Borun Brothers, Inc.

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borun Brothers, Incorp~ated, a wholly owned sub- sidiary of Thrifty orporation and Teamsters, Chauffeurs, Wareh usemen and Helpers Local Union No. 533, filiated with International Brotherhood of Te msters, Chauffeurs, Ware· housemen and Help rs of America Borun Brothers, Incorp.rated, a wholly owned sub- sidiary of Thrifty: Corporation and Evelyn Gaston. Cases 32-JA-2105, 32-CA-2639, and 32-RC-836 July24, 1981 DECISION AND ORDER On January 21, 1981) Administrative Law Judge Joan Wieder issued th~' attached Decision in this proceeding. Thereafter Respondent fi1ed excep- tions and a supporting rief, and the General Coun- sel fi1ed a statement i partial opposition to Re- spondent's exceptions. , The Board has consi~ered the record and the at- tached Decision in litht of the exceptions and briefs and has decided 1··· to affirm the rulings, find- ings, 1 and conclusions of the Administrative Law Judge and to adopt h r recommended Order, as modified herein. 2. ORDER i Pursuant to Section lO(c) of the National Labor Relations Act, as amenJ' ed, the National Labor Re- lations Board adopts as its Order the recommended 1 Respondent has excepted to ertain credibility findings made by the Administrative Law Judge. It i . the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi· bility unless the clear preponderapce of all of the relevant evidence con- vinces us that the resolutions are: incorrect. Sumdord Dry Woll Produc1s. Inc., 91 NLRB 544 (1950), enfd.i 188 F.2d 362 (3d Cir. 1951). We have ~arefully examined the record~d find no basis for reversing her find- mgs. The Conclusions of Law sect n of the Administrative Law Judge's Decision recites a violation of . 8(a)(5) to which both Respondent and the General Counsel except. Th complaint contains no allegation of a refusal to bargain and there w . no testimony taken on that issue nor findings of fact made. The 8(a)(5)i violation appears to have been included erroneously and par. 7 will there(ore be deleted and the subsequent para- graphs renumbered accordingly. We also amplify Conclusion of Law 3 to include the words "promulgatiniand" immediately before "mainlaining in effect an unlawful no-solicitati nino-distribution rule," in accord with the complaint. • The Administrative Law Ju ge included a broad order at par. l(e). We substitute a narrow order in accord with Hickmo/1 Foods. Inc., 242 NLRB 1357 (1980), and in accor with the corresponding paragraph con· tained in the notice. Also, par. I( ) of the Order is corrected to conform with the Administrative Law Juclge's Conclusion of Law 3, as amplified. The Administratrive Law Judg~ inadvertently (sec. II, par. 16) referred to Dennis as having attended t~ August 21 counseling session. Dennis did participate in counseling Wa:ls on March 12 and 13 of the following year. We agree with the Administra ive Law Judge's findings sustaining the objections to the election and ad pi her recommendation to set aside the election. Accordingly, we shall r mand Case 32-RC-836 to the Regional Director for purposes of schedul ng and conducting a second election at an appropriate time. , We have conformed the Ad1'inistrative Law Judge's recommended Order and notice. :: 257 NLRB No. 3 Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Borun Brothers, Incorporated, a wholly owned subsidiary of Thrifty Corporation, Sparks, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph l(d): "(d) Promulgating and maintaining an invalid no· solicitation/no-distribution rule, and applying it in a discriminatory manner." 2. Insert the following as paragraph l(e) and re- letter the subsequent paragraph accordingly: "(e) Discouraging membership in or activities on behalf of Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 533, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by discharging em· ployees or discriminating against them in their hire or tenure." 3. Substitute the following for original paragraph l(e): "(f) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act." 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT threaten you with reduced wages and benefits and other reprisals for en- gaging in concerted protected activity in the BORUN BROTHERS, INC. 157 event a union becomes I your collective-bar- gaining representative. 11 WE WILL !'lOT coerci~ely interrogate you about your union activiti¢s, sympathies, or de- • 1l stres. : WE WILL NOT poll yo~ about your desire to be represented by a union. WE WILL NOT engagle in surveillance or create the impression that we have your union activities under surveilla~e. WE WILL NOT promu~ate and maintain an invalid no-solicitation/no-distribution rule and apply it in a discriminatoty manner. WE WILL NOT discour~ge membership in or activities on behalf of ~eamsters, Chauffeurs, Warehousemen and HelJters Local Union No. 533, affiliated with Intellnational Brotherhood of Teamsters, Chauffeur$, Warehousemen and Helpers of America, or ~y other labor organi- zation, by discharging e~ 11 ployees or discrimi- nating against them in th ir hire or tenure. WE WILL NOT in any ike or related manner interfere with, restrain, ~r coerce our employ- ees in the exercise of Jhe rights guaranteed them by Section 7 of thei Act. WE WILL rescind aJ1d expunge from our personnel or other records the written warning issued to Jeannie MarielWatts, and all reports or other references to a, y other alleged viola- tions by Jeannie Marie Watts, Stephen Taran- tino, and Robert Gilbeh of our "solicitation and distribution" rule or! to any counseling ses- sions we had with other,employees concerning this rule. : WE WILL cease repritPanding or disciplining employees for violajtions of our no- solicitation/no-distributif. n rule, and discri- minatorily enforcing th rule so as to unlaw- fully interfere with ou . employees' rights to solicit on behalf of a labpr organization. WE WILL, if necess.ry, reimburse Robert Gilbert and Stephen Tdrantino for any wages not yet reimbursed as a k.' esult of their discrimi- natory discharges, plus i~lterest. BORUN BROTHERS, I INCORPORATED, A WHOLLY OWNED I SUBSIDIARY OF THRIFTY CORPORAtiON DECISI~N STATEMENT OF ~HE CASE JOAN WIEDER, Administrathle Law Judge: These con- solidated cases were heard at Reno, Nevada, on July 8 and 9, 1980, 1 pursuant to chlrges filed by Teamsters, Unless otherwise indicated, all dat s herein refer to the year 1979. ,, Chauffeurs, Warehousemen and Helpers Local Union No. 533, affiliated with International Brotherhood of Teamsters, Chauffuers, Warehousemen and Helpers of America, herein called the Union, in Cuse 32-CA-2105 on September 3 and amended on September 20; and, in Case 32-CA-2639; the charge was filed by Evelyn Gaston, an individual, on April 9, 1980, and was amend- ed on April 25, 1980. A consolidated amended complaint was issued on May 28, 1980. 2 Objections to conduct af- fecting the results of a representation election were timely filed by the Union in Case 32-RC-836 which was consolidated, in part, with the unfair labor practice cases for hearing before an administrative law judge. The amended complaint alleges that Borun Brothers, a wholly owned subsidiary of Thrifty Corporation, herein- after referred to as the Company or Respondent, has en- gaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, herein called the Act. Pursuant to a Decision and Direction of Election dated October 5, an election by secret ballot was con- ducted by the National Labor Relations Board on No- vember 2, which resulted in 33 ballots cast for the Peti· tioner and 136 ballots cast against the Petitioner. There were 38 challenged ballots which were not determinative of the results of the election. On November 9, Petitioner timely filed objections to conduct affecting the results of the election. On December 31, the Acting Regional Di- rector issued a Supplemental Decision and Order over- ruling certain objections, in whole or in part, 3 and, on March 7, the Regional Director, in a Second Supplemen- tal Decision, issued an order consolidating Case 32-RC- 836 with Case 32-CA-2106 for the purpose of hearing, ruling, and decision by an administrative law judge on the issues raised in certain of Petitioner's objections4 and in the complaint in Case 32-CA-2105. No exceptions were filed to the Supplemental Decision or to the "Second Supplemental Decision, Order Consolidating Cases and Notice of Hearing." The objections, as here pertinent, are coextensive with the alleged unfair labor practices with the exception of Objection 9, which claims that Respondent unlawfully and materially misrepresented the union-employee rela- tionship at times calculated to preclude the Union from having an opportunity to reply effectively. The coexten- sive allegations include claims of unlawful surveillance or impression of surveillance, interrogation, and/or poll- ing of employees regarding their union membership, ac- tivities, or sympathies, 5 unlawful threats of discharge or 2 The complaint was also orally amended at the hearing. 3 Objections 4, 7, 8, 10, 12, 13, 14. 15, 18 through 22, and 23 were over ruled in their entirety and Objections 5 and 6 were overruled in part. 4 Objections I, 2, 3, 9, 11. 16, 17, 24, and those parts of Objections 5 and 6 relating to the discharge of employees Tarantino and Gilbert. • Objection 1 10 the election also contends that the Company permit- ted a third party 10 prescreen casuals and applicants for potential employ- ment regarding their union sympathies and the Acting Regional Director for Region 32 found this objection raised issues of fact warranting a hear· ing. The complaint, as amended, does not include a similar allegation. II is assumed that the Union abandoned that portion of Objection 1 by virtue of its failure 10 adduce any evidence probative of the allegation and since it did not file a brief. Accordingly. it is rcc<'mmcndcd that this portion of Objection 1 be overruled. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other discriminatory activity because employees were en- gaging in concerted prote4ted activity, the promulgation and maintenance of a. n u~wful no-solicitation/no-distri- bution rule which was di riminatorily enforced, the dis- criminatory discharge of obert Gilbert and Steven Tar- antino, and the discrimi atory disciplining of Jeannie Watts. Respondent denies Interfering with the conduct of the election as alleged in t~e Union's objections and also denies violating Section s~·· )(1) and (3) of the Act. All parties were given ull opportunity to participate, to introduce relevant evid nee, to examine and cross-ex- amine the witnesses, to a gue orally, and to file briefs. Briefs, which have been c refully considered, were filed on behalf of the General . ounsel and the Company. Upon the entire record !lof the case, and from my ob- servation of the witness±and their demeanor, I make the following: FIN DIN S OF FACT I. THE ALLEGED U •. FAlR LABOR PRACTICES li A. Blfckground Respondent is a wholl~owned subsidiary of Thrifty Corporation which is a alifornia corporation engaged in the sale and distributi n of merchandise within the States of Nevada and Cali rnia. 6 In March 1979, the C~mpany opened a new ware- house in Sparks, Nevada, 11 and then commenced staffing the facility. All the houri~· paid employees who testified herein were employed as forklift drivers. In May, the warehouse opened for bu iness. Also in May, the Union commenced its organizing campaign. The Company experieliced difficulty in commencing operations; initial conditio6s were described as poor, and at times the warehouse w~s "totally inoperable." In addi- tion to permanently assifned supervisors, Respondent temporarily assigned supe visors from other locations to the warehouse to assist in hiring, training, and other ac- tivities necessitated by the difficulties in launching a new warehouse and the exigef.!Cies such a new operation en- genders in creating a funftional facility. The uncontro- verted evidence is that itt. kes about 1 year before a new warehouse becomes fully nctional. The parties stipulated o agreed that the following in- dividuals were supervisor at the Sparks, Nevada, ware- house at the pertinent ti : Gary Thompson, currently plant superintendent and ~he individual in charge of op- erations; Dennis Malamu~, a division manager; Terry McConne11;7 Robert Nor~cutt; Patrick Kennedy; Glen Mai; Dick Rowe; Rubin Salgatto; Jim Rau; Personnel Manager; Larry Dennis, Mulroony; and Bob Scurrah. Additionally, Bill D. Eve ett, labor relations representa- tive for Thrifty, frequent] traveled from Thrifty's cor- • Jurisdiction is not in issue. kespondent admits, and ) lind, that it meets the Board's $50,000 direct~· utflow standard for the assertion of ju- risdiction. 1t is also admitted and found herein that the Union is a labor organization within the meaning Sec. 2(5) of the Act. 1 Counsel for Respondent re resented that at the time of hearing McConnell was in a coma as a re ult of an automobile accident, and was unable to testify. Counsel for the . eneral Counsel accepted this represen· tation. Accordingly, no inference$ will be drawn from the failure to call McConnell. I! porate headquarters in Los Angeles, California, to the Sparks warehouse to assist local management and to take charge of the Company's efforts to defeat the Union's or- ganizing activities. Everett prepared, for distribution to the employees, a handbook entitled "Welcome to Thrifty." Some employ- ees received the handbook at the time they were hired by the Company. The handbook contains the foJiowing solicitation and distribution rule: In order to help insure that you and your feilow employees are not disturbed at your working sta- tions while on the job, it is therefore our policy that there be no distribution of literature, of a political or other nature, or solicitations of any kind on Com- pany time. In addition, there shall be no solicitation or distribution of literature of any kind on the job by persons not employed at Thrifty. We request your cooperation and any activities of this sort should be reported to your Supervisor immediately. [Emphasis supplied.] The handbook, under the heading general work rules, further provides: We have never felt it was necessary to have a set of strict and formal work rules for our employees since we like to feel you generally understand what we expect of you. However, in any organization of our size, it is necessary that certain rules and proce- dures be spelled out in writing. A copy of those rules will be given to you. Remember, it is very im- portant that each of us follow the instructions of his or her supervisor in the good performance of work. Specific work rules will be discussed with you from time to time and we will expect you to adhere to them. Our type of business requires good cooperation and teamwork among all our employees. Give each other a helping hand when bottlenecks occur or when someone is absent and the workload is a bit heavier on certain jobs. In this way, all of our work will be easier. B. The Allegations, Events, and Objections Involving Jeannie Watts8 1. The events occurring on or about June 5 Watts was employed on April 23 as a stacker and 2 weeks later became a forklift driver. On or about June 4, Watts and several coworkers9 were having lunch in Watts' van and listening to music when Thompson walked by. Watts jokingly invited him into her office and Thompson laughed, said no, not now, and continued on to his vehicle.1o Watts then avers that on June 5, as she was driving her forklift, Thompson stopped her, told her to park the 8 The testimony of Walls refers to pars. 6(a), (b), (c), and (g). 7, and 8 of the consolidated amended complaint and Objections l, 3, 5, 6, 9, 16, and 17. 9 One coworker was Evelyn Marie Gaston. 1 0 Thompson recalled the incident. BORUN BROTHERS, INC. 159 I · h h · vehicle, bought her a cup of coffeeJ and met wtt er m his office. 11 According to Watts, Thompson stated that he wanted to talk to her about the tlnion organizing cam- paign, that it was his understandifg that authorizat~on cards were being distributed from Her van. Watts rephed that the cards were not coming frpm her van, that she knew where they were coming fro{n, but she would not tell Thompson the source. Thomps.<tn then a~ked if .Watts did not think it would be better tf the Umon watted I year to ascertain how Responden~ "was" before com- mencing an organizing campaign. ~atts agre~d. that "it was rather early" to commence a limon orgamzmg cam- paign. Thompson then commented I that the salaries were sufficient. Watts also avers that lhompson then stated that Nevadans were lower class p ople than Californians and did not "want" greater sa!arie~. This comment asser- tedly angered Watts because he~'' son was a native of Nevada; hence, she replied that s e did not know about the Company's other employees,, but she had taken a drop in wages to work for Respon~ent. It is further claimed by Watt~ that Thompson then told her that the subjects they d~scussed "were to stay within the four walls, and that it Y.,.as off the record, and that he wanted me to think abo+t what the Teamsters were trying to do. And I told hirrl that at a meeting that Mr. Everett had, he had told u$ to go [to) the union meeting, and hear what the Unio+ had to say, and listen to their side. And I told him [ThOJmpson] that I had done that." I Thompson stated that he beca,e aware of Watts' ac- tivities on behalf of the Union in! the latter part of June and recalled having a conversati<.J!n with her around June S. However, Thompson denies di+cussing the Union with Watts during that meeti~g and !specifically denied ~er version of the conversatiOn. Rather, Thompson clatms that he attempted to get Watts to apply for a manage- ment position because he was vf:ry impressed with her capabilities. According to Thompson, Watts "expressed to me that she had no interest ih it because I think her words to me were, 'This place ~ all screwed up."' It is asserted by Thompson that he rc;plied that it would take about I year to shake "all the ~ugs out of the place." Thompson further claims Watts !also declined a manage- ment position "because her farnjily history had been all organized labor, that she had rel~tives that were in orga- nized labor, that was her whol~ bag, not management." Thompson testified that, at the ~'tim~ of this . n:eeting, he believes he knew about the U ton s orgamzmg efforts but does not recall if he knew, that authorization cards were then being distributed.*'' Thompson believes he learned cards were being distri uted sometime in early summer. Finally, Thompson st .ted that he first became aware of Watts' support of the llJnion's organizing effort when she began wearing a Te+.msters T-shirt or hat in the latter part of June. Watts cl~ims that she had applied for a managerial trainee positio* in June or July but was not given the advancement. W~tts denies discussing the possibility of her becoming a mhnager at this meeting but does recall such a conversation !at a later date, at the end '' It is unrefuted. that Watts was no~· requested to punch out; hence, the meetmg was dunng working time. I I of January or beginning of February 1980, in the pres- ence of Malamut and Kennedy. In late July, Watts started wearing to work, about twice a week, a shirt with the inscription "Go Team· sters" and a hat with the inscription "Local 533," and continued this practice until the election in November. 2. Events of August ! On August I, Malamut and McConnell told Watts that coworkers had complained that she was soliciting union cards "during working hours on July 30." According to Watts, Malamut did most of the talking, stating that it had been called to his attention by several employees that Watts had been soliciting union cards "on company time" which "was upsetting to them .... and that I [Watts] ... or anyone that I talked to regarding the Union could be terminated." Watts states that "I told him, no way was I soliciting cards on Company time, that I knew my Federal rights." She explained later in her testimony that her Federal rights permitted solicita- tion during her breaks and lunch hour. She was then told to return to her job. There was no discussion regarding the issuance of a written warning, counseling notice, or other document at that time. Furthermore, the specific individuals complaining or the times, locations, or other details involved in the asserted violation of the Compa- ny's policy were not discussed. Malamut's testimony was similar to Watts', stating that he informed her of complaints by employees but claim- ing that he informed her that she had been soliciting during working time, not company time. He also asserted that he asked Watts if she knew the company rules, and that she replied that it was the same as the Federal rule, that she could solicit during her break or during lunch- time. Malamut finally avers that he informed Watts that she could receive a written counseling notice for her ac- tivities. It is admitted that Malamut did not inform Watts which employees complained about her activities. The employees who complained about Watts did not testify. 3. Events of August 21 On August 21, 1979, Watts was again advised by two supervisors, McConnell and Bob Scurrah, that she violat- ed the Company's no-solicitation/no-distribution rule. Scurrah, according to Watts, did most of the talking. Ini- tially, he gave her a counseling notice 12 and requested she read it. •• The notice stated: Reason for counseling: Ms. Walts is the subject of several employ· ee complaints regarding her active union solicitation during working time. The above mentioned employees describe her conduct as "Up· setting." What precisely was employee told? Ms. Watts was told that the company's "No Solicitation Rule" prohibits solicitation during work· ing time, working time meaning the time actually spent performing employment functions. Ms. Watts was also told that further viola· lions would result in her termination. Employee's comments and reactions: Ms. Watts denied that she was soliciting during company time and that the employees were ap- proaching her about the union. What needs to be done to correct the situation? Ms. Walls must adhere to the company "No Solicitation Rule," !herby [sic] refrain· mg from union solicitation during working time. 1 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 160 Scurrah, according to ,Jatts, then told her that Re- spondent had a no-solicita;lbn rule which was contained in the "Welcome to Thrift}'l" pamphlet. Watts stated she had never received the pamthlet "and I didn't know that there was a no-soliciting ule. I took out my Federal rights from my apron, and . ut them on the table, and I told him that I know my Fli!deral rights, that I could talk about the Union as well asEaseball, football, and having babies ... that my lawyer told me that, and he [the su- pervisor] told me that per. aps my lawyer should have my job." According to W!ltts, she indicated to Scurrah that her Federal rights allted her to solicit during her break times, including lun . It is unrefuted that Watts was not informed of the etails of the complaints re- ferred to in the counseling! notice such as the time and place the alleged violationf of the company's rules oc- curred or the coworkers nvolved. Watts asked to be permitted to confront the. individuals that complained about her activities but th~ request was denied. Neither Scurrah nor the coworkert· that were said to have com- plained that they were "up et" by her activities testified. 4. Events of . arch 12 and 13 On March 12, Watts c~· me to work with about 50 copies of a newspaper arti le which discussed sexual ha· rassment of employees. W tts asserted that she handed out four copies of the article prior to going to lunch and distributed additional copie1· during lunch as well as post- ing a copy on the bulletin oard. The four copies handed out prior to lunch, Watts .!aims, were distributed while passing other employees arid no work stoppages or con- versations occurred. Wattt' unrefuted testimony is that later in the day, Larry De nisl3 called her into the per- sonnel office, showed he a copy of the article, and asked if she had distributed! the material; to which she re- plied in the affirmative. DJ' nnis then inquired if she had any personal experience o knew of any experiences of sexual harassment, and sh said no, that she only heard rumors in the warehouse ~bout one of the supervisors. Watts was then informedtthat it was necessary to get permission prior to post' g material on the bulletin board. Next Dennis inquire why she distributed the arti- cle and she stated she did inot think there would be any repercussions from her act. ons, she did not consider her activity "a violation" of ything. Watts was informed that she would receive a c unseling notice. The following day, in t~e presence of Thompson and Dennis, Watts received th1· counseling notice. 14 Thomp- '" Dennis did not testify. t< This notice read: .: Reason for counseling: M~ 1 Watts active solicitation of hand out information to other employ s without first asking a management evaluation. As to the time los for employees excepting this informa- tion Mrs. Walls gave no cons· eration. What precisely was emplo~ee told? Mrs. Watts was told that the company has a "NO" Solicita!'on rule for the second lime. First time being 8-1-79. Also that the c mpany can and will not tolerate these continuous self motivated dec ions. Employee's comments and reactions? Mrs. Watts freely admitted to distribution of public publ,.shed literature and freely admitted to having given no thought to t e time the company would lose as to the time lost in reading it o handing it out stating only that she thought all women should see it. son informed Watts that Dennis was the best friend she had in the plant because he did not "take any action against her," but that this was the last and final warning, one more mistake and she would be fired. 15 Thompson also stated, according to Watts, "that the employees looked at her as a leader and that, as a leader, there is a price to pay." Thompson then left the office and it is uncontroverted that Dennis told Watts "that he felt that I was being used by some of the people in the plant, and that I'd been had by the Union, and that that was off the record, and if Mr. Everett knew that he had said that to me, that he would be very upset." Watts further testified that prior to the meeting she had never been told that it was necessary to receive per- mission prior to posting material on the bulletin board, and that no written instructions relative to this work rule were ever distributed to her or posted; to her knowledge the types of material posted on the bulletin board were items for sale such as cars, guns, furniture, and an- nouncements of services offered by individuals such as babysitting. 16 Respondent did not refute Watts' testimony that the employees do not punch in and out at breaktimes, only for lunch, during the workday. 17 It was stipulated by the parties that the employees are paid for their time on breaks. Furthermore, Watts testified, without contradic- tion, that during the summer of 1979 the plant was in chaos, there was more merchandise than storage space which often 18 resulted in the forklift drivers being told to wait at a particular place for various times, as short as 2 or 3 minutes up to lO and, occasionally, 20 minutes each, depending how many drivers were delivering mer- chandise at the time to one particular area. The drivers were not instructed to perform any other work duties while waiting and they were not precluded from general conversation. During these periods of waiting, when su- pervisors were present, the employees were never in- structed to be quiet or stop talking, nor were the em- ployees told that only certain subjects could be dis- cussed. In addition to the generalized operating pattern during the summer discussed above, Watts detailed several spe- cific incidents where both hourly employees and supervi- sors engaged in nonwork related activities during work· ing time. In September, shortly after punching in, Terry McConnell held a meeting of all employees present at the warehouse to discuss a company picnic. In October, Thompson announced over the public address system that there would be a Halloween costume party in the What needs to be done to correct the situation? An immediate and sufficient improvement in conduct will be required, or further disci· plinary action will be taken including termination. 10 Thompson did not dispute the accuracy of Watts' version of the meeting. •• Gaston, a coworker, testified without contradiction that she was never informed of a rule requiring the receipt of permission prior to post· ing material on the bulletin board. 11 Initially, Respondent attempted to have the employees punch out at breaktime, but the lines were so long that the mechanics of the operation took longer than the time allotted the employees for their breaks. 18 Watts' estimation is uncontroverted and is credited. BORUN BROTHERS, INC. 161 I lunchroom on October 30 and priz¢s would be awarded. The employees did wear costumesl to work on October 30, the party was held and, after ljhe normal lunchtime, prizes were awarded for the best qostumes in four cate- gories. Another incident related b~ the witness invoived another public announcement by I Thompson, in early 1980, during working time, regardjing the solicitation of contributions for two employees "-'ho were involved in an automobile accident, to the eff.ct that these employ- ees were not eligible for coveragf under the insurance policy; hence, a coffee can would ~e placed on the desk of the security guard 19 if anyope wished to donate money. The can remained at the g~ards' desk for several days. j Both Thompson and Everett te~tified about the solici- tation of contributions for the enflployees injured in an automobile accident. Thompson believed such solicita- tions were consistent with comp~ny policy and histori- cally had been permitted at otl:ler company locations were he had previously work~d. Everett informed Thompson, upon hearing of the sqlicitation, that such ac- tivity fell into a "grey area." Thmppson was not directed to remove the coffee can or subjfcted to any discipline, but removed the coffee can in resJ!>onse to Everett's com- ment. The coffee can had been at lthe guards' desk 3 or 4 days prior to Everett's comment$ to Thompson regard- ing the possible impropriety of thib solicitation. Other incidents Watts testified to relative to the solici- tation-distribution rule included tbe distribution of a car- toon on March 25, during workipg time in the presence of Jim Rau and Glen Mai 20 and'' two hourly employees who were laughing. During Oct~ber, Watts received an invitation from a coworker to ~ party during working time in the presence of Jim MuiJroony and three other hourly employees. Mulroony, a ~pervisor, was standing approximately 8 or 10 feet away ifrom her and observing the incident from a position abo~e the location of the in- cident. Mulroony did not testify ~nd Respondent did not present any other evidence refut~g Watts' description of the incident. Also, in the latter !lart of April, Thompson announced during working timd that there would be a picnic and Bill Buchanan 21 wo¥ld accept donations for the picnic. Thompson acknowlerged that Buchanan uti- lized the public address system to solicit donations for beverages for the picnic which ~as the means chosen by the baseball team to raise mone~ for the purchase of uni- forms. The Company sponsors 1 the baseball team. Ac- ,. The desk was located between thelmain entry and the warehouse area. which was not a working area for ~ rklift drivers. 20 It was stipulated by all parties I Jim Rau and Glen Mai were supervisors as defined in the Act. While ondent disclaims knowledge by Evereu or Thompson or these acti . there is no evidence that the Company or these supervisors, Rau. . Thompson, or Everett, ever disavowed these activities or otherwise i~formed employees that such ac- tions were improper. There was no showing that these activities were un- dertaken on behalf of the Company as • builder or morale, rapport, or other basis. See International Association J,f Machinists. Toal & Die Makers Lodge No. 35, etc. [Serrick Corp.] v. N.Jt ... R.B., 311 U.S. 72 (1940). This same reasoning pertains to the other suJ!ervisors employed by Respond- st. i 21 Buchanan is an employee who is o~ the recreation committee. The recreation committee is composed of sejven hourly paid employees and two supervisors including Thompson. 1hey meet during working time and try to plan activities for the employi. cording to Thompson, hourly paid employees are not al- lowed to use the public address system which is normal- ly utilized for work-related announcements or company- sponsored activities, such as the baseball team. Employee requests to use the public address system for solicitations or other announcements unrelated to company-sponsored activities, Thompson alleges, have been consistently and routinely denied. The baseball tear!' was considered a company-sponsored activity. A further incident Watts recalled involved a birthday party for a supervisor, Rubin Salgatto, which was held in the breakroom, and began during breaktime but ex- tended into working time. About 30 to 35 employees at- tended the party and monetary contributions were solic· ited from Watts by Peggy Wright, an hourly paid em- ployee. No one else was present during this solicitation. Thompson knew there was to be a party for Salgatto during breaktime. Thompson's office was contiguous to the party site. Thompson asserts that he was not asked if the employees could solicit funds for presents or food to be distributed at this party. Salgatto did not testify. Therefore, the nature or extent of supervisory knowl- edge about solicitation for food or presents for the party was not placed in evidence. However, knowledge by the highest company officials is not a necessary finding in determining if Section 8(a)(l) of the Act were violated. See Dover Garage ll, Inc., 237 NLRB 1015 (1978), and Montgomery Ward & Co., Incorporated, 115 NLRB 645 (1956), enfd. 242 F.2d 494 (1957). C. The Events InvoMng Stephen Tarantino22 Tarantino commenced employment with Respondent on May 14, I 979. Shortly thereafter, he became a forklift operator working on the receiving dock. In the middle of August, Tarantino began wearing hats bearing union logos daily urHil the day he was terminated, September 20, 1979. It is alleged that Tarantino's activities regarding the organizing efforts of the Union were observed by Respondent and became the basis for coercive interroga- tions and discharge. I. Events of August 28 and 29 The first incident allegedly forming a basis for a viola- tion of the Act, according to the General Counsel, oc- curred on or about August 28 when Tarantino attended a dinner party hosted by the Union at a restaurant located in a casino known as John Ascuaga's Nugget (Nugget) located in Sparks, Nevada. Tarantino saw Thompson at the Nugget that evening and they exchanged greetings. According to Tarantino, he considered Thompson's pres- ence at the club mere coincidence. The following day, Tarantino asserts, as he was driving his forklift, Thomp- son requested Tarantino to stop work for a moment so that they could converse. Thompson inquired how many people were at the meeting the preceding evening to which Tarantino replied "a few." Thompson again in- quired "how many," to which Tarantino claims he re- plied it was privileged information, that he could not talk •• Objections I. 3, 5. 6. 11. and 16 and pars. 6(e), 6(:). 7. and 8 of the complaint. 162 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD about it on company tiJ. Tarantino then states he formed Tarantino that it was possible to get a change in drove off and returned to h~ job. shift because Tarantino was a good machine operator, Thompson asserts that h~ frequented the Nugget with that they did have late shift openings, and that he then his wife because they were~· esiding in a hotel or motel at suggested to Tarantino that he should put such a request the time and went out to t e Nugget almost every eve- in writing. Thompson denies handing Tarantino a trans- ning Monday through Frid y for dinner. Thompson does fer request at the moment because they were out on the recall an incident with Tar. ntino on August 26, but his floor of the warehouse but does believe that he referred version is greatly disparate !!from Tarantino's. According Tarantino to the personnel office to acquire the requisite to Thompson, Tarantino dl. ove up to Thompson on his forms and to make his wishes for a transfer known at the forklift and remarked, "A whole bunch of us saw you personnel office. Thompson also denies discussing with last night at the Nugget out half-lit." Thompson re- Tarantino, at this time or at any other time, unions in plied that he did not see apyone there, that he had not general or Tarantino's specific union activity or procliv- noticed any employees. Tijompson did recall having a ities. The discussion, assertedly, was of a strictly personal few drinks that evening ai:d playing the slot machines nature involving Tarantino's financial difficulties involv- and admitted to being " robably half-lit." Thompson ing the repossession of his car and his furniture and the does deny having knowled e of any employees' presence fact that his wife had left him and he needed extra at the casino until Tarantinp's comments and does recall money to cover legal fees, which were the matters ne- asking Tarantino where T~antino was sitting when he cessitating the transfer to another shift to facilitate the saw Thompson. Tarantino id not mention the employ- procurement of a second part-time job and additional ees included in the group hat saw Thompson that eve- income. Specifically, Thompson denies telling Tarantino ning nor did he state that t ere was a union meeting con- that the employees could not do any better with the ducted at the Nugget. Thqmpson denies inquiring as to Union and that if the employees did acquire union repre- why Tarantino was there, [.' tating that "the Nugget was sentation that they would lose pay and benefits. It is ~~o~~t~h~h~n~~;li~;e~~a~~d m~~=~~~::to7~e;;!~~e~:?. noted that Tarantino did not dispute discussing his finan- cial or marital difficulties with Thompson. 2. Events o~ September 10 Another incident allegedly violative of Section 8(a)(l) of the Act occurred in the early part of September, ap- proximately on September 10. Tarantino claims that he requested a transfer to the . ight shift at a time he was in the personnel office and saiv Gary Thompson. Tarantino avers that Thompson, aftet giving the form used to re- quest a transfer to Taranti o, asked to speak to Taran- tino, stating, "He told me ot to misunderstand him, that he was curious for his OWI!l knowledge, as to what the Union had offered to do i 11 r us as the employees of the company." In reply, Tara ino assertedly inquired what the Company was doing fi r employees. Thompson was then said to have stated "t at the Union couldn't do any better for us than they h•d done for anybody else in Nevada, and that it would :result, if we went along with the Union, it would resultjin a loss of pay, or lowering of wages, and less benefits. ' After making this statement, the bell rang for coffeebre .k and Tarantino told Thomp- son it was time for him tOil have his coffee and left. Ac- cording to Tarantino, thatE•• as the extent of the conver- sation and it did not cont in details such as discussions involving collective-bargai ing negotiations or the meth- ods employed by unions a d companies to reach agree- ments in their contract neg~tiations. Thompson did recall T{antino inquiring if he could get a transfer to the late s ift and stated that Tarantino gave as his reason that h wanted to get a second job which his then current assi nment to the 7 to 4 shift pre- vented. According to Th mpson, he represented that Tarantino told him that Ttantino located a job that he could work at in the morn ng and that if he could carry two jobs he could get hi self out of debt. Thompson disclaimed knowing what the second job was to be but knew that Tarantino was Ia "slot machine mechanic or something to that effect." !Thompson claims that he in- 3. Events of September 19 and 20 On September 19, Tarantino attended a hearing at the National Labor Relations Board involving objections to an election. Prior to attending the hearing he showed the subpena he received to attend said hearing to Personnel Manager Patrick Kennedy. At the objection to election hearing, McConnell was present as well as Dennis Mala- mut. The following day, September 20, Tarantino went to work and in the afternoon had occasion to go to the personnel office to inquire about a raise he felt was due and owing. He discussed the raise with Patrick Kenne- dy.23 When leaving that day, Tarantino noticed that his timecard was not in the rack but it did not occur to him that he had a potential problem with his Employer be- cause he had previously observed certain clerical em- ployees remove timecards for personnel office purposes. Later that day, he was paged and told to go to the personnel office. When he arrived at the personnel office, both Patrick Kennedy and Dennis Malamut were present. Malamut did most of the talking. Malamut said "that they had received several complaints about my union activity on company time, and that they felt that one complaint they would take with a grain of salt. Three or four complaints, they would tend to believe the allegation. Then they told me at that time they felt that they had no other alternative-no other recourse but to terminate me. And, I asked them, what was the reason- well, the actual reason. Who was accusing me of this? And I asked them to bring those people forward, so I could answer to their faces what was going on. And they said they didn't have to do that." According to Tarantino, he then inquired as to why he did not get a •• II should be noted that Patrick Kennedy did not testify. The reason for Kennedy's failure to testify was not explained. BORUN BROTHERS, INC. 163 warning. The supervisor indicated ~hat the violation of the solicitation rule was one of sevetal grounds they con- sidered to be a basis for immediat4 . · termination. Taran- tino then assertedly inquired why! Jeannie Watts was warned for violating the solicitatiorl rule and he was not accorded similar treatment. Malarrjut assertedly replied that he was not aware of the cirtumstances of Watts' case and asked Tarantino to step o4tside the office while he reviewed Watts' file. Tarantiqo stated he left the office and remained outside apprbximately 5 minutes. Kennedy, he believes, then asked him to reenter the office. Malamut then told him that' the circumstances in Watts' case were different and the felt they still had to terminate him and that Kennedy would pay whatever money was due and owing. Mala1'' ut then left. Accord- ing to Tarantino, he was interview d prior to being hired by Malamut and did discuss the gounds for termination without a prior warning. Accordi~g to Tarantino, Mala- rout stated that the company policy required the immedi- ate termination for violations of r~les regarding falsifica- tion of employment application,~' tghting, and stealing. Those are the only three grounds or immediate termina- tion, according to Malamut, at t e time of his employ- ment interview. Union solicitatio1 was not mentioned as a basis for immediate termination uring the interview. Tarantino did not deny that .· e had been soliciting during working time. Similar to ~atts' testimony, Taran- tino said that the operation of thel" warehouse was highly disorganized, that there would be 1many times when they would be stationary on their fork~fts waiting for the res- olution of a problem as to wherej they should take mer- chandise or where merchandise ~hould be stacked. Tar- antino estimated that, as a minim~m, 10 times a day fork- lift drivers would be standing o~ sitting waiting for su- pervisors to decide what to do ~ith particular merchan- dise; each time they would spend! from 2 to 7 and 8 min- utes awaiting such decisions. D~ring these hiatuses in work, he was never instructed Jiot to talk to other em- ployees, nor was he ever told t'*t there was a rule for- bidding talking while he was going about his work. There was never a discussion br a listing of matters which were forbidden as subjeqts of discussion during working hours. Tarantino did npt have an occasion to speak with supervisors about n4:mwork related subjects but he did hear such matters a~ company picnics being announced over the public addfess system; he recalled observing a party at the warehduse at which employees in the shipping area participate~ after breaktime. Upon his employment, Tarantino didj receive a copy of the booklet entitled "Welcome to Thrifty," but he did not receive any oral or written stat¢ments concerning union solicitation other than the booklft nor did he receive any warnings or explanations regarding union solicitation. In addition to counseling Wbtts on August I, 1979, Malamut admitted that he waJ' the individual who in- formed Tarantino that he was erminated on September 20. According to Malamut, he. told Tarantino that the Company had received numer1us complaints from em- ployees that he was soliciting Jon behalf of the Union during times when he should pe working and that the complaints stated that Tarantinjo was interrupting other employees during their workifg time. Malamut stated that he inquired if Tarantino knew what the Company's policy was regarding solicitation to which Tarantino re- plied in the affirmative and went on to explain that he could solicit at breaktimes, lunchtime, and before or after work. Tarantino, according to Malamut, stated that he might have possibly solicited during working time, "on company time." In contravention of Tarantino's testimo- ny, Malamut specifically denied disc;..ssing with Taran- tino the grounds for discharge from employment at Thrifty or talking about any work rules during his em- ployment interview. He stated that he could recall very clearly Tarantino's interview even though he did inter- view "a couple of hundred prospective employees." It appears that what Malamut did mean was that he utilized a standard format during the interviews and that he could not remember Tarantino's interview word for word; rather, he followed the standard format. According to Malamut, dischargeable offenses without prior warning include fighting, stealing, and falsification of the employment application. It is interesting to note that Malamut did not mention solicitation as a discharge- able offense without prior warning and that the factors listed by him during his testimony coincided with the factors Tarantino claims Malamut listed for him during the employment interview. However, Malamut specifi- cally denies discussing with Tarantino or any other em- ployee the specific standards of conduct at Thrifty. Ma- lamut does not know of any documents that incorporate a list of the offenses the Company considered discharge- able offenses without prior warnings. Malamut stated that Everett establishes the company policy which is not in writing. It is noted that when describing the basis for Tarantino's discharge, Malamut used the term "company time" but claims that he told Tarantino that he was solic- iting on working time and denies using the words "com- pany time" when addressing the subject matter with Tar- antino. It is also noted that only one employee com- plained about Tarantino's activities, contrary to Mala- rout's representation to Tarantino that he had received numerous complaints from employees. This misstatement of fact is one of the reasons Malamut's testimony is not credited. Everett testified that he had a role in the termination of Tarantino. According to Everett, on or about Septem- ber 19, Gary Thompson informed him that an employee named Diana Crabtree complained that Tarantino had been soliciting for the Union on "work time." Everett as- serted that he told Thompson that if the allegation was supported by a written statement from the complaining employee it would be grounds for termination, but with- out such a written statement management could not do much about the complaint. The next day Everett stated he received a call from a supervisor named Brocker- man24 who stated he got a written complaint from the employee. The employee complaint was read to him. The employee complaint states, "On three separate occa- sions I witnessed, during business hours (Not on brakes [sic] or lunch, Steve Tarantino soliciting for the Union. Once approx. 1 week ago in A-l and handing out union 2 4 Brockerman did not testify. 164 i DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign-up card. Again right Jner in front of section 401 change, there was no direct mention of the union while on his fork-lift to smlne younger personel. Again but due to the fact she wears the same union cap I yesterday the 18th, I witne$ed this again. I don't know just surmised she was speaking of a union contract. the names of the people h~ spoke to and did not hear The way Mr. Gilbert spoke of his interest in a anything. I only saw cards qhange hands and know they union being brought in, I would say he has and will were talking." (Emphasis su~· plied.)25 Based on Brocker- continue to make an untiering [sic] effort towards man's disclosure of the con ents of Crabtree's statement, completing this goal. I am myself dead against any Everett claims that he tol Brockerman to terminate union being brought in and said that if you must be Tarantino. Everett also be~i • ves he made the same state- forced to listen to someone in regards to the union ment to Malamut. There w s no explanation as to why that your time on the job is not the place or proper Tarantino was discharged ile Watts received warnings time to do so, and therefore thought it would be in and retained her job. : the best interests of myself and others to submit this J information to the people in charge of this dept. 28 D. The Events Jnvolring Robert Gilbert26 It is noted that the letter does not contain any allega- Robert Gilbert did not te$tify. Everett testified that he tion that Gilbert distributed authorization cards or that made the decision to termint.te Gilbert. The basis for the he was soliciting signatures thereupon. Also, Bledsoe's ~~~i~~on~a~fc~~~n~~rt~;~; 2t!, ;a~:t:e le~;~! 0:/ 1~j;~ letter was the only statement contained in the record that Northcutt was at the time me temporary personnel direc- purports that Respondent had a rule which forbade dis- tor at the Sparks facility. orthcutt, according to Ever- cussing union matters during working hours. It is further ett, informed him that Gibert had been soliciting on noted that the discussion, according to Bledsoe, occurred behalf of the Union during !working time which was the during one of the previously described hiatuses in work subject of an employee co~~laint. The complaining em· occasioned by the confusion of starting up a new ware- ployee, Robert Bledsoe, w* requested to give a written house, a fact admitted by Respondent. Furthermore, statement. Upon receipt of the written statement, North· there is no explanation as to why Gaston, who was men- cutt again telephoned Evirett and read the statement tioned by Bledsoe as having engaged in similar activity, supposedly written by Bled oe concerning Gilbert. Bled· was not similarly treated. soe did not testify. The stat ment reads as follows: Everett stated that after hearing the rendition of Bled- soe's statement over the telephone he ordered Gilbert On the 28th of Augu~t at 2:30 in the afternoon I terminated, asserting he gave Northcutt the authorization was waiting to get my forklift past an area in the to terminate Gilbert, telling him to caJl Gilbert and con- warehouse that someqne was trying to clear. An- front him with the allegation and, if Northcutt deemed it other machine was b~'ng delayed at the same time which was operated b a Mr. Robert Gilbert. While necessary, to terminate Gilbert. 29 The parties stipulated that prior to Gilbert's termination he received no written we were waiting I notced Mr. Gilbert's cap he was wearing had an insig*"a on the front of it. I asked counseling or warning regarding the Company's no- Mr. Gilbert the mea ing of the insignia and he solicitation/no-distribution rule. The parties further stipu- stated it was a local nion which was in our area. lated that Bledsoe received no discipline including a He then made a gesture for me to be quiet because written counseling or warning notice arising out of the we were not allowedJby the company policie [sic] incidents referred to in his written statement even though to discuss the matter. Without anyone saying any- he admitted in his written statement that he initiated the thing else to Mr. Gil ert he went on to say, I am conversation. bringing in an $8 pe~· our union in here, I've been Malamut testified that he did sit in on Gilbert's termi- working on it for so time. He then proceeded to nation but did not see Bledsoe's complaint nor did he state that he had inf mation about some financial know that Bledsoe was the party that made the com- facts about the Thrift~· Corp. saving some $30,000 a plaint which resulted in Gilbert's termination. All he year by there [sic] b ilding this warehouse in the knew was Gilbert was being discharged and he did not Sparks, Nev. area w. ich would more than cover even know there was a complaint. Malamut further testi- any additional costs in'i wages that might be incurred fied that Gilbert was considered a below average em- by the addition of al·union contract at our ware- ployee but stated that "he was not fired because of that." house. These stateme ts were made to me and two Everett had an occasion after the termination to see Gil- female employees wh I can physically identify but bert and inform him that the basis for his discharge was do not know by namt··. At that point the aisle was violation of company policy, the no-solicitation/no-distri- cleared and I went ab ut my work again. Later that bution rule. day an Evelyn Gasto. made a statement about her wages not being edough but that would soon 25 It is noted thai. comrary t) Malamut's testimony and Tarantino's represematio~ of the testimony, 1~ complaint itself does not allege that the complammg party was mterrufed durmg working hours or was pre· vemed from working during work· g hours. •• Objections 5. 6, 15, and 16 an complaint pars. 7 and 8. 27 Northcull did not testify. •• It should be noted that the copy of the letter submitted in evidence was not extremely clear and therefore the above quote may not be entire- ly accurate. 29 It was noted in the record that Everett's affidavit stated that, on hearing Bledsoe's written statement, Everett instructed Northcutt to ter· minate Gilbert, not to confront Gilbert with the material. and if necessary terminate him. This modification of prior testimony was not explained on the record. Furthermore, the failure of Northcutt to testify leaves the record devoid of evidence probative of the necessity to terminate Gilbert. BORUN BROTHERS, INC 165 E. The Events Involving Evelyn rwarie Gaston 30 Gaston commenced employment jwith Respondent on May 11, 1979, and voluntarily cease6 her employment on June 2, 1980. The first matter she tjestified to involves a meeting conducted by Everett iq the latter part of August. Most of the warehouse enjployees attended the meeting and during the meeting E~erett allegedly stated "that he knew who had signed th¢ cards and that they could get fired for it." Gaston alsol averred that Everett stated that he "did not want any sqlicitation of union au- thorization cards, that the ban was ~ot limited to specific locations or times of day, but was! rather a general ban on solicitation of authorization carps. According to Ev- erett, he held two meetings at tht warehouse with the entire work force. The first meetiqg was held on June 1 and the other on August 24, 1~79. He asserted that during these meetings he !explained the no- solicitation/no-distribution rule tq the employees. He claims that his explanation wa~ that the Company wanted no solicitation and no dist?bution of any type on working time but that the emplqyees were free to do what they wished during their bfeaks, lunch hours, or before and after work. Everett jclaims he further ex- plained that, while they were on ~he floor working, the Company wanted no distributionl or solicitation of any type. During the meetings, Everet avers, he gave the ex- ample of a Tupperware party or attempts to solicit au- thorization cards. j Another incident involving Ga$;on allegedly occurred after the election, on or about ~ovember 19. The inci- dent involved a conversation with Thompson who re- quested that she get off her lift ahd talk with him. Also present, according to Gaston, jas Jim Brockerman. 31 According to Gaston, Thompson! initiated the conversa- tion by stating, "[l]t had come to ~is attention from three warehouse employees that I wps soliciting a petition against Thrifty for union activitifs." Gaston asserts that she responded by stating she did !not know what he was talking about. Thompson then ~tssertedly told her that she knew the consequences of such solicitation. Gaston claims she responded by informjng Thompson that she did not know what he was talki$g about, that she knew her Federal rights and that Th4mpson knew what her Federal rights were. According! to Gaston, Thompson did not explicate further regarding when she was sup- posedly soliciting or which Employees complained. Thompson was present during Gaston's testimony and stated that he has no recollectioh of the incident related by her and definitely did not!'' recall discussing with Gaston anything about unions or,, a petition to the "Labor Board," even though Gaston alfged that Thompson in- quired about her activities of so iciting a petition against Thrifty after the election. As previously indicated, she ~ad never been informed about a management rule requirihg prior permission from management before posting an~ material on the lunch- room bulletin board. Additiona~ly, she claims she never heard of a company rule pro~ibiting employees from chatting with one another aboyt matters not related to ,, 30 Objections 2, 16, 17, and 24 and co~plaint pars. 6(h). 7, and 8. 01 The parties did not explain Brocketan's absence from the hearing. work during the course of their performance of duties within the warehouse. In fact, Gaston stated that she had many conversations with supervisors about matters unre- lated to work during working time. One example she gave was conversations with her supervisor, Chuck Rice, about baseball. Gaston was on the Thrifty baseball team which induced many conversations with Rice, a baseball aficionado, about that subject. They had such conversa- tions almost every time they saw one another which was about four or five times a day. Baseball was not the ex- clusive subject matter of their conversations; they dis- cussed many different subjects. 32 The General Counsel inquired of Gaston about an inci· dent during the beginning of December 1979 which is characterized as illustrative of the type of discussions be- tween supervisors and coworkers during working time about nonwork related matters, but is not alleged in the complaint to be a violation of the Act. The incident re- ferred to by Gaston involved several coworkers and Su- pervisors Mulroony and Rau. As Gaston was dropping merchandise off at a specific section of the warehouse, she passed by Mulroony and two coworkers who were passing a little card around. The card was placed into evidence and was a card with a joke on it. She stopped and the card was handed to her. She briefly inspected the card and returned it. The incident occurred right after lunch during worktime. One employee involved in the incident was at her work station and the other one was about 25 feet away from her work station. It was stipulated that the personnel files of the Company were searched and that such search failed to produce the exist- ence of any warnings issued to the individuals involved in the joke card incident. On the same day, Gaston saw the card in Jim Rau's possession. She saw Rau with the card during the afternoon on working time. Rau also presented the card to her in front of the receiving office. Rau wanted her to look at it so she grabbed the card, inspected it, and returned it to Rau saying she had al- ready seen it. Rau did not say anything to her but was laughing, according to Gaston. Gaston did not receive any discipline for looking at the card. Thompson dis- avows any knowledge of Rau's and Mulroony's activities with regard to the card, stating the first time he had heard about it was when Gaston so testified. Thompson further testified that he had never been informed that a supervisor was distributing nonwork-related documents during working time. He did recall other incidents where nonsupervisory employees were accused of distributing nonwork-related material during working time which were made the subjects of investigations and, where ap- propriate, discipline was imposed. He speculated that if he had been informed that the supervisor was distribut- ing nonworkrelated material during working. time, a simi- lar investigation would have been conducted and appro- priate disciplinary action taken where warranted. 32 H was stipulated by the parties that Chuck Rice was a supervisor within the meaning of the Act at the time the alleged events occurred. Rice did not testify. 166 DECJSJONS OF NATJONAL LABOR RELATlONS BOARD F. Everett's N.~vember 1 Speech Objection 9 alleges that verett, during a speech given on November I, 1979, mad substantial and material mis- representation of fact at a tife calculated to preclude the opportunity for an effective! reply. The speech was made on November I, the day bJore the election. According to Watts, during the speec Everett held up a bookl~t which he represented to be the Union's constitution. It 1s averred that Everett claim d that the Union's constitu- tion stated that if a memb did not pay the union dues that the Union could confllscate the member's property even if the member had wi~hdrawn from the Union and that the Union could col·Jscate an employee's home, leaving them homeless. T e booklet held up was de- scribed as thick and com rised of white paper. Watts stated that Everett did not read from the booklet. The subject matter arose, accor. ing to Watts, because Ever- ett stated it was the last ancl final time to talk to the em- ployees before they voted ~nd he wanted the employees to be knowledgeable abou~· that particular article in the Union's constitution. She d es not believe that he cited a particular article or provis on that could be inspected. The meeting was conducte at 7 a.m. on November I with a majority of the wa house employees in attend- ance. Watts does not recall jf Everett had any notes with him. She just recalled the thick booklet that he referred to as the Union's constit~· tion. Watts did not recall whether employees asked uestions during the meeting but stated that she had nev r seen the Teamsters consti- tution or bylaws, just the co stitution of Local 533. According to Everett, du ing the November I meeting he did have a copy of the ~nternational's constitution in addition to some typewritte~ notes. He opened the meet- ing by reading two paragr[· hs from his notes and then informed the employees tha he would like to read a few articles from the Union's co stitution. Everett states that he read from the constituti n verbatim and then briefly went over the material he ¢overed with the employees. The meeting took about ani! hour. Everett informed the employees of where the elet· tion was to be held and the procedures followed in con ucting the election. Everett says he urged the employ s to vote, informing them their vote was secret and n one would ever know how they voted. It is also ave . ed by Everett that he in- formed the employees thati regardless of the outcome they were the Company's employees and that no em- ployee, either prounion or ~ntiunion, had any reason to fear retribution by the Com ny. Everett stated that one o the portions he read dealt with the constitution's provi ions pertaining to collection of dues, lines, and assessmen s. 33 Then, according to Ev- "" The one portion read by Everlu is art. XXVI, sees. I through 3, which provide as follows: l Section I. The provisions of Its Constitution relating to the pay. ment of dues, assessments, lines or penallies, etc., shall not be con· strued as incorporating into an union security contract those re· quirements for good standing m bership which may be in violation of applicable Jaw, nor shall the be construed as requiring any em· ployer to violate any applicable 'aw. However, all such financial obli· garions imposed by or under this! Constitution and local union bylaws (and in conformity therewith) e legal obligations of the members upon whom imposed and enforce in a court of law. [Emphasis ap· erett, the employees asked questions such as when they would get results of the election to which he replied that the Board agent would count the votes at the close of the polls and that they probably would know who won by 6 or 6:30 that evening. Everett then informed the em· ployees that they would keep someone on telephone duty in the event that employees wanted to telephone after 6:30 p.m. to ascertain the results of the election. He also stated that an employee inquired about the fines and assessments section that he read from the Union's consti- tution and he also inquired about how far the Union could go to collect moneys due and owing it, and he re- plied that they were collectible in a court of law and the Union could go to court to collect dues and fines and as- sessments. Everett did not recall who asked the question which was raised immediately after he read from the In- ternational constitution. He believes the employee in- quired whether that section meant the employees could lose their homes and he believes he answered that under the article that dues, fines, and assessments were legiti· mate debts that were enforceable in a court of law and there were certain procedures the Union would have to go through. He stated it was possible they could eventu- ally get a judgment in a court of law against the employ- ees but he does not recall saying anything else. Everett does not recall saying anything about enforcement of judgments. Everett also cannot recall anything being said about confiscation of property. II. ANALYSIS AND CONCLUSIONS Respondent argues that the counsel for General Coun- sel has not proved the allegations by a preponderance of the evidence. The key to the resolution of most of the issues is recognized by the parties to be the question of the validity of the no-solicitation/no-distribution rule. Respondent contends that the term "company time" is not overly broad for it clearly refers to time which be· longs to the Company; i.e., the time the employees should be working for the Company. Contrary to this contention, the Board has repeatedly found that the use of the term "company time" in a rule prohibiting pro- tected activity is unduly ambiguous and overly broad, rendering the rule susceptible to interpretation that so- licitation is prohibited during all business hours, which is unduly restrictive of the employee's rights protected by Section 7 of the Act, and hence is presumptively unlaw- ful. See Plastic Film Products Corp., 238 NLRB 135 (1978), citing Florida Steel Corporation. 215 NLRB 97 (1974), and Stewart-Warner Corporation, 215 NLRB 219 parently was supplied by Everett in the copy introduced into the record by Respondent.] The two paragraphs read by Everett from a prepared speech state: During the times we have had our meetings together the one subject that I've not discussed with you is that of the Rules and Regulations adopted by the Teamsters and contained in their International Con- stitution. This is a document containing one hundred eighty-eight (188) pages which I would suggest that all of you who wish to become members of the Teamsters become familiar with before making your final decision. This document covers everything from the salaries of the International Officers to the election procedures for each Local and includes methods of dues, fines, assessments and other charges. I BORUN BROTHERS, INC. 167 I l (1974). See, generally, Fayetteville I~dustrial Maintenance, Inc., 218 NLRB 888, 889 (1975), ar1d Clinton Corn Proc- essing Company, a Division of Standj'rd Brands Incorporat- ed, 253 NLRB 622 (1980). Respondent, citing Essex Interna!lpnal, Inc., 211 NLRB 749 (1974), asserts that its represent4tives cured the ambi- guity of the company handbook byi clearly conveying to employees its intent to permit solicitation during "work- ing time, i.e. clock time other than break or lunch time." Everett testified that he explained lhe no-solicitation/no- distribution rule to Borun employ~es at two meetings, one conducted June I and the othtr on August 24. The evidence, rather than supporting t~e contention, demon- strates the existence of confusion., among Respondent's representatives regarding the mealjling of this rule. For example, in a letter to the Union, t~e Company's director of industrial relations, Everett, defl. med the rule as pro- hibiting solicitation during "workipg hours."34 The use of the term "working hours" is ~sceptible to the same ambiguous and overly broad inter relation of undue re- striction as the term "company ti e." See Essex Interna- tional. supra, and McBride's of Na lor Road, 229 NLRB 795 (1977). Additionally, while verett was explaining the rule to employees, he referre to the "Welcome to Thrifty" handbook which has heJjetofore been found to be presumptively violative of the Act. Duhig's August 1 complaint about Watts refers to 4-orking hours. In fact, when Everett was asked what, if .ny, was the difference between "working hours" and "1-vorking time," he re- plied that it was a "matter of senjlantics," which clearly demonstrates his Jack of underst~nding of the scope of permissible circumscription of prqtected activities. Thus, the testimony adduced by Respopdent is insufficient to overcome the presumption of unlawfulness of the rule. The record fails to demonstrat~ that Everett or any other representative of the Comwmy communicated the rule to its employees in such a wiy as to convey clearly and unambiguously an intent to p~rmit solicitation during breaktimes or other periods whe~ employees are not ac- tually at work. Accordingly, I fini:l the rule invalid on its face. l Respondent further argues thatithe rule was lawful for it further provided that employets "are not [to be] dis- turbed at your working stations ~hile on the job." Addi- tionally, it is contended that the $upervisory staff repeat- edly explained the rule to empl9yees and such explana- tions conveyed clearly an intent ,to prohibit solicitations only during "working time." E'l/en assuming, arguendo, that the rule, as promulgated dnd published, is not a prima facie violation of the Act, !the manner in which it was applied is found to be unlawful. As stated in Mueller Brass Co., 204 NLRB 617, 620 (1~73): The Board has heretofore pecided, with court ap- proval, that an employer m!IY not apply a no-solici- tation rule, valid on its fa~e, to forbid employees I 34 The letter states: I Please be advised that Ms. Jeannie Watts has been counselled for her solicitation of fellow employees duri~g working hours. Solicitation of employees during working hours is in ~iolation of company rules and as such a conrinuation of those acti1'ns by Ms. Watts will result in her discharge. [Emphasis supplied.] . standing in line to clock out a few minutes before quitting time, as was customary at the plant, from soliciting fellow employees in the line. Exide Alka- line Battery Division of ESB. Inc. v. N.L.R.B., 423 F.2d 663 (C.A. 4, 1970), enfg. 177 NLRB 778. It is undisputed that the working conditions in the warehouse were at times chaotic, necessitating frequent work stoppages. During these work stoppages, employ- ees and supervisors conversed about a variety of subjects unrelated to work. Accordingly, there is an absence of demonstration by the Company that the rule was needed to maintain discipline or production in its warehouse, or was otherwise justified. The General Counsel also alleges that the no- solicitation/no-distribution rule was enforced in a dis- criminatory manner; and hence, even if it is found that there was an adequate explanation of the rule, it was in- adequate to abate the coercive effect of such discrimina- tory application. Everett testified that, pursuant to company policy, if it has notice that a rule has been violated, a written warn- ing will be issued depending on the type and number of offenses. Employees are also given oral warnings. Ac- cording to Everett, the Company has a system of pro- gressive discipline. 35 In most instances, rule infractions normally result in oral counseling of an employee, except in those instances where there was gross misconduct or "a direct violation of company rules or policies." Oral counseling is utilized in those instances where the super- visor believes that the employee has a problem that can be corrected "such as attendance. First you talk to the employee and then put it in writing 36 and then probably suspend them and eventually terminate them if they don't improve." Also, according to Everett and Malamut, the follow- ing violations result in automatic discharge: any theft, any act of dishonesty including falsification of the appli- cation for employment, gross misconduct such as gross intentional violation of a company rule, violence of any nature, and certain criminal acts. The only distinguishing factor between a gross intentional violation of a compa- ny rule warranting discharge and one warranting an oral warning is the delineation given by Everett that the "em- ployee has a problem that can be corrected such as at- tendance." No other distinguishing characteristics be- tween the various infractions were offered in evidence. The testimony of Gaston and others that she was never informed of a company rule against talking during working time is uncontroverted. Therefore, it is conclud- ed that the subject matter or the nature of the activity engaged in during working time, as well as the individual involved, determines to some extent the characterization of the activity as a violation of the no-solicitation/no-dis- tribution rule. The evidence in this case fails to demon- strate that the rule was justified by a need to maintain 35 The handbook entit!ed "Welcome to Thrifty," as EvereH recalls. does not contain a description of Respondent's system of progressive dis· cipline. 36 Everett explained that the Company has no preset number of oral counselings that require the issuance of a writlen warning. Additionallv. there is no specified number of writlen warnings that leads to discharg~. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discipline or production in )s warehouse for admitted su- pervisors engaged in nonwdrk-related conversations and distribution of jokes durin& working time. See Plastic Film Products Corp., supra~ That one of the activities Thompson engaged in coul be described as charitable in nature and therefore exemp. from application of the rule under Board law is an unpejrsuasive argument relative to motive, for Everett, after first indicating that Thomp- son's actions fell into a gre area, later testified that he believed they were violati e of the rule. Holding this belief, Everett suggested tt Thompson that the coffee can used for the collection !of contributions be removed. Everett admittedly never !ontemplated recommending that disciplinary action be aken against Thompson and no reason was advanced f. r such a failure, particularly since Everett testified that tlhe rule applied equally to su- pervisors and hourly emplot· ees. This failure to proscribe similar activity among em loyees and supervisors, co- joined with the admission that Tarantino was a good worker and Gilbert, 37 l!!lthough an unsatisfactory worker, was discharged slely for a single violation of the no-solicitation/no-distri ution rule, is found to be a overreaction to the single iolation of work rule which was observed by other employees and supervisors only in the breach. This "overr¢action" to the violation of a work rule not shown to betnforced or needed to main- tain production supports i vidious motivation and is an indication of pretext. See . eptune Water Meter Co. v. N.L.R.B., 551 F.2d 568, ~70 (4th Cir. 1977); Flowers Baking Company, Inc., 240~NLRB 870, 872 (1979); and Sea-Land Service, Inc., 240 LRB 1146 (1979). That Ev- erett and Thompson discla m knowledge of some super- visors' breaches of the Colflpany's no-solicitation/no-dis- tribution rule is not an excJ:ilpatory factor, for Respond- ent has failed to demonstrtte that special circumstances obtained. See J. S. AbercrOttz.bie Company, 83 NLRB 524, 529 (1949), enfd. 180 F.2d;578 (5th Cir. 1950). Supervi- sory status is sufficient, in ~his case, to conclude that the actions of Rau, Mulroony, rand others in similarly strate- gic positions translated to heir subordinates the policies and desires of Respondent. See N.L.R.B. v. Cities Service Oil Company, 129 F.2d 933J 935 (2d Cir. 1942). This finding is buttresselby the contents of the com- plaints regarding Gilbert's nd Tarantino's activities. The complaint of Bledsoe stat that he was waiting to get past "an area in the warehpuse that someone was trying to clear," he noticed Gilb[' 1 t was wearing an insignia on his cap, and asked Gilbert , what the insignia meant. Gil- bert then allegedly stated that it was against company policy to discuss the Uni . n, and then launched into a statement in support of th¢ Union. Bledsoe, who admit- tedly initiated the convers!·· tion, was not even shown to have been warned about alking during these unsched- uled hiatuses in work oc asioned by blocked passage- ways, or at any other tim~, yet Gilbert was discharged ; 37 Respondent placed in the r~ord evidence that Tarantino and Gil- bert were offered unconditional r instatement and appropriate backpay. Each refused orally and in writin the offer of reinstatement and accept· ed the backpay. The efficacy of 1he stipulation will be renected in the remedy and order sections of thisi 1Decision. This stipulation was entered into by Respondent with the clea understanding that the offers of rein- statement and back pay do not con titute an admission of liability, wrong- doing. or a violation of the Act. for his participation in the conversation. Furthermore, Malamut's explanation for the discharge failed to demon- strate that it was necessitated by a decision that applica- tion of the progressive discipline system was determined to be futile or unwarranted based on a determination that a verbal or written warning could or would not result in future adherence to the rule. The complaint regarding Tarantino came from one in- dividual who claimed to have seen Tarantino distributing "union sign up card[s]" on three occasions during "busi- ness hours [nJot on breaks or lunch]." Malamut, who "sat in" on both Gilbert's and Tarantino's discharges as well as counseling Watts, could not explain the disparity in discipline. Such inconsistency in reasons and actions are also indicative of discriminatory motive. The warning issued to Watts centered around activity which, as in the case of Tarantino and Gilbert, was pro- tected concerted activity not subject to limitation by an invalid no-solicitation/no-distribution rule. Even assum- ing that Respondent had a valid rule, the incidents in- volving Watts, Gilbert, and Tarantino were nothing more than conversations and activities similar to those instances of conversations or solicitations on the ware- house floor sponsored and/or condoned by Respondent's representatives for various purposes including company picnics, assisting the company baseball team, helping in- jured coworkers, celebrating a supervisor's birthday, the inevitable conversations that invariably occur between coworkers and employees and their supervisors during work stoppages, and the passing out of jokes or other material. Despite these varied, widespread, and indis- criminate activities described by the witnesses, it was only after the advent of the union organizing campaign and only for activities which would be protected by Sec- tion 7 of the Act that Respondent required cessation to the point of threatening and/or disciplining the violators, discharging two such sinners, and threatening the other violators with similar action. In these circumstances, it is concluded that Respond- ent enforced its no-solicitation/no-distribution rule for the purpose of impeding or discouraging its employees in the exercise of their right to engage in union or other protected concerted activities; that the rule was applied in a discriminatory manner in violation of Section 8(a)(1) of the Act; and that such discriminatory application by discharging Gilbert and Tarantino and disciplining Watts is in violation of Section 8(a)(3) of the Act. Other indicia of motive are the remarks attributed to company officials by Tarantino, Watts, and Gaston, whose accounts I find are supported by a preponderance of the evidence. While Thompson denies discussing the distribution of authorization cards with Watts on or about June 5, he does admit seeing her, Gaston, and another employee in her van and then talking to her shortly thereafter. The subject matter of these conversations is disputed, with Thompson claiming that he offered Watts a managerial position which Watts allegedly denied because "(t]his place is all screwed up" and "her family history of union association." Watts' claim that she had applied for a managerial trainee position, which she was not given, is BORUN BROTHERS, INC. 169 unrefuted. Therefore, based on admit/ed facts, reasona.ble inferences to be drawn therefrom, an~ inherent probabil- ities, 38 Watts' testimony that Thomp~on inquired if union authorization cards were being distriputed from her van, further asked if Watts did not agnfe that it would be better if the Union waited a year befqre attempting to or- ganize the employees, and discussed ,he adequacy of sal- aries is credited. Respondent argues lhat, even assuming, arguendo, that Thompson made son1e of the comments, they were merely statements of o~inions about unions and did not constitute a violation o~ the Act. This argu- ment is unpersuasive, for no exculpftory reas?ns or c~r­ cumstances were presented; no assu~ances agamst repns- al were extended by Thompson to lVatts during the dis- cussion about the employees' protecfed concerted activi- ty, including a short discourse on thje desideratum of de- ferring immediate unionization. Thqmpson's remarks are found to be inquiries and comment~ of such a nature as to raise fear in the minds of emplo!Yees89 and gave the impression that he was engaging ih surveillance of an employee's union activities in violat~on of Section 8(a)(l) of the Act. : It is also alleged that, on Aug~st I, Malamut and McConnell told Watts that she could be discharged for engaging in solicitation for the Unirln. Malamut's version of the meeting was similar to Wattsl testimony. As previ- ously indicated, this threat was an ~nlawful enforcement of an unlawful no-solicitation rule ip violation of Section 8(a)(l) of the Act. It is further all~ged that the meeting conveyed the impression of surveill~nce. There is no evi- dence to support this allegation and! counsel for the Gen- eral Counsel concurs. Accordingly, it is recommended that the allegation that the Com.any's representatives gave the impression of surveillanc~ during the August I meeting be dismissed. 1 The events that transpired durin& the August 21 coun- seling session, as described by Watt~, were undisputed by Dennis, who assertedly attributed! the issuance of the final warning, with the assurance s~e would be fired for one more mistake, to her union ac~ivities. As previously found, the disparate enforcement 4f the unlawful no-so- licitation rule violates Section 8(4)(1) of the Act, and Dennis' attribution of unlawful mdtive further substanti- ates the preceding finding of viola+ons of Section 8(a)(3) of the Act. : The complaint avers that, on A~gust 27 during an em- ployee meeting, Everett stated ithat he "knew who signed union authorization cards a~d that the signatories could be discharged for such aptivity," that Everett placed a general ban on all solicitttion of union authori- zation cards. Everett's contention'' that he explained the Company's no-solicitation/no-distribution rule is credited inasmuch as no other employee teftified that they under- stood his statement as Gaston reca led and that other em- ployees would usually recall a t~reat of discharge for signing an authorization card and, given the confusion 38 See .'Vorrhridge Knilling Mills, Inc., 223 ~LRB 230, 235 (1976); Geor- gia Rug Mill, 131 NLRB 1304 (1961); and Gj?ld S1andard Enlerprises, Inc., 234 NLRB 618 (1978). The standards annqunced in these decisions for crediting testimony are also followed throughout this Decision, and will not be repeated hereinafter. .I 39 See Regal Shoe Shops #2421 & 2340, 219 NLRB !210 (1980). I ,, I l exhibited by Everett and other supervisors regarding the meaning of the rule, it appears most probable that Ever- ett's comments were misunderstood by Gaston and that no such threat was actually made or implied. According- ly, it is recommended that this allegation be dismissed. The complaint asserts that, on August 29, Thompson asked Tarantino how many employees attended the meeting at the Nugget Casino. Thompson's general dis- claimer of the allegation is not credited based upon Tar- antino's demonstrated superior ability of recall, inherent probabilities, demeanor, and for the reasons hereinbefore mentioned. For the same reasons, Tarantino's version of the September 10 conversation with Thompson is also credited. Hence it is found that Thompson inquired why Tarantino was supporting the Union, and also stated that such support would result in a loss of pay and other benefits. This type of questioning "conveys an employ- er's displeasure with employees' union activity and there- by discourages such activity in the future . . . even when addressed to employees who have openly declared their union adherence."40 Such inquiries are violative of Section 8(a)(l) of the Act, and such a violation is exacer- bated by the accompanying threats of loss of pay and the diminution of other benefits. Such threats are also viola- tive of Section 8(a)(l) of the Act. Gaston's previously detailed testimony that on Novem- ber 19 she was threatened with discipline for soliciting a petition "against Thrifty for Union activities" is credited. Thompson had no recollection of the conversation. Ac- cording to Gaston, there was no reference to when such activity allegedly occurred. The allegation details behav- ior which is consistent with activities admitted by Re- spondent and such consistency of action further cojoined with the basis established in the above-cited cases re- quires crediting Gaston's testimony. As previously dis- cussed, the threat of discipline for engaging in protected concerted activity, i.e., the alleged solicitation, under the applicable no-solicitation rule is a violation of Section 8(a)(l) of the Act for it discourages such protected con- certed activity in the future. Ill. OBJECTIONS TO THE ELECTION Finally, Objection 9, which has no counterpart in the complaint, alleges that on the day before the election Everett represented that under the Union's constitution a member's property can be confiscated for nonpayment of dues. Watts' testimony is credited based on her demon- strated candor, clarity of recollection, and Everett's ad- mission that he read portions of the constitution which refer to the dues being "legal obligations ... enforce- able in a court of law ... " and that a question was asked about the clause, specifically inquiring if employ- ees could lose their homes. Everett recalled announcing that it was possible that the Union could eventually get a judgment in a court of law but did not recollect discuss- ing the enforcement of judgments, and disclaims person- ally using the word "confiscation." The possibility of the questioner using the term "confiscation" was not ex- 40 PPG Industries, Inc .. Lexington Plan/. Fiber Glass Division, 251 NLRB 1146 (19SO). Accord: Centre Engineering. Inc., 253 NLRB 419 (1980). 170 J. DECISIONS OF NATIONAL LABOR RELATIONS BOARD plored and is not a matte of evidence. It is unrefuted other similar campaign trickery, which involves a that Everett, after readin from the union constitution, substantial departure from the truth, at a time which urged that the entire docJ.lment be read prior to voting prevents the other party or parties from making an and then informed the employees of the election proce· effective reply, so that the misrepresentation, dures and situs. He also ~old the employees that their whether deliberate or not,8 may reasonably be ex· vote was secret and, reg rdless of the outcome, they peeled to have a significent impact on the election. were the Company's empl yees, that no employee, either However, the mere fact that a message is inartisti· prounion or antiunion, had to fear any retribution. cally or vaguely worded and subject to different in- As the Board stated in ollywood Ceramics Company, terpretations will not suffice to establish such mis- Jnc., 140 NLRB 221, 223-424 (1962): representation as would lead us to set the election 1 aside. 9 Such ambiguities, like extravagant promises, The rule of that ~· ase is not a fixed one; it is merely one test used by the Board in determining whether the integrity of an election has been so im- paired that it must be set aside. The basic policy un- derlying this rule, as .well as the other rules in this election field, is to 4ssure the employees full and complete freedom ofichoice in selecting a bargain· ing representative. 3 11ihe Board seeks to maintain, as closely as possible, Ia oratory conditions for the ex- ercise of this basic ri ht of the employees. 4 One of the factors which rna so disturb these conditions as to interfere with the xpression of this free choice is gross misrepresentati~n about some material issue in the election. It is obvlous that where employees cast their ballots upon th¢ basis of a material misrepre- sentation, such vote t· annot reflect their uninhibited desires, and they ha e not exercised the kind of choice envisaged by the Act. For this reason the Board has refused to ertify election results where a party has misreprese~ted some material fact, within its special knowledgej so shortly before the election that the other party ~· r parties do not have time to correct it, and the e ployees are not in a position to know the truth of he fact asserted. The Board has lim ted its intervention to cases of this type because an .election by secret ballot, con- ducted under Gover~ment auspices, should not be lightly set aside, and!! because we realize that addi- tional elections upse~·· the plant routine and prevent stable labor-manage ent relations. We are also aware that absolute ecision of statement and com- plete honesty are no always attainable in an elec- tion campaign, nor . re they expected by the em- ployees. 5 Election c~mpaigns are often hotly con- tested and feelings frequently run high. At such times a party may, i~· its zeal, overstate its own vir- tues and the vices o the other without essentially impairing "laborator conditions." 6 Accordingly, in reaching its decision in cases where objections to elections have been , filed alleging that one party misrepresented certai~ facts, the Board must balance the right of the elbployees to an untrammeled choice, and the righf' of the parties to wage a free and vigorous campa' n with all the normal legiti- mate tools of election ering. The formula use in striking this balance has been variously phras d. 7 Accordingly, we deem it appropriate to restat. the rule for guidance of the parties. ' We believe that + election should be set aside o"IY wh<'< th<« h 1 be<" • m;'"P'="totio" 0< derogatory statements about the other party, and minor distortions of some facts, frequently occur in communication between persons. But even where a misrepresentation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the statement would not be likely to have had a real impact on the election. For example, the mis- representation might have occurred in connection with an unimportant matter so that it could only have had a de minimis effect. Or, it could have been so extreme as to put the employees on notice of its lack of truth under the particular circumstances so that they could not reasonably have relied on the assertion. Or, the Board may find that the employ- ees possessed independent knowledge with which to evaluate the statements. 1 o 3 This is contemplated by Section l of the Act. See also Peer- less Plywood Company, 107 NLRB 427. 4 See General Shoe Corporation, 77 NLRB 124, • Celanese Corporation of America, 121 NRLB 303, 306. 6 Recognizing this. we have stated that exaggeration, inaccura- cies, half-truths, and name calling, though not condoned, will not be grounds for setting aside elections. ' See, for example, Gummed Products Company, supra; Dart- mouth Finishing Company, 120 NLRB 262, 266; and Celanese Cor- poration a/ America. supra at 307. • To the extent that they are incosistent with this decision, we hereby overrule those cases which suggest that the misrepresenta- tion must have been deliberate. 9 We are not, of course, considering in this context statements which may be reasonably construed to contain a threat of reprisal or force or promise of benefit. If the Board concludes that a state- ment carries such a threat or promise, it is not a defense that the message was equivocally phrased, and the election will be set aside. See Dai-Tex Optical Company. Inc., 137 NLRB 1782. 10 See, for example, Allis-Chalmers Manufacturing Company, 117 NLRB 744, 748; Hook Drugs, Inc., ll9 NLRB 1502, 1505. In evaluating the probable impact of a party's statement on the elec- tion, one factor which the Board will consider is whether the party making the statement possesses intimate knowledge of the subject matter so that the employees sought to be persuaded may be ex- pected to attach added significance to its assertion. See also Modine Manufacturing Company, 203 NLRB 527 (1973}, and General Knit of California, Inc., 239 NLRB 619 (1978). There is no question that the union constitution refers to dues as "legal obligations . . . enforceable in a court of law." There is no showing by the Union that such en- forcement could or would not possibly result in the re- duction of such an obligation to a judgment which, in turn, could subject the debtor's property to levy and at- tachment. The Union has failed to demonstrate that the BORUN BROTHERS, INC. 171 I Company did, in fact, make a misreprbsentation, no less a material misrepresentation. The emp~oyee who asked a question on the portion of the constit~tion read by Ever· ett could have used the terms that }Vatts and no other witness recalled. The imprecision o( such statements is clearly recognized as a normal occu[rence in the Holly- wood Ceramics case, supra. Further, ~he Union has failed to show that, even assuming arguendli there was a techni- cal misstatement as to the legal effecl of the quoted con- stitutional provision, the statement irlvolved a substantial departure from the truth which reastnably would be ex- pected to have such a significant im~act upon the voters as to warrant discarding the secret ~allots of the voters. Accordingly, it is recommended that Objection 9 be overruled. i As to the objections discussed her¢inbefore in conjunc- tion with the related unfair labor pr~ctices regarding Ob· jections 16 and 17, the maintenan~e of an invalid no- solicitation/no-distribution rule dulling the preelection period had an inhibiting effect on e+ployees in the exer- cise of their Section 7 rights and therefore constituted a ground for setting aside the electio~. See Sterling Faucet Company, Texas Division, a Subsidiazy of Rockwell Manu- facturing Company, 203 NLRB 1031 K.· 1973). Furthermore, the findings that the Company unt.Iwfully interrogated and/ or polled employees, as alleg~d in Objection I, 41 and engaged in surveillance or created the impression of surveillance as well as threatened oi otherwise unlawful- ly harassed and intimidated employ~s with discharge for engaging in concerted protected aftivity, as alleged in Objections 2, 3, 11, and 24, also require setting aside the election. See Playskool Manufactl.lring Company, 140 NLRB 1417, 1419 (1963); Dal-Tex ~ptical Company, Inc., supra at 1786-87; Struksnes Constru~tion, Inc., 165 NLRB 1062 (1967); and Wall Colmonoy c4rporation, 173 NLRB 40 (1968). .i Finally, the finding of unlawful fl. iscrimination against individuals prominent in the organ~ing campaign, as al- leged in Objections 5 and 6, leads 1o the conclusion that Respondent has interfered with t~ free choice of em- ployees in the election and, hence, !he election should be invalidated. Ponn Distributing, I~c., 203 NLRB 482 (1973), and St. Vincent Hospital, 2t4 NLRB 331 (1979). Accordingly, I recommend that qbjections 1, 2, 3, 11, and 24, as limited hereinbefore, be sustained; that the election of November 2 be set asi~e; that Case 32-RC- 836 be remanded to the Regional,, Director; and that a new ele~tion. be directed by the Rfgional Director at an appropnate t1me. , CoNCLUSIONs OF LAw 1. Respondent Borun Brothers, ~nc., a wholly owned subsidiary of Thrifty Corporation!, is an employer en- gaged in commerce within the m1aning of Section 2(6) and (7) of the Act. ·' 2. The Union is a labor organiz4tion within the mean- ing of Section 2(5) of the Act. I 41 As previously indicated, the record is Jevoid of any support for the allegation, also included in Objection I, that the Employer permilled a third party to prescreen casuals and applicahts for potential employment and, therefore, that portion of Objection I s~ould be overruled. 3. Respondent violated Section S(a)(l) of the Act by maintaining in effect an unlawful no-solicitation/no-dis- tribution rule and reprimanding and threatening employ· ees with discharge or other discipline if ·they engaged in concerted protected activity which was deemed violative of the no-solicitation/ nodistribution rule. 4. By threatening employees with reduced wages and benefits and other reprisals in the event they engaged in protected concerted activity and/or if the Union became their collective-bargaining representative; interrogating employees about their union activities, sympathies, and desires; polling employees about their desire to be repre- sented by a union; and engaging in surveillance and/or creating the impression of surveillance of an employee's union activities, Respondent has violated Section S(a)(l) of the Act. 5. Respondent has violated Section 8(a)(l) and (3) of the Act by discriminatorily issuing written warnings to employee Jeannie Marie Watts in an attempt to enforce the unlawful no-solicitation/no-distribution rule. 6. Respondent has violated Section 8(a)(l) and (3) of the Act by discriminatory enforcement of the no- solicitation/no-distribution rule resulting in the dis- charges of Robert Gilbert and Steven Tarantino. 7. By refusing to recognize and bargain with the Union as the collective-bargaining representative of its production and maintenance employees, Respondent has violated Section S(a)(S) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 9. Allegations of the complaint that Respondent viola!· ed the Act in ways not specifically found herein have not been sustained. 10. By engaging in the aforesaid unfair labor practices, Respondent has interfered with the representation elec- tion held on November 2. 1979. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to remedy the unfair labor practices and to effectuate the policies of the Act. It is recommended that Respondent be ordered to re- scind its no-solicitation/no-distribution rule, expunge all material relating to violation of its no-solicitation/no-dis- tribution rule and all written warnings, reports, or other references to any other alleged violations of its "solicita- tion and distribution" rules, and if, after examination, it is determined that the settlement proposed by Respondent to Gilbert and Tarantino, and accepted by these employ· ees in part, is not adequate to make the employees whole for any losses of earnings suffered by reason of their un- lawful terminations not untimely received pursuant to the aforesaid settlement offer, make them whole as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be paid on any amount owing to be com- puted in the manner prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD & Heating Co., 138 N RB 716 (1962), enforcement denied on different groun s 322 F.2d 913 (9th Cir. 1963). Upon the basis of the regoing findings of fact, con- clusions of law, and the ntire record in this proceeding and pursuant to Section 1 c) of the National Labor Re- lations Act, as amended,1 I hereby issue the following recommended: 01DER42 The Respondent, Bor~n Brothers, Inc., a wholly owned subsidiary of thrifty Corporation, Sparks, Nevada, its officers, agentis, successors, and assigns, shall: 1. Cease and desist fro : (a) Threatening emplo ees with reduced wages and benefits and other reprisa s in the event they engaged in certain concerted protect d activities or if the Union be- comes their collective-bar aining representative. (b) Interrogating and/o polling employees about their union activities, sympathi s, and desires. (c) Engaging in surveil nee or creating the impression of surveillance of employ es' union activities. (d) Discriminatorily pr mulgating and enforcing a no- solicitation/no-distributio rule. (e) In any other mannet interfering with or attempting to restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following II action necessary to effectuate the purposes of the Act: i (a) Rescind its no-solicitation/no-distribution rule. (b) Cease reprimandin or disciplining employees for violations of its no-solici ation/no-distribution rule, and discriminatorily enforcing the rule so as to unlawfully in- terfere in any way with i s employees rights to solicit on behalf of a labor organiza ion. •• In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of t e National Labor Relations Board, the findings, conclusions, and reco ended Order herein shall, as provided m Sec. 102.48 of the Rules and gulations, be adopted by the Board and become its findings, conclusion and Order, and all objections thereto shall be deemed waived for all p rposes. (c) Expunge from its records all material relating to violations of its no-solicitation/no-distribution rule and all written warnings. (d) If necessary reimburse Robert Gilbert and Stephen Tarantino for any wages not yet reimbursed as a result of their discriminatory discharges in the manner detailed in the section above entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this recommended Order. (f) Post at its facility in Sparks, Nevada, copies of the attached notice marked "Appendix."43 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (g) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges Respondent violated the Act in ways not specifically found herein. Further, based upon objections sustained hereinabove, it is recommended that the election held on November 2, 1979, be set aside and a second election by secret ballot be conducted at such time and in such manner as the Re- gional Director deems appropriate. 43 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 Pursu· ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."