum, I find and conclude that Respondent is in multiple violation of Section 8(a)(l) of the Act by reason of its numerous coercive interrogations of its employees on their union sympathies and activities, substantially as alleged in the complaint. Respondent contends that, even if the above-described interrogations are found to be unlawful, the Company should nevertheless not be found in violation of the Act by reason of Plant Manager McGarry's letter of November 26, 1975, to the employees by which Respondent contends there has been a retraction of the unlawful interrogations by reason of McGarry's statement therein, after consulta- tion with counsel, "that the Company is completely opposed to any interrogation or surveillance concerning union activities." For reasons stated in the following section of this Decision, I find Respondent's alleged retrac- tions of the unlawful interrogations to be ineffective as retractions. In support of the allegation of the complaint that Respondent Plant Superintendent Al Stainer on or about October 18, 1975, solicited grievances from the Company's employees in order to dissuade them from supporting the Union, counsel for General Counsel appears to rely on the above-described testimony of employees Mary and Becky Ditto, Carolyn Hill, and Richard Monroe. My above findings on the testimony of these employee-witnesses and the description of their testimony in General Counsel's brief fail to show that Superintendent Stainer solicited grievances of any kind, in the commonly accepted mean- ings of that word, from the indicated employees for the purpose of dissuading them from supporting the Union. Accordingly, I will recommend the dismissal of the in- volved allegation of the complaint for failure of proof. In support of the allegation of the complaint that Respondent President Kornstein, "solicited grievances from its employees in order to dissuade them from supporting the Union," General Counsel relies on the unrebutted and wholly credited testimony of former short- time employee Bonita Webster that Kornstein in mid- October 1975 in a speech to the assembled plant employees told them to "feel free to come into the office" to discuss any troubles they had in their employment at the plant. However, as shown in the findings, Webster's testimony also shows that Kornstein's invitation to the employees to take up any problems they may have with the front office was merely a reiteration of the Company's long established "open door" policy to individual employee problems as set forth in the Company's employees' handbook of which Webster received a copy as a new employee before the Union had commenced its campaign to organize Respon- dent's plant. In view of the fact that the Company's employees' handbook work rules were published and distributed to the employees long before the Union began its campaign to organize the plant, I find and conclude that Kornstein's reminder to the assembled employees of the rights of employees under the company rules to present grievances to all succeeding levels of resident supervisors at the plant did not become violative of the Act merely because the reminder took place during the heat of a union organiza- tional drive. I accordingly further find and conclude that there was a failure of proof that Kornstein solicited grievances from Respondent's employees in order to dissuade them from supporting the Union as alleged in the complaint merely by his reminder to the employees of their appeal rights on personal grievances through company channels under a r The letter, for example, states, "Under Federal law, Douglas cannot try to win votes during the campaign by improving wages or benefits or by even promising to make any future improvements in wages and benefits." DOUGLAS DIVISION 1023 company rule adopted and established long before the present union activities commenced at the plant. It is obvious that Kornstein, in reminding the employees of their rights under company rules to process grievances through company channels, was not soliciting grievances for better wages or benefits because in his speech to the employees Kornstein read the aforementioned sentence from Plant Manager McGarry's letter of October 16, 1975, to the employees, to wit: "Under Federal law, Douglas cannot try to win votes during the campaign by improving wages or benefits or by even promising to make any future improve- ments in wages and benefits." For the above-stated reasons I will likewise recommend the dismissal of the allegation that Respondent through President Kornstein solicited grievances in order to dis- suade its employees from supporting the Union because of failure of proof. C. Issue as to Surveillance Impression The complaint alleges that in the latter part of October 1975 Respondent's aforementioned plant superintendent, Stainer, "created the impression" that the Company had the union activities of its employees under surveillance. The employee who testified in support of the above allegation is the aforementioned Henrietta Tate.8 Tate's unrebutted and wholly credited testimony shows the following evidence on the impression of surveillance issue. At or around the date of October 20, 1975, Plant Superintendent Stainer contacted Tate in the shipping department and asked her if her aforementioned coworker, William Allen, Jr., who was then on a week's vacation from the plant, had received Plant Manager McGarry's hereto- fore described letter of October 16, 1975, setting forth the Company's opposition to the Union. Tate said she did not know because she had not spoken to Allen. Stainer commented that he "figured" that Allen already knew about the union activity at the plant and laughingly added, "I figured you two [Tate and Allen] were one of the biggest ducks in the puddle." Tate responded that she did not know about that. Stainer thereupon taunted her, "You do know, don't you?" and Tate answered, "It's more than just one or two; it's more like everybody." Stainer responded, "Oh," and walked away. As part of its affirmative defense on the impression of surveillance issue as well as on the interrogation issues, Respondent has alleged that, if the violations are found, they "were isolated in nature and/or were effectively and fully retracted by Respondent." In proof of the "retraction" defense, Respondent relies on the "P. S." or postscript to Plant Manager McGarry's heretofore noted letter of November 26, 1975, to all the employees in the plant .9 The postscript to McGarry's November 26 letter reads as follows: P. S. I just talked to one of the Company lawyers and he wants me to let everybody know that the Company is completely opposed to any interrogation or surveillance concerning union activities . Quite frankly, all of these 8 In an earlier section of this Decision it was found that Tate on October 20, 1975, had been unlawfully interrogated by Personnel Director Howard. 9 The body of that letter was quoted and discussed above in connection legal rules are pretty hard for me to understand and I know that I haven't intentionally done anything wrong. However, if I have questioned any of you about your union feelings, I want to apologize and assure you that I won't do it again - and that also goes for Dave and Nate and Al. All we want is a fair campaign with a lot of honest talk about some of the problems and difficulties that can come from this union and collective bargaining - just the Facts - nothing more and nothing less. The phrase in the letter reading, "and that also goes for Dave and Nate and Al," are references to David Colbert, the Company's molding operations manager, Nathan Howard, the Company's personnel manager, and Al Stainer, the Company's plant superintendent, respectively. I find no references to David Colbert in the transcript of the testimony in the case or in the briefs of counsel. In connection with the timelessness of the above -alleged retractions under the PS in McGarry's letter, I take official notice of the pending representation case involving Re- spondent in Case 26-RC-5134, pursuant to the request of General Counsel. (See fns. 8 and 15 in his brief.) The petition in the representation proceeding, filed on October 14, 1975, is currently blocked by the instant unfair labor practice case. Discussion and Conclusions Under the complaint herein all of the numerous unfair labor practices charged to Respondent, except one, are alleged to have taken place in the month of October 1975. Respondent showed official cognizance of the union activity going on at its plant in October by its letter of October 16, 1976, to its employees. The findings in the previous section of this Decision show that all of Respon- dent's many unlawful interrogations took place in the same month of October. The above-described and undisputed conversation on the issue of Respondent's creation of the impression of surveillance of union activity also took place, as shown, in the same month of October. In the light of these facts I adduce and find that in the month of October the matter that was uppermost in the minds of both management personnel and Respondent's rank-and-file employees was the then ongoing campaign by the Union to organize Respondent's plant. Under these circumstances I infer and find that when Plant Superintendent Stainer, as shown above, laughingly but undisputedly accused Henrietta Tate along with Allen, Jr., of being among "the biggest ducks in the puddle," Stainer clearly meant and conveyed to Tate that she and Allen, Jr., were among the leaders in the Union's campaign to organize the plant. I find that Tate clearly and instanta- neously understood that to be the meaning of Stainer's remark as disclosed by her reply, "It is more than one or two; it's more like everybody." I, therefore, find and conclude that Stainer's remark to Henrietta Tate that she and Allen, Jr., were the "biggest ducks in the puddle" was not an ambiguous remark as contended in defense by Respondent but, on the contrary, with the issue described under the caption , "Issue as to the Threat To Close Plant f Union got in. " Under the present discussion, we are concerned only with McGarry's postscript to the letter after his signature. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the remark clearly and unambiguously conveyed the impression to Tate that Respondent had been keeping employee union activity at the plant under surveillance as alleged in the complaint in violation of the Act. Respondent's second defense to the impression of surveil- lance issue, if decided adversely to Respondent as so decided above, is that the complaint thereon is nevertheless subject to dismissal because of Respondent's alleged retraction of its unfair labor practices as set forth in the above-quoted postscript in Plant Manager McGarry's letter of November 26, 1975, wherein McGarry in behalf of himself and Personnel Manager Howard and Plant Super- intendent Stainer apologized for any "surveillance concern- ing union activities" as well as for "any interrogation" and assured the employees that there would be no repetition of such unlawful conduct in the future. While it is established that an employer may relieve himself of liability for coercive conduct by repudiation, it is also established that a repudiation, in order to be effective, must be "timely," "unambiguous," "specific in nature to the coercive conduct," and "free from other prescribed illegal conduct." Sequoyah Spinning Mills, Inc., 194 NLRB 1175, 1192 (1972); Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439, 1442 (1949); Salant & Salant, Incorporated 92 NLRB 417, 444-446 (1950); Livingston Shirt Corporation, etc., 107 NLRB 400, 402-403 (1953); Austin Powder Company, 141 NLRB 183, 191-192 (1963); Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bottling Co. of Sioux City, Iowa, 170 NLRB 438, fn. 4 (1968); and Fleetwood Trailer Co., Inc., 118 NLRB 1355 (1957). I find that General Manager McGarry's attempted letter repudiation of November 26, 1975, of many of the Company's unfair labor practices during the preceding month of October was too late and, accordingly, too untimely to meet the requirements of law to erase the effects such unfair labor practices would have on the results of an election for which the Union had petitioned the Board on October 14, 1975, unless remedial action is granted and complied with by Respondent. I also find that McGarry's attempted repudiation does not have the "unambiguous" quality required under the statute to save Respondent from remedial liability . This is evident from the fact that McGarry by his letter does not squarely acknowledge that any of the alleged unfair labor practices have been committed, but merely states that "if" he and his named supervisory associates have engaged in any unlawful interrogations, they apologize and promise that they "won't do it again." Moreover, while the letter states that upon legal advice the Company is opposed to "surveillance concerning union activities," as well as to unlawful interrogations, the letter is totally devoid of any express repudiation of the Company's above-found con- duct in creating an impression of surveillance of its employees' union activities. In the letter McGarry further states that it was "pretty hard" for him to understand even, under the advice of counsel, that he had "intentionally done anything wrong." This is a further factor reflecting the ambiguity of Respondent's alleged repudiation. Finally, McGarry's repudiation letter fails to meet the legal requirements that a repudiation must be "specific in nature to the coercive conduct," because the letter fails to make any reference to General Foreman Mullins' above- found undisputed interrogations of employees on their union sympathies and activities which by their inherent nature were coercive. Thus, there is a total failure of proof ofany repudiation of Mullin's unlawful interrogations. As aforenoted the alleged repudiations here under consideration are not a part of the body of McGarry's letter of November 26, 1975, but appear therein as a postscript. The body of the letter contains antiunion propaganda. The alleged repudiations by McGarry's postscript are oversha- dowed and outweighed by the antiunion propaganda in the body of the letter; thus, the repudiations, even if they were per se valid, would not constitute an effective substitute for a Board order requiring Respondent to cease and desist from the unfair labor practices here under consideration. In sum, I find and conclude for the reasons above stated that Respondent's affirmative defenses of a retraction of both Respondent's unlawful interrogations and its creation of an impression of surveillance of the union activities of its employees are without merit and do not constitute effective substitutes for an appropriate cease -and-desist order here- in. D. Issue as to Alleged Invalid No-Solicitation Rule The evidence shows that Respondent has a printed handbook of employee rules which is distributed to all employees, heretofore referred to in another connection, the front cover of which bears the title, "Policies and Procedures." On the subject of solicitations, the handbook states the company policy as follows: NO SOLICITATION POLICY Employees shall not engage in solicitations of any kind on the premises of the Company during their working hours. . . . [Emphasis supplied.] The record shows that the above policy rule was promulgated by Respondent in the commonly accepted sense of having been posted and also circulated among the employees. Respondent, however, denies that this policy rule was maintained and enforced as alleged in the complaint. The same employee handbook also contains a related concurrent no-solicitation rule under the general caption of, "Plant Rules and Regulations," which reads in pertinent part as follows: 2. Employees shall not engage in any solicitations of any kind on the premises of the Company during any time that they are expected to be working. Furthermore, employees shall not distribute any kind of notices, circulars, or written materials at any time that they are expected to be working.... [Emphasis supplied.] I find the above concurrent plant rule and regulation to be a clarification of Respondent's aforenoted "No Solicita- tion Policy." The record shows that the Company's above-described employee handbook, containing its "No Solicitation Poli- cy" and its "No Solicitation Rule," was printed and DOUGLAS DIVISION distributed at a time when no union activity was going on at Respondent's plant. Although the above first-quoted "No Solicitation Policy" on its face 10 appears to prohibit solicitations of any kind by employees "during their working hours," the undisputed record shows that Respondent has made no attempt to maintain and enforce that no-solicitation policy during any rest and lunch periods. This is established by the unrebut- ted testimony of the aforementioned former employee, Bonita Webster, one of General Counsel's witnesses, who in her period of employment at the plant became an ardent, active, and uncompromising solicitor of union support. Her undisputed testimony shows that during break periods she solicited support for the Union, regardless of whether or not any supervisors were within earshot, without any hin- drance, interference, or restraint from management person- nel. Her undisputed testimony further shows that these break periods were also used to solicit money for the benefit of the sick children of fellow employees and in connection with funerals, without hindrance, interference, or restraint from Respondent. Under the above evidentiary findings, I find and con- clude that Respondent's "No Solicitation Policy," as clarified by Respondent's concurrent "No Solicitation Rule," and as further clarified by actual practice, does not bar solicitations for union support during rest and lunch periods, but prohibits such solicitations only during work- ing time. Discussion and Conclusions Counsel for General Counsel in his brief offers no rationale for his requested ruling that Respondent's "No Solicitation Policy," as clarified by Respondent's concur- rent "No Solicitation Rule" and as further clarified by actual practice, is violative of the Act but appears to leave it up to the Administrative Law Judge to supply such rationale. I find that the cases cited by Respondent and my own research fails to supply any rationale or justification for a holding that Respondent's "No Solicitation Policy," under the above expressly stated circumstances, is unlaw- ful. On the contrary, the principal case relied on by General Counsel, Essex International, Inc., 211 NLRB 749 (1974), is in itself authority for the dismissal of the allegation of the complaint charging a violation of the Act by reason of Respondent's "no solicitation policy." Although the Essex case does hold that a company rule prohibiting solicitations "during working hours" is prima facie invalid, the Essex case also holds (at 750) that an employer may "show by extrinsic evidence that, in the context of a particular case, the `working hours' rule was communicated or applied in such a way as to convey an intent clearly to permit solicitation during breaktime or other periods when employees are not actively at work." In the present case Respondent has shown by both intrinsic and extrinsic evidence that its no-solicitation policy applied only to working time. The "intrinsic evidence" is that the very employee handbook in which Respondent's no-solici- tation policy "during work hours" is printed also carries a 10 As distinguished from Respondent's concurrent "No Solicitation" plant rule. i l The notice also stated, "In addition to the above, we wish to bring to 1025 clarification rule which as shown prohibits solicitations by employees only "during the time they are expected to be working." The "extrinsic evidence" is that Respondent has not enforced its no-so';citation policy in break periods, as in actual practice union solicitations during break periods have been permitted in the plant without any hindrance, interference, or restraint by Respondent. For these reasons the allegation of the complaint here under consideration will be recommended for dismissal because of failure of proof. E. Issue on Validity of Posted Notice Limiting Use of Women's Restroom In the latter part of October 1975 Respondent posted the following notice on the door of women's plant restroom: Final Notice This notice is to bring to your attention that the Company will not tolerate any further abuse by certain employees using the women's restroom. It has been observed that as many as two to six employees are leaving their work stations at the same time. If this condition is not corrected at once, disciplinary action will be taken and in certain cases cause immediate discharge of the employee.11 The record shows through the credited testimony of Personnel Manager Howard, as corroborated by the heretofore mentioned employees, Mary Ditto and Brenda Graither, that the above notice replaced an identical or similar notice which had been on the door of the women's restroom for a year or so prior to the posting of the above- quoted, "Final Notice," except that the caption, "Final Notice" was not on the first posted notice. At the time of the posting of the original notice, there was no union activity at the plant. The old notice was replaced because it had become torn but more importantly because Howard had had complaints from General Foreman Mullins and the line foreman about the use of the restroom for apparently social reasons by the same group of employees, and because he (Howard) on checking on these complaints had personally observed that a certain group of the same five or six female employees would leave their work stations at 8 o'clock in the morning and again at or about 2:30 in the afternoon to congregate in the women's restroom which has a commodious lounge room in addition to an adjoining commode room. This apparent misuse of the women's restroom facilities has been a problem at the plant from at least since 1973 when Howard took over his duties at the factory as personnel manager. Howard's testimony, as corroborated by employee Brenda Graither, shows that from time to time he has had to admonish certain groups of women about their excessive misuse of the women's restroom. Howard's credited testimony further shows that this misuse of the restroom facilities by a certain group of women became so acute in October 1975 as to cause him to post the above- your attention that there is a five-minute period from 3:25 till 3:30 for cleaning your work areas. Your cooperation in the above memo will be greatly appreciated and expected " 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noted stern warning against such misuse in his "Final Notice." The record is undisputed that the use of the women's restroom in nonbreak periods for any use other than for lavatory purposes has the effect of slowing down Respon- dent's production and thus adding to the cost of produc- tion. It is also undisputed that Respondent's female employees are free to use the ladies' restroom at any time for strictly lavatory purposes. In this connection, Howard's credited testimony shows that the Company has, "never set a limit of two people in the bathroom." Discussion and Conclusions For purposes of convenience I requote below the body of Respondent's "Final Notice" with respect to the use of the women's restroom in the plant. This notice is to bring to your attention that the Company will not tolerate any further abuse by certain employees using the women's restroom. It has been observed that as many as two to six employees are leaving their work stations at the same time. If this condition is not corrected at once, disciplinary action will be taken and in certain cases cause immediate discharge of the employee. The complaint specifically alleges that the above final notice, "allows not more than two persons to be in the restroom at one time," and that Respondent posted the final notice "because its employees joined or assisted the Union, or engaged in other union or concerted activities for the purpose of collective bargaining." I find first that there is a complete failure of proof that the quoted "Final Notice," as alleged, "allows not more than two persons to be in the restroom at one time," because there is nothing in the final notice that literally bars more than two women being in the ladies' restroom at one time for legitimate purposes. It is evident from the very first sentence in the final notice that the whole thrust of the notice was against "any further abuse by certain employees using the women's restroom," and not for the purpose of imposing any limitation of the number of women simulta- neously seeking to use the restroom for lavatory purposes as distinguished from loitering. (Emphasis supplied.) The undisputed testimony of Personnel Manager Howard, as corroborated by employee testimony, shows that the Company "never set a limit of two people in the bathroom" for lavatory purposes. The employee testimony further shows that it was well known among the female employees at the plant that the final notice was meant as a warning only to certain employees who by prearrangement used the restroom lounge for simultaneous unauthorized rest breaks. Secondly, I further find that, even if the ladies' restroom was used by certain employees for union activities at the times they were expected to be working, it was not unlawful 12 N.L.R.B v. Express Publishing Company, 312 U.S. 426(1941); N.LR.B. v Entwistle Mfg Co., 120 F.2d 532 (C.A. 4, 1941); Consolidated Industries, Inc, 106 NLRB 60(1954), and cases cited therein. 13 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, under the Essex case, supra, for Respondent to prohibit such use of the restroom during working time. In conclusion I find and conclude that Respondent promulgated and maintained the above-quoted restroom rule for substantial business reasons and not because of union activity. For these reasons, I will recommend the dismissal of allegations of the complaint here under consideration for failure of proof. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The above-named Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) of the Act. 2. The above-named Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as provided in the recommended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease-and-desist order.12 Upon the foregoing findings of fact and the entire record in this proceeding, I make the following: ORDER 13 The Respondent, Douglas Division, The Scott & Fetzer Company, Walnut Ridge, Arkansas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening its employees that it would close its plant if they selected the Union as their collective-bargaining representative. (b) Interrogating its employees concerning their union membership, activities, and desires. (c) Creating the impression that the union activities of its employees are under surveillance by the Company. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. DOUGLAS DIVISION (a) Post at its plant in Walnut Ridge, Arkansas, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 26, 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 thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to 14 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 1027 ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS ALSO ORDERED that, as to all allegations of the complaint not specifically found to have been in violation of the Act, those allegations shall be dismissed. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."