Model A and Motel T Motor Car Corp.

MODEL A AND MODEL T MOTOR CAR CORP. 555 Model A and Model T Motor Car Reproduction also agree with the Administrative Law Judge's Corporation and United Steelworkers of Amer- finding that Respondent violated Section 8(aX3) ica, AFL-CIO-CLC and International Union, and (1) of the Act by suspending employees Jeffrey United Automobile, Aerospace and Agricultural Smith and Rihard Burton, and by discharging Implement Workers of America (UAW). Cases m th a c h ar d r b 7-CA-17064, 7-CA-17412 (2), 7-CA-17450, employees Michael Smead, 4 James Hunt, and Roy 7-CA-17774, 7-CA-17561 (1), 7-CA-17561 Rine because of their union activities,5 and that Re- (2), 7-CA-17643, and 7-CA-18030 to Respondent's rescission of Rule 16, and we may reasonably infer that, December 7, 1981 during this time period, Respondent's maintenance of an invalid rule in- hibited the union activities of its employees. We further note that, at the DECISION AND ORDER time Respondent promulgated rule 17, it never explicitly repudiated rule 16, and there is no evidence that employees were aware that the rule had BY MEMBERS FANNING, JENKINS, AND been changed. Respondent's belated and unannounced rescission of its in- valid no-solicitation rule does not absolve its violation of the Act. See, ZIMMERMAN e.g., Automated Products Inc, 242 NLRB 424 (1979). On May 13, 1981, Administrative Law Ju e Moreover, under our recent decision in T R. WBearings Division, a Di- On May 13, 1981, Administrative Law Judge vision of T.R.W. Inc., 257 NLRB No. 47 (1981), rule 17 would also be Lowell Goerlich issued the attached Decision in invalid. The phrase "working time" no longer confers presumptive valid- this proceeding. Thereafter, both the General ity upon a no-solicitation rule. For a no-solicitation rule to be acceptable, it must clearly indicate to employees that they may engage in protected Counsel and Respondent filed exceptions and sup- activity during periods of the workday when they "are properly not en- porting briefs. gaged in performing their work tasks." TR. W Bearing Division, a Divi- Pursuant to the provisions of Section 3(b) of the son of TR. W. Inc. supro, sl. op. p. 6 Rule 17 does not conform to this requirement. However, the General Counsel has not alleged that Rule 17 National Labor Relations Act, as amended, the Na- was invalid and the validity of this rule was not litigated at the hearing. tional Labor Relations Board has delegated its au- Therefore, we shall not find herein that Respondent, by promulgating thority in this proceeding to a three-member panel rule 17, committed an independent violation of Sec. 8()(l) of the Act. thority in this proceeding to a three-member panel. I The Administrative Law Judge correctly found that Respondent vio- lated Sec. 8(aX3) of the Act by suspending employees Smith and Burton The Board has considered the record and the because of their union activities. He also found that, when Respondent's attached Decision in light of the exceptions and personnel director, Mark Nicolai, informed Smith and Burton of their briefs and has decided to affirm the rulings, suspensions, he told them that they were not to enter company premises tinding,' and conclusions of the Administrative .during the length of their suspensions and, if they needed to contact findings, I and conclusions of the Administrative anyone in the Company, they had to clear it through him. Nicolai also Law Judge, as modified herein, and to adopt his told Burton that "if [he] was to ever hand out any more printed literature recommended Order, as modified herein. that [he] would be terminated." The Administrative Law Judge found that "[s]ince the suspensions were invalid the above-noted restrictions The Administrative Law Judge found, and we placed by Respondent upon Smith and Burton interfered with their Sec- agree, that Respondent violated Section 8(a)() of tion 7 rights and were in violation of Section 8(aX) of the Act." The the Act by interrogating employees with respect to General Counsel agrees that these restrictions were invalid, but excepts the Act by interrogating employees with respect to to the Administrative Law Judge's reasoning as to why they were inval- their union activities and sympathies, by threaten- id. The General Counsel contends that they were invalid because they ing employees with reprisals and soliciting griev- improperly interfered with the employees' union activities, not merely be- cause they derived from the illegal suspensions. We agree with the Gen- ances from employees in order to influence their era Counsel. union affection, and by promulgating and continu- Respondent did not demonstrate that it routinely limited access to ing in effect an invalid no-solicitation rule 2 We company property to suspended employees. Nor did it demonstrate that g in efet an invalid no-oliciain rule. 2 e these restrictions were in any way related to the maintenance of company production or discipline. These restrictions were directed solely to union Both the General Counsel and Respondent have excepted to certain activists and were aimed at hindering their ability to pursue union activi- credibility findings made by the Administrative Law Judge. It is the ties. For these reasons, the restrictions violated Sec. 8(aXl) of the Act. Board's established policy not to overrule an administrative law judge's ' We agree with the Administrative Law Judge that Respondent dis- resolutions with respect to credibility unless the clear preponderance of charged employee Michael Smead because of his union activities, in vio- all of the relevant evidence convinces us that the resolutions are incor- lation of Sec. 8(aX3) of the Act. However, we do not agree that the de- rect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 termination of whether Smead is fit for reemployment with Respondent P.2d 362 (3d Cir. 1951). We have carefully examined the record and find should be left to the compliance stage of these proceedings. The record no basis for reversing his fudings. evidence convinces us that we should order reinstatement herein. ' The Administrative Law Judge found that Respondent's maintenance Smead was dischrged during the morning of November 2, along with of a no-solicitation rule violated Sec. 8(aXI) of the Act because it prohib- six other employees, for wearing a union button. He returned later in the ited solicitation of union support by employees during the entire work- day and directed obscene language toward two of Respondent's manag- day. Specifically, rule 16 in Respondent's personnel manual read as fol- ers and verbally threatened them with physical harm. Smead's abusive lows: behavior was provoked by his discriminatory discharge. While we do not Employees will be subject to disciplinary action for any of the fol- condone his conduct, we do not believe that it warrants his forfeiting the lowing offenses .... Vending, soliciting, or collecting contributions opportunity for reinstatement. See Hagerty Catering Company, 236 NLRB for any purpose, unless authorized by Management. 1553, 1557 (1978). Key City Mechanical Contractors Inc, 227 NLRB 1884, 1888-89 (1977). Respondent excepts to the Administrative Law Judge's finding. Respond- ) Member Jenkins would compute interest on backpay due in the manner ent does not claim that the above rule was valid, but contends that the Crpoati 2 set forth in his partial dissent in Olympic Mcdical Corpoarion, 250 NLRB rule was rescinded on February 14, 1980, and a valid no-solicitation rule , fo , r was promulgated on that date. The new rule, rule 17, reads:, ^ ^146 (1980). was promulgated on that date. The new rule, rule 17, reads: I Member Jenkins does not rely on Wright Line, a Division of Wright The following will constitute violations of company rules ... Dis- Line. Inc., 251 NLRB 1083 (1980), in finding the discharges herein viola- tributing written or printed literature during working time. tive of the Act. That decision applies only to cases in which it is neces- We agree with the Administrative Law Judge. We note that union or- sary to identify the cause of a discharge where both a genuine lawful ganizing campaigns at the Company had existed for several months prior Continued 259 NLRB No. 77 MODEL A AND MODEL T MOTOR CAR CORP. 55 Model A and Model T Motor Car Reproduction also agree with the Administrative Law Judge's Corporation and United Steelworkers of Amer- finding that Respondent violated Section 8(aX3) ica, AF,-CIO-CLC and International Union, and (1) of the Act by suspending employees Jeffrey United Automobile, Aerospace and Agricultural Smith and Richard Burton 3 and by discharging Implement Workers of America (UAW). Cases e m l oe Mi c h ael Smed ' Jm H n adR 7-CA-17064, 7-CA-17412 (2), 7-CA-17450, employees Michael Smead,4 James Hunt, and Roy 7-CA-17774, 7-CA-17561 (1), 7-CA-17561 R in e because of their union activities," and that Re- (2), 7-CA-17643, and 7-CA-18030 t o Respondent's rescission of Rule 16, and we may reasonably infer that, December 7, 1981 during this time period, Respondent's maintenance of an invalid rule in- hibited the union activities of its employees. We further note that, at the DECISION AND ORDER time Respondent promulgated rule 17, it never explicitly repudiated rule 16, and there is no evidence that employees were aware that the rule had BY MEMBERS FANNING, JENKINS, AND b e en changed. Respondent's belated and unannounced rescission of its in- valid no-solicitation rule does not absolve its violation of the Act. See, ZIMMERMAN e.g., Automated Products Inc, 242 NLRB 424 (1979). /-»- »xy ll, loc A-4™;-;^t-»»;.,» Taw ».., e t,.Moreover, under our recent decision in T R. W Bearings Diviion, a Di- On May 13, 1981, Administrative Law Judge vision of/ TR.W. Inc., 257 NLRB No. 47 (198 ), rule 17 would also be Lowell Goerlich issued the attached Decision in invalid. The phrase "working time" no longer confers presumptive valid- this proceeding. Thereafter, both the General ity upon a no-olicitation rule. For a no-solicitation rule to be acceptable, i t mus t clearly indicate to employees that they may engage in protected Counsel and Respondent filed exceptions and sup- activity during periods of the workday when they "are properly not en- porting briefs. gaged in performing their work tasks." TR. W Bearing Dviriion, a Divi- Pursuant to the provisions of Section 3(b) of the J'n of TR. W. Inc, prp, si. op., p. 6. Role 17 does not conform to this requirement. However, the General Counsel ha not alleged that Rule 17 National Labor Relations Act, as amended, the Na- was invalid and the validity of this rule was not litigated at the hearing. tional Labor Relations Board has delegated its au- Therefore, we shall not find herein that Respondent, by promulgating thorityin thi proceeing toa threememberpanel. rule 17, committed an independent violation of Sec. 8(8*Xl) of the Act. thority in this proceeding to a three-member panel. I The Administrative Lew Judge correctly found that Respondent vio- lated Sec. 8(a)(3) of the Act by suspending employees Smith and Burton The Board has considered the record and the because of their union activities. He also found that, when Respondent's attached Decision in light of the exceptions and personnel director, Mark Nicolai, informed Smith and Burton of their briefs and has decided to affirm the rulings, suspensions, he told them that they were not to enter company premises t. ... s,' ,nd *onclusions . f , he _, ,1, « , . . during the length of their suspensions and, if they needed to contact findings, I and conclusions of the Administrative anyone in the Company, they had to clear it through him. Nicolai also Law Judge, as modified herein, and to adopt his told Burton that "if [he] was to ever hand out any more printed literature recommended Order, as modified herein. that [he) would be terminated." The Administrative Law Judge found that "[s]ince the suspensions were invalid the above-noted restrictions The Administrative Law Judge found, and we placed by Respondent upon Smith and Burton interfered with their Sec- agree, that Respondent violated Section 8(a)(l) of t io " 7 reigt a"d w Cre in violation of Section 8(aX1) of the Act." The the ».« *.. .. interrogating *.«loyees .ith .espect General Counsel agrees that these restrictions were invalid, but excepts the Act by interrogating employees With respect t0o to the Administrative Law Judge's reasoning as to why they were inval- their Union activities and Sympathies, by threaten- id. The General Counsel contends that they were invalid because they ing employees With reprisals and soliciting griev- improperly interfered with the employees'union activities not merely be- cause they derived from the illegal suspensions. We agree with the Gen- ances from employees in order to influence their eral Counsel. Union affection, and by promulgating and continu- Respondent did not demonstrate that it routinely limited access to ing in effect an invalid no-solicitation rule 2 We cOmp""ny property to suspended employees. Nor did it demonstrate that ing in effect an invalid no-solicitation rule .2 we these restrictions were in any way related to the maintenance of company production or discipline. These restrictions were directed solely to union 'Both the General Counsel and Respondent have excepted to certain activists and were aimed at hindering their ability to pursue union activi- credibility findings made by the Administrative Law Judge. It is the ties. For these reasons, the restrictions violated Sec. 8(aXI) of the Act. Board's established policy not to overrule an administrative law judge's IWe agree with the Administrative Law Judge that Respondent dis- resolutions with respect to credibility unless the clear preponderance of charged employee Michael Smead because of his union activities, in vio- all of the relevant evidence convinces us that the resolutions are incor- lation of Sec. 8(aX3) of the Act. However, we do not agree that the de- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 termination of whether Smead is fit for reemployment with Respondent F.2d 362 (3d Cir. 1951). We have carefully examined the record and find should be left to the compliance stage of these proceedings. The record no basis for reversing his findings. evidence convinces us that we should order reinstatement herein. ' The Administrative Law Judge found that Respondent's maintenance Smead was discharged during the morning of November 2, along with of a no-solicitation rule violated Sec. 8(sXl) or the Act because it prohib- six other employees, for wearing a union button. He returned later in the ited solicitation of union support by employees during the entire work- day and directed obscene language toward two of Respondent's manag- day. Specifically, rule 16 in Respondent's personnel manual read as fol- ers and verbally threatened them with physical harm. Smead's abusive lows: behavior was provoked by his discriminatory discharge. While we do not Employees will be subject to disciplinary action for any of the fol- condone his conduct, we do not believe that it warrants his forfeiting the lowing offenses .... Vending, soliciting, or collecting contributions opportunity for reinstatement. See Hageny Catering Company, 236 NLRB for any purpose, unless authorized by Management. 1553, 1557 (1978). Key City Mechanical Contractors Inc, 227 NLRB 1884, I1RRA-s g1977). Respondent excepts to the Administrative Law Judge's finding. Respond- Mr en does not claim that the above rule was valid, but contends that the s Corporation, 250 NLRB rule was rescinded on February 14, 1980, and a valid no-solicitation rule 146 r18* was promulgated on that date. The new rule, rule 17, reads:I Member Jenkins does not rely on Wright Line, a Division of Wright The following will constitute violations of company rules .... Dis- Line. Inc., 251 NLRB 1083 (1980), in finding the discharges herein viola- tributing written or printed literature during working time. tive of the Act. That decision applies only to cases in which it is nccs- We agree with the Administrative Law Judge. We note that union or- sary to identify the cause of a discharge where both a genuine lawful ganizing campaigns at the Company had existed for several months prior Continued 259 NLRB No. 77 MODEL A AND MODEL T MOTOR CAR CORP. 55 Model A and Model T Motor Car Reproduction also agree with the Administrative Law Judge's Corporation and United Steelworkers of Amer- finding that Respondent violated Section 8(aX3) ica, AF,-CIO-CLC and International Union, and (1) of the Act by suspending employees Jeffrey United Automobile, Aerospace and Agricultural Smith and Richard Burton 3 and by discharging Implement Workers of America (UAW). Cases e m l oe Mi c h ael Smed ' Jm H n adR 7-CA-17064, 7-CA-17412 (2), 7-CA-17450, employees Michael Smead,4 James Hunt, and Roy 7-CA-17774, 7-CA-17561 (1), 7-CA-17561 R in e because of their union activities," and that Re- (2), 7-CA-17643, and 7-CA-18030 t o Respondent's rescission of Rule 16, and we may reasonably infer that, December 7, 1981 during this time period, Respondent's maintenance of an invalid rule in- hibited the union activities of its employees. We further note that, at the DECISION AND ORDER time Respondent promulgated rule 17, it never explicitly repudiated rule 16, and there is no evidence that employees were aware that the rule had BY MEMBERS FANNING, JENKINS, AND b e en changed. Respondent's belated and unannounced rescission of its in- valid no-solicitation rule does not absolve its violation of the Act. See, ZIMMERMAN e.g., Automated Products Inc, 242 NLRB 424 (1979). /-»- »xy ll, loc A-4™;-;^t-»»;.,» Taw ».., e t,.Moreover, under our recent decision in T R. W Bearings Diviion, a Di- On May 13, 1981, Administrative Law Judge vision of/ TR.W. Inc., 257 NLRB No. 47 (198 ), rule 17 would also be Lowell Goerlich issued the attached Decision in invalid. The phrase "working time" no longer confers presumptive valid- this proceeding. Thereafter, both the General ity upon a no-olicitation rule. For a no-solicitation rule to be acceptable, i t mus t clearly indicate to employees that they may engage in protected Counsel and Respondent filed exceptions and sup- activity during periods of the workday when they "are properly not en- porting briefs. gaged in performing their work tasks." TR. W Bearing Dviriion, a Divi- Pursuant to the provisions of Section 3(b) of the J'n of TR. W. Inc, prp, si. op., p. 6. Role 17 does not conform to this requirement. However, the General Counsel ha not alleged that Rule 17 National Labor Relations Act, as amended, the Na- was invalid and the validity of this rule was not litigated at the hearing. tional Labor Relations Board has delegated its au- Therefore, we shall not find herein that Respondent, by promulgating thorityin thi proceeing toa threememberpanel. rule 17, committed an independent violation of Sec. 8(8*Xl) of the Act. thority in this proceeding to a three-member panel. I The Administrative Lew Judge correctly found that Respondent vio- lated Sec. 8(a)(3) of the Act by suspending employees Smith and Burton The Board has considered the record and the because of their union activities. He also found that, when Respondent's attached Decision in light of the exceptions and personnel director, Mark Nicolai, informed Smith and Burton of their briefs and has decided to affirm the rulings, suspensions, he told them that they were not to enter company premises t. ... s,' ,nd *onclusions . f , he _, ,1, « , . . during the length of their suspensions and, if they needed to contact findings, I and conclusions of the Administrative anyone in the Company, they had to clear it through him. Nicolai also Law Judge, as modified herein, and to adopt his told Burton that "if [he] was to ever hand out any more printed literature recommended Order, as modified herein. that [he) would be terminated." The Administrative Law Judge found that "[s]ince the suspensions were invalid the above-noted restrictions The Administrative Law Judge found, and we placed by Respondent upon Smith and Burton interfered with their Sec- agree, that Respondent violated Section 8(a)(l) of t io " 7 reigt a"d w Cre in violation of Section 8(aX1) of the Act." The the ».« *.. .. interrogating *.«loyees .ith .espect General Counsel agrees that these restrictions were invalid, but excepts the Act by interrogating employees With respect t0o to the Administrative Law Judge's reasoning as to why they were inval- their Union activities and Sympathies, by threaten- id. The General Counsel contends that they were invalid because they ing employees With reprisals and soliciting griev- improperly interfered with the employees'union activities not merely be- cause they derived from the illegal suspensions. We agree with the Gen- ances from employees in order to influence their eral Counsel. Union affection, and by promulgating and continu- Respondent did not demonstrate that it routinely limited access to ing in effect an invalid no-solicitation rule 2 We cOmp""ny property to suspended employees. Nor did it demonstrate that ing in effect an invalid no-solicitation rule .2 we these restrictions were in any way related to the maintenance of company production or discipline. These restrictions were directed solely to union 'Both the General Counsel and Respondent have excepted to certain activists and were aimed at hindering their ability to pursue union activi- credibility findings made by the Administrative Law Judge. It is the ties. For these reasons, the restrictions violated Sec. 8(aXI) of the Act. Board's established policy not to overrule an administrative law judge's IWe agree with the Administrative Law Judge that Respondent dis- resolutions with respect to credibility unless the clear preponderance of charged employee Michael Smead because of his union activities, in vio- all of the relevant evidence convinces us that the resolutions are incor- lation of Sec. 8(aX3) of the Act. However, we do not agree that the de- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 termination of whether Smead is fit for reemployment with Respondent F.2d 362 (3d Cir. 1951). We have carefully examined the record and find should be left to the compliance stage of these proceedings. The record no basis for reversing his findings. evidence convinces us that we should order reinstatement herein. ' The Administrative Law Judge found that Respondent's maintenance Smead was discharged during the morning of November 2, along with of a no-solicitation rule violated Sec. 8(sXl) or the Act because it prohib- six other employees, for wearing a union button. He returned later in the ited solicitation of union support by employees during the entire work- day and directed obscene language toward two of Respondent's manag- day. Specifically, rule 16 in Respondent's personnel manual read as fol- ers and verbally threatened them with physical harm. Smead's abusive lows: behavior was provoked by his discriminatory discharge. While we do not Employees will be subject to disciplinary action for any of the fol- condone his conduct, we do not believe that it warrants his forfeiting the lowing offenses .... Vending, soliciting, or collecting contributions opportunity for reinstatement. See Hageny Catering Company, 236 NLRB for any purpose, unless authorized by Management. 1553, 1557 (1978). Key City Mechanical Contractors Inc, 227 NLRB 1884, I1RRA-s g1977). Respondent excepts to the Administrative Law Judge's finding. Respond- Mr en does not claim that the above rule was valid, but contends that the s Corporation, 250 NLRB rule was rescinded on February 14, 1980, and a valid no-solicitation rule 146 r18* was promulgated on that date. The new rule, rule 17, reads:I Member Jenkins does not rely on Wright Line, a Division of Wright The following will constitute violations of company rules .... Dis- Line. Inc., 251 NLRB 1083 (1980), in finding the discharges herein viola- tributing written or printed literature during working time. tive of the Act. That decision applies only to cases in which it is nccs- We agree with the Administrative Law Judge. We note that union or- sary to identify the cause of a discharge where both a genuine lawful ganizing campaigns at the Company had existed for several months prior Continued 259 NLRB No. 77 MODEL A AND MODEL T MOTOR CAR CORP. 55 Model A and Model T Motor Car Reproduction also agree with the Administrative Law Judge's Corporation and United Steelworkers of Amer- finding that Respondent violated Section 8(aX3) ica, AF,-CIO-CLC and International Union, and (1) of the Act by suspending employees Jeffrey United Automobile, Aerospace and Agricultural Smith and Richard Burton 3 and by discharging Implement Workers of America (UAW). Cases e m l oe Mi c h ael Smed ' Jm H n adR 7-CA-17064, 7-CA-17412 (2), 7-CA-17450, employees Michael Smead,4 James Hunt, and Roy 7-CA-17774, 7-CA-17561 (1), 7-CA-17561 R in e because of their union activities," and that Re- (2), 7-CA-17643, and 7-CA-18030 t o Respondent's rescission of Rule 16, and we may reasonably infer that, December 7, 1981 during this time period, Respondent's maintenance of an invalid rule in- hibited the union activities of its employees. We further note that, at the DECISION AND ORDER time Respondent promulgated rule 17, it never explicitly repudiated rule 16, and there is no evidence that employees were aware that the rule had BY MEMBERS FANNING, JENKINS, AND b e en changed. Respondent's belated and unannounced rescission of its in- valid no-solicitation rule does not absolve its violation of the Act. See, ZIMMERMAN e.g., Automated Products Inc, 242 NLRB 424 (1979). /-»- »xy ll, loc A-4™;-;^t-»»;.,» Taw ».., e t,.Moreover, under our recent decision in T R. W Bearings Diviion, a Di- On May 13, 1981, Administrative Law Judge vision of/ TR.W. Inc., 257 NLRB No. 47 (198 ), rule 17 would also be Lowell Goerlich issued the attached Decision in invalid. The phrase "working time" no longer confers presumptive valid- this proceeding. Thereafter, both the General ity upon a no-olicitation rule. For a no-solicitation rule to be acceptable, i t mus t clearly indicate to employees that they may engage in protected Counsel and Respondent filed exceptions and sup- activity during periods of the workday when they "are properly not en- porting briefs. gaged in performing their work tasks." TR. W Bearing Dviriion, a Divi- Pursuant to the provisions of Section 3(b) of the J'n of TR. W. Inc, prp, si. op., p. 6. Role 17 does not conform to this requirement. However, the General Counsel ha not alleged that Rule 17 National Labor Relations Act, as amended, the Na- was invalid and the validity of this rule was not litigated at the hearing. tional Labor Relations Board has delegated its au- Therefore, we shall not find herein that Respondent, by promulgating thorityin thi proceeing toa threememberpanel. rule 17, committed an independent violation of Sec. 8(8*Xl) of the Act. thority in this proceeding to a three-member panel. I The Administrative Lew Judge correctly found that Respondent vio- lated Sec. 8(a)(3) of the Act by suspending employees Smith and Burton The Board has considered the record and the because of their union activities. He also found that, when Respondent's attached Decision in light of the exceptions and personnel director, Mark Nicolai, informed Smith and Burton of their briefs and has decided to affirm the rulings, suspensions, he told them that they were not to enter company premises t. ... s,' ,nd *onclusions . f , he _, ,1, « , . . during the length of their suspensions and, if they needed to contact findings, I and conclusions of the Administrative anyone in the Company, they had to clear it through him. Nicolai also Law Judge, as modified herein, and to adopt his told Burton that "if [he] was to ever hand out any more printed literature recommended Order, as modified herein. that [he) would be terminated." The Administrative Law Judge found that "[s]ince the suspensions were invalid the above-noted restrictions The Administrative Law Judge found, and we placed by Respondent upon Smith and Burton interfered with their Sec- agree, that Respondent violated Section 8(a)(l) of t io " 7 reigt a"d w Cre in violation of Section 8(aX1) of the Act." The the ».« *.. .. interrogating *.«loyees .ith .espect General Counsel agrees that these restrictions were invalid, but excepts the Act by interrogating employees With respect t0o to the Administrative Law Judge's reasoning as to why they were inval- their Union activities and Sympathies, by threaten- id. The General Counsel contends that they were invalid because they ing employees With reprisals and soliciting griev- improperly interfered with the employees'union activities not merely be- cause they derived from the illegal suspensions. We agree with the Gen- ances from employees in order to influence their eral Counsel. Union affection, and by promulgating and continu- Respondent did not demonstrate that it routinely limited access to ing in effect an invalid no-solicitation rule 2 We cOmp""ny property to suspended employees. Nor did it demonstrate that ing in effect an invalid no-solicitation rule .2 we these restrictions were in any way related to the maintenance of company production or discipline. These restrictions were directed solely to union 'Both the General Counsel and Respondent have excepted to certain activists and were aimed at hindering their ability to pursue union activi- credibility findings made by the Administrative Law Judge. It is the ties. For these reasons, the restrictions violated Sec. 8(aXI) of the Act. Board's established policy not to overrule an administrative law judge's IWe agree with the Administrative Law Judge that Respondent dis- resolutions with respect to credibility unless the clear preponderance of charged employee Michael Smead because of his union activities, in vio- all of the relevant evidence convinces us that the resolutions are incor- lation of Sec. 8(aX3) of the Act. However, we do not agree that the de- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 termination of whether Smead is fit for reemployment with Respondent F.2d 362 (3d Cir. 1951). We have carefully examined the record and find should be left to the compliance stage of these proceedings. The record no basis for reversing his findings. evidence convinces us that we should order reinstatement herein. ' The Administrative Law Judge found that Respondent's maintenance Smead was discharged during the morning of November 2, along with of a no-solicitation rule violated Sec. 8(sXl) or the Act because it prohib- six other employees, for wearing a union button. He returned later in the ited solicitation of union support by employees during the entire work- day and directed obscene language toward two of Respondent's manag- day. Specifically, rule 16 in Respondent's personnel manual read as fol- ers and verbally threatened them with physical harm. Smead's abusive lows: behavior was provoked by his discriminatory discharge. While we do not Employees will be subject to disciplinary action for any of the fol- condone his conduct, we do not believe that it warrants his forfeiting the lowing offenses .... Vending, soliciting, or collecting contributions opportunity for reinstatement. See Hageny Catering Company, 236 NLRB for any purpose, unless authorized by Management. 1553, 1557 (1978). Key City Mechanical Contractors Inc, 227 NLRB 1884, I1RRA-s g1977). Respondent excepts to the Administrative Law Judge's finding. Respond- Mr en does not claim that the above rule was valid, but contends that the s Corporation, 250 NLRB rule was rescinded on February 14, 1980, and a valid no-solicitation rule 146 r18* was promulgated on that date. The new rule, rule 17, reads:I Member Jenkins does not rely on Wright Line, a Division of Wright The following will constitute violations of company rules .... Dis- Line. Inc., 251 NLRB 1083 (1980), in finding the discharges herein viola- tributing written or printed literature during working time. tive of the Act. That decision applies only to cases in which it is nccs- We agree with the Administrative Law Judge. We note that union or- sary to identify the cause of a discharge where both a genuine lawful ganizing campaigns at the Company had existed for several months prior Continued 259 NLRB No. 77 MODEL A AND MODEL T MOTOR CAR CORP. 55 Model A and Model T Motor Car Reproduction also agree with the Administrative Law Judge's Corporation and United Steelworkers of Amer- finding that Respondent violated Section 8(aX3) ica, AF,-CIO-CLC and International Union, and (1) of the Act by suspending employees Jeffrey United Automobile, Aerospace and Agricultural Smith and Richard Burton 3 and by discharging Implement Workers of America (UAW). Cases e m l oe Mi c h ael Smed ' Jm H n adR 7-CA-17064, 7-CA-17412 (2), 7-CA-17450, employees Michael Smead,4 James Hunt, and Roy 7-CA-17774, 7-CA-17561 (1), 7-CA-17561 R in e because of their union activities," and that Re- (2), 7-CA-17643, and 7-CA-18030 t o Respondent's rescission of Rule 16, and we may reasonably infer that, December 7, 1981 during this time period, Respondent's maintenance of an invalid rule in- hibited the union activities of its employees. We further note that, at the DECISION AND ORDER time Respondent promulgated rule 17, it never explicitly repudiated rule 16, and there is no evidence that employees were aware that the rule had BY MEMBERS FANNING, JENKINS, AND b e en changed. Respondent's belated and unannounced rescission of its in- valid no-solicitation rule does not absolve its violation of the Act. See, ZIMMERMAN e.g., Automated Products Inc, 242 NLRB 424 (1979). /-»- »xy ll, loc A-4™;-;^t-»»;.,» Taw ».., e t,.Moreover, under our recent decision in T R. W Bearings Diviion, a Di- On May 13, 1981, Administrative Law Judge vision of/ TR.W. Inc., 257 NLRB No. 47 (198 ), rule 17 would also be Lowell Goerlich issued the attached Decision in invalid. The phrase "working time" no longer confers presumptive valid- this proceeding. Thereafter, both the General ity upon a no-olicitation rule. For a no-solicitation rule to be acceptable, i t mus t clearly indicate to employees that they may engage in protected Counsel and Respondent filed exceptions and sup- activity during periods of the workday when they "are properly not en- porting briefs. gaged in performing their work tasks." TR. W Bearing Dviriion, a Divi- Pursuant to the provisions of Section 3(b) of the J'n of TR. W. Inc, prp, si. op., p. 6. Role 17 does not conform to this requirement. However, the General Counsel ha not alleged that Rule 17 National Labor Relations Act, as amended, the Na- was invalid and the validity of this rule was not litigated at the hearing. tional Labor Relations Board has delegated its au- Therefore, we shall not find herein that Respondent, by promulgating thority in this proceeding to a three-member panel. rule 17, committed an independent violation of Sec. 8u^ *l) of the Act. thorit in ths procedingto a tree-me ber pael. IThe Administrative Law Judge correctly found that Respondent vio- lated Sec. 8(a)(3) of the Act by suspending employees Smith and Burton The Board has considered the record and the because of their union activities. He also found that, when Respondent's attached Decision in light of the exceptions and personnel director, Mark Nicolai, informed Smith and Burton of their briefs and has decided to affirm the rulings, suspensions, he told them that they were not to enter company premises t. ... s,' ,nd *onclusions . f , he _, ,1, « , . . during the length of their suspensions and, if they needed to contact findings, I and conclusions of the Administrative anyone in the Company, they had to clear it through him. Nicolai also Law Judge, as modified herein, and to adopt his told Burton that "if [he] was to ever hand out any more printed literature recommended Order, as modified herein. that [he) would be terminated." The Administrative Law Judge found that "[s]ince the suspensions were invalid the above-noted restrictions The Administrative Law Judge found, and we placed by Respondent upon Smith and Burton interfered with their Sec- agree, that Respondent violated Section 8(a)(l) of t io " 7 reigt a"d w Cre in violation of Section 8(aX1) of the Act." The the ».« *.. .. interrogating *.«loyees .ith .espect General Counsel agrees that these restrictions were invalid, but excepts the Act by interrogating employees With respect t0o to the Administrative Law Judge's reasoning as to why they were inval- their Union activities and Sympathies, by threaten- id. The General Counsel contends that they were invalid because they ing employees With reprisals and soliciting griev- improperly interfered with the employees'union activities not merely be- cause they derived from the illegal suspensions. We agree with the Gen- ances from employees in order to influence their eral Counsel. Union affection, and by promulgating and continu- Respondent did not demonstrate that it routinely limited access to ing in effect an invalid no-solicitation rule 2 We cOmp""ny property to suspended employees. Nor did it demonstrate that ing in effect an invalid no-solicitation rule .2 we these restrictions were in any way related to the maintenance of company production or discipline. These restrictions were directed solely to union 'Both the General Counsel and Respondent have excepted to certain activists and were aimed at hindering their ability to pursue union activi- credibility findings made by the Administrative Law Judge. It is the ties. For these reasons, the restrictions violated Sec. 8(aXI) of the Act. Board's established policy not to overrule an administrative law judge's IWe agree with the Administrative Law Judge that Respondent dis- resolutions with respect to credibility unless the clear preponderance of charged employee Michael Smead because of his union activities, in vio- all of the relevant evidence convinces us that the resolutions are incor- lation of Sec. 8(aX3) of the Act. However, we do not agree that the de- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 termination of whether Smead is fit for reemployment with Respondent F.2d 362 (3d Cir. 1951). We have carefully examined the record and find should be left to the compliance stage of these proceedings. The record no basis for reversing his findings. evidence convinces us that we should order reinstatement herein. ' The Administrative Law Judge found that Respondent's maintenance Smead was discharged during the morning of November 2, along with of a no-solicitation rule violated Sec. 8(sXl) or the Act because it prohib- six other employees, for wearing a union button. He returned later in the ited solicitation of union support by employees during the entire work- day and directed obscene language toward two of Respondent's manag- day. Specifically, rule 16 in Respondent's personnel manual read as fol- ers and verbally threatened them with physical harm. Smead's abusive lows: behavior was provoked by his discriminatory discharge. While we do not Employees will be subject to disciplinary action for any of the fol- condone his conduct, we do not believe that it warrants his forfeiting the lowing offenses .... Vending, soliciting, or collecting contributions opportunity for reinstatement. See Hageny Catering Company, 236 NLRB for any purpose, unless authorized by Management. 1553, 1557 (1978). Key City Mechanical Contractors Inc, 227 NLRB 1884, I1RRA-s g1977). Respondent excepts to the Administrative Law Judge's finding. Respond- Mr en does not claim that the above rule was valid, but contends that the s Corporation, 250 NLRB rule was rescinded on February 14, 1980, and a valid no-solicitation rule 146 r18* was promulgated on that date. The new rule, rule 17, reads:I Member Jenkins does not rely on Wright Line, a Division of Wright The following will constitute violations of company rules .... Dis- Line. Inc., 251 NLRB 1083 (1980), in finding the discharges herein viola- tributing written or printed literature during working time. tive of the Act. That decision applies only to cases in which it is nccs- We agree with the Administrative Law Judge. We note that union or- sary to identify the cause of a discharge where both a genuine lawful ganizing campaigns at the Company had existed for several months prior Continued 259 NLRB No. 77 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent did not violate the Act by discharging and relocate in order to avoid unionization. We employee Joseph Hadley.6 agree with the General Counsel. However, we disagree with the Administrative Although Wagner did not positively declare that Law Judge in two respects. We find certain state- Respondent would relocate, his statement strongly ments made by Respondent's foreman, William suggests that Respondent was at least contemplat- Wagner, to employee Charles Pelfrey to constitute ing moving. Moreover, by stating that if it did relo- threats of reprisal for union activity in violation of cate, Respondent would not hire the union organiz- Section 8(a)(1) of the Act. We also find that Re- ers because "that is what they would be trying to spondent violated Section 8(a)(3) and (1) of the Act get away from," Wagner indicated that Respondent by discharging employee David Hall because of his anne to retr the employees' union activi- planned to retaliate for the employees' union activi- union late March 1980, Pelrey, an outspken U W ty. It is clear that this statement, made during the In late March 1980, Pelfrey, an outspoken UAW adherent, was working overtime in the presence of course of Respondent's extensive unfair labor prac- Wagner. As set forth by the Administrative Law tices would tend to discourage union activities Judge, Pelfrey testified with respect to their con- among the employees. In fact, Pelfrey repeated versation as follows: Wagner's statement to at least five other employ- ees. Accordingly, we find that, through Foreman Well, I asked Mr. Wagner if there was any Wagner, Respondent threatened its employees with truth to the Company moving to Indiana be- thus coercing cause there had been rumors going around that them in the exercise of their Section 7 rights, and them in the exercise of their Section 7 rights, and the Company was going to move. Frequently rumors travel through the Company, and he olatg Section 8(a)() oftheAct told me that he wasn't sure whether or not the David Hall was originally hired by Respondent Company was going to move, but if it was, on June 28, 1979, and was discharged for poor at- that he had planned on moving with the Com- tendance on September 18 of that year. In early pany. I asked him if the employees would January 1980,8 he was reemployed by the Compa- have the opportunity to move with the Com- ny-9 pany or whether they would just be left On February 22, Hall attended a luncheon pro- behind, and if the Company would hire all vided by Respondent for its employees. Hall wore new employees, and he told me that the Com- a button and a cap indicating that he was a pany would probably give the employees a member of the United States Steelworkers of chance to relocate except for the union orga- America and he sat at a table with several employ- nizers. He said that the Company would not ees who were similarly decorated. An individual be taking them with them, because if they who introduced himself as Jim Lauren of Respond- moved, that is what they would be trying to ent's sales department walked over to Hall's table get away from in the first place. and asked him his views concerning unionization at The Administrative Law Judge found that Wag- the plant. Hall replied that he desired union repre- ner's statements were "highly speculative and sentation, because the employees needed a "middle lacked positiveness" and therefore did not violate man" between themselves and Respondent.10 the Act. The General Counsel excepts to this find- In fact, Lauren was not a member of Respond- ing and contends that these remarks consituted a ent's sales department but was the vice president of veiled threat that Respondent would close its plant West Coast Industrial Relations, a management consulting firm. According to Respondent's person- reason and a genuine unlawful reason exist. In each of the discharges consulting fir. According to Reondent's perso found violative in this case, Respondent's asserted reason has been deter- nel director, Mark Nicolai, Lauren came to the mined to be a pretext, leaving only the genuine unlawful reason as the plant on February 22 "to ascertain whether or not actual cause for the discharge. To attempt to apply Wright Line in such his firm would be of any service to us in initiating situations is futile, confusing, and misleading. ' In excepting to the Administrative Law Judge's conclusion that Re- and conducting a union avoidance campaign." spondent's discharge of Hadley did not violate the Act. the General Lauren spent the day investigating the likelihood of Counsel attributes considerable significance to events which occurred on April 16, one day before Hadley was informed of his discharge. On that day, Hadley leafleted at Respondent's plant and was observed by several supervisors. We note, however, that Hadley was discharged by Nicolai on April II as part of an overall reduction in Respondent's work force See PPG Industries, Inc.. Lexington Plant. Fiber Glass Division, 251 necessitated by slow sales. Hadley had been laid off for lack of work NLRB 1146(1980). since April 3, and thus was not informed of his discharge until he re- All dates are in 1980 unless otherwise indicated. turned to work on April 17. However, his termination slip is clearly Hall applied to Vonda Shay, the wife of Respondent's president, and dated April II, and the General Counsel provides us with no direct evi- she decided to rehire him. dence that this date is not authentic. Accordingly, Respondent's knowl- '° This account of the incident is, of necessity, based entirely on Hall's edge of Hadley's activities on April 16 is not relevant to our determina- testimony, as Lauren failed to respond to a subpena ordering him to tion of whether his discharge violated Sec. 8(a)(3) of the Act. appear at the hearing. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent did not violate the Act by discharging and relocate in order to avoid unionization. We employee Joseph Hadley." agree with the General Counsel. However, we disagree with the Administrative Although Wagner did not positively declare that Law Judge in two respects. We find certain state- Respondent would relocate, his statement strongly ments made by Respondent's foreman, William suggests that Respondent was at least contemplat- Wagner, to employee Charles Pelfrey to constitute ing moving. Moreover, by stating that if it did relo- threats of reprisal for union activity in violation of cate, Respondent would not hire the union organiz- Section 8(a)(1) of the Act. We also find that Re- ers because "that is what they would be trying to spondent violated Section 8(a)(3) and (1) of the Act get away from," Wagner indicated that Respondent by discharging employee David Hall because of his planned to retaliate for the employees' union activi- union activities. ty. It is clear that this statement, made during the In late March 1980, Pelfrey, an outspoken UAW c o R r l prac adherent, was working overtime in the presence of c o u r se o f Respondent's extensive unfair labor prac- Wagner. As set forth by the Administrative Law tic e s , w o u ld te n d t o discourage union activities Judge, Pelfrey testified wi te Administheir con- among the employees. In fact, Pelfrey repeated versation as follows:tWagner's statement to at least five other employ- versation as.follows:.ees. Accordingly, we find that, through Foreman Well, I asked Mr. Wagner if there was any Wagner, Respondent threatened its employees with truth to the Company moving to Indiana be- r f te u thus coercing cause there had been rumors going around that thmiteexrseoterScin7rgtad ^Com~~~an~~g~~nri?^~ t he m l n t t ^ exrns o hi et?"n 7 ri g hts, an d the Company was going to move. Frequently voaigScin8a()o h c. rumors travel through the Company, and he "l Sec lo n 8(a)(l)oftheAc told me that he wasn't sure whether or not the D a v id H a ll w a s originally hired by Respondent Company was going to move, but if it was, o n Ju n e 28, 19 79, and was discharged for poor at- that he had planned on moving with the Com- tendance on September 18 of that year. In early pany. I asked him if the employees would January 1980,8 he was reemployed by the Compa- have the opportunity to move with the Com- ny. 9 pany or whether they would just be left On February 22, Hall attended a luncheon pro- behind, and if the Company would hire all vided by Respondent for its employees. Hall wore new employees, and he told me that the Com- a button and a cap indicating that he was a pany would probably give the employees a member of the United States Steelworkers of chance to relocate except for the union orga- America and he sat at a table with several employ- nizers. He said that the Company would not ees who were similarly decorated. An individual be taking them with them, because if they who introduced himself as Jim Lauren of Respond- moved, that is what they would be trying to ent's sales department walked over to Hall's table get away from in the first place. and asked him his views concerning unionization at The Administrative Law Judge found that Wag- the plant. Hall replied that he desired union repre- ner's statements were "highly speculative and sentation, because the employees needed a "middle lacked positiveness" and therefore did not violate man" between themselves and Respondent. 10 the Act. The General Counsel excepts to this find- In fact, Lauren was not a member of Respond- ing and contends that these remarks consituted a ent's sales department but was the vice president of veiled threat that Respondent would close its plant West Coast Industrial Relations, a management ------ ~~~~~~~~~~consulting firm. According to Respondent's person- reason and a genuine unlawful reason exist. In each of the discharges consulting firm A iccorin to Res -en per so n- found violative in this case. Respondent's asserted reason has been deter- nel director, Mark Nicolai, Lauren Came tO the mined to be a pretext, leaving only the genuine unlawful reason as the plant On February 22 "tO ascertain whether Or not actual cause for the discharge. To attempt to apply Wright Line in such his firm would be of any Service to us in initiating situations is futile, confusing, and misleading. * In excepting to the Administrative Law Judge's conclusion that Re- and Conducting a Union avoidance campaign." spondent's discharge of Hadley did not violate the Act. the General Lauren Spent the day investigating the likelihood of Counsel attributes considerable significance to events which occurred on April 16, one day before Hadley was informed of his discharge. On that day, Hadley leafleted at Respondent's plant and was observed by several supervisors. We note, however, that Hadley was discharged by Nicolai on April II as part of an overall reduction in Respondent's work force See PPG Industries. Inc.. Lexington Plant. Fiber Glass Division, 251 necessitated by slow sales. Hadley had been laid off for lack of work NLRB 1146(1980). since April 3, and thus was not informed of his discharge until he re- All dates are in 1980 unless otherwise indicated. turned to work on April 17. However, his termination slip is clearly Hall applied to Vonda Shay, the wife of Respondent's president, and dated April II, and the General Counsel provides us with no direct evi- she decided to rehire him. dence that this date is not authentic. Accordingly, Respondent's knowl- '° This account of the incident is, of necessity, based entirely on Hall's edge of Hadley's activities on April 16 is not relevant to our determina- testimony, as Lauren failed to respond to a subpena ordering him to tion of whether his discharge violated Sec. 8(a)(3) of the Act. appear at the hearing. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent did not violate the Act by discharging and relocate in order to avoid unionization. We employee Joseph Hadley." agree with the General Counsel. However, we disagree with the Administrative Although Wagner did not positively declare that Law Judge in two respects. We find certain state- Respondent would relocate, his statement strongly ments made by Respondent's foreman, William suggests that Respondent was at least contemplat- Wagner, to employee Charles Pelfrey to constitute ing moving. Moreover, by stating that if it did relo- threats of reprisal for union activity in violation of cate, Respondent would not hire the union organiz- Section 8(a)(1) of the Act. We also find that Re- ers because "that is what they would be trying to spondent violated Section 8(a)(3) and (1) of the Act get away from," Wagner indicated that Respondent by discharging employee David Hall because of his planned to retaliate for the employees' union activi- union activities. ty. It is clear that this statement, made during the In late March 1980, Pelfrey, an outspoken UAW c o R r l prac adherent, was working overtime in the presence of c o u r se o f Respondent's extensive unfair labor prac- Wagner. As set forth by the Administrative Law tic e s , w o u ld te n d t o discourage union activities Judge, Pelfrey testified with respect to their con- among the employees. In fact, Pelfrey repeated versation as follows:tWagner's statement to at least five other employ- versation as.follows:.ees. Accordingly, we find that, through Foreman Well, I asked Mr. Wagner if there was any Wagner, Respondent threatened its employees with truth to the Company moving to Indiana be- r f te u thus coercing cause there had been rumors going around that thmiteexrseoterScin7rgtad ^Com~~~an~~g~~nri?^~ t he m i n ^ ---- exrns o hi et?" 7 ri g hts, an d the Company was going to move. Frequently voaigScin8a()o h c. rumors travel through the Company, and he "l Sec lo n 8(a)(l)oftheAc told me that he wasn't sure whether or not the D a v id H a ll w a s originally hired by Respondent Company was going to move, but if it was, on June 28, 1979, and was discharged for poor at- that he had planned on moving with the Com- tendance on September 18 of that year. In early pany. I asked him if the employees would January 1980,8 he was reemployed by the Compa- have the opportunity to move with the Com- ny. 9 pany or whether they would just be left On February 22, Hall attended a luncheon pro- behind, and if the Company would hire all vided by Respondent for its employees. Hall wore new employees, and he told me that the Com- a button and a cap indicating that he was a pany would probably give the employees a member of the United States Steelworkers of chance to relocate except for the union orga- America and he sat at a table with several employ- nizers. He said that the Company would not ees who were similarly decorated. An individual be taking them with them, because if they who introduced himself as Jim Lauren of Respond- moved, that is what they would be trying to ent's sales department walked over to Hall's table get away from in the first place. and asked him his views concerning unionization at The Administrative Law Judge found that Wag- the plant. Hall replied that he desired union repre- ner's statements were "highly speculative and sentation, because the employees needed a "middle lacked positiveness" and therefore did not violate man" between themselves and Respondent. 10 the Act. The General Counsel excepts to this find- In fact, Lauren was not a member of Respond- ing and contends that these remarks consituted a ent's sales department but was the vice president of veiled threat that Respondent would close its plant West Coast Industrial Relations, a management ------ ~~~~~~~~~~consulting firm. According to Respondent's person- reason and a genuine unlawful reason exist. In each of the discharges consulting firm A iccorin to Res -en per so n- found violative in this case. Respondent's asserted reason has been deter- n e l director, Mark Nicolai, Lauren Came tO the mined to be a pretext, leaving only the genuine unlawful reason as the plant On February 22 "tO ascertain whether Or not actual cause for the discharge. To attempt to apply Wright Line in such his firm would be of any Service to us in initiating situations is futile, confusing, and misleading. * In excepting to the Administrative Law Judge's conclusion that Re- and Conducting a Union avoidance campaign." spondent's discharge of Hadley did not violate the Act. the General Lauren Spent the day investigating the likelihood of Counsel attributes considerable significance to events which occurred on April 16, one day before Hadley was informed of his discharge. On that day, Hadley leafleted at Respondent's plant and was observed by several supervisors. We note, however, that Hadley was discharged by Nicolai on April II as part of an overall reduction in Respondent's work force See PPG Industries. Inc.. Lexington Plant. Fiber Glass Division, 251 necessitated by slow sales. Hadley had been laid off for lack of work NLRB 1146(1980). since April 3, and thus was not informed of his discharge until he re- All dates are in 1980 unless otherwise indicated. turned to work on April 17. However, his termination slip is clearly Hall applied to Vonda Shay, the wife of Respondent's president, and dated April II, and the General Counsel provides us with no direct evi- she decided to rehire him. dence that this date is not authentic. Accordingly, Respondent's knowl- '° This account of the incident is, of necessity, based entirely on Hall's edge of Hadley's activities on April 16 is not relevant to our determina- testimony, as Lauren failed to respond to a subpena ordering him to tion of whether his discharge violated Sec. 8(a)(3) of the Act. appear at the hearing. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent did not violate the Act by discharging and relocate in order to avoid unionization. We employee Joseph Hadley." agree with the General Counsel. However, we disagree with the Administrative Although Wagner did not positively declare that Law Judge in two respects. We find certain state- Respondent would relocate, his statement strongly ments made by Respondent's foreman, William suggests that Respondent was at least contemplat- Wagner, to employee Charles Pelfrey to constitute ing moving. Moreover, by stating that if it did relo- threats of reprisal for union activity in violation of cate, Respondent would not hire the union organiz- Section 8(a)(1) of the Act. We also find that Re- ers because "that is what they would be trying to spondent violated Section 8(a)(3) and (1) of the Act get away from," Wagner indicated that Respondent by discharging employee David Hall because of his planned to retaliate for the employees' union activi- union activities. ty. It is clear that this statement, made during the In late March 1980, Pelfrey, an outspoken UAW c o R r l prac adherent, was working overtime in the presence of c o u r se o f Respondent's extensive unfair labor prac- Wagner. As set forth by the Administrative Law tic e s , w o u ld te n d t o discourage union activities Judge, Pelfrey testified with respect to their con- among the employees. In fact, Pelfrey repeated versation as follows:tWagner's statement to at least five other employ- versation as.follows:.ees. Accordingly, we find that, through Foreman Well, I asked Mr. Wagner if there was any Wagner, Respondent threatened its employees with truth to the Company moving to Indiana be- r f te u thus coercing cause there had been rumors going around that thmiteexrseoterScin7rgtad ^Com~~~an~~g~~nri?^~ t he m i n ^ ---- exrns o hi et?" 7 ri g hts, an d the Company was going to move. Frequently voaigScin8a()o h c. rumors travel through the Company, and he "l Sec lo n 8(a)(l)oftheAc told me that he wasn't sure whether or not the D a v id H a ll w a s originally hired by Respondent Company was going to move, but if it was, on June 28, 1979, and was discharged for poor at- that he had planned on moving with the Com- tendance on September 18 of that year. In early pany. I asked him if the employees would January 1980,8 he was reemployed by the Compa- have the opportunity to move with the Com- ny. 9 pany or whether they would just be left On February 22, Hall attended a luncheon pro- behind, and if the Company would hire all vided by Respondent for its employees. Hall wore new employees, and he told me that the Com- a button and a cap indicating that he was a pany would probably give the employees a member of the United States Steelworkers of chance to relocate except for the union orga- America and he sat at a table with several employ- nizers. He said that the Company would not ees who were similarly decorated. An individual be taking them with them, because if they who introduced himself as Jim Lauren of Respond- moved, that is what they would be trying to ent's sales department walked over to Hall's table get away from in the first place. and asked him his views concerning unionization at The Administrative Law Judge found that Wag- the plant. Hall replied that he desired union repre- ner's statements were "highly speculative and sentation, because the employees needed a "middle lacked positiveness" and therefore did not violate man" between themselves and Respondent. 10 the Act. The General Counsel excepts to this find- In fact, Lauren was not a member of Respond- ing and contends that these remarks consituted a ent's sales department but was the vice president of veiled threat that Respondent would close its plant West Coast Industrial Relations, a management ------ ~~~~~~~~~~consulting firm. According to Respondent's person- reason and a genuine unlawful reason exist. In each of the discharges consulting firm A iccorin to Res -en per so n- found violative in this case. Respondent's asserted reason has been deter- n e l director, Mark Nicolai, Lauren Came tO the mined to be a pretext, leaving only the genuine unlawful reason as the plant On February 22 "tO ascertain whether Or not actual cause for the discharge. To attempt to apply Wright Line in such his firm would be of any Service to us in initiating situations is futile, confusing, and misleading. * In excepting to the Administrative Law Judge's conclusion that Re- and Conducting a Union avoidance campaign." spondent's discharge of Hadley did not violate the Act. the General Lauren Spent the day investigating the likelihood of Counsel attributes considerable significance to events which occurred on April 16, one day before Hadley was informed of his discharge. On that day, Hadley leafleted at Respondent's plant and was observed by several supervisors. We note, however, that Hadley was discharged by Nicolai on April II as part of an overall reduction in Respondent's work force See PPG Industries. Inc.. Lexington Plant. Fiber Glass Division, 251 necessitated by slow sales. Hadley had been laid off for lack of work NLRB 1146(1980). since April 3, and thus was not informed of his discharge until he re- All dates are in 1980 unless otherwise indicated. turned to work on April 17. However, his termination slip is clearly Hall applied to Vonda Shay, the wife of Respondent's president, and dated April II, and the General Counsel provides us with no direct evi- she decided to rehire him. dence that this date is not authentic. Accordingly, Respondent's knowl- '° This account of the incident is, of necessity, based entirely on Hall's edge of Hadley's activities on April 16 is not relevant to our determina- testimony, as Lauren failed to respond to a subpena ordering him to tion of whether his discharge violated Sec. 8(a)(3) of the Act. appear at the hearing. MODEL A AND MODEL T MOTOR CAR CORP. 557 unionization at the plant and conferring with Nico- textual nature of Respondent's asserted reasons for lai and other management personnel." discharging him. On February 29, Nicolai discharged Hall. He in- Respondent's alleged policy of not hiring em- formed him that his reemployment violated a com- ployees who had been previously discharged was pany policy prohibiting rehire of former employees never reduced to writing. Moreover, the alleged who had previously been discharged for cause. At policy was not even in existence when Hall was re- the hearing, Nicolai testified that this policy was hired. Additionally, although Nicolai claims that he instituted when he became personnel director on refused to hire several applicants who had previ- January 21, 1980.12 He stated that he had not ously been discharged, Respondent does not claim known that Hall had been discharged for cause that the Company ever fired any other employee until February 22, when Harry Shay informed him who was rehired in violation of this policy. In fact, of this fact and Shay suggested that Hall be fired. Nicolai admitted that he never looked through the The Administrative Law Judge found that the personnel files to determine whether there were General Counsel did not demonstrate that Lauren's any other such employees. For these reasons, we conversation with Hall was communicated to any find that Respondent failed to demonstrate that it representative of Respondent. On this basis, he discharged Hall pursuant to a consistent, uniformly found that the General Counsel failed to establish a applied policy. Rather, Respondent invented this prima facie case sufficient to support the inference policy as a convenient pretext after the decision that protected conduct was a motivating factor in was made to discharge Hall because of his union Respondent's decision to discharge Hall. He further activities. 14 Accordingly, we find that Hall's dis- found that Respondent would have discharged Hall charge violated Section 8(a)(3) and (1) of the Act. in the absence of protected conduct, on the basis of Respondent's policy prohibiting rehire of employ- ORDER ees discharged for cause. 13 We find, to the con- Pursuant to Section 10(c) of the National Labor trary, that there is adequate evidence on the record Relations Act, as amended, the National Labor Re- to demonstrate that Respondent was aware of lations Board adopts as its Order the recommended Hall's union activity, that this activity was a moti- Order of the Administrative Law Judge, as modi- vating factor in his discharge, and that Respondent fled below, and hereby orders that the Respondent, would not have discharged Hall in the absence of Model A and Model T Motor Car Reproduction this activity. Corporation, Battle Creek, Michigan, its officers, Although, as indicated by the Administrative agents, successors, and assigns, shall take the action Law Judge, there is no direct evidence that Re- set forth in the said recommended Order, as so spondent had knowledge of Hall's support for the modified: Steelworkers, on the basis of the record evidence 1. Substitute the following for paragraph l(a): we may easily infer that Respondent was aware of "(a) Discouraging activities on behalf of United Hall's union activity. Hall wore Steelworkers insig- Steelworkers of America, AFL-CIO-CLC, or In- nia for several weeks prior to his discharge. It is ternational Union, United Automobile, Aerospace unlikely that Shay, who told Nicolai that he saw and Agricultural Implement Workers of America Hall on February 22, would have failed to notice (UAW), or any other labor organization, by dis- his union button and cap. Moreover, it is incon- charging, suspending, or otherwise discriminating ceivable that Lauren did not relate his conversation against employees in any manner with respect to with Hall to Nicolai, Shay, or other managerial their hire or tenure of employment, or any term or employees of Respondent with whom he met later condition of employment." that day. Lauren's visit to the plant was subsidized 2. Substitute the following for paragraph 2(a): by Respondent so that he would personally deter- "(a) Offer Michael Smead, Roy Rine, David mine the extent of unionization among the employ- Hall, and James Hunt immediate and full reinstate- ees. We cannot believe that he would have kept ment to their former positions or, if such positions the results of his surreptitious investigation to him- no longer exist, to substantially equivalent posi- self. This conclusion is further reinforced by the tions, without prejudice to their seniority or other fact that Hall was discharged within I week of his rights and privileges, discharging if necessary any conversation with Lauren, and by the clearly pre- employees hired to replace them, and make them " Respondent compensated Lauren for his work on February 22, and whole for any loss of pay or other benefits suffered reimbursed him for expenses incurred. However, Respondent did not fur- ther retain his firm. " In light of our disposition of this issue, we find it unnecessary to rule " The policy was thus instituted subsequent to Hall's reemployment. on the General Counsel's contention that Lauren was acting as an agent " His analysis was based on the test that we set forth in Wright Line, a of Respondent and that his knowledge should therefore be imputed to Division of Wright Line, Inc. supra. Respondent. MODEL A AND MODEL T MOTOR CAR CORP. 557 unionization at the plant and conferring with Nico- textual nature of Respondent's asserted reasons for lai and other management personnel." discharging him. On February 29, Nicolai discharged Hall. He in- Respondent's alleged policy of not hiring em- formed him that his reemployment violated a com- ployees who had been previously discharged was pany policy prohibiting rehire of former employees never reduced to writing. Moreover, the alleged who had previously been discharged for cause. At policy was not even in existence when Hall was re- the hearing, Nicolai testified that this policy was hired. Additionally, although Nicolai claims that he instituted when he became personnel director on refused to hire several applicants who had previ- January 21, 1980.12 He stated that he had not ously been discharged, Respondent does not claim known that Hall had been discharged for cause that the Company ever fired any other employee until February 22, when Harry Shay informed him who was rehired in violation of this policy. In fact, of this fact and Shay suggested that Hall be fired. Nicolai admitted that he never looked through the The Administrative Law Judge found that the personnel files to determine whether there were General Counsel did not demonstrate that Lauren's any other such employees. For these reasons, we conversation with Hall was communicated to any find that Respondent failed to demonstrate that it representative of Respondent. On this basis, he discharged Hall pursuant to a consistent, uniformly found that the General Counsel failed to establish a applied policy. Rather, Respondent invented this prima facie case sufficient to support the inference policy as a convenient pretext after the decision that protected conduct was a motivating factor in was made to discharge Hall because of his union Respondent's decision to discharge Hall. He further activities. 14 Accordingly, we find that Hall's dis- found that Respondent would have discharged Hall charge violated Section 8(a)(3) and (1) of the Act. in the absence of protected conduct, on the basis of Respondent's policy prohibiting rehire of employ- ORDER ees discharged for cause. 13 We find, to the con- Pursuant to Section 10(c) of the National Labor trary, that there is adequate evidence on the record Relations Act, as amended, the National Labor Re- to demonstrate that Respondent was aware of lations Board adopts as its Order the recommended Hall's union activity, that this activity was a moti- Order of the Administrative Law Judge, as modi- vating factor in his discharge, and that Respondent fied below, and hereby orders that the Respondent, would not have discharged Hall in the absence of Model A and Model T Motor Car Reproduction this activity. Corporation, Battle Creek, Michigan, its officers, Although, as indicated by the Administrative agents, successors, and assigns, shall take the action Law Judge, there is no direct evidence that Re- set forth in the said recommended Order, as so spondent had knowledge of Hall's support for the modified: Steelworkers, on the basis of the record evidence i. Substitute the following for paragraph l(a): we may easily infer that Respondent was aware of "(a) Discouraging activities on behalf of United Hall's union activity. Hall wore Steelworkers insig- Steelworkers of America, AFL-CIO-CLC, or In- nia for several weeks prior to his discharge. It is ternational Union, United Automobile, Aerospace unlikely that Shay, who told Nicolai that he saw and Agricultural Implement Workers of America Hall on February 22, would have failed to notice (UAW), or any other labor organization, by dis- his union button and cap. Moreover, it is incon- charging, suspending, or otherwise discriminating ceivable that Lauren did not relate his conversation against employees in any manner with respect to with Hall to Nicolai, Shay, or other managerial their hire or tenure of employment, or any term or employees of Respondent with whom he met later condition of employment." that day. Lauren's visit to the plant was subsidized 2. Substitute the following for paragraph 2(a): by Respondent so that he would personally deter- "(a) offer Michael Smead, Roy Rine, David mine the extent of unionization among the employ- Hall, and James Hunt immediate and full reinstate- ees. We cannot believe that he would have kept ment to their former positions or, if such positions the results of his surreptitious investigation to him- no longer exist, to substantially equivalent posi- self. This conclusion is further reinforced by the tions, without prejudice to their seniority or other fact that Hall was discharged within 1 week of his rights and privileges, discharging if necessary any conversation with Lauren, and by the clearly pre- employees hired to replace them, and make them "* Respondent compensated Lauren for his work on February 22, and w h o l e f o r a n y l o s s o f pay o r o t h e r benefits Suffered reimbursed him for expenses incurred. However, Respondent did not fur- ther retain his firm.L'* In light of our disposition of this issue, we find it unnecessary to rule " The policy was thus instituted subsequent to Hall's reemployment. on the General Counsel's contention that Lauren was acting as an agent " His analysis was based on the test that we set forth in Wright Line. aof Respondent and that his knowledge should therefore be imputed to Division of Wright Line, Inc. supra Respondent. MODEL A AND MODEL T MOTOR CAR CORP. 557 unionization at the plant and conferring with Nico- textual nature of Respondent's asserted reasons for lai and other management personnel." discharging him. On February 29, Nicolai discharged Hall. He in- Respondent's alleged policy of not hiring em- formed him that his reemployment violated a com- ployees who had been previously discharged was pany policy prohibiting rehire of former employees never reduced to writing. Moreover, the alleged who had previously been discharged for cause. At policy was not even in existence when Hall was re- the hearing, Nicolai testified that this policy was hired. Additionally, although Nicolai claims that he instituted when he became personnel director on refused to hire several applicants who had previ- January 21, 1980.12 He stated that he had not ously been discharged, Respondent does not claim known that Hall had been discharged for cause that the Company ever fired any other employee until February 22, when Harry Shay informed him who was rehired in violation of this policy. In fact, of this fact and Shay suggested that Hall be fired. Nicolai admitted that he never looked through the The Administrative Law Judge found that the personnel files to determine whether there were General Counsel did not demonstrate that Lauren's any other such employees. For these reasons, we conversation with Hall was communicated to any find that Respondent failed to demonstrate that it representative of Respondent. On this basis, he discharged Hall pursuant to a consistent, uniformly found that the General Counsel failed to establish a applied policy. Rather, Respondent invented this prima facie case sufficient to support the inference policy as a convenient pretext after the decision that protected conduct was a motivating factor in was made to discharge Hall because of his union Respondent's decision to discharge Hall. He further activities. 14 Accordingly, we find that Hall's dis- found that Respondent would have discharged Hall charge violated Section 8(a)(3) and (1) of the Act. in the absence of protected conduct, on the basis of Respondent's policy prohibiting rehire of employ- ORDER ees discharged for cause. 13 We find, to the con- Pursuant to Section 10(c) of the National Labor trary, that there is adequate evidence on the record Relations Act, as amended, the National Labor Re- to demonstrate that Respondent was aware of lations Board adopts as its Order the recommended Hall's union activity, that this activity was a moti- Order of the Administrative Law Judge, as modi- vating factor in his discharge, and that Respondent fied below, and hereby orders that the Respondent, would not have discharged Hall in the absence of Model A and Model T Motor Car Reproduction this activity. Corporation, Battle Creek, Michigan, its officers, Although, as indicated by the Administrative agents, successors, and assigns, shall take the action Law Judge, there is no direct evidence that Re- set forth in the said recommended Order, as so spondent had knowledge of Hall's support for the modified: Steelworkers, on the basis of the record evidence i. Substitute the following for paragraph l(a): we may easily infer that Respondent was aware of "(a) Discouraging activities on behalf of United Hall's union activity. Hall wore Steelworkers insig- Steelworkers of America, AFL-CIO-CLC, or In- nia for several weeks prior to his discharge. It is ternational Union, United Automobile, Aerospace unlikely that Shay, who told Nicolai that he saw and Agricultural Implement Workers of America Hall on February 22, would have failed to notice (UAW), or any other labor organization, by dis- his union button and cap. Moreover, it is incon- charging, suspending, or otherwise discriminating ceivable that Lauren did not relate his conversation against employees in any manner with respect to with Hall to Nicolai, Shay, or other managerial their hire or tenure of employment, or any term or employees of Respondent with whom he met later condition of employment." that day. Lauren's visit to the plant was subsidized 2. Substitute the following for paragraph 2(a): by Respondent so that he would personally deter- "(a) offer Michael Smead, Roy Rine, David mine the extent of unionization among the employ- Hall, and James Hunt immediate and full reinstate- ees. We cannot believe that he would have kept ment to their former positions or, if such positions the results of his surreptitious investigation to him- no longer exist, to substantially equivalent posi- self. This conclusion is further reinforced by the tions, without prejudice to their seniority or other fact that Hall was discharged within 1 week of his rights and privileges, discharging if necessary any conversation with Lauren, and by the clearly pre- employees hired to replace them, and make them "* Respondent compensated Lauren for his work on February 22, and w h o l e f o r a n y l o s s o f pay o r o t h e r benefits Suffered reimbursed him for expenses incurred. However, Respondent did not fur- ther retain his firm. ' In light of our disposition of this issue, we find it unnecessary to rule " The policy was thus instituted subsequent to Hall's reemployment. on the General Counsel's contention that Lauren was acting as an agent " His analysis was based on the test that we set forth in Wright Line. aof Respondent and that his knowledge should therefore be imputed to Division of Wright Line, Inc. supra Respondent. MODEL A AND MODEL T MOTOR CAR CORP. 557 unionization at the plant and conferring with Nico- textual nature of Respondent's asserted reasons for lai and other management personnel." discharging him. On February 29, Nicolai discharged Hall. He in- Respondent's alleged policy of not hiring em- formed him that his reemployment violated a com- ployees who had been previously discharged was pany policy prohibiting rehire of former employees never reduced to writing. Moreover, the alleged who had previously been discharged for cause. At policy was not even in existence when Hall was re- the hearing, Nicolai testified that this policy was hired. Additionally, although Nicolai claims that he instituted when he became personnel director on refused to hire several applicants who had previ- January 21, 1980.12 He stated that he had not ously been discharged, Respondent does not claim known that Hall had been discharged for cause that the Company ever fired any other employee until February 22, when Harry Shay informed him who was rehired in violation of this policy. In fact, of this fact and Shay suggested that Hall be fired. Nicolai admitted that he never looked through the The Administrative Law Judge found that the personnel files to determine whether there were General Counsel did not demonstrate that Lauren's any other such employees. For these reasons, we conversation with Hall was communicated to any find that Respondent failed to demonstrate that it representative of Respondent. On this basis, he discharged Hall pursuant to a consistent, uniformly found that the General Counsel failed to establish a applied policy. Rather, Respondent invented this prima facie case sufficient to support the inference policy as a convenient pretext after the decision that protected conduct was a motivating factor in was made to discharge Hall because of his union Respondent's decision to discharge Hall. He further activities. 14 Accordingly, we find that Hall's dis- found that Respondent would have discharged Hall charge violated Section 8(a)(3) and (1) of the Act. in the absence of protected conduct, on the basis of Respondent's policy prohibiting rehire of employ- ORDER ees discharged for cause. 13 We find, to the con- Pursuant to Section 10(c) of the National Labor trary, that there is adequate evidence on the record Relations Act, as amended, the National Labor Re- to demonstrate that Respondent was aware of lations Board adopts as its Order the recommended Hall's union activity, that this activity was a moti- Order of the Administrative Law Judge, as modi- vating factor in his discharge, and that Respondent fied below, and hereby orders that the Respondent, would not have discharged Hall in the absence of Model A and Model T Motor Car Reproduction this activity. Corporation, Battle Creek, Michigan, its officers, Although, as indicated by the Administrative agents, successors, and assigns, shall take the action Law Judge, there is no direct evidence that Re- set forth in the said recommended Order, as so spondent had knowledge of Hall's support for the modified: Steelworkers, on the basis of the record evidence i. Substitute the following for paragraph l(a): we may easily infer that Respondent was aware of "(a) Discouraging activities on behalf of United Hall's union activity. Hall wore Steelworkers insig- Steelworkers of America, AFL-CIO-CLC, or In- nia for several weeks prior to his discharge. It is ternational Union, United Automobile, Aerospace unlikely that Shay, who told Nicolai that he saw and Agricultural Implement Workers of America Hall on February 22, would have failed to notice (UAW), or any other labor organization, by dis- his union button and cap. Moreover, it is incon- charging, suspending, or otherwise discriminating ceivable that Lauren did not relate his conversation against employees in any manner with respect to with Hall to Nicolai, Shay, or other managerial their hire or tenure of employment, or any term or employees of Respondent with whom he met later condition of employment." that day. Lauren's visit to the plant was subsidized 2. Substitute the following for paragraph 2(a): by Respondent so that he would personally deter- "(a) offer Michael Smead, Roy Rine, David mine the extent of unionization among the employ- Hall, and James Hunt immediate and full reinstate- ees. We cannot believe that he would have kept ment to their former positions or, if such positions the results of his surreptitious investigation to him- no longer exist, to substantially equivalent posi- self. This conclusion is further reinforced by the tions, without prejudice to their seniority or other fact that Hall was discharged within 1 week of his rights and privileges, discharging if necessary any conversation with Lauren, and by the clearly pre- employees hired to replace them, and make them "* Respondent compensated Lauren for his work on February 22, and w h o l e f o r a n y l o s s o f pay o r o t h e r benefits Suffered reimbursed him for expenses incurred. However, Respondent did not fur- ther retain his firm. ' In light of our disposition of this issue, we find it unnecessary to rule " The policy was thus instituted subsequent to Hall's reemployment. on the General Counsel's contention that Lauren was acting as an agent " His analysis was based on the test that we set forth in Wright Line. aof Respondent and that his knowledge should therefore be imputed to Division of Wright Line, Inc. supra Respondent. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent's unlawful discharge of them, in ac- WE WILL NOT unlawfully threaten reprisals cordance with the recommendations set forth in because of our employees' union sympathies. the section of the Administrative Law Judge's De- WE WILL NOT in any like or related manner cision entitled 'The Remedy."' interfere with, restrain, or coerce our employ- 3. Insert the following as paragraph 2(c) and re- ees in the exercise of the rights guaranteed letter subsequent paragraphs accordingly: them by Section 7 of the National Labor Rela- "(c) Expunge from its files any reference to the tions Act. disciplinary suspensions of Smith and Burton and WE WILL offer Michael Smead, Roy Rine, to the discharges of Smead, Rine, Hall, and Hunt, David Hall, and James Hunt immediate and and notify them in writing that this has been done full reinstatement to their former jobs or, if and that evidence of those unlawful disciplinary ac- their jobs no longer exist, to substantially tions will not be used as a basis for future discipline equivalent positions without prejudice to their against them." seniority or other rights and privileges previ- 4. Substitute the attached notice for that of the ously enjoyed, discharging if necessary any Administrative Law Judge. employees hired to replace them, and WE WILL make them whole, with interest, for any APPENDIX loss of pay they may have suffered because we NOTICE To EMPLOYEES unlawfully discharged them. POSTED BY ORDER OF THE WE WILL make whole Jeffrey Smith and NATIONAL LABOR RELATIONS BOARD Richard Burton, with interest, for any lost pay An Agency of the United States Government they may have suffered by reasons of their sus- pensions from February 18 to February 21, After a hearing at which all sides had an opportu- 1980. nity to present evidence and state their positions, WE WILL expunge from our files any refer- the National Labor Relations Board found that we ences to the disciplinary suspensions of Smith have violated the National Labor Relations Act, as and Burton, and to the discharges of Smead, amended, and has ordered us to post this notice. Rine, Hall, and Hunt, and WE WILL notify The Act gives employees the following rights: them in writing that this has been done and that evidence of these unlawful actions will To engage in self-organization not be used as a basis for future discipline To form, join, or assist any union against them. To bargain collectively through repre- sentatives of their own choiceMODEL A AND MODEL T MOTOR To engage in activities together for the CAR REPRODUCTION CORPORATION purpose of collective bargaining or other DECISION mutual aid or protection To refrain from the exercise of any or all STATEMENT OF THE CASE such activities. LOWELL GOERLICH, Administrative Law Judge: The WE WILL NOT discourage activities on charge in Case 7-CA-17064, filed by United Steelwork- behalf of United Steelworkers of ers of America, e f America, AFL-CIO-CLC, herein referred to as AFL-CIO-CLC, or International Union, the Steelworkers, on November 13, 1979, was served by United Automobile, Aerospace and Agricul- registered mail on Model A and Model T Motor Car Re- tural Implement Workers of America (UAW), production Corporation, Respondent herein, on Novem- ber 15, 1979. A complaint and notice of hearing was or any other labor organization, by discharg- issued on December 28, 1979. The charges in Cases 7- ing, suspending, or otherwise discriminating CA-17412(2) and 7-CA-17450 filed by the Steelworkers against employees with respect to their hire or on February 15, 1980, and February 27, 1980, respective- tenure of employment, or any term or condi- ly, were served on Respondent by registered mail on or tion of employment. about February 20 and 29, 1980. The charges in Cases 7- WE WILL NOT unlawfully interrogate em- CA-17561(1) and 7-CA-17561(2), filed by International ployees with respect to their union activities Union, United Automobile, Aerospace and Agricultural or sympathies. Implement Workers of America (UAW), herein referred to as the Autoworkers, on March 24, 1980, were served WE WILL NOT uaw y solicit grievances on Respondent by registered mail on or about March 27, in order to influence our employees' union af- 1980. An order consolidating cases and amended com- fection. plaint and notice of hearing was issued April 30, 1980. WE WILL NOT continue in effect an invalid The charge in Case 7-CA-17643, filed by the no-solicitation rule. Autoworkers on April 11, 1980, was served on Respond- 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent's unlawful discharge of them, in ac- WE WILL NOT unlawfully threaten reprisals cordance with the recommendations set forth in because of our employees' union sympathies. the section of the Administrative Law Judge's De- WE WILL NOT in any like or related manner cision entitled 'The Remedy."' interfere with, restrain, or coerce our employ- 3. Insert the following as paragraph 2(c) and re- ees in the exercise of the rights guaranteed letter subsequent paragraphs accordingly: them by Section 7 of the National Labor Rela- "(c) Expunge from its files any reference to the tions Act. disciplinary suspensions of Smith and Burton and WE WILL offer Michael Smead, Roy Rine, to the discharges of Smead, Rine, Hall, and Hunt, David Hall, and James Hunt immediate and and notify them in writing that this has been done full reinstatement to their former jobs or, if and that evidence of those unlawful disciplinary ac- their jobs no longer exist, to substantially tions will not be used as a basis for future discipline equivalent positions without prejudice to their against them." seniority or other rights and privileges previ- 4. Substitute the attached notice for that of the ously enjoyed, discharging if necessary any Administrative Law Judge. employees hired to replace them, and WE WILL make them whole, with interest, for any APPENDIX loss of pay they may have suffered because we NOTICE To EMPLOYEES unlawfully discharged them. POSTED BY ORDER OF THE W E W I L L m ak e w h o l e Jeffrey Smit h a n d NATIONAL LABOR RELATIONS BOARD Ri c h a r d B u r t o n , wit h in t er e st, f o r any l o st pay An Agency of the United States Government they may have suffered by reasons of their sus- pensions from February 18 to February 21, After a hearing at which all sides had an opportu- 1980. nity to present evidence and state their positions, WE WILL expunge from our files any refer- the National Labor Relations Board found that we ences to the disciplinary suspensions of Smith have violated the National Labor Relations Act, as and Burton, and to the discharges of Smead, amended, and has ordered us to post this notice. Rine, Hall, and Hunt, and WE WILL notify The Act gives employees the following rights: t h e m in writing that this has been done and that evidence of these unlawful actions will To engage in self-organization not be used as a basis for future discipline To form, join, or assist any union against them. To bargain collectively through repre- sentatives of their own choice MODEL A AND MODEL T MOTOR To engage in activities together for the C A R REPRODUCTION CORPORATION purpose of collective bargaining or other DECISION mutual aid or protection To refrain from the exercise of any or all STATEMENT OF THE CASE such activities. LOWELL GOERLICH, Administrative Law Judge: The WE WILL NOT discourage activities on charge in Case 7-CA-17064, filed by United Steelwork- behalf of United Steelworkers of America, er s o f America, AFL-CIO-CLC, herein referred to as AFL-CIO-CLC, or International Union, the Steelworkers, on November 13, 1979, was served by United Automobile, Aerospace and Agricul- registered mail on Model A and Model T Motor Car Re- tural Implement Workers of America (UAW), production Corporation, Respondent herein, on Novem- ber 15, 1979. A complaint and notice of hearing was or any other labor organization, by discharg- issued on December 28, 1979. The charges in Cases 7- ing, suspending, or otherwise discriminating CA-17412(2) and 7-CA-17450 filed by the Steelworkers against employees with respect to their hire or on February 15. 1980, and February 27, 1980, respective- tenure of employment, or any term or condi- ly, were served on Respondent by registered mail on or tion of employment,.about February 20 and 29, 1980. The charges in Cases 7- WE WILL NOT unlawfully interrogate em- CA-17561(1) and 7-CA-17561(2), filed by International ployees with respect to their union activities Union, United Automobile, Aerospace and Agricultural or sympathies. Implement Workers of America (UAW), herein referred WE WILL NOT unlawfully solicit grievances t o as t h e A u t o w o r ke rs, on March 24, 1980, were served on Respondent by registered mail on or about March 27, in order to influence our employees' union af- 1980. An order consolidating cases and amended com- fection. plaint and notice of hearing was issued April 30, 1980. WE WILL NOT continue in effect an invalid The charge in Case 7-CA-17643, filed by the no-solicitation rule. Autoworkers on April 11, 1980, was served on Respond- 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent's unlawful discharge of them, in ac- WE WILL NOT unlawfully threaten reprisals cordance with the recommendations set forth in because of our employees' union sympathies. the section of the Administrative Law Judge's De- WE WILL NOT in any like or related manner cision entitled 'The Remedy."' interfere with, restrain, or coerce our employ- 3. Insert the following as paragraph 2(c) and re- ees in the exercise of the rights guaranteed letter subsequent paragraphs accordingly: them by Section 7 of the National Labor Rela- "(c) Expunge from its files any reference to the tions Act. disciplinary suspensions of Smith and Burton and WE WILL offer Michael Smead, Roy Rine, to the discharges of Smead, Rine, Hall, and Hunt, David Hall, and James Hunt immediate and and notify them in writing that this has been done full reinstatement to their former jobs or, if and that evidence of those unlawful disciplinary ac- their jobs no longer exist, to substantially tions will not be used as a basis for future discipline equivalent positions without prejudice to their against them." seniority or other rights and privileges previ- 4. Substitute the attached notice for that of the ously enjoyed, discharging if necessary any Administrative Law Judge. employees hired to replace them, and WE WILL make them whole, with interest, for any APPENDIX loss of pay they may have suffered because we NOTICE To EMPLOYEES unlawfully discharged them. POSTED BY ORDER OF THE W E W I L L m ak e w h o l e Jeffrey Smit h a n d NATIONAL LABOR RELATIONS BOARD Ri c h a r d B u r t o n , wit h in t er e st, f o r any l o st pay An Agency of the United States Government they may have suffered by reasons of their sus- pensions from February 18 to February 21, After a hearing at which all sides had an opportu- 1980. nity to present evidence and state their positions, WE WILL expunge from our files any refer- the National Labor Relations Board found that we ences to the disciplinary suspensions of Smith have violated the National Labor Relations Act, as and Burton, and to the discharges of Smead, amended, and has ordered us to post this notice. Rine, Hall, and Hunt, and WE WILL notify The Act gives employees the following rights: t h e m in writing that this has been done and that evidence of these unlawful actions will To engage in self-organization not be used as a basis for future discipline To form, join, or assist any union against them. To bargain collectively through repre- sentatives of their own choice MODEL A AND MODEL T MOTOR To engage in activities together for the C A R REPRODUCTION CORPORATION purpose of collective bargaining or other DECISION mutual aid or protection To refrain from the exercise of any or all STATEMENT OF THE CASE such activities. LOWELL GOERLICH, Administrative Law Judge: The WE WILL NOT discourage activities on charge in Case 7-CA-17064, filed by United Steelwork- behalf of United Steelworkers of America, er s o f America, AFL-CIO-CLC, herein referred to as AFL-CIO-CLC, or International Union, the Steelworkers, on November 13, 1979, was served by United Automobile, Aerospace and Agricul- registered mail on Model A and Model T Motor Car Re- tural Implement Workers of America (UAW), production Corporation, Respondent herein, on Novem- ber 15, 1979. A complaint and notice of hearing was or any other labor organization, by discharg- issued on December 28, 1979. The charges in Cases 7- ing, suspending, or otherwise discriminating CA-17412(2) and 7-CA-17450 filed by the Steelworkers against employees with respect to their hire or on February 15. 1980, and February 27, 1980, respective- tenure of employment, or any term or condi- ly, were served on Respondent by registered mail on or tion of employment,.about February 20 and 29, 1980. The charges in Cases 7- WE WILL NOT unlawfully interrogate em- CA-17561(1) and 7-CA-17561(2), filed by International ployees with respect to their union activities Union, United Automobile, Aerospace and Agricultural or sympathies. Implement Workers of America (UAW), herein referred WE WILL NOT unlawfully solicit grievances t o as t h e Autoworkers, on March 24, 1980, were served on Respondent by registered mail on or about March 27, in order to influence our employees' union af- 1980. An order consolidating cases and amended com- fection. plaint and notice of hearing was issued April 30, 1980. WE WILL NOT continue in effect an invalid The charge in Case 7-CA-17643, filed by the no-solicitation rule. Autoworkers on April 11, 1980, was served on Respond- 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent's unlawful discharge of them, in ac- WE WILL NOT unlawfully threaten reprisals cordance with the recommendations set forth in because of our employees' union sympathies. the section of the Administrative Law Judge's De- WE WILL NOT in any like or related manner cision entitled 'The Remedy."' interfere with, restrain, or coerce our employ- 3. Insert the following as paragraph 2(c) and re- ees in the exercise of the rights guaranteed letter subsequent paragraphs accordingly: them by Section 7 of the National Labor Rela- "(c) Expunge from its files any reference to the tions Act. disciplinary suspensions of Smith and Burton and WE WILL offer Michael Smead, Roy Rine, to the discharges of Smead, Rine, Hall, and Hunt, David Hall, and James Hunt immediate and and notify them in writing that this has been done full reinstatement to their former jobs or, if and that evidence of those unlawful disciplinary ac- their jobs no longer exist, to substantially tions will not be used as a basis for future discipline equivalent positions without prejudice to their against them." seniority or other rights and privileges previ- 4. Substitute the attached notice for that of the ously enjoyed, discharging if necessary any Administrative Law Judge. employees hired to replace them, and WE WILL make them whole, with interest, for any APPENDIX loss of pay they may have suffered because we NOTICE To EMPLOYEES unlawfully discharged them. POSTED BY ORDER OF THE W E W I L L m ak e w h o l e Jeffrey Smit h a n d NATIONAL LABOR RELATIONS BOARD Ri c h a r d B u r t o n , wit h in t er e st, f o r any l o st pay An Agency of the United States Government they may have suffered by reasons of their sus- pensions from February 18 to February 21, After a hearing at which all sides had an opportu- 1980. nity to present evidence and state their positions, WE WILL expunge from our files any refer- the National Labor Relations Board found that we ences to the disciplinary suspensions of Smith have violated the National Labor Relations Act, as and Burton, and to the discharges of Smead, amended, and has ordered us to post this notice. Rine, Hall, and Hunt, and WE WILL notify The Act gives employees the following rights: t h e m in writing that this has been done and that evidence of these unlawful actions will To engage in self-organization not be used as a basis for future discipline To form, join, or assist any union against them. To bargain collectively through repre- sentatives of their own choice MODEL A AND MODEL T MOTOR To engage in activities together for the C A R REPRODUCTION CORPORATION purpose of collective bargaining or other DECISION mutual aid or protection To refrain from the exercise of any or all STATEMENT OF THE CASE such activities. LOWELL GOERLICH, Administrative Law Judge: The WE WILL NOT discourage activities on charge in Case 7-CA-17064, filed by United Steelwork- behalf of United Steelworkers of America, er s o f America, AFL-CIO-CLC, herein referred to as AFL-CIO-CLC, or International Union, the Steelworkers, on November 13, 1979, was served by United Automobile, Aerospace and Agricul- registered mail on Model A and Model T Motor Car Re- tural Implement Workers of America (UAW), production Corporation, Respondent herein, on Novem- ber 15, 1979. A complaint and notice of hearing was or any other labor organization, by discharg- issued on December 28, 1979. The charges in Cases 7- ing, suspending, or otherwise discriminating CA-17412(2) and 7-CA-17450 filed by the Steelworkers against employees with respect to their hire or on February 15. 1980, and February 27, 1980, respective- tenure of employment, or any term or condi- ly, were served on Respondent by registered mail on or tion of employment,.about February 20 and 29, 1980. The charges in Cases 7- WE WILL NOT unlawfully interrogate em- CA-17561(1) and 7-CA-17561(2), filed by International ployees with respect to their union activities Union, United Automobile, Aerospace and Agricultural or sympathies. Implement Workers of America (UAW), herein referred WE WILL NOT unlawfully solicit grievances t o as t h e Autoworkers, on March 24, 1980, were served on Respondent by registered mail on or about March 27, in order to influence our employees' union af- 1980. An order consolidating cases and amended com- fection. plaint and notice of hearing was issued April 30, 1980. WE WILL NOT continue in effect an invalid The charge in Case 7-CA-17643, filed by the no-solicitation rule. Autoworkers on April 11, 1980, was served on Respond- MODEL A AND MODEL T MOTOR CAR CORP. 559 ent by registered mail on or about April 14, 1980. A (UAW), are now and have been at all times material complaint and notice of hearing in Case 7-CA-17643, herein labor organizations within the meaning of Section and an order consolidating cases, were issued May 27, 2(5) of the Act. 1980. The charge in Case 7-CA-17774, filed by the Steelworkers on May 14, 1980, was served on Respond- III. THE UNFAIR LABOR PRACTICES ent on or about May 16, 1980. A complaint and notice of hearing in Case 7-CA-17774 and an order consolidating A. The 8(a)(1) Violations and the Discharge of Union cases was issued on June 30, 1980. The charge in Case 7- Button Wearers CA-18030, filed by the Autoworkers on July 21, 1980, In October 1979, Jeffrey Smith, an employee of Model was served by certified mail on Respondent on or about A and Model T Motor Car Reproduction Corporation, July 24, 1980. A complaint and notice of hearing in Case contacted United Steelworkers of America and arranged 7-CA-18030 and an order consolidating cases were for a meeting between a Steelworkers representative and issued on August 7, 1980. Complaints in the consolidated employees of Respondent. In addition to Smith, employ- cases allege that Respondent had violated Section 8(a)(l) ees Richard Burton, Randy Chilton, Steve Cica, Ivan and (3) of the National Labor Relations Act, as amend- Head, Walter Kilborn, and David Woods attended the ed, herein referred to as the Act. first meeting held at the Ironworkers Hall in Battle Respondent filed timely answers denying that it had Creek, Michigan, between the Union and the employees engaged in or was engaging in the unfair labor practices on October 19, 1979. Cards were distributed at this meet- alleged. ing and a few were signed. A time was set for a second The consolidated cases came on for hearing in Mar- meeting to be held on October 30, 1979. shall, Michigan, on September 9, 10, and 11, 1980, and Prior to the second Steelworkers meeting, on the Battle Creek, Michigan, on November 18, 19, and 20, morning of October 28, 1979, Danny Sanders, a supervi- 1980. Each party was afforded a full opportunity to be sor at Respondent's Elm Street plant, distributed copies heard, to call, examine, and cross-examine witnesses, to of a letter received by Respondent from the American argue orally on the record, to submit proposed findings Federation of Grain Millers. This letter, dated October of fact and conclusions, and to file briefs. All briefs have 19, 1979, addressed to Harry Shay, president of Re- been carefully considered. spondent, listed Smith, Chilton, Burton, Head, Kilborn, and Cica as among the employees constituting the orga- I. THE BUSINESS OF RESPONDENT nizing committee. nizing committee. I Respondent is, and has been at all times material At lunchtime on the same day, October 28, Danny herein, a corporation duly organized under, and existing Sanders addressed a group of workers, among whom by virtue of, the laws of the State of Michigan. were some of the employees mentioned in the Grain At all times material herein, Respondent has main- Millers' letter. Sanders said that "he wanted to know tained its principal office and place of business at 200 [the employees'] reasons for wanting a union," because Elm Street, in the city of Battle Creek, and State of "they wanted to know upstairs." In addition, "[he] told Michigan, herein called the Elm Street plant. Respond- [employees] what the Company was planning to do for ent maintains an additional facility at 4950 W. Dickman [them]"; the Company was "going to start a bonus pro- Road, in the city of Battle Creek, and State of Michigan, gram and vacations." He said that his uncle, Harry Shay herein called the Dickman Road plant. Respondent is, (president of Respondent), was not a greedy man but felt and has been at all times material herein, engaged in the that because Model A was a startup company a union manufacture, sale, and distribution of reproductions of was not needed at that time and that a "union would not antique automobiles and related products. The Elm give . . . job security." Sanders indicated that the em- Street and Dickman Road plants located at Battle Creek, ployees would be better off without the Union and that Michigan, are the only facilities involved in this proceed- the Company would give the employees more. ing. On October 30, 1979, employees Smith, Denise War- Since about July 1979, at which time Respondent con- field, Chilton, Burton, Head, Kilborn, Cica, Woods, menced its operations, Respondent, in the course and Peter Dixon, and a woman named Mary Lou attended conduct of its business operations, manufactured, sold, the second Steelworkers meeting. Jim Golden, the union and distributed, at its Elm Street and Dickman Road representative, distributed buttons which read "Volun- plants, products valued in excess of $500,000, of which teer Organizer, United Steelworkers of America." Em- products valued in excess of S50,000 were shipped from ployees Burton, Cica, Chilton, Smith, Woods, Bill said plants directly to points located outside the State of Wilson, and Michael Smead wore the Steelworkers but- Michigan. tons in the plant on October 31 and November 1 and 2, Respondent is now and has been at all times material 1979. herein an employer engaged in commerce within the On November 2, 1979, Smith, Burton, Chilton, Cica, meaning of Section 2(2), (6), and (7) of the Act. Woods, Wilson, and Smead were discharged for insisting on wearing the union buttons while at work. Sanders II. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America, AFL -C'IO-CLC, I' Although organizing on behalf of the Grain Millers continued, Cica, United Steelworkers of America, AFL-CIO-CLC, Burton. Smith, Woods, Chilton, and Wilson organized actively only on and International Union, United Automobile, Aerospace behalf of the Steelworkers after the Steelworkers meeting October 30, and Agricultural Implement Workers of America 1979. The Grain Millers is not a party to this case. MODEL A AND MODEL T MOTOR CAR CORP. 559 ent by registered mail on or about April 14, 1980. A (UAW), are now and have been at all times material complaint and notice of hearing in Case 7-CA-17643, herein labor organizations within the meaning of Section and an order consolidating cases, were issued May 27, 2(5) of the Act. 1980. The charge in Case 7-CA-17774, filed by the Steelworkers on May 14, 1980, was served on Respond- Ill. THE UNFAIR LABOR PRACTICES ent on or about May 16, 1980. A complaint and notice of hearing in Case 7-CA-17774 and an order consolidating A. T h e 8(a)(1) Violations and the Discharge of Union cases was issued on June 30, 1980. The charge in Case 7- Button Wearers CA-18030, filed by the Autoworkers on July 21, 1980, In October 1979, Jeffrey Smith, an employee of Model was served by certified mail on Respondent on or about A and Model T Motor Car Reproduction Corporation, July 24, 1980. A complaint and notice of hearing in Case contacted United Steelworkers of America and arranged 7-CA-18030 and an order consolidating cases were for a meeting between a Steelworkers representative and issued on August 7, 1980. Complaints in the consolidated employees of Respondent. In addition to Smith, employ- cases allege that Respondent had violated Section 8(a)(l) ees Richard Burton, Randy Chilton, Steve Cica, Ivan and (3) of the National Labor Relations Act, as amend- Head, Walter Kilborn, and David Woods attended the ed, herein referred to as the Act. first meeting held at the Ironworkers Hall in Battle Respondent filed timely answers denying that it had Creek, Michigan, between the Union and the employees engaged in or was engaging in the unfair labor practices on October 19, 1979. Cards were distributed at this meet- alleged. ing and a few were signed. A time was set for a second The consolidated cases came on for hearing in Mar- meeting to be held on October 30, 1979. shall, Michigan, on September 9, 10, and 11, 1980, and Prior to the second Steelworkers meeting, on the Battle Creek, Michigan, on November 18, 19, and 20, morning of October 28, 1979, Danny Sanders, a supervi- 1980. Each party was afforded a full opportunity to be sor at Respondent's Elm Street plant, distributed copies heard, to call, examine, and cross-examine witnesses, to of a letter received by Respondent from the American argue orally on the record, to submit proposed findings Federation of Grain Millers. This letter, dated October of fact and conclusions, and to file briefs. All briefs have 19, 1979, addressed to Harry Shay, president of Re- been carefully considered. spondent, listed Smith, Chilton, Burton, Head, Kilborn, I. THE BUSINESS OF RESPONDENTIand Cica as among t h e e m p l o y e e s c o n s t i t u t i n g t h e o r g a - nizing committee. I Respondent is, and has been at all times material At lunchtime on the same day, October 28, Danny herein, a corporation duly organized under, and existing Sanders addressed a group of workers, among whom by virtue of, the laws of the State of Michigan. were some of the employees mentioned in the Grain At all times material herein, Respondent has main- Millers' letter. Sanders said that "he wanted to know tained its principal office and place of business at 200 [the employees'] reasons for wanting a union," because Elm Street, in the city of Battle Creek, and State of "they wanted to know upstairs." In addition, "[he] told Michigan, herein called the Elm Street plant. Respond- [employees] what the Company was planning to do for ent maintains an additional facility at 4950 W. Dickman [them]"; the Company was "going to start a bonus pro- Road, in the city of Battle Creek, and State of Michigan, gram and vacations." He said that his uncle, Harry Shay herein called the Dickman Road plant. Respondent is, (president of Respondent), was not a greedy man but felt and has been at all times material herein, engaged in the that because Model A was a startup company a union manufacture, sale, and distribution of reproductions of was not needed at that time and that a "union would not antique automobiles and related products. The Elm give . . . job security." Sanders indicated that the em- Street and Dickman Road plants located at Battle Creek, ployees would be better off without the Union and that Michigan, are the only facilities involved in this proceed- the Company would give the employees more. ing. On October 30, 1979, employees Smith, Denise War- Since about July 1979, at which time Respondent com- field, Chilton, Burton, Head, Kilborn, Cica, Woods, menced its operations, Respondent, in the course and Peter Dixon, and a woman named Mary Lou attended conduct of its business operations, manufactured, sold, the second Steelworkers meeting. Jim Golden, the union and distributed, at its Elm Street and Dickman Road representative, distributed buttons which read "Volun- plants, products valued in excess of $500,000, of which teer Organizer, United Steelworkers of America." Em- products valued in excess of $50,000 were shipped from ployees Burton, Cica, Chilton, Smith, Woods, Bill said plants directly to points located outside the State of Wilson, and Michael Smead wore the Steelworkers but- Michigan. tons in the plant on October 31 and November 1 and 2, Respondent is now and has been at all times material 1979. herein an employer engaged in commerce within the On November 2, 1979, Smith, Burton, Chilton, Cica, meaning of Section 2(2), (6), and (7) of the Act. Woods, Wilson, and Smead were discharged for insisting on wearing the union buttons while at work. Sanders II. THE LABOR ORGANIZATIONS INVOLVED United Steclwnrkcni nf America, AFI -C'lO-r'I, <" Although organizing on behalf of the Grain Millcrs continued, Cica, United Steelworkers of America, AL-C1<-CLC/, gBurton, Smith, Woods, Chilton, and Wilson organized actively only on and International Union, United Automobile, Aerospace behalf of the Steelworkers after the Steelworkers meeting October 30, and Agricultural Implement Workers of America 1979. The Grain Millers is not a party to this case. MODEL A AND MODEL T MOTOR CAR CORP. 559 ent by registered mail on or about April 14, 1980. A (UAW), are now and have been at all times material complaint and notice of hearing in Case 7-CA-17643, herein labor organizations within the meaning of Section and an order consolidating cases, were issued May 27, 2(5) of the Act. 1980. The charge in Case 7-CA-17774, filed by the Steelworkers on May 14, 1980, was served on Respond- Ill. THE UNFAIR LABOR PRACTICES ent on or about May 16, 1980. A complaint and notice of hearing in Case 7-CA-17774 and an order consolidating A. T h e 8(a)(1) Violations and the Discharge of Union cases was issued on June 30, 1980. The charge in Case 7- Button Wearers CA-18030, filed by the Autoworkers on July 21, 1980, In October 1979, Jeffrey Smith, an employee of Model was served by certified mail on Respondent on or about A and Model T Motor Car Reproduction Corporation, July 24, 1980. A complaint and notice of hearing in Case contacted United Steelworkers of America and arranged 7-CA-18030 and an order consolidating cases were for a meeting between a Steelworkers representative and issued on August 7, 1980. Complaints in the consolidated employees of Respondent. In addition to Smith, employ- cases allege that Respondent had violated Section 8(a)(l) ees Richard Burton, Randy Chilton, Steve Cica, Ivan and (3) of the National Labor Relations Act, as amend- Head, Walter Kilborn, and David Woods attended the ed, herein referred to as the Act. first meeting held at the Ironworkers Hall in Battle Respondent filed timely answers denying that it had Creek, Michigan, between the Union and the employees engaged in or was engaging in the unfair labor practices on October 19, 1979. Cards were distributed at this meet- alleged. ing and a few were signed. A time was set for a second The consolidated cases came on for hearing in Mar- meeting to be held on October 30, 1979. shall, Michigan, on September 9, 10, and 11, 1980, and Prior to the second Steelworkers meeting, on the Battle Creek, Michigan, on November 18, 19, and 20, morning of October 28, 1979, Danny Sanders, a supervi- 1980. Each party was afforded a full opportunity to be sor at Respondent's Elm Street plant, distributed copies heard, to call, examine, and cross-examine witnesses, to of a letter received by Respondent from the American argue orally on the record, to submit proposed findings Federation of Grain Millers. This letter, dated October of fact and conclusions, and to file briefs. All briefs have 19, 1979, addressed to Harry Shay, president of Re- been carefully considered. spondent, listed Smith, Chilton, Burton, Head, Kilborn, I. THE BUSINESS OF RESPONDENTIand Cica as among t h e e m p l o y e e s c o n s t i t u t i n g t h e o r g a - nizing committee. I Respondent is, and has been at all times material At lunchtime on the same day, October 28, Danny herein, a corporation duly organized under, and existing Sanders addressed a group of workers, among whom by virtue of, the laws of the State of Michigan. were some of the employees mentioned in the Grain At all times material herein, Respondent has main- Millers' letter. Sanders said that "he wanted to know tained its principal office and place of business at 200 [the employees'] reasons for wanting a union," because Elm Street, in the city of Battle Creek, and State of "they wanted to know upstairs." In addition, "[he] told Michigan, herein called the Elm Street plant. Respond- [employees] what the Company was planning to do for ent maintains an additional facility at 4950 W. Dickman [them]"; the Company was "going to start a bonus pro- Road, in the city of Battle Creek, and State of Michigan, gram and vacations." He said that his uncle, Harry Shay herein called the Dickman Road plant. Respondent is, (president of Respondent), was not a greedy man but felt and has been at all times material herein, engaged in the that because Model A was a startup company a union manufacture, sale, and distribution of reproductions of was not needed at that time and that a "union would not antique automobiles and related products. The Elm give . . . job security." Sanders indicated that the em- Street and Dickman Road plants located at Battle Creek, ployees would be better off without the Union and that Michigan, are the only facilities involved in this proceed- the Company would give the employees more. ing. On October 30, 1979, employees Smith, Denise War- Since about July 1979, at which time Respondent com- field, Chilton, Burton, Head, Kilborn, Cica, Woods, menced its operations, Respondent, in the course and Peter Dixon, and a woman named Mary Lou attended conduct of its business operations, manufactured, sold, the second Steelworkers meeting. Jim Golden, the union and distributed, at its Elm Street and Dickman Road representative, distributed buttons which read "Volun- plants, products valued in excess of $500,000, of which teer Organizer, United Steelworkers of America." Em- products valued in excess of $50,000 were shipped from ployees Burton, Cica, Chilton, Smith, Woods, Bill said plants directly to points located outside the State of Wilson, and Michael Smead wore the Steelworkers but- Michigan. tons in the plant on October 31 and November 1 and 2, Respondent is now and has been at all times material 1979. herein an employer engaged in commerce within the On November 2, 1979, Smith, Burton, Chilton, Cica, meaning of Section 2(2), (6), and (7) of the Act. Woods, Wilson, and Smead were discharged for insisting on wearing the union buttons while at work. Sanders II. THE LABOR ORGANIZATIONS INVOLVED United Steclwnrkcni nf America, AFI -C'lO-r', <* I Although organizing on behalf of the Grain Millcrs continued, Cica, United Steelworkers of America, AL-C1<-CLC/, gBurton, Smith, Woods, Chilton, and Wilson organized actively only on and International Union, United Automobile, Aerospace behalf of the Steelworkers after the Steelworkers meeting October 30, and Agricultural Implement Workers of America 1979. The Grain Millers is not a party to this case. MODEL A AND MODEL T MOTOR CAR CORP. 559 ent by registered mail on or about April 14, 1980. A (UAW), are now and have been at all times material complaint and notice of hearing in Case 7-CA-17643, herein labor organizations within the meaning of Section and an order consolidating cases, were issued May 27, 2(5) of the Act. 1980. The charge in Case 7-CA-17774, filed by the Steelworkers on May 14, 1980, was served on Respond- Ill. THE UNFAIR LABOR PRACTICES ent on or about May 16, 1980. A complaint and notice of hearing in Case 7-CA-17774 and an order consolidating A. T h e 8(a)(1) Violations and the Discharge of Union cases was issued on June 30, 1980. The charge in Case 7- Button Wearers CA-18030, filed by the Autoworkers on July 21, 1980, In October 1979, Jeffrey Smith, an employee of Model was served by certified mail on Respondent on or about A and Model T Motor Car Reproduction Corporation, July 24, 1980. A complaint and notice of hearing in Case contacted United Steelworkers of America and arranged 7-CA-18030 and an order consolidating cases were for a meeting between a Steelworkers representative and issued on August 7, 1980. Complaints in the consolidated employees of Respondent. In addition to Smith, employ- cases allege that Respondent had violated Section 8(a)(l) ees Richard Burton, Randy Chilton, Steve Cica, Ivan and (3) of the National Labor Relations Act, as amend- Head, Walter Kilborn, and David Woods attended the ed, herein referred to as the Act. first meeting held at the Ironworkers Hall in Battle Respondent filed timely answers denying that it had Creek, Michigan, between the Union and the employees engaged in or was engaging in the unfair labor practices on October 19, 1979. Cards were distributed at this meet- alleged. ing and a few were signed. A time was set for a second The consolidated cases came on for hearing in Mar- meeting to be held on October 30, 1979. shall, Michigan, on September 9, 10, and 11, 1980, and Prior to the second Steelworkers meeting, on the Battle Creek, Michigan, on November 18, 19, and 20, morning of October 28, 1979, Danny Sanders, a supervi- 1980. Each party was afforded a full opportunity to be sor at Respondent's Elm Street plant, distributed copies heard, to call, examine, and cross-examine witnesses, to of a letter received by Respondent from the American argue orally on the record, to submit proposed findings Federation of Grain Millers. This letter, dated October of fact and conclusions, and to file briefs. All briefs have 19, 1979, addressed to Harry Shay, president of Re- been carefully considered. spondent, listed Smith, Chilton, Burton, Head, Kilborn, I. THE BUSINESS OF RESPONDENT s and Cica as among t h e e m p l o y e e s c o n s t i t u t i n g t h e o r g a - nizing committee. I Respondent is, and has been at all times material At lunchtime on the same day, October 28, Danny herein, a corporation duly organized under, and existing Sanders addressed a group of workers, among whom by virtue of, the laws of the State of Michigan. were some of the employees mentioned in the Grain At all times material herein, Respondent has main- Millers' letter. Sanders said that "he wanted to know tained its principal office and place of business at 200 [the employees'] reasons for wanting a union," because Elm Street, in the city of Battle Creek, and State of "they wanted to know upstairs." In addition, "[he] told Michigan, herein called the Elm Street plant. Respond- [employees] what the Company was planning to do for ent maintains an additional facility at 4950 W. Dickman [them]"; the Company was "going to start a bonus pro- Road, in the city of Battle Creek, and State of Michigan, gram and vacations." He said that his uncle, Harry Shay herein called the Dickman Road plant. Respondent is, (president of Respondent), was not a greedy man but felt and has been at all times material herein, engaged in the that because Model A was a startup company a union manufacture, sale, and distribution of reproductions of was not needed at that time and that a "union would not antique automobiles and related products. The Elm give . . . job security." Sanders indicated that the em- Street and Dickman Road plants located at Battle Creek, ployees would be better off without the Union and that Michigan, are the only facilities involved in this proceed- the Company would give the employees more. ing. On October 30, 1979, employees Smith, Denise War- Since about July 1979, at which time Respondent com- field, Chilton, Burton, Head, Kilborn, Cica, Woods, menced its operations, Respondent, in the course and Peter Dixon, and a woman named Mary Lou attended conduct of its business operations, manufactured, sold, the second Steelworkers meeting. Jim Golden, the union and distributed, at its Elm Street and Dickman Road representative, distributed buttons which read "Volun- plants, products valued in excess of $500,000, of which teer Organizer, United Steelworkers of America." Em- products valued in excess of $50,000 were shipped from ployees Burton, Cica, Chilton, Smith, Woods, Bill said plants directly to points located outside the State of Wilson, and Michael Smead wore the Steelworkers but- Michigan. tons in the plant on October 31 and November 1 and 2, Respondent is now and has been at all times material 1979. herein an employer engaged in commerce within the On November 2, 1979, Smith, Burton, Chilton, Cica, meaning of Section 2(2), (6), and (7) of the Act. Woods, Wilson, and Smead were discharged for insisting on wearing the union buttons while at work. Sanders II. THE LABOR ORGANIZATIONS INVOLVED United Steclwnrkcni nf America, AFI -C'lO-r'I, <" Although organizing on behalf of the Grain Millcrs continued, Cica, United Steelworkers of America, AL-C1<-CLC/, gBurton, Smith, Woods, Chilton, and Wilson organized actively only on and International Union, United Automobile, Aerospace behalf of the Steelworkers after the Steelworkers meeting October 30, and Agricultural Implement Workers of America 1979. The Grain Millers is not a party to this case. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Wilson that he "couldn't wear [his union button] on also Pay'n Save Corp. v. N.LR.B., 641 F.2d 697 (9th Cir. company time." Sanders also ordered Smith to take his 1981). button off. Joe Shay, vice president of Respondent, told George Dunlap, an employee at the Elm Street plant Smith on November 2 that he was "terminated" for and a volunteer organizer for the Steelworkers through wearing the button. Skip Turner, supervisor at Respond- April 1980, testified without contradiction that Skip ent's Elm Street plant, tapped Cica's button and said that Turner asked him on three occasions during the period "this is going to get you in trouble and anybody else October through January whether he was going to wearing one will get in trouble also." Sanders told Cica attend a union meeting. These inquiries usually occurred that he "would have to take off the badge or leave." Joe on Tuesday in the evening of which union meetings Shay told Chilton and Woods that they "couldn't wear were held. Although it is not apparent whether Dunlap . . . union buttons on company time . . . and to take had begun wearing his button at this time, it is apparent that button off or punch out." After Burton had punched that he had been attending Steelworkers meetings since out, he phoned Shay to ascertain if he were actually October and that other employees had begun wearing fired. Shay responded, "Yes, Richard . . . you are fired their buttons. for wearing a badge. This is harassment to other work- The General Counsel claims that the interrogations by ers." Sanders and Turner detailed above were in violation of Thereafter Smith, Burton, Wilson, Woods, Cica, and Section 8(a)(l) of the Act. "Any interrogation by the Chilton, all discharged for wearing union buttons, were employer relating to union matters presents an ever pres- told by Maurice Halstead, a Steelworkers representative, ent danger of coercing employees in violation of their to report back to work on November 8 or 9. All of the [Section] 7 rights." Texas Industries, Inc., et al v. aforementioned returned to work as instructed and at- N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). Such inter- tempted to punch in at their regular starting time, 7 a.m. rogation has the "natural tendency to instill in the minds All were wearing buttons and some wore Steelworkers of employees fear of discrimination on the basis of the in- pocket holders. When they attempted to punch in, Skip formation the employer has obtained." N.LR.B. v. West Turner, a supervisor, told them not to punch in but Coast Casket Company, Inc., 205 F.2d 904 (9th Cir. 1953). rather to go upstairs to the cafeteria and wait. He also In the instant case Respondent has shown no legitimate said "that the union did not hold up their agreement" said "that the union did not hold up their agreement" purpose in seeking the information requested nor did it and demanded that Chilton, Smith, and Burton take their assure the employees involved that they would be free buttons off. "[H]e said you are just asking for trouble from reprisals. Indeed, in the case of Sanders, the inter- from reprisals. Indeed, in the case of Sanders, the inter- again," and "do you want to go out the door again." rogations were accompanied with promises of benefits (a Subsequently, all went up to the cafeteria but refused to bonus program and vacations and that Res of b ndenfits ( remove their buttons as demanded by Turner. Smith, b o n u s p ro g r am an d v aca tions and that Respondent remove their buttons as demanded by Turner. Smith, would give more without a union) and a threat that the Burton, Chilton, and Cica waited in the cafeteria and w o u l d e ithout union at were told by Turner that they "couldn't start work on would give no job security. The interrogations of today that the union didn't hold up to their agreement." a n d ers an d T u rn e r w e re the Act. Section 8(a)(1) of the Act. Turner did not explain the nature of this agreement and the above employees and Wilson and Woods (who did In respect to Sanders, the General Counsel additional- not wait in the cafeteria) were told to leave or to take ly claims Sanders unlawfully solicited grievances citing off their buttons. All left. Approximately 7 weeks later, Federal Yeast Corporation, 226 NLRB 1046, 1054 (1976) those employees received letters from the Company tell- In support of the claim, Sanders' testimony reveals that ing them that they could return to work immediately and he asked them what their problems were ... we knew to report to their normal stations. All the employees re- we had problems that we were a start up company and turned to work immediately upon receipt of the letter in that [he] wanted to try to remedy as many as [he] December 1979. could." Sanders added that he "didn't think the Union "Unless special circumstances are present which justify would be able to solve these roblems." The General the maintenance of production and discipline, an employ- Counsel's poit is well taken. The General l ounsel con- er may not require an employee to remove union insignia cedes that the complaint contains no allegation regarding while on the job in a plant. Such a restriction collides the solicitation of grievances; nevertheless, relying on with the employees' rights guaranteed by Section 7 of Crown Zellerbach Corporation, 225 NLRB 911 912 the Act." The Loray Corporation, 184 NLRB 557, 577 (1976), the General Counsel seeks an 8(aX)(l) finding "in- (1970). Respondent offered no valid evidence which asmuch as the evidence supports such a finding, the would sustain its right to restrict the wearing of union matter s inextricably tied to a conversation that was spe- badges in its plants. Hence, by Respondent's threat to cifically alleged, and the the ie o the conversation was discharge employees for wearing union insignia and by fully litigated." Since the General Counsel's assertion is its discharges of employees wearing union insignia, Re- spondent violated Section 8(a)(1) and (3) of the Act.2 See David Woods, and Wilson, discharged on November 2, 1979, for protect- ed concerted activity in violation of Sec. 8(aX3) and (I) of the Act and reinstated in late December 1979. Also included in the settlement was an On November 20, 1980, Respondent, Steelworkers, Autoworkers, and amount due David Latta for Respondent's alleged refusal to grant a pay the General Counsel entered into a settlement stipulation constituting a raise in violation of Sec. 8(aX3) and (I) of the Act. A part of the stipula- partial agreement of the outstanding complaint allegations, which was ap- tion further provided that the "General Counsel may present evidence in proved by the Administrative Law Judge and by the Board on February respect to the issues settled herein and said evidence may be considered 5, 1981. Provided for in the settlement stipulation was the reinstatement by the Administrative Law Judge to the extent that it bears upon the un- of Richard Burton, Jr., Randy Chilton, Steven Cica, Jeffrey Smith, settled issues in the aforementioned case." 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Wilson that he "couldn't wear [his union button] on also Pay'n Save Corp. v. N.LR.B., 641 F.2d 697 (9th Cir. company time." Sanders also ordered Smith to take his 1981). button off. Joe Shay, vice president of Respondent, told George Dunlap, an employee at the Elm Street plant Smith on November 2 that he was "terminated" for and a volunteer organizer for the Steelworkers through wearing the button. Skip Turner, supervisor at Respond- April 1980, testified without contradiction that Skip ent's Elm Street plant, tapped Cica's button and said that Turner asked him on three occasions during the period "this is going to get you in trouble and anybody else October through January whether he was going to wearing one will get in trouble also." Sanders told Cica attend a union meeting. These inquiries usually occurred that he "would have to take off the badge or leave." Joe on Tuesday in the evening of which union meetings Shay told Chilton and Woods that they "couldn't wear were held. Although it is not apparent whether Dunlap . . . union buttons on company time ... and to take had begun wearing his button at this time, it is apparent that button off or punch out." After Burton had punched that he had been attending Steelworkers meetings since out, he phoned Shay to ascertain if he were actually October and that other employees had begun wearing fired. Shay responded, "Yes, Richard . . . you are fired their buttons. for wearing a badge. This is harassment to other work- The General Counsel claims that the interrogations by er s." Sanders and Turner detailed above were in violation of Thereafter Smith, Burton, Wilson, Woods, Cica, and Section 8(a)(l) of the Act. "Any interrogation by the Chilton, all discharged for wearing union buttons, were employer relating to union matters presents an ever pres- told by Maurice Halstead, a Steelworkers representative, ent danger of coercing employees in violation of their to report back to work on November 8 or 9. All of the [Section] 7 rights." Texas Industries, Inc., et al. v. aforementioned returned to work as instructed and at- N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). Such inter- tempted to punch in at their regular starting time, 7 a.m. rogation has the "natural tendency to instill in the minds All were wearing buttons and some wore Steelworkers of employees fear of discrimination on the basis of the in- pocket holders. When they attempted to punch in, Skip formation the employer has obtained." N.L.R.B. v. West Turner, a supervisor, told them not to punch in but Coast Casket Company, Inc., 205 F.2d 904 (9th Cir. 1953). rather to go upstairs to the cafeteria and wait. He also In the instant case Respondent has shown no legitimate said "that the union did not hold up their agreement" p in s t i r e n d it and demanded that Chilton, Smith, and Burton take their a u r e t h e e nv old a t t e y would bfr ee buttons off. "[H]e said you are just asking for trouble f ro r e Ind ee d in th e c as Sn e r th e i r - o^«;^ " »»^ "^ „ * * t »>, j "'from reprisals. Indeed, in the case of Sanders, the inter- again," and "do you want to go out the door again." roainweecomneditpoissfbnfts( Subsequently, all went up to the cafeteria but refused to ro g at i o n s w er e accompanied with promises of benefits (a remove their buttons as demanded by Turner. Smith, w b o n u s p ro g r amo n d v i c t ta o n s and that Respondent Burton, Chilton, and Cica waited in the cafeteria and U w o u l d gvore without a union) and a threat that the were told by Turner that they "couldn't start work U n lo n w o u ld Sandero job security. The interrogations of today that the union didn't hold up to their agreement." e m p lo y e es b y S a n d er s an d T u r n e r w e r e 8 n v o o la t h o n o f Turner did not explain the nature of this agreement and I nrepc o S n e rs, t G C ad..l the above employees and Wilson and Woods (who did I n, clamsS t o Sanders, the General Counsel additional- not wait in the cafeteria) were told to leave or to take Iy claims Sanders unlawfully solicited grievances citing off their buttons. All left. Approximately 7 weeks later, F ed er a l Yeast Corporationm 226 NLRB 1046, 1054 (1976). those employees received letters from the Company tell- I n he"ppas o f th e c l at m i Sanders' testimony reveals that ing them that they could return to work immediately and h e as k ed t he m w h at t h e p r Problems were ... we knew to report to their normal stations. All the employees re- w e h a d Problems that we were a start up company and turned to work immediately upon receipt of the letter in t h a t [he] w an t ed th t hi y "edy as many as [he] December 1979. could.b Sanders added that he didn.t think the Union "Unless special circumstances are present which justify w o u l d b e ab l e t o so l v e t h es e Problems." The General the maintenance of production and discipline, an employ- c o un s el d s pthat t s w e la tak e n s T h e G en er al C o un s el c o n - er may not require an employee to remove union insignia c ed es t h at t h e complaint contains no allegation regarding while on the job in a plant. Such a restriction collides t h e C licitation of grievances; nevertheless, relying on with the employees' rights guaranteed by Section 7 of C1Ow7 ZeGeerbach Corporation, 225 NLRB 911, 912 the Act." The Loray Corporation, 184 NLRB 557, 577 a(1976)a the General Counsel seeks an 8(aXl) finding "th- (1970). Respondent offered no valid evidence which asmuch as the evidence supports such a finding, the would sustain its right to restrict the wearing of union m at te r l s alextgdcably tied to a conversation that was spe- badges in its plants. Hence, by Respondent's threat to cfu c ll y. alleged. and the issue of the conversation was discharge employees for wearing union insignia and by f u l lv ^S^- Since the General Counsel's assertion is its discharges of employees wearing union insignia, Re- spondent violated Section 8(a)(l) and (3) of the Act.2 See David Woods, and Wilson, discharged on November 2, 1979, for protect- ee ed concerted activity in violation of Sec. 8(aX3) and (i) or the Act and reinstated in late December 1979. Also included in the settlement was an 'On November 20, 1980, Respondent, Steelworkers, Autoworkers, and amount due David Latta for Respondent's alleged refusal to grant a pay the General Counsel entered into a settlement stipulation constituting a raise in violation of Sec. 8(aX3) and (1) of the Act. A part of the stipula- partial agreement of the outstanding complaint allegations, which was ap- tion further provided that the "General Counsel may present evidence in proved by the Administrative Law Judge and by the Board on February respect to the issues settled herein and said evidence may be considered 5, 1981. Provided for in the settlement stipulation was the reinstatement by the Administrative Law Judge to the extent that it bears upon the un- of Richard Burton, Jr., Randy Chilton, Steven Cica, Jeffrey Smith, settled issues in the aforementioned case." 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Wilson that he "couldn't wear [his union button] on also Pay'n Save Corp. v. N.LR.B., 641 F.2d 697 (9th Cir. company time." Sanders also ordered Smith to take his 1981). button off. Joe Shay, vice president of Respondent, told George Dunlap, an employee at the Elm Street plant Smith on November 2 that he was "terminated" for and a volunteer organizer for the Steelworkers through wearing the button. Skip Turner, supervisor at Respond- April 1980, testified without contradiction that Skip ent's Elm Street plant, tapped Cica's button and said that Turner asked him on three occasions during the period "this is going to get you in trouble and anybody else October through January whether he was going to wearing one will get in trouble also." Sanders told Cica attend a union meeting. These inquiries usually occurred that he "would have to take off the badge or leave." Joe on Tuesday in the evening of which union meetings Shay told Chilton and Woods that they "couldn't wear were held. Although it is not apparent whether Dunlap . . . union buttons on company time ... and to take had begun wearing his button at this time, it is apparent that button off or punch out." After Burton had punched that he had been attending Steelworkers meetings since out, he phoned Shay to ascertain if he were actually October and that other employees had begun wearing fired. Shay responded, "Yes, Richard . . . you are fired their buttons. for wearing a badge. This is harassment to other work- The General Counsel claims that the interrogations by er s." Sanders and Turner detailed above were in violation of Thereafter Smith, Burton, Wilson, Woods, Cica, and Section 8(a)(l) of the Act. "Any interrogation by the Chilton, all discharged for wearing union buttons, were employer relating to union matters presents an ever pres- told by Maurice Halstead, a Steelworkers representative, ent danger of coercing employees in violation of their to report back to work on November 8 or 9. All of the [Section] 7 rights." Texas Industries, Inc., et al. v. aforementioned returned to work as instructed and at- N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). Such inter- tempted to punch in at their regular starting time, 7 a.m. rogation has the "natural tendency to instill in the minds All were wearing buttons and some wore Steelworkers of employees fear of discrimination on the basis of the in- pocket holders. When they attempted to punch in, Skip formation the employer has obtained." N.L.R.B. v. West Turner, a supervisor, told them not to punch in but Coast Casket Company, Inc., 205 F.2d 904 (9th Cir. 1953). rather to go upstairs to the cafeteria and wait. He also In the instant case Respondent has shown no legitimate said "that the union did not hold up their agreement" p in s t i r e n d it and demanded that Chilton, Smith, and Burton take their a u r e t h e e nv old a t t e y would bfr ee buttons off. "[H]e said you are just asking for trouble f ro r e Ind ee d in th e c as Sn e r th e i r - o^«;^ " »»^ "^ „ * * t »>, j "'from repnisals. Indeed, in the case of Sanders, the mnter- again," and "do you want to go out the door again." roainweecomneditpoissfbnfts( Subsequently, all went up to the cafeteria but refused to ro g at i o n s w er e accompanied with promises of benefits (a remove their buttons as demanded by Turner. Smith, w b o n u s pg o ie am an d v ac a taions and that Respondent Burton, Chilton, and Cica waited in the cafeteria and U w o u l d gvore without a union) and a threat that the were told by Turner that they "couldn't start work U n lo n w o u ld Sandero job security. The interrogations of today that the union didn't hold up to their agreement." e m p lo y e es b y S a n d er s an d T u r n e r w e r e 8 n v o o la t h o n o f Turner did not explain the nature of this agreement and I nrepc o S n e rs, t G C ad..l the above employees and Wilson and Woods (who did I n, clamsS t o Sanders, the General Counsel additional- not wait in the cafeteria) were told to leave or to take Iy claims Sanders unlawfully solicited grievances citing off their buttons. All left. Approximately 7 weeks later, F ed er a l Yeast Corporationm 226 NLRB 1046, 1054 (1976). those employees received letters from the Company tell- I n he"ppas o f th e c l at m i Sanders' testimony reveals that ing them that they could return to work immediately and h e as k ed t he m w h at t h e p r Problems were ... we knew to report to their normal stations. All the employees re- w e h a d Problems that we were a start up company and turned to work immediately upon receipt of the letter in t h a t [he] w an t ed th t hi y ^ "edy as many as [he] December 1979. could.b Sanders added that he didn.t think the Union "Unless special circumstances are present which justify w o u l d b e ab l e t o so l v e t h es e Problems." The General the maintenance of production and discipline, an employ- c o un s el d s pthat t s w e la tak e n s T h e G en er al C o un s el c o n - er may not require an employee to remove union insignia c ed es t h at t h e complaint contains no allegation regarding while on the job in a plant. Such a restriction collides t h e C licitation of grievances; nevertheless, relying on with the employees' rights guaranteed by Section 7 of C1Ow7 ZeGeerbach Corporation, 225 NLRB 911, 912 the Act." The Loray Corporation, 184 NLRB 557, 577 a(1976), the General Counsel seeks an 8(aXl) finding "th- (1970). Respondent offered no valid evidence which asmuch as the evidence supports such a finding, the would sustain its right to restrict the wearing of union m at te r l s alextgdcably tied to a conversation that was spe- badges in its plants. Hence, by Respondent's threat to cfu c ll y. alleged. and the issue of the conversation was discharge employees for wearing union insignia and by f u l lv ^S^- Since the General Counsel's assertion is its discharges of employees wearing union insignia, Re- spondent violated Section 8(a)(l) and (3) of the Act.2 See David Woods, and Wilson, discharged on November 2, 1979, for protect- ee ed concerted activity in violation of Sec. 8(aX3) and (i) or the Act and reinstated in late December 1979. Also included in the settlement was an 'On November 20, 1980, Respondent, Steelworkers, Autoworkers, and amount due David Latta for Respondent's alleged refusal to grant a pay the General Counsel entered into a settlement stipulation constituting a raise in violation of Sec. 8(aX3) and (1) of the Act. A part of the stipula- partial agreement of the outstanding complaint allegations, which was ap- tion further provided that the "General Counsel may present evidence in proved by the Administrative Law Judge and by the Board on February respect to the issues settled herein and said evidence may be considered 5, 1981. Provided for in the settlement stipulation was the reinstatement by the Administrative Law Judge to the extent that it bears upon the un- of Richard Burton, Jr., Randy Chilton, Steven Cica, Jeffrey Smith, settled issues in the aforementioned case." 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Wilson that he "couldn't wear [his union button] on also Pay'n Save Corp. v. N.LR.B., 641 F.2d 697 (9th Cir. company time." Sanders also ordered Smith to take his 1981). button off. Joe Shay, vice president of Respondent, told George Dunlap, an employee at the Elm Street plant Smith on November 2 that he was "terminated" for and a volunteer organizer for the Steelworkers through wearing the button. Skip Turner, supervisor at Respond- April 1980, testified without contradiction that Skip ent's Elm Street plant, tapped Cica's button and said that Turner asked him on three occasions during the period "this is going to get you in trouble and anybody else October through January whether he was going to wearing one will get in trouble also." Sanders told Cica attend a union meeting. These inquiries usually occurred that he "would have to take off the badge or leave." Joe on Tuesday in the evening of which union meetings Shay told Chilton and Woods that they "couldn't wear were held. Although it is not apparent whether Dunlap . . . union buttons on company time ... and to take had begun wearing his button at this time, it is apparent that button off or punch out." After Burton had punched that he had been attending Steelworkers meetings since out, he phoned Shay to ascertain if he were actually October and that other employees had begun wearing fired. Shay responded, "Yes, Richard . . . you are fired their buttons. for wearing a badge. This is harassment to other work- The General Counsel claims that the interrogations by er s." Sanders and Turner detailed above were in violation of Thereafter Smith, Burton, Wilson, Woods, Cica, and Section 8(a)(l) of the Act. "Any interrogation by the Chilton, all discharged for wearing union buttons, were employer relating to union matters presents an ever pres- told by Maurice Halstead, a Steelworkers representative, ent danger of coercing employees in violation of their to report back to work on November 8 or 9. All of the [Section] 7 rights." Texas Industries, Inc., et al. v. aforementioned returned to work as instructed and at- N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). Such inter- tempted to punch in at their regular starting time, 7 a.m. rogation has the "natural tendency to instill in the minds All were wearing buttons and some wore Steelworkers of employees fear of discrimination on the basis of the in- pocket holders. When they attempted to punch in, Skip formation the employer has obtained." N.L.R.B. v. West Turner, a supervisor, told them not to punch in but Coast Casket Company, Inc., 205 F.2d 904 (9th Cir. 1953). rather to go upstairs to the cafeteria and wait. He also In the instant case Respondent has shown no legitimate said "that the union did not hold up their agreement" p in s t i r e n d it and demanded that Chilton, Smith, and Burton take their a u r e t h e e nv old a t t e y would bfr ee buttons off. "[H]e said you are just asking for trouble f ro r e Ind ee d in th e c as Sn e r th e i r - o^«;^ " »»^ "^ „ * * t »>, j "'from repnisals. Indeed, in the case of Sanders, the mnter- again," and "do you want to go out the door again." roainweecomneditpoissfbnfts( Subsequently, all went up to the cafeteria but refused to ro g at i o n s w er e accompanied with promises of benefits (a remove their buttons as demanded by Turner. Smith, w b o n u s pg o ie am wtd hocations and that Respondent Burton, Chilton, and Cica waited in the cafeteria and U w o u l d gvore without a union) and a threat that the were told by Turner that they "couldn't start work U n lo n w o u ld Sandero job security. The interrogations of today that the union didn't hold up to their agreement." e m p lo y e es b y S a n d er s an d T u r n e r w e r e 8 n v o o la t h o n o f Turner did not explain the nature of this agreement and I nrepc o S n e rs, t G C ad..l the above employees and Wilson and Woods (who did I n r esp ec t t o Sanders, the General Counsel additional- not wait in the cafeteria) were told to leave or to take Iy claims Sanders unlawfully solicited grievances citing off their buttons. All left. Approximately 7 weeks later, F ed er a l Yeast Corporationm 226 NLRB 1046, 1054 (1976). those employees received letters from the Company tell- h I n su p p o ke th e c l at m i Sanders' testimony reveals that ing them that they could return to work immediately and h e as k ed t he m w h at t h e p r Problems were ... we knew to report to their normal stations. All the employees re- w e h a d Problems that we were a start up company and turned to work immediately upon receipt of the letter in t h a t [he] w an t ed th t hi y ^ "edy as many as [he] December 1979. could.b Sanders added that he didn.t think the Union "Unless special circumstances are present which justify w o u l d b e ab l e t o so l v e t h es e Problems." The General the maintenance of production and discipline, an employ- c o un s el d s pthat t s w e la tak e n s T h e G en er al C o un s el c o n - er may not require an employee to remove union insignia c ed es t h at t h e complaint contains no allegation regarding while on the job in a plant. Such a restriction collides t h e C licitation of grievances; nevertheless, relying on with the employees' rights guaranteed by Section 7 of C1Ow7 ZeGeerbach Corporation, 225 NLRB 911, 912 the Act." The Loray Corporation, 184 NLRB 557, 577 a(1976), the General Counsel seeks an 8(aXl) finding "th- (1970). Respondent offered no valid evidence which asmuch as the evidence supports such a finding, the would sustain its right to restrict the wearing of union m at te r l s alextgdcably tied to a conversation that was spe- badges in its plants. Hence, by Respondent's threat to cfu c ll y. alleged. and the issue of the conversation was discharge employees for wearing union insignia and by f u l lv tigBtd- Since the General Counsel's assertion is its discharges of employees wearing union insignia, Re- spondent violated Section 8(a)(l) and (3) of the Act.2 See David Woods, and Wilson, discharged on November 2, 1979, for protect- ee ed concerted activity in violation of Sec. 8(aX3) and (i) or the Act and reinstated in late December 1979. Also included in the settlement was an 'On November 20, 1980, Respondent, Steelworkers, Autoworkers, and amount due David Latta for Respondent's alleged refusal to grant a pay the General Counsel entered into a settlement stipulation constituting a raise in violation of Sec. 8(aX3) and (1) of the Act. A part of the stipula- partial agreement of the outstanding complaint allegations, which was ap- tion further provided that the "General Counsel may present evidence in proved by the Administrative Law Judge and by the Board on February respect to the issues settled herein and said evidence may be considered 5, 1981. Provided for in the settlement stipulation was the reinstatement by the Administrative Law Judge to the extent that it bears upon the un- of Richard Burton, Jr., Randy Chilton, Steven Cica, Jeffrey Smith, settled issues in the aforementioned case." MODEL A AND MODEL T MOTOR CAR CORP. 561 supported by the record and the authority cited, an very much. She felt as if she was abused and intimi- 8(a)(l) finding is hereby entered. dated. The General Counsel further maintains that the fol- She clocked in and broke down in tears and went lowing provision of the Employer's personnel manual upstairs and by then was pretty upset. She went to constituted an unlawful no-solicitation rule: Skip Turner's office and no one was there and tried one of the others and then Bob Shirk came along Employees will be subject to disciplinary action for and asked her what was the matter. She asked if any of the following offenses: . . . 16. Vending, so- Mr. Harry Shay was in and Mr. Shirk said come on liciting, or collecting contributions for any purpose, and sit down and she told him what happened. unless authorized by Management. Iris identified the one of the persons as Jeff Smith. The General Counsel argues that the rule is "impermissi- bly invasive for failing to distinguish between working Jackson's statement is as follows: and non-working time." The General Counsel relies on Lyman Steel Company, 249 NLRB 296, 303 (1980). Since She came in the building and they were standing at the above rule on its face prohibits solicitation during the door and she said she didn't want any and that working hours by employees on their own time or in they were not supposed to be standing at the door work areas on their own time, which they may do absent handing out papers. She went over to talk with the unusual circumstances not here shown without permis-guard. They sad take this up to your GD Harry Shay. She was pretty sure it was Jeff Smith. She sion of management, the rule is in violation of Sectionhe was sure Jef th he 8(a)(l) of the Act. TB.C. Graphics, Inc., 214 NLRB then walked over to the guard. She tuned around 1003, 1004 (1974). Accordingly, Respondent, by main-and Irs was crying. taining in effect the invalid no-solicitation rule, was in Mildred does not know what Union it is. violation of Section 8(a)(l) of the Act. Mildred was not around Iris when they were talk- B. Distribution of Union Leaflets by Smith and ing to her Burton After these statements were composed, Nicolai called Jeffrey Smith distributed leaflets on behalf of the union Smith and Burton to his office on February 15, 1980, and organizing campaign once a week after he was reinstated read to them the following rule, published in Respond- in December 1979. On February 14, 1980, at 6:30 a.m. he ent's personnel policy manual, distributed February 13, and Richard Burton passed out leaflets inside the em- 1980: ployee entrance. They stood three steps inside the en- trance, adjacent to the loading dock area and as close to The following will constitute violations of Compa- the wall as physically possible. At this time there was no ny rules: work activity in the loading dock area for it was common practice for such activity not to begin until 8 a.m. In fact, the door to the loading dock was padlocked and the woman who kept the keys did not begin work 16. Threatening, intimidating, coercing, or interfer- and the woman who kept the keys did not begin work until 8 a.m. Thus it was impossible to unlock the door wh fellow employees until 1 hour after the 7 a.m. shift began. During preshift Nicolai also read the following: hours the area was used solely as an employee entrance. It was in fact the only entrance to the plant to be used PLANT SOLICITATIONS by employees. Employees Iris Swartz and Mildred Jackson entered Our Company is interested in fund raising drives the plant on February 14, 1980, through the employee and requests for contributions within our communi- entrance where Smith and Burton stood and distributed ty. However, in order to maintain efficiency and leaflets. Here, an incident occurred which they reported prevent littering we must have certain rules. to Nicolai and which is described below in the state- Employees are not allowed to engage in any oral so- ments submitted to Nicolai by Swartz and Jackson. licitation during working time in any work areas. Em- Swartz' statement is as follows: ployees are not allowed to distribute any printed mate- rial in work areas during either working or non work- Walked into building this morning and they were ing time. handing out pamphlets. She first said she didn't want one but finally took one. She was [sic] didn't Persons who are not employees are not to be allowed know what they were. She turned around and tore on the Company premises at any time to engage in it up and said she was not interested and proceeded either oral solicitation or the distribution of printed to the time clock. The person then said "Why don't material. [Emphasis supplied.] you take this to your Harry Shay" and used lan- guage she didn't catch. She then said "I'll do just Prior to February 13, 1980, the personnel policy manual of October uthat" and tried to take antheenr pamphlet and he 26, 1979, contained the following which governed the same areas of con- that" and tried to take another pamphlet and he cern: looked at her and used "F ASS." This upset her Continued MODEL A AND MODEL T MOTOR CAR CORP. 561 supported by the record and the authority cited, an very much. She felt as if she was abused and intimi- 8(a)(l) finding is hereby entered. dated. The General Counsel further maintains that the fol- She clocked in and broke down in tears and went lowing provision of the Employer's personnel manual upstairs and by then was pretty upset. She went to constituted an unlawful no-solicitation rule: Skip Turner's office and no one was there and tried _ , .„ . , . ,. . ,. . ^~~one of the others and then Bob Shirk came along Employees will be subject to disciplinary action for oneof te ohers and then Bob she asked if any of the following offenses: ... 16. Vending, so- andasked Shay was in and Mr. Shirk said come on liciting, or collecting contributions for any purpose, Mr ar Sa a n and ^ old Mr. Siat happened. unless authorized by Management. Iris identified the one of the persons as Jeff Smith. The General Counsel argues that the rule is "impermissi- bly invasive for failing to distinguish between working Jackson's statement is as follows: and non-working time." The General Counsel relies on Lyman Steel Company, 249 NLRB 296, 303 (1980). Since Sh e c a m e in t h e building and they were standing at the above rule on its face prohibits solicitation during t h e d o o r and sh e sa id sh e d id n 't w an t any an d th at working hours by employees on their own time or in they were not supposed to be standing at the door work areas on their own time, which they may do absent handing out papers. She went over to talk with the unusual circumstances not here shown without permis- g u ar d .ohe s aid t ak e t to y GD H y sion of management, the rule is in violation of Section S h e w as Pretty sure it was Jeff Smith. She 8(a)1) o theAct.TB.CGrapicsInc. 214NLRBthen walked over to the guard. She turned around 8(a)(l) of the Act. T.B.C. Graphics. Inc., 214 NLRB^ Iswc ° 1003, 1004 (1974). Accordingly, Respondent, by main- a n d Ir s w a s c r y ing. taining in effect the invalid no-solicitation rule, was in Mildred does not know what Union it is. violation of Section 8(a)(l) of the Act. Mildred was not around Iris when they were talk- B. Distribution of Union Leaflets by Smith andi g to he r. Burton After these statements were composed, Nicolai called Jeffrey Smith distributed leaflets on behalf of the union Smith and Burton to his office on February 15, 1980, and organizing campaign once a week after he was reinstated read to them the following rule, published in Respond- in December 1979. On February 14, 1980, at 6:30 a.m. he ent's personnel policy manual, distributed February 13, and Richard Burton passed out leaflets inside the em- 1980: ployee entrance. They stood three steps inside the en- trance, adjacent to the loading dock area and as close to T h e following will constitute violations of Compa- the wall as physically possible. At this time there was no n y rules: work activity in the loading dock area for it was common practice for such activity not to begin until 8 a.m. In fact, the door to the loading dock was padlocked,16 Treatening, i c o r and the woman who kept the keys did not begin work 1in t h fe llow employees until 8 a.m. Thus it was impossible to unlock the door until 1 hour after the 7 a.m. shift began. During preshift Nicolai also read the following: hours the area was used solely as an employee entrance. It was in fact the only entrance to the plant to be used PLANT SOLICITATIONS by employees. Employees Iris Swartz and Mildred Jackson entered Ou r Company is interested in fund raising drives the plant on February 14, 1980, through the employee a n d requests for contributions within our communi- entrance where Smith and Burton stood and distributed ty. However, in order to maintain efficiency and leaflets. Here, an incident occurred which they reported prevent littering we must have certain rules. to Nicolai and which is described below in the state- Employees are not allowed to engage in any oral so- ments submitted to Nicolai by Swartz and Jackson. licitation during working time in any work areas. Em- Swartz' statement is as follows: ployees are not allowed to distribute any printed mate- rial in work areas during either working or non work- Walked into building this morning and they were ing time. handing out pamphlets. She first said she didn't want one but finally took one. She was [sic] didn't Pe rso n s w h o a re n o t employees are not to be allowed know what they were. She turned around and tore o n th e Company premises at any time to engage in it up and said she was not interested and proceeded eit h er o ra l solicitation or the distribution of printed to the time clock. The person then said "Why don't material. 3 [Emphasis supplied.] you take this to your Harry Shay" and used lan-------- guaee she didn't catch. She then said "I'll do iust ' Prio r to February 13- 19 80, th e personnel policy manual of October guage she didn't catch. She then said "I'll do just 26, 1979, contained the following which governed the same areas of con- that" and tried to take another pamphlet and he cern: looked at her and used "F ASS." This upset her Continued MODEL A AND MODEL T MOTOR CAR CORP. 561 supported by the record and the authority cited, an very much. She felt as if she was abused and intimi- 8(a)(l) finding is hereby entered. dated. The General Counsel further maintains that the fol- She clocked in and broke down in tears and went lowing provision of the Employer's personnel manual upstairs and by then was pretty upset. She went to constituted an unlawful no-solicitation rule: Skip Turner's office and no one was there and tried _ , .„ . , . ,. . ,. . ^~~one of the others and then Bob Shirk came along Employees will be subject to disciplinary action for oneof te ohers and then Bob she asked if any of the following offenses: ... 16. Vending, so- andasked Shay was in and Mr. Shirk said come on liciting, or collecting contributions for any purpose, Mr ar Sa a n and ^ old Mr. Siat happened. unless authorized by Management. Iris identified the one of the persons as Jeff Smith. The General Counsel argues that the rule is "impermissi- bly invasive for failing to distinguish between working Jackson's statement is as follows: and non-working time." The General Counsel relies on Lyman Steel Company, 249 NLRB 296, 303 (1980). Since Sh e c a m e in t h e building and they were standing at the above rule on its face prohibits solicitation during the d o o r an d sh e sa id sh e di d n 't w an t any an d th at working hours by employees on their own time or in they were not supposed to be standing at the door work areas on their own time, which they may do absent handing out papers. She went over to talk with the unusual circumstances not here shown without permis- g u ar d .ohe s aid t ak e t to y GD H y sion of management, the rule is in violation of Section S h e w as Pretty sure it was Jeff Smith. She 8(a)1) o theAct.TB.CGrapicsInc. 214NLRBthen walked over to the guard. She turned around 8(a)(l) of the Act. T.B.C. Graphics. Inc., 214 NLRB^ Iswc ° 1003, 1004 (1974). Accordingly, Respondent, by main- a n d Ir s w a s c r y in g . taining in effect the invalid no-solicitation rule, was in Mildred does not know what Union it is. violation of Section 8(a)(l) of the Act. Mildred was not around Iris when they were talk- B. Distribution of Union Leaflets by Smith andi g to he r . Burton After these statements were composed, Nicolai called Jeffrey Smith distributed leaflets on behalf of the union Smith and Burton to his office on February 15, 1980, and organizing campaign once a week after he was reinstated read to them the following rule, published in Respond- in December 1979. On February 14, 1980, at 6:30 a.m. he ent's personnel policy manual, distributed February 13, and Richard Burton passed out leaflets inside the em- 1980: ployee entrance. They stood three steps inside the en- trance, adjacent to the loading dock area and as close to The following will constitute violations of Compa- the wall as physically possible. At this time there was no n y rules: work activity in the loading dock area for it was common practice for such activity not to begin until 8 a.m. In fact, the door to the loading dock was padlocked,16 Treatening, i c o r and the woman who kept the keys did not begin work 1in t h fe llow employees until 8 a.m. Thus it was impossible to unlock the door until 1 hour after the 7 a.m. shift began. During preshift Nicolai also read the following: hours the area was used solely as an employee entrance. It was in fact the only entrance to the plant to be used PLANT SOLICITATIONS by employees. Employees Iris Swartz and Mildred Jackson entered Our Company is interested in fund raising drives the plant on February 14, 1980, through the employee a n d requests for contributions within our communi- entrance where Smith and Burton stood and distributed ty. However, in order to maintain efficiency and leaflets. Here, an incident occurred which they reported prevent littering we must have certain rules. to Nicolai and which is described below in the state- Employees are not allowed to engage in any oral so- ments submitted to Nicolai by Swartz and Jackson. licitation during working time in any work areas. Em- Swartz' statement is as follows: ployees are not allowed to distribute any printed mate- rial in work areas during either working or non work- Walked into building this morning and they were ing time. handing out pamphlets. She first said she didn't want one but finally took one. She was [sic] didn't Pe rso n s w h o a re n o t employees are not to be allowed know what they were. She turned around and tore o n th e Company premises at any time to engage in it up and said she was not interested and proceeded eit h er o ra l solicitation or the distribution of printed to the time clock. The person then said "Why don't material. 3 [Emphasis supplied.] you take this to your Harry Shay" and used lan-------- guaee she didn't catch. She then said "I'll do iust ' Prio r to February 13- 19 80, th e personnel policy manual of October guage she didn't catch. She then said "I'll do just 26, 1979, contained the following which governed the same areas of con- that" and tried to take another pamphlet and he cern: looked at her and used "F ASS." This upset her Continued MODEL A AND MODEL T MOTOR CAR CORP. 561 supported by the record and the authority cited, an very much. She felt as if she was abused and intimi- 8(a)(l) finding is hereby entered. dated. The General Counsel further maintains that the fol- She clocked in and broke down in tears and went lowing provision of the Employer's personnel manual upstairs and by then was pretty upset. She went to constituted an unlawful no-solicitation rule: Skip Turner's office and no one was there and tried _ , .„ . , . ,. . ,. . ^~~one of the others and then Bob Shirk came along Employees will be subject to disciplinary action for oneof te ohers and then Bob she asked if any of the following offenses: ... 16. Vending, so- andasked Shay was in and Mr. Shirk said come on liciting, or collecting contributions for any purpose, Mr ar Sa a n and ^ old Mr. Siat happened. unless authorized by Management. Iris identified the one of the persons as Jeff Smith. The General Counsel argues that the rule is "impermissi- bly invasive for failing to distinguish between working Jackson's statement is as follows: and non-working time." The General Counsel relies on Lyman Steel Company, 249 NLRB 296, 303 (1980). Since Sh e c a m e in t h e b u il d in g and they were standing at the above rule on its face prohibits solicitation during the d o o r an d sh e sa id sh e di d n 't w an t any an d th at working hours by employees on their own time or in they were not supposed to be standing at the door work areas on their own time, which they may do absent handing out papers. She went over to talk with the unusual circumstances not here shown without permis- g u ar d .ohe s aid t ak e t to y GD H y sion of management, the rule is in violation of Section S h e w as Pretty sure it was Jeff Smith. She 8(a)1) o theAct.TB.CGrapicsInc. 214NLRBthen walked over to the guard. She turned around 8(a)(l) of the Act. T.B.C. Graphics. Inc., 214 NLRB^ Iswc ° 1003, 1004 (1974). Accordingly, Respondent, by main- a n d Ir s w a s c r y in g . taining in effect the invalid no-solicitation rule, was in Mildred does not know what Union it is. violation of Section 8(a)(l) of the Act. Mildred was not around Iris when they were talk- B. Distribution of Union Leaflets by Smith andi g to he r . Burton After these statements were composed, Nicolai called Jeffrey Smith distributed leaflets on behalf of the union Smith and Burton to his office on February 15, 1980, and organizing campaign once a week after he was reinstated read to them the following rule, published in Respond- in December 1979. On February 14, 1980, at 6:30 a.m. he ent's personnel policy manual, distributed February 13, and Richard Burton passed out leaflets inside the em- 1980: ployee entrance. They stood three steps inside the en- trance, adjacent to the loading dock area and as close to The following will constitute violations of Compa- the wall as physically possible. At this time there was no n y rules: work activity in the loading dock area for it was common practice for such activity not to begin until 8 a.m. In fact, the door to the loading dock was padlocked,16 Treatening, i c o r and the woman who kept the keys did not begin work 1in t h fe llow employees until 8 a.m. Thus it was impossible to unlock the door until 1 hour after the 7 a.m. shift began. During preshift Nicolai also read the following: hours the area was used solely as an employee entrance. It was in fact the only entrance to the plant to be used PLANT SOLICITATIONS by employees. Employees Iris Swartz and Mildred Jackson entered Our Company is interested in fund raising drives the plant on February 14, 1980, through the employee a n d requests for contributions within our communi- entrance where Smith and Burton stood and distributed ty. However, in order to maintain efficiency and leaflets. Here, an incident occurred which they reported prevent littering we must have certain rules. to Nicolai and which is described below in the state- Employees are not allowed to engage in any oral so- ments submitted to Nicolai by Swartz and Jackson. licitation during working time in any work areas. Em- Swartz' statement is as follows: ployees are not allowed to distribute any printed mate- rial in work areas during either working or non work- Walked into building this morning and they were ing time. handing out pamphlets. She first said she didn't want one but finally took one. She was [sic] didn't Pe rso n s w h o a re n o t employees are not to be allowed know what they were. She turned around and tore o n th e Company premises at any time to engage in it up and said she was not interested and proceeded eit h er o ra l solicitation or the distribution of printed to the time clock. The person then said "Why don't material. 3 [Emphasis supplied.] you take this to your Harry Shay" and used lan-------- guaee she didn't catch. She then said "I'll do iust ' Prio r to February 13- 19 80, th e personnel policy manual of October guage she didn't catch. She then said "I'll do just 26, 1979, contained the following which governed the same areas of con- that" and tried to take another pamphlet and he cern: looked at her and used "F ASS." This upset her Continued 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nicolai asked Burton and Smith if they were "aware See The Times Publishing Company, 231 NLRB 207 of the no-solicitation rule" and asked Smith if he "was (1977); Fluid Packaging Company. Inc., 247 NLRB 1469 aware of Rule 16" and if they understood its meaning. (1980); and J. P. Stevens & Co., 244 NLRB 407, ALJD, Both Smith and Burton answered affirmatively but "they sec. III,B,l,a. stated it was not a work area." Smith also denied that he Since the suspensions were invalid the above-noted re- had "threatened, intimidated, or coerced a fellow em- strictions placed by Respondent upon Smith and Burton ployee." Nicolai then "executed a correction notice for interfered with their Section 7 rights and were in viola- Burton to the extent that he [Burton] received a written tion of Section 8(aXl) of the Act. warning and was suspended for three days for violation During February 1980, Harry Shay, president of Re- of company policy in the distribution of printed material spondent, gave two luncheon meetings at the Elm Street in a work area during working or nonworking time," plant which employees were free to attend and at which and "prepared a similar one for Mr. Smith with the ex- lunches were provided and paid for by Respondent. The ception that he also received a warning and said warning first meeting was held on February 5 and "[t]he whole also included and said for violating company rule 16, plant" or "at least 150" employees attended. Harry Shay threatening, intimidating or coercing a fellow employee." gave a speech to the employees where he said, inter alia:5 Both Smith and Burton were suspended for 3 days com- I H - mencing on February 18, 1980, and ending February 21, m H hay an e s d t t h s 1980. Smith refused to sign his warning slip acknowledg- ny. . you have that Suggestion Box here that ing his receipt of a copy. Burton signed his slip and both your s free andwe y drop com- were informed by Nicolai, that, as suspended employees ments you have at any time and to show you that they were not to enter "company premises during the we use that box, we type up every suggestion tha length of their suspension," and that if they had "need to goes into t and put our answers to it and we post contact anyone in the company or any fellow employee, that they [were] to call [Nicolai] personally" so that he * * * * could "review the request and either grant it or relay a message." They were also told "not to pass out pam- organizing activity phlets anywhere on the premises again." Nicolai said to from variou s U nions. [U]sually when a compa- Burton, "if [he] was to even hand out any more printed f roached wi Unions . her a grienc literature that [he] would be terminated." 4 Smith and y is approahed wh Unions, here is a gieance there is something wrong somewhere and we can't Burton returned to work on February 21, 1980, after Burton returned to workonFebruary2find out, I can't, what is wrong if the people really their suspension. Respondent's no-distribution rule set out want a union here. Now, some of the comments above apparently did not bar employees from distribut- th nt ing union leaflets in nonwork areas. Since the credible organizers we know are totally wrong, which unio proof does not establish that the area in which Burtonpnt se n a inte, an i an and Smith distributed union leaflets was a working area f anybody is beig or that their distribution of union leaflets interere perfered withto oin a union because of those things or that ther d o of u n l t i d wh then they are absolutely being misled. Now, if there production or discipline or that there was any business ten the reasolutely being isled o i here justification for banning distribution of union leaflets in is any other reason or gevanc you people have, then that is what we have the Suggestion Box for. the area, the restriction which was placed upon Burton then tha t we have time, we've said tion Box for. and Smith interfered with employees' Section 7 rights Be e this oint in ime, si tis er and over, this is a new Company, it is a start-up and was in violation of Section 8(a)(X) of the Act. Thus Compay, Company, these things are distractions. it follows that their suspensions for distributing union pamphlets were in violation of Section 8(a)(3) of the Act. . . [WFe were also told that the unions here under- stand that a start-up company needs time to get started 15. Threatening, intimidating, coercing or interfering with fellow and there's no efforts to distract the union right in employees.[First violation to result in written warning; second, weekf org g a , tht td layoff; and third, discharge.] In addition to Smith, Burton, and Nico- t h e d st o f rga g a company, that told to lai, Carl Searer, the plant manager, and Jim Krider, the general man- us in writing. An absolute lie. It is pretty damn obvi- ager, were present. Both Smith and Burton had received the manual ous around here that it is going on. So now what that on February 13, 1980. does it disrupts the operation we've got and the effort 16. Vending, soliciting, or collecting contributions for any pur- pose, unless authorized by management. [First violation to result in were making just to get the Company goig. The written warning; second, day layoff; and third, discharge.] result of that is in order to organize apparently, 17. Distributing written or printed matter of any description they come up either because the organizers them- during working time.[First violation to result in written warning; selves don't know that's going on in the Company second, day layoff; and third, discharge.] Testimony of Smith and Burton is credited here as Nicolai does not or their [sic being misled since they are outsiders, deny that he verbally instituted a broad no-solicitation, no-distribution rule. In fact on direct examination, Nicolai stated, "I do not allow anyone ' This speech was taped by Mark Nicolai, corporate personnel direc- to distribute anything in the Company. If I find out that it is going on, I tor, and transcribed under his direction. It is credited as an accurate tran- order it stopped to the extent that it is going on, I order it stopped to the scription. The General Counsel listened to the tapes provided by Re- extent that I will not even allow people to distribute the sale of Girl spondent's counsel and agreed that the transcription could be submitted Scout cookies, Little League tickets, anything of that nature. There is no as an accurate reflection of Harry Shay's speech on February 5, 1980. In solicitation that goes on-there is none that has been authorized without addition, the content of testimony concerning Shay's speech by three em- my knowledge. If there is anything that does go on that I do discover, I ployees present at the meeting, Jeffrey Smith, Richard Burton, and stop it." Charles Pelfrey, virtually is identical to the content of the transcription. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nicolai asked Burton and Smith if they were "aware See The Times Publishing Company, 231 NLRB 207 of the no-solicitation rule" and asked Smith if he "was (1977); Fluid Packaging Company, Inc., 247 NLRB 1469 aware of Rule 16" and if they understood its meaning. (1980); and J. P. Stevens & Co., 244 NLRB 407, ALJD, Both Smith and Burton answered affirmatively but "they sec. III,B,l,a. stated it was not a work area." Smith also denied that he Since the suspensions were invalid the above-noted re- had "threatened, intimidated, or coerced a fellow em- strictions placed by Respondent upon Smith and Burton ployee." Nicolai then "executed a correction notice for interfered with their Section 7 rights and were in viola- Burton to the extent that he [Burton] received a written tion of Section 8(a)(l) of the Act. warning and was suspended for three days for violation During February 1980, Harry Shay, president of Re- of company policy in the distribution of printed material spondent, gave two luncheon meetings at the Elm Street in a work area during working or nonworking time," plant which employees were free to attend and at which and "prepared a similar one for Mr. Smith with the ex- lunches were provided and paid for by Respondent. The ception that he also received a warning and said warning first meeting was held on February 5 and "[t]he whole also included and said for violating company rule 16, plant" or "at least 150" employees attended. Harry Shay threatening, intimidating or coercing a fellow employee." gave a speech to the employees where he said, inter alia:5 Both Smith and Burton were suspended for 3 days com- I' Hr S an I P i of t mencing on February 18, 1980, and ending February 21, ny. Shay at Suggesion of th at 1980. Smith refused to sign his warning slip acknowledg- v - * , . yo hae that Suggestion Box here that 1980 Smth rfusd t sig hi waringsli ackowldg-your (sic] free and we hope you will drop any com- ing his receipt of a copy. Burton signed his slip and both m you ha vea any time d t s y ouh were informed by Nicolai, that, as suspended employeesw m en t s t0 1 h w e at bxw typ e up d to show you nhat they were not to enter "company premises during the go u se s t h at b o x a w e opu ap every suggestion thaw length of their suspension," and that if they had "need to mt o lt a n d Pit o u r . sw e n t° l l a n d we pot contact anyone in the company or any fellow employee, that they [were] to call [Nicolai] personally" so that he could "review the request and either grant it or relay a message." They were also told "not to pass out pam- [T]here's been a lot of organizing activity phlets anywhere on the premises again." Nicolai said to from various Unions. ... [U]sually when a compa- Burton, "if [he] was to even hand out any more printedapproached with Unions, there is a grievance literature that [he] would be terminated.'" Smith andt is something wrong somewhere and we can't Burton returned to work on February 21, 1980, after f ot I c their suspension. Respondent's no-distribution rule set out want a union here. Now, some of the comments above apparently did not bar employees from distribut- I h ta i h b s ing union leaflets in nonwork areas. Since the credible organizers we know are totally wrong, which I'll proof does not establish that the area in which Burtonpont those out in a minute, and if anybody is being and Smith distnibuted union leaflets was a working area* ,. , or that their distribution of union leaflets interfered withn pe r s u ad ed to join a union b ec a u se of those things or that their distribution of union leaflets interfered with then they are absolutely being misled. Now, if there production or discipline or that there was any businessi or grievances you people have, justification for banning distribution of union leaflets inthnhaisw tweavteSugtonBxfr r ~~~a~~~he~~~~es~~~~n 8 he that^ : is wh a t we h av e t h e Suggestion Box for. the area, the restriction which was placed upon Burton Because at this point in time, we've said this over and Smith interfered with employees' Section 7 rights and ovr t is a n , * . ,.. r c.^ o/ \/\ r .Li * » *^and over, this is a new Company, it is a start-up and was in violation of Section 8(a)(l) of the Act. Thus C p , te tigae srcon .. , „ ., . ,. . . * ,. ..... .~Company, these things are distractions. it follows that their suspensions for distributing union pamphlets were in violation of Section 8(a)(3) of the Act. . . [FVe were also told that the unions here under- stand that a start-up company needs time to get started 15. Threatening, intimidating, coercing or interfering with fellow and there's no efforts to distract the union right in employees.[First violation to result in written warning; second, week.1. _., . r * * .- _ ,, ti.- -, tou to layoff; and third, discharge.] In addition to Smith, Burton, and Nice- t h e "mdst o f Organizing a company, that was told to lai, Carl Searer, the plant manager, and Jim Krider, the general man- us in writing. An absolute lie. It is pretty damn obvi- ager, were present. Both Smith and Burton had received the manual ous around here that it is going on. So now what that on February 13, 1980. does it disrupts the operation we've got and the effort 16. Vending, soliciting, or collecting contributions for any pur- wr aigjs ogtteCmaygig h pose, unless authorized by management. First violation inere making just to get the Company going. The written warning; second, day layoff; and third, discharge.) result of that is in Order to Organize apparently, 17. Distributing written or printed matter of any description they come up either because the organizers them- during working time.[First violation to result in written warning; selves don't know that's going on in the Company second, day layoff; and third, discharge.] rter[i]bigmse ic hyaeoties Testimony of Smith and Burton is credited here as Nicolai does notor their [sic) being misled since they are outsiders, deny that he verbally instituted a broad no-solicitation, no-distribution rule. In fact on direct examination, Nicolai stated, "I do not allow anyone ' This speech was taped by Mark Nicolai, corporate personnel direc- to distribute anything in the Company. If I find out that it is going on, I tor, and transcribed under his direction. It is credited as an accurate tran- order it stopped to the extent that it is going on, I order it stopped to the scription. The General Counsel listened to the tapes provided by Re- extent that I will not even allow people to distribute the sale of Girl spondent's counsel and agreed that the transcription could be submitted Scout cookies. Little League tickets, anything of that nature. There is no as an accurate reflection of Harry Shay's speech on February S, 1980. In solicitation that goes on-there is none that has been authorized without addition, the content of testimony concerning Shay's speech by three em- my knowledge. If there is anything that does go on that I do discover, I ployees present at the meeting, Jeffrey Smith, Richard Burton, and stop it." Charles Pelfrey, virtually is identical to the content of the transcription. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nicolai asked Burton and Smith if they were "aware See The Times Publishing Company, 231 NLRB 207 of the no-solicitation rule" and asked Smith if he "was (1977); Fluid Packaging Company, Inc., 247 NLRB 1469 aware of Rule 16" and if they understood its meaning. (1980); and J. P. Stevens & Co., 244 NLRB 407, ALJD, Both Smith and Burton answered affirmatively but "they sec. III,B,l,a. stated it was not a work area." Smith also denied that he Since the suspensions were invalid the above-noted re- had "threatened, intimidated, or coerced a fellow em- strictions placed by Respondent upon Smith and Burton ployee." Nicolai then "executed a correction notice for interfered with their Section 7 rights and were in viola- Burton to the extent that he [Burton] received a written tion of Section 8(a)(l) of the Act. warning and was suspended for three days for violation During February 1980, Harry Shay, president of Re- of company policy in the distribution of printed material spondent, gave two luncheon meetings at the Elm Street in a work area during working or nonworking time," plant which employees were free to attend and at which and "prepared a similar one for Mr. Smith with the ex- lunches were provided and paid for by Respondent. The ception that he also received a warning and said warning first meeting was held on February 5 and "[t]he whole also included and said for violating company rule 16, plant" or "at least 150" employees attended. Harry Shay threatening, intimidating or coercing a fellow employee." gave a speech to the employees where he said, inter alia:5 Both Smith and Burton were suspended for 3 days com- I' Hr S an I P i of t mencing on February 18, 1980, and ending February 21, ny. Shay at Suggesion of th at 1980. Smith refused to sign his warning slip acknowledg- v - * , . yo hae that Suggestion Box here that 1980 Smth rfusd t sig hi waringsli ackowldg-your (sic] free and we hope you will drop any com- ing his receipt of a copy. Burton signed his slip and both m you ha v e at yn1 tmean to s y ouh were informed by Nicolai, that, as suspended employeesw m en t s t0 1 h w e at bxw typ e and to show you nhat they were not to enter "company premises during thege u sei t h at ano xd e type up every suggestion thaw length of their suspension," and that if they had "need to ' to 't and Put our answers to it and we post contact anyone in the company or any fellow employee, that they [were] to call [Nicolai] personally" so that he could "review the request and either grant it or relay a message." They were also told "not to pass out pam- [T]here's been a lot of organizing activity phlets anywhere on the premises again." Nicolai said to from various Unions. ... [U]sually when a compa- Burton, "if [he] was to even hand out any more printedapproached with Unions, there is a grievance literature that [he] would be terminated.'" Smith andt is something wrong somewhere and we can't Burton returned to work on February 21, 1980, after f ot I c their suspension. Respondent's no-distribution rule set out want a union here. Now, some of the comments above apparently did not bar employees from distribut- I h ta i h b s ing union leaflets in nonwork areas. Since the credible organizers we know are totally wrong, which I'll proof does not establish that the area in which Burtonpont those out in a minute, and if anybody is being and Smith distnibuted union leaflets was a working area* ,. , or that their distribution of union leaflets interfered withn pe r s u ad ed to join a union b ec a u se of those things or that their distribution of union leaflets interfered with then they are absolutely being misled. Now, if there production or discipline or that there was any businessi or grievances you people have, justification for banning distribution of union leaflets inthnhaisw tweavteSugtonBxfr r ~~~a~~~he~~~~es~~~~n 8 he that^ : is wh a t we h av e t h e Suggestion Box for. the area, the restriction which was placed upon Burton Because at this point in time, we've said this over and Smith interfered with employees' Section 7 rights and ovr t is a n , * . ,.. r c.^ o/ \/\ r ^i.* „ T.and over, this is a new Company, it is a start-up and was in violation of Section 8(a)(l) of the Act. Thus C p , te tigae srcon .. , „ ., . ,. . . * ,. ..... .~Company, these things are distractions. it follows that their suspensions for distributing union pamphlets were in violation of Section 8(a)(3) of the Act. . . [FVe were also told that the unions here under- stand that a start-up company needs time to get started 15. Threatening, intimidating, coercing or interfering with fellow and there's no efforts to distract the union right in employees.[First violation to result in written warning; second, week.1. _., . r * * .- _ ,, ti.- -, tou to layoff; and third, discharge.) In addition to Smith, Burton, and Nice- t h e "mds o f Organizing a company, that was told to lai, Carl Searer, the plant manager, and Jim Krider, the general man- us in writing. An absolute lie. It is pretty damn obvi- ager, were present. Both Smith and Burton had received the manual ous around here that it is going on. So now what that on February 13, 1980. does it disrupts the operation we've got and the effort 16. Vending, soliciting, or collecting contributions for any pur- wr aigjs ogtteCmaygig h pose, unless authorized by management. Firt violation to resultnere making just to get the Company going. The written warning; second, day layoff; and third, discharge.) result of that is in Order to Organize apparently, 17. Distributing written or printed matter of any description they come up either because the organizers them- during working time.[First violation to result in written warning; selves don't know that's going on in the Company second, day layoff; and third, discharge.] rter[i]bigmse ic hyaeoties Testimony of Smith and Burton is credited here as Nicolai does notor their [sic) being misled since they are outsiders, deny that he verbally instituted a broad no-solicitation, no-distribution rule. In fact on direct examination, Nicolai stated, "I do not allow anyone ' This speech was taped by Mark Nicolai, corporate personnel direc- to distribute anything in the Company. If I find out that it is going on, I tor, and transcribed under his direction. It is credited as an accurate tran- order it stopped to the extent that it is going on, I order it stopped to the scription. The General Counsel listened to the tapes provided by Re- extent that I will not even allow people to distribute the sale of Girl spondent's counsel and agreed that the transcription could be submitted Scout cookies. Little League tickets, anything of that nature. There is no as an accurate reflection of Harry Shay's speech on February S, 1980. In solicitation that goes on-there is none that has been authorized without addition, the content of testimony concerning Shay's speech by three em- my knowledge. If there is anything that does go on that I do discover, I ployees present at the meeting, Jeffrey Smith, Richard Burton, and stop it." Charles Pelfrey, virtually is identical to the content of the transcription. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nicolai asked Burton and Smith if they were "aware See The Times Publishing Company, 231 NLRB 207 of the no-solicitation rule" and asked Smith if he "was (1977); Fluid Packaging Company, Inc., 247 NLRB 1469 aware of Rule 16" and if they understood its meaning. (1980); and J. P. Stevens & Co., 244 NLRB 407, ALJD, Both Smith and Burton answered affirmatively but "they sec. III,B,l,a. stated it was not a work area." Smith also denied that he Since the suspensions were invalid the above-noted re- had "threatened, intimidated, or coerced a fellow em- strictions placed by Respondent upon Smith and Burton ployee." Nicolai then "executed a correction notice for interfered with their Section 7 rights and were in viola- Burton to the extent that he [Burton] received a written tion of Section 8(a)(l) of the Act. warning and was suspended for three days for violation During February 1980, Harry Shay, president of Re- of company policy in the distribution of printed material spondent, gave two luncheon meetings at the Elm Street in a work area during working or nonworking time," plant which employees were free to attend and at which and "prepared a similar one for Mr. Smith with the ex- lunches were provided and paid for by Respondent. The ception that he also received a warning and said warning first meeting was held on February 5 and "[t]he whole also included and said for violating company rule 16, plant" or "at least 150" employees attended. Harry Shay threatening, intimidating or coercing a fellow employee." gave a speech to the employees where he said, inter alia:5 Both Smith and Burton were suspended for 3 days com- I' Hr S an I P i of t mencing on February 18, 1980, and ending February 21, ny. Shay at Suggesion of th at 1980. Smith refused to sign his warning slip acknowledg- v - * , . yo have that Suggestion Box here that 1980 Smth rfusd t sig hi waringsli ackowldg-your (sic] free and we hope you will drop any com- ing his receipt of a copy. Burton signed his slip and both m you ha v e a ote and to s y ouh were informed by Nicolai, that, as suspended employees m en t s we 1 have at bxw typ e and to show you nhat they were not to enter "company premises during thegosse nohat ano xd e type up every suggestion thaw length of their suspension," and that if they had "need to mt o lt a n d Put our answers to it and we post contact anyone in the company or any fellow employee, that they [were] to call [Nicolai] personally" so that he could "review the request and either grant it or relay a message." They were also told "not to pass out pam- [T]here's been a lot of organizing activity phlets anywhere on the premises again." Nicolai said to from various Unions. ... [U]sually when a compa- Burton, "if [he] was to even hand out any more printedapproached with Unions, there is a grievance literature that [he] would be terminated.'" Smith andt is something wrong somewhere and we can't Burton returned to work on February 21, 1980, after f ot I c their suspension. Respondent's no-distribution rule set out want a union here. Now, some of the comments above apparently did not bar employees from distribut- I h ta i h b s ing union leaflets in nonwork areas. Since the credible organizers we know are totally wrong, which I'll proof does not establish that the area in which Burtonpont those out in a minute, and if anybody is being and Smith distnibuted union leaflets was a working area* ,. , or that their distribution of union leaflets interfered withn pe r s u ad ed to join a union b ec a u se of those things or that their distribution of union leaflets interfered with then they are absolutely being misled. Now, if there production or discipline or that there was any businessi or grievances you people have, justification for banning distribution of union leaflets inthnhaisw tweavteSugtonBxfr r ~~~a~~~he~~~~es~~~~n 8 he that^ : is wh a t we h av e t h e Suggestion Box for. the area, the restriction which was placed upon Burton Because at this point in time, we've said this over and Smith interfered with employees' Section 7 rights and ovr t is a n , * . ,.. r c.^ o/ \/\ r ^i.* „ T.and over, this is a new Company, it is a start-up and was in violation of Section 8(a)(l) of the Act. Thus C p , te tigae srcon .. , „ ., . ,. . . * ,. ..... .~Company, these things are distractions. it follows that their suspensions for distributing union pamphlets were in violation of Section 8(a)(3) of the Act. . . [FVe were also told that the unions here under- stand that a start-up company needs time to get started 15. Threatening, intimidating, coercing or interfering with fellow and there's no efforts to distract the union right in employees.[First violation to result in written warning; second, week.1. _., . r * * .- _ ,, ti.- -, tou to layoff; and third, discharge.) In addition to Smith, Burton, and Nice- t h e "mds o f Organizing a company, that was told to lai, Carl Searer, the plant manager, and Jim Krider, the general man- us in writing. An absolute lie. It is pretty damn obvi- ager, were present. Both Smith and Burton had received the manual ous around here that it is going on. So now what that on February 13, 1980. does it disrupts the operation we've got and the effort 16. Vending, soliciting, or collecting contributions for any pur- wr aigjs ogtteCmaygig h pose, unless authorized by management. Firt violation to resultnere making just to get the Company going. The written warning; second, day layoff; and third, discharge.) result of that is in Order to Organize apparently, 17. Distributing written or printed matter of any description they come up either because the organizers them- during working time.[First violation to result in written warning; selves don't know that's going on in the Company second, day layoff; and third, discharge.] rter[i]bigmse ic hyaeoties Testimony of Smith and Burton is credited here as Nicolai does notor their [sic) being misled since they are outsiders, deny that he verbally instituted a broad no-solicitation, no-distribution rule. In fact on direct examination, Nicolai stated, "I do not allow anyone ' This speech was taped by Mark Nicolai, corporate personnel direc- to distribute anything in the Company. If I find out that it is going on, I tor, and transcribed under his direction. It is credited as an accurate tran- order it stopped to the extent that it is going on, I order it stopped to the scription. The General Counsel listened to the tapes provided by Re- extent that I will not even allow people to distribute the sale of Girl spondent's counsel and agreed that the transcription could be submitted Scout cookies. Little League tickets, anything of that nature. There is no as an accurate reflection of Harry Shay's speech on February S, 1980. In solicitation that goes on-there is none that has been authorized without addition, the content of testimony concerning Shay's speech by three em- my knowledge. If there is anything that does go on that I do discover, I ployees present at the meeting, Jeffrey Smith, Richard Burton, and stop it." Charles Pelfrey, virtually is identical to the content of the transcription. MODEL A AND MODEL T MOTOR CAR CORP. 563 maybe they don't know what's going on. So your sonal about it. Now what's happen the union, your [sic] being misled by people within the Company, dues would then hire a negotiator to speak for you who themselves don't know whats going on. But, and he would come in to meet and say what you for example, I've seen a union thing out in writing want. You wouldn't say it he would say it. Typical- saying we are now established for two years, we've had ly we would engage in a negotiator, more of the our start-up time and are ready to organize. Totally company's money to go to that man to sit down wrong. [Emphasis supplied.] with the union representative and two paid people, Two years ago, this Company was nothing but a neither one having anything to do with the compa- thought in my head I hadn't even registered the ny, other than their [sic] paid to talk which then Company, I hadn't even incorporated it yet. Noth- starts the negotiation. So I don't see, at this point in ing but a thought. You don't organize my thoughts. time, where you expect to find much from that and [Emphasis supplied.] that's again why I say this is not the time to be or- ganizing a union. . . . We have benefits here I understand that major Now we say we have incentives and some misun- medical insurance and things like that, that some 50 derstanding has come up here is that when we say year old companies in this city do not give their we're working on something and we're looking to employees yet. So we want to point that out. There do something, some incentive program, bonuses and is no unon that requires deals. We look at every- things like that .... So we are looking at various body and we do the best we can do . plans, one is a share project that is used by Coach- . . . We are not compelling anyone to stay we are just man, we've talked to other companies that have saying that you came into this Company, knowing these incentive programs, which one makes the what we are trying to do and let us do it. If you people the happiest. . . . We hope we are going to wanted to come in for an interview and say that when have that plan worked out in two to four I get in here I'm going to reorganize your Company weeks. .. . Now, it was said that we made some for you, you could have said it then and we would have promises in the past by some managers that are not said out the door. We didn't hire you to tell us how to here and we are not aware of them, so if anybody reorganize this Company. So we would like you to bear feels that's a hardship on them, some promises that in mind. Nobody is a prisoner. They don't like made, we would like you to just write it up and working here they can leave. [Emphasis supplied.] drop it in the Suggestion Box. I presume these are individual promises that we are talking about. We . . . I recall that one day on Burnham Street, when would like to know what they are and we will look we were over there, a person said he hadn't ate that into it. The only way I know how to bring those up day and didn't have a job and didn't have nothing is to drop your comment in there and we'll see to eat and wanted a job. We didn't need him there, what was promised. we didn't need him for two months, but we hired him any way and then we brought him back here We mentioned previously they were trying to work and he's one of them organizing the union now. It's toward a four day work week. We are still trying to too bad we didn't have a union then because he work for it but that will be some weeks ahead. ... probably wouldn't have been hired but this is the So, the kind of news we get from all this disruption kind of thing that we happen, we lean over, we try when we say talking about a union and at time to consider everybody as individuals and they got a when we are trying to organize our own company problem, what can we do to help. Then if their [sic] is disruptive, is the word we got from Ford yester- going to forget us as an individuals and start acting day. . . . Their [sic] telling us they've heard possi- as a group, we have no choice than to turn around ble disruption company become uneasy. ..... These and act as a group. So I think that covers what I are the kind of problems that come up when you was trying to and hope that the next lunch we have say this is not the time to be organizing a will be one with some better news. Maybe the bo- union. ... We must convince Ford there is no dis- union. . We must convince Ford there is no dis- nuses will be made or something like that. And, if ruption so these are the problems that we say don't you do have any questions, we can't answer them belong to a new company. And that's why we say all here unless someone had a real vital question, we we need a little peace here and we were told we ask you to throw them in the box and we'll try to would have peace here in order to keep on our answer them for you, every one of them. goal, which is producing cars, getting our credit- ability, showing our creditors we do what we say, In his brief the General Counsel cites sections of the paying the bills we are supposed to be paying and speech emphasized above and asserts that such passages that sort of thing. state, "in essence, that Respondent would not knowingly . . .Unions don't guarantee more money or more have hired union organizers" and that "Shay's repeated benefits. They negotiate. Now, right now if any- encouragement in the speech of employees use of the body around here has anything to us we are always 'suggestion box' also illegally solicits grievances in viola- open to this listen to it, suggestion box. Most half of tion of Section 8(aXl) of the Act." In consideration of you know who the top is, if you want to get per- Shay's antiunion stance and in the context used, Shay's MODEL A AND MODEL T MOTOR CAR CORP. 563 maybe they don't know what's going on. So your sonal about it. Now what's happen the union, your [sic] being misled by people within the Company, dues would then hire a negotiator to speak for you who themselves don't know whats going on. But, and he would come in to meet and say what you for example, I've seen a union thing out in writing want. You wouldn't say it he would say it. Typical- saying we are now establishedfor two years, we've had ly we would engage in a negotiator, more of the our start-up time and are ready to organize. Totally company's money to go to that man to sit down wrong. [Emphasis supplied.] with the union representative and two paid people, Two years ago, this Company was nothing but a nei th e r one having anything to do with the compa- thought in my head I hadn't even registered the ny, o ther than t h eir (sic] Paid to talk which then Company, I hadn't even incorporated it yet. Noth- st a rts t h e negotiation. So I don't see, at this point in ing but a thought. You don't organize my thoughts. time, where you expect to find much from that and [Emphasis supplied.] that's again why I say this is not the time to be or- ganizing a union. . . . We have benefits here I understand that major Now we say we have incentives and some misun- medical insurance and things like that, that some 50 derstanding has come up here is that when we say year o l d companies in this city do not give their we're working on something and we're looking to employees yet. So we want to point that out. There do something, some incentive program, bonuses and is no u n io n t h at requires d eal s. We l o o k at every- things like that .... So we are looking at various body and w e d o t h e b es t w e c an d o . . . plans, one is a share project that is used by Coach- . . We are not compelling anyone to stay we arejust man, we've talked to other companies that have saying that you came into this Company, knowing these incentive programs, which one makes the what we are trying to do and let us do it. If you people the happiest. . . . We hope we are going to wanted to come in for an interview and say that when have that plan worked out in two to four I get in here I'm going to reorganize your Company weeks. . . . Now, it was said that we made some for you, you could have said it then and we would have promises in the past by some managers that are not said out the door. We didn't hire you to tell us how to here and we are not aware of them, so if anybody reorganize this Company. So we would like you to bear feels that's a hardship on them, some promises that in mind. Nobody is a prisoner. They don't like made, we would like you to just write it up and working here they can leave. [Emphasis supplied.] drop it in the Suggestion Box. I presume these are individual promises that we are talking about. We ... I r ecall t h at o ne d a y o n Burnham Street, when would like to know what they are and we will look w e w er e o v e r t h ere , a peson s aid h e hadn't at e t h a t into it. The only way I know how to bring those up day an d d id n 't h a ve a job a nd d id n 't h av e nothing is to drop your comment in there and we'll see t o ea t a nd w an ted a job. We d idn' t n eed h im t h e r e, what was promised. w e didn't need him for two months, but we hired him any way and then we brought him back here We mentioned previously they were trying to work and he's one of them organizing the union now. It's toward a four day work week. We are still trying to too bad we didn't have a union then because he work for it but that will be some weeks ahead. ... probably wouldn't have been hired but this is the So, the kind of news we get from all this disruption kind of thing that we happen, we lean over, we try when we say talking about a union and at time to consider everybody as individuals and they got a when we are trying to organize our own company problem, what can we do to help. Then if their [sic] is disruptive, is the word we got from Ford yester- going to forget us as an individuals and start acting day. . . . Their [sic] telling us they've heard possi- as a group, we have no choice than to turn around ble disruption company become uneasy. . . These and act as a group. So I think that covers what I are the kind of problems that come up when you was trying to and hope that the next lunch we have say this is not the time to be organizing a will be one with some better news. Maybe the bo- union. ... We must convince Ford there is no dis- n be made or something like that. And, if ruption so these are the problems that we say don't you do have any questions, we can't answer them belong to a new company. And that's why we say all here unless someone had a real vital question, we we need a little peace here and we were told we a yo t t t i the b would have peace here in order to keep on our answer them for you, every one of them. goal, which is producing cars, getting our credit- ability, showing our creditors we do what we say, In his brief the General Counsel cites sections of the paying the bills we are supposed to be paying and speech emphasized above and asserts that such passages that sort of thing. state, "in essence, that Respondent would not knowingly . . . Unions don't guarantee more money or more have hired union organizers" and that "Shay's repeated benefits. They negotiate. Now, right now if any- encouragement in the speech of employees use of the body around here has anything to us we are always 'suggestion box' also illegally solicits grievances in viola- open to this listen to it, suggestion box. Most half of tion of Section 8(aXl) of the Act." In consideration of you know who the top is, if you want to get per- Shay's antiunion stance and in the context used, Shay's MODEL A AND MODEL T MOTOR CAR CORP. 563 maybe they don't know what's going on. So your sonal about it. Now what's happen the union, your [sic] being misled by people within the Company, dues would then hire a negotiator to speak for you who themselves don't know whats going on. But, and he would come in to meet and say what you for example, I've seen a union thing out in writing want. You wouldn't say it he would say it. Typical- saying we are now established for two years, we've had ly we would engage in a negotiator, more of the our start-up time and are ready to organize. Totally company's money to go to that man to sit down wrong. [Emphasis supplied.] with the union representative and two paid people, Two years ago, this Company was nothing but a nei th e r one having anything to do with the compa- thought in my head I hadn't even registered the ny, other than their (sic] paid to talk which then Company, I hadn't even incorporated it yet. Noth- starts the negotiation. So I don't see, at this point in ing but a thought. You don't organize my thoughts. time, where you expect to find much from that and [Emphasis supplied.] that's again why I say this is not the time to be or- ganizing a union. . . . We have benefits here I understand that major Now we say we have incentives and some misun- medical insurance and things like that, that some 50 derstanding has come up here is that when we say year o l d companies in this city do not give their we're working on something and we're looking to employees yet. So we want to point that out. There do something, some incentive program, bonuses and is no u n io n t h at requires d eal s. We l o o k at ev e ry- things like that .... So we are looking at various body and w e d o t h e b es t w e c an d o . . . plans, one is a share project that is used by Coach- . . We are not compelling anyone to stay we arejust man, we've talked to other companies that have saying that you came into this Company, knowing these incentive programs, which one makes the what we are trying to do and let us do it. If you people the happiest. . . . We hope we are going to wanted to come in for an interview and say that when have that plan worked out in two to four I get in here I'm going to reorganize your Company weeks. . . . Now, it was said that we made some for you, you could have said it then and we would have promises in the past by some managers that are not said out the door. We didn't hire you to tell us how to here and we are not aware of them, so if anybody reorganize this Company. So we would like you to bear feels that's a hardship on them, some promises that in mind. Nobody is a prisoner. They don't like made, we would like you to just write it up and working here they can leave. [Emphasis supplied.] drop it in the Suggestion Box. I presume these are individual promises that we are talking about. We ... I r ec all t h at o ne d a y o n Burnham Street, when would like to know what they are and we will look w e w er e over there, a person said he hadn't ate that into it. The only way I know how to bring those up day an d d id n 't h a v e a Job and didn't have nothing is to drop your comment in there and we'll see t o eat and wanted a job. We didn't need him there, what was promised. w e didn't need him for two months, but we hired him any way and then we brought him back here We mentioned previously they were trying to work and he's one of them organizing the union now. It's toward a four day work week. We are still trying to too bad we didn't have a union then because he work for it but that will be some weeks ahead. ... probably wouldn't have been hired but this is the So, the kind of news we get from all this disruption kind of thing that we happen, we lean over, we try when we say talking about a union and at time to consider everybody as individuals and they got a when we are trying to organize our own company problem, what can we do to help. Then if their [sic] is disruptive, is the word we got from Ford yester- going to forget us as an individuals and start acting day. . . . Their [sic] telling us they've heard possi- as a group, we have no choice than to turn around ble disruption company become uneasy. . . These and act as a group. So I think that covers what I are the kind of problems that come up when you was trying to and hope that the next lunch we have say this is not the time to be organizing a will be one with some better news. Maybe the bo- union. ... We must convince Ford there is no dis- n be made or something like that. And, if ruption so these are the problems that we say don't you do have any questions, we can't answer them belong to a new company. And that's why we say all here unless someone had a real vital question, we we need a little peace here and we were told we a yo t t t i the b would have peace here in order to keep on our answer them for you, every one of them. goal, which is producing cars, getting our credit- ability, showing our creditors we do what we say, In his brief the General Counsel cites sections of the paying the bills we are supposed to be paying and speech emphasized above and asserts that such passages that sort of thing. state, "in essence, that Respondent would not knowingly . . . Unions don't guarantee more money or more have hired union organizers" and that "Shay's repeated benefits. They negotiate. Now, right now if any- encouragement in the speech of employees use of the body around here has anything to us we are always 'suggestion box' also illegally solicits grievances in viola- open to this listen to it, suggestion box. Most half of tion of Section 8(aXl) of the Act." In consideration of you know who the top is, if you want to get per- Shay's antiunion stance and in the context used, Shay's MODEL A AND MODEL T MOTOR CAR CORP. 563 maybe they don't know what's going on. So your sonal about it. Now what's happen the union, your [sic] being misled by people within the Company, dues would then hire a negotiator to speak for you who themselves don't know whats going on. But, and he would come in to meet and say what you for example, I've seen a union thing out in writing want. You wouldn't say it he would say it. Typical- saying we are now established for two years, we've had ly we would engage in a negotiator, more of the our start-up time and are ready to organize. Totally company's money to go to that man to sit down wrong. [Emphasis supplied.] with the union representative and two paid people, Two years ago, this Company was nothing but a neither one having anything to do with the compa- thought in my head I hadn't even registered the ny, other than their (sic] paid to talk which then Company, I hadn't even incorporated it yet. Noth- starts the negotiation. So I don't see, at this point in ing but a thought. You don't organize my thoughts. time, where you expect to find much from that and [Emphasis supplied.] that's again why I say this is not the time to be or- ganizing a union. . . . We have benefits here I understand that major Now we say we have incentives and some misun- medical insurance and things like that, that some 50 derstanding has come up here is that when we say year o l d companies in this city do not give their we're working on something and we're looking to employees yet. So we want to point that out. There do something, some incentive program, bonuses and is no u n io n t h at requires d eal s. We l o o k at ev e ry- things like that .... So we are looking at various body and w e d o t h e b es t w e c an d o . . . plans, one is a share project that is used by Coach- . . We are not compelling anyone to stay we arejust man, we've talked to other companies that have saying that you came into this Company, knowing these incentive programs, which one makes the what we are trying to do and let us do it. If you people the happiest. . . . We hope we are going to wanted to come in for an interview and say that when have that plan worked out in two to four I get in here I'm going to reorganize your Company weeks. . . . Now, it was said that we made some for you, you could have said it then and we would have promises in the past by some managers that are not said out the door. We didn't hire you to tell us how to here and we are not aware of them, so if anybody reorganize this Company. So we would like you to bear feels that's a hardship on them, some promises that in mind. Nobody is a prisoner. They don't like made, we would like you to just write it up and working here they can leave. [Emphasis supplied.] drop it in the Suggestion Box. I presume these are individual promises that we are talking about. We ... I r ec all t h at o ne d a y o n Burnham Street, when would like to know what they are and we will look w e w er e over there, a person said he hadn't ate that into it. The only way I know how to bring those up day and didn't have a job and didn't have nothing is to drop your comment in there and we'll see t o eat and wanted a job. We didn't need him there, what was promised. w e didn't need him for two months, but we hired him any way and then we brought him back here We mentioned previously they were trying to work and he's one of them organizing the union now. It's toward a four day work week. We are still trying to too bad we didn't have a union then because he work for it but that will be some weeks ahead. ... probably wouldn't have been hired but this is the So, the kind of news we get from all this disruption kind of thing that we happen, we lean over, we try when we say talking about a union and at time to consider everybody as individuals and they got a when we are trying to organize our own company problem, what can we do to help. Then if their [sic] is disruptive, is the word we got from Ford yester- going to forget us as an individuals and start acting day. . . . Their [sic] telling us they've heard possi- as a group, we have no choice than to turn around ble disruption company become uneasy. . . These and act as a group. So I think that covers what I are the kind of problems that come up when you was trying to and hope that the next lunch we have say this is not the time to be organizing a will be one with some better news. Maybe the bo- union. ... We must convince Ford there is no dis- n be made or something like that. And, if ruption so these are the problems that we say don't you do have any questions, we can't answer them belong to a new company. And that's why we say all here unless someone had a real vital question, we we need a little peace here and we were told we a yo t t t i the b would have peace here in order to keep on our answer them for you, every one of them. goal, which is producing cars, getting our credit- ability, showing our creditors we do what we say, In his brief the General Counsel cites sections of the paying the bills we are supposed to be paying and speech emphasized above and asserts that such passages that sort of thing. state, "in essence, that Respondent would not knowingly . . . Unions don't guarantee more money or more have hired union organizers" and that "Shay's repeated benefits. They negotiate. Now, right now if any- encouragement in the speech of employees use of the body around here has anything to us we are always 'suggestion box' also illegally solicits grievances in viola- open to this listen to it, suggestion box. Most half of tion of Section 8(aXl) of the Act." In consideration of you know who the top is, if you want to get per- Shay's antiunion stance and in the context used, Shay's 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks clearly contained threats of reprisals and the il- Smead's discharge notice read: "Reportedly left work legal solicitation of grievances in violation of Section station and disrupted work by others. Also, threatened 8(a)(l) of the Act. safety and well being of a member of the management The General Counsel further claims that Respondent team." The latter phrase evolved after the incident de- committed an unfair labor practice by Danny Sanders' scribed above. Smead was not reinstated with the other remark to employee William Wilson that if he "didn't button wearers or included in the stipulation above men- like the way it was, that [he] could hit the door." Sand- tioned. ers' remark followed Wilson's observations: "I mentioned Since the incident of alleged drunkenness occurred the fact that if Model A and Model T would put some- after Smead was unlawfully discharged for wearing a thing down in writing in front of the lawyer, that there union button, Respondent's representation that the dis- would be no need for a union, if they would stand charge was also for the above incident will be viewed as behind what they say." Wilson was wearing a union Respondent's claim that it may decline to employ Smead button at the time. because his subsequent conduct rendered him unfit for In the case of Rolligon Corporation, 254 NLRB 22 future employment. A resolution of this matter is best (1981), the Board has said: left to the compliance stage of these proceedings. Smead's discharge being in violation of Section 8(a)3), We have found that an employer's remarks reinstatement for Smead will be recommended. which imply that a union activist is unhappy on the job and therefore should seek work elsewhere vio- D. The Discharge of Ray Rine' late Section 8(a)(l) of the Act. In the instant case, Respondent told an assembled group of employees On or about February 5, 1980, President Harry Shay, that employees whon re unhappy and would rather in his address to Respondent's employees, alluded to Roy work in a union shop would do Respondent a great Rine in these words: "I recall that one day on Burnham work in a union shop would do Respondent a great St service by finding a job elsewhere. We find that Street, when we were over there, a person said he hadn't such a statement is coercive and threatening and ate that day and didnt have a job and didn't have any- violates Section 8(a)(1) of the Act because it con- thing to eat and wanted a job. We didn't need him there, veys the clear message that support for the Union we ddn't need him for two months, but we hired him and continued employment by Respondent are in- any way and then we brought him back here and he's compatible. one of them organizing the union now. It's too bad we didn't have a union then because he probably wouldn't Thus the remarks of Sanders directed to employee have been hired."' Wilson constituted a violation of Section 8(a)(1). 7 One week later on February 11, 1980, Rine was fired for "too many absenteem [sic]." As noted by President C. The Discharge of Michael Smead Shay, Rine was a volunteer union organizer. Smead, an employee of the Elm Street plant, punched Rine had been employed since August 8, 1979, at the out during the day on November 2, 1979, for the same Wixom facility and had been transferred with other em- reason that employees previously mentioned herein ployees to the Fort Custer plant in the latter part of Sep- punched out. He had been asked to punch out as a tember. In January, Rine began wearing a UAW button button wearer. Unlike the other button wearers, Smead and pocket saver in the assembly department where he returned to the plant about "a quarter of four after the worked.' He also distributed union literature and cards shift had ended." Joe Shay and Danny Sanders were for a 2-week period at the timeclock or in the parking locking the plant when Smead returned. "Mr. Smead ap- lot Dennis Konecny, plant manager, Dan Weymouth, peared to be intoxicated" as evidenced by "the heavy foreman, and Danny Sanders, supervisor, observed Rine smell of liquor on his breath, slurred speech, his obnox- engaged in this activity on several occasions when they ious attitude." He demanded his payroll check from Joe came into the vicinity of the timeclock to use the food Shay and when Shay explained that it was impossible to vending machine. issue his check immediately, Smead said, "[I]f I ever see Sometime after organizing on behalf of the UAW had you at a bar or out on the street, I will get you." Danny begun, Rine and his foreman, Dan Weymouth, had a dis- Sanders intervened and told Smead "that he had better cussion in which Weymouth told Rine that he was being leave the building right now." Smead "cursed and turned removed as team leader and replaced with an employee and started to walk toward the exit." He opened the em- and started to walk toward the exit." He opened the em- ' The teachings of Wright Line, a Division of Wright Line, Inc., 251 ployees' door, "stopped approximately two steps away K,' 1?6 '.'"^ of /'ghl a Di w ""' of Wr is L ine Jne. ployees door, "stopped approximately two steps away NLRB 1083 (1980), has been followed in connection with the considera- from the door out into the parking lot and said if you ion of all discharges. [Sanders and Shay] came out here now, I'll whip your I Charles Pelfrey, an employee of Respondent at the time of the hear- ass out here." Shay then closed the door and he and ing, attended this luncheon meeting and was called on behalf of the Gen- Sanders continued locking up the plant. eral Counsel. He testified that he and other employees were able to deter- mine clearly from this paragraph in Harry Shay's speech that Roy Rine, an alleged discriminatee, was the employee being referred to by Shay. ' Shay's statement that he would not have knowingly hired union par- The witness' testimony is credited. tisans is linked logically to employees' reasonable fear that they would be 'o In the assembly department other employees also had begun wearing discharged if they engaged in union activities. some kind of UAW insignia. Roy Rine, Jerry Nichols, Jim Hunt, Tom ' While not urged as an unfair labor practice, Shay in his February 5, (last name unknown), Joe Hadley, and Dave Latta. All were on the 1980, speech used similar language: "They don't like working here they UAW organizing committee. (Rine, Hunt, Hadley, and Latta are alleged can leave." (Resp. Exh. 10.) discriminatees.) 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks clearly contained threats of reprisal' and the il- Smead's discharge notice read: "Reportedly left work legal solicitation of grievances in violation of Section station and disrupted work by others. Also, threatened 8(a)(l) of the Act. safety and well being of a member of the management The General Counsel further claims that Respondent team." The latter phrase evolved after the incident de- committed an unfair labor practice by Danny Sanders' scribed above. Smead was not reinstated with the other remark to employee William Wilson that if he "didn't button wearers or included in the stipulation above men- like the way it was, that [he] could hit the door." Sand- tioned. ers' remark followed Wilson's observations: "I mentioned Since the incident of alleged drunkenness occurred the fact that if Model A and Model T would put some- after Smead was unlawfully discharged for wearing a thing down in writing in front of the lawyer, that there union button, Respondent's representation that the dis- would be no need for a union, if they would stand charge was also for the above incident will be viewed as behind what they say." Wilson was wearing a union Respondent's claim that it may decline to employ Smead button at the time. because his subsequent conduct rendered him unfit for In the case of Rolligon Corporation, 254 NLRB 22 future employment. A resolution of this matter is best (1981), the Board has said: left to the compliance stage of these proceedings. Smead's discharge being in violation of Section 8(aX3), We have found that an employer's remarks reinstatement for Smead will be recommended. which imply that a union activist is unhappy on the job and therefore should seek work elsewhere vio- D. The Discharge of Ray Rine' late Section 8(a)(l) of the Act. In the instant case, O o a Respondent told an assembled group of employees O n or about February 5, 1980, President Harry Shay, that employees who are unhappy and would rather in his address to Respondentcs employees, alluded to Roy work in a union shop would do Respondent a great RSt eet t h es e words: " Ioecall that one day on Buheham service by finding a job elsewhere. We find that S t r eeth when we were over there, a person said he hadn't such a statement is coercive and threatening and at e t h a t ^ and dw d n 't have a job and didn't have any- violates Section 8(a)(l) of the Act because it con- thing to eat and wanted a job. We didn't need him there, veys the clear message that support for the Unionwe d l d n l n ee d him for two months, but we hired him and continued employment by Respondent are in- V way and then we brought him back here and he's compatible. one of them organizing the union now. It's too bad we didn't have a union then because he probably wouldn't Thus the remarks of Sanders directed to employee have been hired."' Wilson constituted a violation of Section 8(a)(l).7 One week later on February 11, 1980, Rine was fired for "too many absenteem [sic]." As noted by President C. The Discharge of Michael Smead Shay, Rine was a volunteer union organizer. Smead, an employee of the Elm Street plant, punched R in e h ad be en employed since August 8, 1979, at the out during the day on November 2, 1979, for the same Wixom facility and had been transferred with other em- reason that employees previously mentioned herein ployees to the Fort Custer plant in the latter part of Sep- punched out. He had been asked to punch out as a tem b er . I n January, Rine began wearing a UAW button button wearer. Unlike the other button wearers, Smead an d pocket saver in the assembly department where he returned to the plant about "a quarter of four after the worked." 0 He also distributed union literature and cards shift had ended." Joe Shay and Danny Sanders were f o r a 2-week period at the timeclock or in the parking locking the plant when Smead returned. "Mr. Smead ap- lot. Dennis Konecny, plant manager, Dan Weymouth, peared to be intoxicated" as evidenced by "the heavy foreman, and Danny Sanders, supervisor, observed Rine smell of liquor on his breath, slurred speech, his obnox- engaged in this activity on several occasions when they ious attitude." He demanded his payroll check from Joe c am e into the vicinity of the timeclock to use the food Shay and when Shay explained that it was impossible to vending machine. issue his check immediately, Smead said, "[I]f I ever see Sometime after organizing on behalf of the UAW had you at a bar or out on the street, I will get you." Danny begun, Rine and his foreman, Dan Weymouth, had a dis- Sanders intervened and told Smead "that he had better cu ss io n i n which Weymouth told Rine that he was being leave the building right now." Smead "cursed and turned removed as team leader and replaced with an employee and started to walk toward the exit." He opened the em-------- ployees' door, "stopped approximately two steps away K , C' 1?6 '.'"^ of Wn'»"' a h, r Di w ""'o of Wr ishrL ine" <* "l':*. S ployees' door, "stopped approximately two steps away NLRB 1083 (1980), has been followed in connection with the considera- from the door out into the parking lot and said if you tion of all discharges. [Sanders and Shay] came out here now, I'll whip your I Charles Pelfrey, an employee of Respondent at the time of the hear- ass out here." Shay then closed the door and he and in"g attended this luncheon meeting and was called on behalf of the Gen- Sanders continued locking up the plant. er al Co un se l. H e testified th at he a nd o th er employees were able to deter- mine clearly from this paragraph in Harry Shay's speech that Roy Rine, an alleged discriminatee, was the employee being referred to by Shay. ' Shay's statement that he would not have knowingly hired union par- The witness' testimony is credited. tissms is linked logically to employees' reasonable fear that they would be " In the assembly department other employees also had begun wearing discharged if they engaged in union activities,.some kind of UAW insignia. Roy Rine, Jerry Nichols, Jim Hunt, Tom ' While not urged as an unfair labor practice, Shay in his February 5, (last name unknown), Joe Hadley, and Dave Latta. All were on the 1980, speech used similar language: "They don't like working here they UAW organizing committee. (Rine, Hunt, Hadley, and Latta are alleged can leave." (Resp. Exh. 10.) discriminatees.) 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks clearly contained threats of reprisal' and the il- Smead's discharge notice read: "Reportedly left work legal solicitation of grievances in violation of Section station and disrupted work by others. Also, threatened 8(a)(l) of the Act. safety and well being of a member of the management The General Counsel further claims that Respondent team." The latter phrase evolved after the incident de- committed an unfair labor practice by Danny Sanders' scribed above. Smead was not reinstated with the other remark to employee William Wilson that if he "didn't button wearers or included in the stipulation above men- like the way it was, that [he] could hit the door." Sand- tioned. ers' remark followed Wilson's observations: "I mentioned Since the incident of alleged drunkenness occurred the fact that if Model A and Model T would put some- after Smead was unlawfully discharged for wearing a thing down in writing in front of the lawyer, that there union button, Respondent's representation that the dis- would be no need for a union, if they would stand charge was also for the above incident will be viewed as behind what they say." Wilson was wearing a union Respondent's claim that it may decline to employ Smead button at the time. because his subsequent conduct rendered him unfit for In the case of Rolligon Corporation, 254 NLRB 22 future employment. A resolution of this matter is best (1981), the Board has said: left to the compliance stage of these proceedings. Smead's discharge being in violation of Section 8(aX3), We have found that an employer's remarks reinstatement for Smead will be recommended. which imply that a union activist is unhappy on the job and therefore should seek work elsewhere vio- D. The Discharge of Ray Rine' late Section 8(a)(l) of the Act. In the instant case, O o a Respondent told an assembled group of employees O n or about February 5, 1980, President Harry Shay, that employees who are unhappy and would rather in his address to Respondentcs employees, alluded to Roy work in a union shop would do Respondent a great RSt eet t h es e words: "I recall that one day on Buheham service by finding a job elsewhere. We find that S t r eeth when we were over there, a person said he hadn't such a statement is coercive and threatening and at e t h a t ^ and dw d n 't have a job and didn't have any- violates Section 8(a)(l) of the Act because it con- thing to eat and wanted a job. We didn't need him there, veys the clear message that support for the Unionwe didn t need him for two months, but we hired him and continued employment by Respondent are in- V way and then we brought him back here and he's compatible. one of them organizing the union now. It's too bad we didn't have a union then because he probably wouldn't Thus the remarks of Sanders directed to employee have been hired."' Wilson constituted a violation of Section 8(a)(l).7 One week later on February 11, 1980, Rine was fired for "too many absenteem [sic]." As noted by President C. The Discharge of Michael Smead Shay, Rine was a volunteer union organizer. Smead, an employee of the Elm Street plant, punched R in e h ad be en employed since August 8, 1979, at the out during the day on November 2, 1979, for the same Wixom facility and had been transferred with other em- reason that employees previously mentioned herein ployees to the Fort Custer plant in the latter part of Sep- punched out. He had been asked to punch out as a tem b er . I n January, Rine began wearing a UAW button button wearer. Unlike the other button wearers, Smead an d pocket saver in the assembly department where he returned to the plant about "a quarter of four after the worked." 0 He also distributed union literature and cards shift had ended." Joe Shay and Danny Sanders were f o r a 2-week period at the timeclock or in the parking locking the plant when Smead returned. "Mr. Smead ap- lot. Dennis Konecny, plant manager, Dan Weymouth, peared to be intoxicated" as evidenced by "the heavy foreman, and Danny Sanders, supervisor, observed Rine smell of liquor on his breath, slurred speech, his obnox- engaged in this activity on several occasions when they ious attitude." He demanded his payroll check from Joe c am e into the vicinity of the timeclock to use the food Shay and when Shay explained that it was impossible to vending machine. issue his check immediately, Smead said, "[I]f I ever see Sometime after organizing on behalf of the UAW had you at a bar or out on the street, I will get you." Danny begun, Rine and his foreman, Dan Weymouth, had a dis- Sanders intervened and told Smead "that he had better cu ss io n in which Weymouth told Rine that he was being leave the building right now." Smead "cursed and turned removed as team leader and replaced with an employee and started to walk toward the exit." He opened the em-------- ployees' door, "stopped approximately two steps away K , C' 1?6 '.'"^ of Wn'»"' a h, r Di w ""'o of Wr ishrL ine" <* "l':*. S ployees' door, "stopped approximately two steps away NLRB 1083 (1980), has been followed in connection with the considera- from the door out into the parking lot and said if you tion of all discharges. [Sanders and Shay] came out here now, I'll whip your I Charles Pelfrey, an employee of Respondent at the time of the hear- ass out here." Shay then closed the door and he and in"g attended this luncheon meeting and was called on behalf of the Gen- Sanders continued locking up the plant. er al Co un se l. H e testified th at he a nd o th er employees were able to deter- mine clearly from this paragraph in Harry Shay's speech that Roy Rine, an alleged discriminatee, was the employee being referred to by Shay. ' Shay's statement that he would not have knowingly hired union par- The witness' testimony is credited. tissms is linked logically to employees' reasonable fear that they would be " In the assembly department other employees also had begun wearing discharged if they engaged in union activities,.some kind of UAW insignia. Roy Rine, Jerry Nichols, Jim Hunt, Tom ' While not urged as an unfair labor practice, Shay in his February 5, (last name unknown), Joe Hadley, and Dave Latta. All were on the 1980, speech used similar language: "They don't like working here they UAW organizing committee. (Rine, Hunt, Hadley, and Latta are alleged can leave." (Resp. Exh. 10.) discriminatees.) 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks clearly contained threats of reprisal' and the il- Smead's discharge notice read: "Reportedly left work legal solicitation of grievances in violation of Section station and disrupted work by others. Also, threatened 8(a)(l) of the Act. safety and well being of a member of the management The General Counsel further claims that Respondent team." The latter phrase evolved after the incident de- committed an unfair labor practice by Danny Sanders' scribed above. Smead was not reinstated with the other remark to employee William Wilson that if he "didn't button wearers or included in the stipulation above men- like the way it was, that [he] could hit the door." Sand- tioned. ers' remark followed Wilson's observations: "I mentioned Since the incident of alleged drunkenness occurred the fact that if Model A and Model T would put some- after Smead was unlawfully discharged for wearing a thing down in writing in front of the lawyer, that there union button, Respondent's representation that the dis- would be no need for a union, if they would stand charge was also for the above incident will be viewed as behind what they say." Wilson was wearing a union Respondent's claim that it may decline to employ Smead button at the time. because his subsequent conduct rendered him unfit for In the case of Rolligon Corporation, 254 NLRB 22 future employment. A resolution of this matter is best (1981), the Board has said: left to the compliance stage of these proceedings. Smead's discharge being in violation of Section 8(aX3), We have found that an employer's remarks reinstatement for Smead will be recommended. which imply that a union activist is unhappy on the job and therefore should seek work elsewhere vio- D. The Discharge of Ray Rine' late Section 8(a)(l) of the Act. In the instant case, O o a Respondent told an assembled group of employees O n or about February 5, 1980, President Harry Shay, that employees who are unhappy and would rather in his address to Respondentcs employees, alluded to Roy work in a union shop would do Respondent a great RSt eet t h es e words: "I recall that one day on Buheham service by finding a job elsewhere. We find that S t r eeth when we were over there, a person said he hadn't such a statement is coercive and threatening and at e t h a t ^ and dw d n 't have a job and didn't have any- violates Section 8(a)(l) of the Act because it con- thing to eat and wanted a job. We didn't need him there, veys the clear message that support for the Unionwe didn t need him for two months, but we hired him and continued employment by Respondent are in- V way and then we brought him back here and he's compatible. one of them organizing the union now. It's too bad we didn't have a union then because he probably wouldn't Thus the remarks of Sanders directed to employee have been hired."' Wilson constituted a violation of Section 8(a)(l).7 One week later on February 11, 1980, Rine was fired for "too many absenteem [sic]." As noted by President C. The Discharge of Michael Smead Shay, Rine was a volunteer union organizer. Smead, an employee of the Elm Street plant, punched R in e h ad be en employed since August 8, 1979, at the out during the day on November 2, 1979, for the same Wixom facility and had been transferred with other em- reason that employees previously mentioned herein ployees to the Fort Custer plant in the latter part of Sep- punched out. He had been asked to punch out as a tem b er . I n January, Rine began wearing a UAW button button wearer. Unlike the other button wearers, Smead an d pocket saver in the assembly department where he returned to the plant about "a quarter of four after the worked." 0 He also distributed union literature and cards shift had ended." Joe Shay and Danny Sanders were f o r a 2-week period at t he timeclock or in the parking locking the plant when Smead returned. "Mr. Smead ap- lot. Dennis Konecny, plant manager, Dan Weymouth, peared to be intoxicated" as evidenced by "the heavy foreman, and Danny Sanders, supervisor, observed Rine smell of liquor on his breath, slurred speech, his obnox- engaged in this activity on several occasions when they ious attitude." He demanded his payroll check from Joe c am e into the vicinity of the timeclock to use the food Shay and when Shay explained that it was impossible to vending machine. issue his check immediately, Smead said, "[I]f I ever see Sometime after organizing on behalf of the UAW had you at a bar or out on the street, I will get you." Danny begun, Rine and his foreman, Dan Weymouth, had a dis- Sanders intervened and told Smead "that he had better cu ss io n i n which Weymouth told Rine that he was being leave the building right now." Smead "cursed and turned removed as team leader and replaced with an employee and started to walk toward the exit." He opened the em-------- ployees' door, "stopped approximately two steps away K , C' 1?6 '.'"^ of Wn'»"' a h, r Di w ""'o of Wr ishrL ine" <* "l':*. S ployees' door, "stopped approximately two steps away NLRB 1083 (1980), has been followed in connection with the considera- from the door out into the parking lot and said if you tion of all discharges. [Sanders and Shay] came out here now, I'll whip your I Charles Pelfrey, an employee of Respondent at the time of the hear- ass out here." Shay then closed the door and he and in"g attended this luncheon meeting and was called on behalf of the Gen- Sanders continued locking up the plant. er al Co un se l. H e testified th at he a nd o th er employees were able to deter- mine clearly from this paragraph in Harry Shay's speech that Roy Rine, an alleged discriminatee, was the employee being referred to by Shay. ' Shay's statement that he would not have knowingly hired union par- The witness' testimony is credited. tissms is linked logically to employees' reasonable fear that they would be " In the assembly department other employees also had begun wearing discharged if they engaged in union activities,.some kind of UAW insignia. Roy Rine, Jerry Nichols, Jim Hunt, Tom ' While not urged as an unfair labor practice, Shay in his February 5, (last name unknown), Joe Hadley, and Dave Latta. All were on the 1980, speech used similar language: "They don't like working here they UAW organizing committee. (Rine, Hunt, Hadley, and Latta are alleged can leave." (Resp. Exh. 10.) discriminatees.) MODEL A AND MODEL T MOTOR CAR CORP. 565 with less seniority because Dennis Konecny, plant man- Respondent hired Rine when he was hard pressed for ager, had seen him standing around not doing his job. a job and Rine apparently performed well on the job in Rine complained about the way the Company handled return. He was a team leader in the assembly department seniority: "[T]he company doesn't want a union in here at least by December 1979 and was thought highly of by . . . this the way you treat your workers. What do you Konecny. In fact, he was thought so highly of that Re- expect .. .. " Weymouth responded, "We don't have to spondent chose to ignore his absence record until it was worry about that because Harry Shay will relocate this evident that he was a union partisan. 4 He had 8 of the plant before he'll allow a union to come in."" On an- 11 absences before he began organizing on behalf of the other occasion Rine complained to Weymouth about UAW on January 22, 1980, and no action was taken by how "they would paint right on the line where every- Respondent. After January 22 and after Respondent body had to work . . . they built a paint booth and they became aware of Rine's prounion stance through its em- would still bring the paint sprayer over to the line. The ployees Weymouth, Konecny, and Sanders, Rine was put painter had a mask to wear and the other workers didn't. under the supervision of an employee with less seniority, They had a dust particle mask, but that isn't any good and was assigned to less responsible work on the line by for keeping the fumes out. It just picks up dust in the Weymouth, his foreman, who also told him that Harry air." After Rine objected to these conditions to Dan Shay would relocate the plant before a union was per- Weymouth, he was assigned to paint on the line for 1 or mitted by Respondent. On February 5, Harry Shay, in 2 weeks. He had never been assigned to paint on the line his luncheon speech, referred to Rine as a disloyal em- prior to voicing his objection. ployee because of his union organizing activities. On Approximately 2 weeks before Rine was discharged, February 11 he was asked to produce a doctor's slip on February 1, 1980, Dennis Konecny initiated a conver- which he had no reason to assume would be required. sation with Rine in which Rine was told that he was The credited evidence indicates that Rine was actually going to be transferred to Fisher's line because it was ap- discharged because he failed to furnish a doctor's state- parent that he and Weymouth did not "get along very ment although the assigned reason for his discharge was well." Konecny assured Rine that he "would still be "too many absenteem [sic]." Thus it would appear that drawing leader's pay and so forth." At this time Kon- the reason for his discharge was shifted in that it would ecny told Rine "that [he] thought very highly of him but be difficult to convince a reasonable person that Re- ... was most concerned about this attitude and his ab- spondent actually would have discharged Rine for failing sentee record 2 because [Rine] was in a group leader slot to furnish a doctor's statement without giving him an op- and . . wasn't showing a good example to the new em- portunity to produce one. The precipitous nature of his ployees that were being hired at the time." discharge coupled with Respondent's union animus and Rine reported to Kermit Fisher's line on Monday, inclination to commit unfair labor practices to discourage February 4, and was absent Thursday, February 7, and union activities belies a legitimate motive. Thus it seems Friday, February 8. Rine's girlfriend, Bonnie Lind, called clear that "too many absenteem [sic]" was seized upon to in for Rine on February 7 and 8 as outlined in the per- shroud the real reason and the true motive of Respond- sonnel policy manual in effect at the time of Rine's dis- ent Moreover the credited evidence does not reveal charge. Rine had fallen on the ice and suffered a dis- * M charge. Rine had faen on t ice a sue athat either Rine in the past or other employees had been abhng back injury. subjected to the same arbitrary demand as was Rine. " On Monday, February 11, Dennis Konecny "instruct- rir i. Rine's alleged absenteeism as a reason for discharge ed Mr. Kermit Fisher who was [Rine's] immediate fore- Re's alleged absenteeism as a reason for discharge man that if Mr. Roy Rine could not supply . . . a doc- was an afterthought utilized to shore up a weak and un- man that if Mr. Roy Rine could not supply . . . a doc- tor's excuse for Thursday and Friday, that [Rine] was to tenable reason for discharge, one which had discrimina- be terminated for excessive absenteeism."'3 "[Rine] re- tion written all over it. Thus, it is found that Rine's dis- ported to work on Monday and worked all day. At the charge was pretextual and for the purpose of discourag- end of the shift. . . Mr. Fisher asked [Rine] if [he] had a ing union activity. Rine's discharge accommodated doctor's slip for the two previous days [February 7 and Shay's expressed antipathy against Rine pronounced in 8] that [he] had missed and [he] told him no, and [Fisher] his speech of February 5, 1980. said well, I'm going to have to let you go." In The Radio Officers' Union of the Commercial Teleg- raphers Union, AFL [A. H. Bull Steamship Company] v. 1" This record is unclear as to when this conversation actually oc- curred. Both Rine and Weymouth testified it was in January and Rine " Resp. Exh. R-6 is a summary of plant employees terminated for ab- testified it was after he began organizing for the UAW. Weymouth also senteeism and tardiness between August 1979 and April 5, 1980. Twelve testified, however, that during the conversation Danny Sanders inter- employees with fewer absences than Rine were terminated. This chart il- vened and Sanders and Rine cursed at one another. A correction slip was lustrates clearly Respondent's lack of consistent treatment of employees written up and offered at the hearing, but is dated December 13, 1979. who have been absent or tardy, e.g., one employee was terminated with- There is no testimony offered in an attempt to reconcile this discrepancy out a verbal or written warning and without suspension with only two so the testimony that it occurred in January after organizing began is tardies and one absence while a second employee was terminated only credited. after being given a written warning and 1-day suspension with seven tar- " Rine had 11 absence and lateness reports between October 26, 1979, dies, two "left earlies," and nine absences. and February 11, 1980. Nicolai, personnel director, testified that 7 out of ' A Respondent rule read, "Five absenteeisms or tardiness within a the 1 were unexcused and that only those marked were excused. None three month period, that are not supported by request for leave of ab- of the 11, however, are marked excused. It is therefore impossible from sence, or signed medical statement, will be grounds for discharge." (Em- the record to determine whether the absences, in fact, are unexcused. phasis supplied.) The credible record does not reveal that the medical " Rine's testimony is credited. Fisher did not testify and was not em- statement requirement had ever been enforced or that any employee had ployed by Respondent at the time of the hearing been discharged for its violation MODEL A AND MODEL T MOTOR CAR CORP. 565 with less seniority because Dennis Konecny, plant man- Respondent hired Rine when he was hard pressed for ager, had seen him standing around not doing his job. a job and Rine apparently performed well on the job in Rine complained about the way the Company handled return. He was a team leader in the assembly department seniority: "[T]he company doesn't want a union in here at least by December 1979 and was thought highly of by ... this the way you treat your workers. What do you Konecny. In fact, he was thought so highly of that Re- expect . . . ." Weymouth responded, "We don't have to spondent chose to ignore his absence record until it was worry about that because Harry Shay will relocate this evident that he was a union partisan." He had 8 of the plant before he'll allow a union to come in."" On an- 11 absences before he began organizing on behalf of the other occasion Rine complained to Weymouth about UAW on January 22, 1980, and no action was taken by how "they would paint right on the line where every- Respondent. After January 22 and after Respondent body had to work . . . they built a paint booth and they became aware of Rine's prounion stance through its em- would still bring the paint sprayer over to the line. The ployees Weymouth, Konecny, and Sanders, Rine was put painter had a mask to wear and the other workers didn't. under the supervision of an employee with less seniority, They had a dust particle mask, but that isn't any good and was assigned to less responsible work on the line by for keeping the fumes out. It just picks up dust in the Weymouth, his foreman, who also told him that Harry air." After Rine objected to these conditions to Dan Shay would relocate the plant before a union was per- Weymouth, he was assigned to paint on the line for 1 or mitted by Respondent. On February 5, Harry Shay, in 2 weeks. He had never been assigned to paint on the line his luncheon speech, referred to Rine as a disloyal em- prior to voicing his objection,.ployee because of his union organizing activities. On Approximately 2 weeks before Rine was discharged, February 11 he was asked to produce a doctor's slip on February 1, 1980, Dennis Konecny initiated a conver- which he had no reason to assume would be required. sation with Rine in which Rine was told that he was The credited evidence indicates that Rine was actually going to be transferred to Fisher's line because it was ap- discharged because he failed to furnish a doctor's state- parent that he and Weymouth did not "get along very ment although the assigned reason for his discharge was well." Konecny assured Rine that he "would still be "too many absenteem [sic]." Thus it would appear that drawing leader's pay and so forth." At this time Kon- the reason for his discharge was shifted in that it would ecny told Rine "that [he] thought very highly of him but be difficult to convince a reasonable person that Re- ... was most concerned about this attitude and his ab-spondent actually would have discharged Rine for failing sentee record 2 because [Rine] was in a group leader slot spondent a doctor's statement without giving him an op- and . . . wasn't showing a good example to the new em- portunity to produce one. The precipitous nature of his ployees that were being hired at the time." discharge coupled with Respondent's union animus and Rine reported to Kermit Fisher's line on Monday, inclination to commit unfair labor practices to discourage February 4, and was absent Thursday, February 7, and incli activities belies a legitimate motive. Thus it seems Friday, February 8. Rine's girlfriend, Bonnie Lind, called union activties elie absenteem [sic]" was seized upon to in for Rine on February 7 and 8 as outlined in the per- clear that "too many abs en tem [sc" a seiz Respond- sonnel policy manual in effect at the time of Rine's dis- Moreover, the credited evidence does not reveal ar g e bl g o n i y c e s a that either Rine in the past or other employees had been abOMng back injury uc subjected to the same arbitrary demand as was Rine." On Monday, February 11, Dennis Konecny "instruct- n-, 1 ii -i -i i* v *'11- i- rn- 'i * -i- . Rine's alleged absenteeism as a reason for discharge ed Mr. Kermit Fisher who was [Rine's] immediate fore- R a ... a a r f d man that if Mr. Roy Rine could not supply . . . a doc- w as a n afterthought utilized to shore up a weak and un- tor's excuse for Thursday and Friday, that [Rine] was to t en ab l e r e aso n f o r discharge, one which had discrimina- be terminated for excessive absenteeism." 13 "[Rine] re- tio n w ri t t en all o v e r it. T h us, it is f o un d that Rine's dis- ported to work on Monday and worked all day. At the charge was pretextual and for the purpose of discourag- end of the shift . .. Mr. Fisher asked [Rine] if [he] had a ing u n ion activity. Rine's discharge accommodated doctor's slip for the two previous days [February 7 and Shay' s expressed antipathy against Rine pronounced in 8] that [he] had missed and [he] told him no, and [Fisher] his speech of February 5, 1980. said well, I'm going to have to let you go." In T he R a d io Officers' Union of the Commercial Teleg- raphers Union, AFL [A. H. Bull Steamship Company] v. "1 This record is unclear as to when this conversation actually oc- curred. Both Rine and Weymouth testified it was in January and Rine " Resp. Exh. R-6 is a summary of plant employees terminated for ab- testified it was after he began organizing for the UAW. Weymouth also sentecism and tardiness between August 1979 and April 5, 1980. Twelve testified, however, that during the conversation Danny Sanders inter- employees with fewer absences than Rine were terminated. This chart il- vened and Sanders and Rine cursed at one another. A correction slip was lustrates clearly Respondent's lack of consistent treatment of employees written up and offered at the hearing, but is dated December 13, 1979. who have been absent or tardy, e.g., one employee was terminated with- There is no testimony offered in an attempt to reconcile this discrepancy out a verbal or written warning and without suspension with only two so the testimony that it occurred in January after organizing began is tardies and one absence while a second employee was terminated only credited. after being given a written warning and 1-day suspension with seven tar- " Rine had 11 absence and lateness reports between October 26, 1979, dies, two "left earlies," and nine absences. and February 11, 1980. Nicolai, personnel director, testified that 7 out of L'* A Respondent rule read, "Five absenteeisms or tardiness within a the 11 were unexcused and that only those marked were excused. None three month period, that are not supported by request for leave of ab- of the I1, however, are marked excused. It is therefore impossible from sence, or signed medical statement, will be grounds for discharge." (Em- the record to determine whether the absences, in fact, are unexcused. phasis supplied.) The credible record does not reveal that the medical 1* Rine's testimony is credited. Fisher did not testify and was not em- statement requirement had ever been enforced or that any employee had ployed by Respondent at the time of the hearing,.been discharged for its violation. MODEL A AND MODEL T MOTOR CAR CORP. 565 with less seniority because Dennis Konecny, plant man- Respondent hired Rine when he was hard pressed for ager, had seen him standing around not doing his job. a job and Rine apparently performed well on the job in Rine complained about the way the Company handled return. He was a team leader in the assembly department seniority: "[T]he company doesn't want a union in here at least by December 1979 and was thought highly of by ... this the way you treat your workers. What do you Konecny. In fact, he was thought so highly of that Re- expect . . . ." Weymouth responded, "We don't have to spondent chose to ignore his absence record until it was worry about that because Harry Shay will relocate this evident that he was a union partisan." He had 8 of the plant before he'll allow a union to come in."" On an- 11 absences before he began organizing on behalf of the other occasion Rine complained to Weymouth about UAW on January 22, 1980, and no action was taken by how "they would paint right on the line where every- Respondent. After January 22 and after Respondent body had to work . . . they built a paint booth and they became aware of Rine's prounion stance through its em- would still bring the paint sprayer over to the line. The ployees Weymouth, Konecny, and Sanders, Rine was put painter had a mask to wear and the other workers didn't. under the supervision of an employee with less seniority, They had a dust particle mask, but that isn't any good and was assigned to less responsible work on the line by for keeping the fumes out. It just picks up dust in the Weymouth, his foreman, who also told him that Harry air." After Rine objected to these conditions to Dan Shay would relocate the plant before a union was per- Weymouth, he was assigned to paint on the line for 1 or mitted by Respondent. On February 5, Harry Shay, in 2 weeks. He had never been assigned to paint on the line his luncheon speech, referred to Rine as a disloyal em- prior to voicing his objection,.ployee because of his union organizing activities. On Approximately 2 weeks before Rine was discharged, February 11 he was asked to produce a doctor's slip on February 1, 1980, Dennis Konecny initiated a conver- which he had no reason to assume would be required. sation with Rine in which Rine was told that he was The credited evidence indicates that Rine was actually going to be transferred to Fisher's line because it was ap- discharged because he failed to furnish a doctor's state- parent that he and Weymouth did not "get along very ment although the assigned reason for his discharge was well." Konecny assured Rine that he "would still be "too many absenteem [sic]." Thus it would appear that drawing leader's pay and so forth." At this time Kon- the reason for his discharge was shifted in that it would ecny told Rine "that [he] thought very highly of him but be difficult to convince a reasonable person that Re- ... was most concerned about this attitude and his ab-spondent actually would have discharged Rine for failing sentee record 2 because [Rine] was in a group leader slot spondent a doctor's statement without giving him an op- and . . . wasn't showing a good example to the new em- portunity to produce one. The precipitous nature of his ployees that were being hired at the time." discharge coupled with Respondent's union animus and Rine reported to Kermit Fisher's line on Monday, inclination to commit unfair labor practices to discourage February 4, and was absent Thursday, February 7, and incli activities belies a legitimate motive. Thus it seems Friday, February 8. Rine's girlfriend, Bonnie Lind, called union activties elie absenteem [sic]" was seized upon to in for Rine on February 7 and 8 as outlined in the per- clear that "too many abs en tem [sc" a seiz Respond- sonnel policy manual in effect at the time of Rine's dis- Moreover, the credited evidence does not reveal ar g e bl g o n i y c e s a that either Rine in the past or other employees had been abOMng back injury uc subjected to the same arbitrary demand as was Rine." On Monday, February 11, Dennis Konecny "instruct- n-, 1 ii -i -i i* v *'11- i- rn- 'i * -i- . Rine's alleged absenteeism as a reason for discharge ed Mr. Kermit Fisher who was [Rine's] immediate fore- R a ... a a r f d man that if Mr. Roy Rine could not supply . . . a doc- w as a n afterthought utilized to shore up a weak and un- tor's excuse for Thursday and Friday, that [Rine] was to t en ab l e r e aso n f o r discharge, one which had discrimina- be terminated for excessive absenteeism."' 3 "[Rine] re- tio n w ri t t en all o v e r it. T h us, it is f o un d that Rine's dis- ported to work on Monday and worked all day. At the charge was pretextual and for the purpose of discourag- end of the shift . .. Mr. Fisher asked [Rine] if [he] had a ing u n ion activity. Rine's discharge accommodated doctor's slip for the two previous days [February 7 and Shay' s expressed antipathy against Rine pronounced in 8] that [he] had missed and [he] told him no, and [Fisher] his speech of February 5, 1980. said well, I'm going to have to let you go." In T he R a d io Officers' Union of the Commercial Teleg- raphers Union, AFL [A. H. Bull Steamship Company] v. "1 This record is unclear as to when this conversation actually oc- curred. Both Rine and Weymouth testified it was in January and Rine " Resp. Exh. R-6 is a summary of plant employees terminated for ab- testified it was after he began organizing for the UAW. Weymouth also sentecism and tardiness between August 1979 and April 5, 1980. Twelve testified, however, that during the conversation Danny Sanders inter- employees with fewer absences than Rine were terminated. This chart il- vened and Sanders and Rine cursed at one another. A correction slip was lustrates clearly Respondent's lack of consistent treatment of employees written up and offered at the hearing, but is dated December 13, 1979. who have been absent or tardy, e.g., one employee was terminated with- There is no testimony offered in an attempt to reconcile this discrepancy out a verbal or written warning and without suspension with only two so the testimony that it occurred in January after organizing began is tardies and one absence while a second employee was terminated only credited. after being given a written warning and 1-day suspension with seven tar- " Rine had 11 absence and lateness reports between October 26, 1979, dies, two "left earlies," and nine absences. and February 11, 1980. Nicolai, personnel director, testified that 7 out of L'* A Respondent rule read, "Five absenteeisms or tardiness within a the 11 were unexcused and that only those marked were excused. None three month period, that are not supported by request for leave of ab- of the I1, however, are marked excused. It is therefore impossible from sence, or signed medical statement, will be grounds for discharge." (Em- the record to determine whether the absences, in fact, are unexcused. phasis supplied.) The credible record does not reveal that the medical 1* Rine's testimony is credited. Fisher did not testify and was not em- statement requirement had ever been enforced or that any employee had ployed by Respondent at the time of the hearing,.been discharged for its violation. MODEL A AND MODEL T MOTOR CAR CORP. 565 with less seniority because Dennis Konecny, plant man- Respondent hired Rine when he was hard pressed for ager, had seen him standing around not doing his job. a job and Rine apparently performed well on the job in Rine complained about the way the Company handled return. He was a team leader in the assembly department seniority: "[T]he company doesn't want a union in here at least by December 1979 and was thought highly of by ... this the way you treat your workers. What do you Konecny. In fact, he was thought so highly of that Re- expect . . . ." Weymouth responded, "We don't have to spondent chose to ignore his absence record until it was worry about that because Harry Shay will relocate this evident that he was a union partisan." He had 8 of the plant before he'll allow a union to come in."" On an- 11 absences before he began organizing on behalf of the other occasion Rine complained to Weymouth about UAW on January 22, 1980, and no action was taken by how "they would paint right on the line where every- Respondent. After January 22 and after Respondent body had to work . . . they built a paint booth and they became aware of Rine's prounion stance through its em- would still bring the paint sprayer over to the line. The ployees Weymouth, Konecny, and Sanders, Rine was put painter had a mask to wear and the other workers didn't. under the supervision of an employee with less seniority, They had a dust particle mask, but that isn't any good and was assigned to less responsible work on the line by for keeping the fumes out. It just picks up dust in the Weymouth, his foreman, who also told him that Harry air." After Rine objected to these conditions to Dan Shay would relocate the plant before a union was per- Weymouth, he was assigned to paint on the line for 1 or mitted by Respondent. On February 5, Harry Shay, in 2 weeks. He had never been assigned to paint on the line his luncheon speech, referred to Rine as a disloyal em- prior to voicing his objection,.ployee because of his union organizing activities. On Approximately 2 weeks before Rine was discharged, February 11 he was asked to produce a doctor's slip on February 1, 1980, Dennis Konecny initiated a conver- which he had no reason to assume would be required. sation with Rine in which Rine was told that he was The credited evidence indicates that Rine was actually going to be transferred to Fisher's line because it was ap- discharged because he failed to furnish a doctor's state- parent that he and Weymouth did not "get along very ment although the assigned reason for his discharge was well." Konecny assured Rine that he "would still be "too many absenteem [sic]." Thus it would appear that drawing leader's pay and so forth." At this time Kon- the reason for his discharge was shifted in that it would ecny told Rine "that [he] thought very highly of him but be difficult to convince a reasonable person that Re- ... was most concerned about this attitude and his ab-spondent actually would have discharged Rine for failing sentee record 2 because [Rine] was in a group leader slot spondent a doctor's statement without giving him an op- and . . . wasn't showing a good example to the new em- portunity to produce one. The precipitous nature of his ployees that were being hired at the time." discharge coupled with Respondent's union animus and Rine reported to Kermit Fisher's line on Monday, inclination to commit unfair labor practices to discourage February 4, and was absent Thursday, February 7, and incli activities belies a legitimate motive. Thus it seems Friday, February 8. Rine's girlfriend, Bonnie Lind, called union activties elie absenteem [sic]" was seized upon to in for Rine on February 7 and 8 as outlined in the per- clear that "too many abs en tem [sc" a seiz Respond- sonnel policy manual in effect at the time of Rine's dis- Moreover, the credited evidence does not reveal ar g e bl g o n i y c e s a that either Rine in the past or other employees had been abOMng back injury uc subjected to the same arbitrary demand as was Rine." On Monday, February 11, Dennis Konecny "instruct- n-, 1 ii -i -i i* v *'11- i- rn- 'i * -i- . Rine's alleged absenteeism as a reason for discharge ed Mr. Kermit Fisher who was [Rine's] immediate fore- R a ... a a r f d man that if Mr. Roy Rine could not supply . . . a doc- w as a n afterthought utilized to shore up a weak and un- tor's excuse for Thursday and Friday, that [Rine] was to t en ab l e r e aso n f o r discharge, one which had discrimina- be terminated for excessive absenteeism."' 3 "[Rine] re- tio n w ri t t en all o v e r it. T h us, it is found that Rine's dis- ported to work on Monday and worked all day. At the charge was pretextual and for the purpose of discourag- end of the shift . .. Mr. Fisher asked [Rine] if [he] had a ing u n ion activity. Rine's discharge accommodated doctor's slip for the two previous days [February 7 and Shay' s expressed antipathy against Rine pronounced in 8] that [he] had missed and [he] told him no, and [Fisher] his speech of February 5, 1980. said well, I'm going to have to let you go." In T he R a d io Officers' Union of the Commercial Teleg- raphers Union, AFL [A. H. Bull Steamship Company] v. "1 This record is unclear as to when this conversation actually oc- curred. Both Rine and Weymouth testified it was in January and Rine " Resp. Exh. R-6 is a summary of plant employees terminated for ab- testified it was after he began organizing for the UAW. Weymouth also sentecism and tardiness between August 1979 and April 5, 1980. Twelve testified, however, that during the conversation Danny Sanders inter- employees with fewer absences than Rine were terminated. This chart il- vened and Sanders and Rine cursed at one another. A correction slip was lustrates clearly Respondent's lack of consistent treatment of employees written up and offered at the hearing, but is dated December 13, 1979. who have been absent or tardy, e.g., one employee was terminated with- There is no testimony offered in an attempt to reconcile this discrepancy out a verbal or written warning and without suspension with only two so the testimony that it occurred in January after organizing began is tardies and one absence while a second employee was terminated only credited. after being given a written warning and 1-day suspension with seven tar- " Rine had 11 absence and lateness reports between October 26, 1979, dies, two "left earlies," and nine absences. and February 11, 1980. Nicolai, personnel director, testified that 7 out of L'* A Respondent rule read, "Five absenteeisms or tardiness within a the 11 were unexcused and that only those marked were excused. None three month period, that are not supported by request for leave of ab- of the I1, however, are marked excused. It is therefore impossible from sence, or signed medical statement, will be grounds for discharge." (Em- the record to determine whether the absences, in fact, are unexcused. phasis supplied.) The credible record does not reveal that the medical 1* Rine's testimony is credited. Fisher did not testify and was not em- statement requirement had ever been enforced or that any employee had ployed by Respondent at the time of the hearing,.been discharged for its violation. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.LR.B., 347 U.S. 17, 45 (1954), the Supreme Court Transferred in the last part of January or the first part opined, "[A]n employer's protestation that he did not of February to work outside, Hunt "was in charge of intend to encourage or discourage must be unavailing moving the vehicles from inside the plant to the outside where a natural consequence of his action was such en- . . . of taking care of the shipping, handling of the couragement or discouragement. Concluding that en- trucks coming in to pick up the vehicles for shipment." couragement or discouragement will result, it is pre- On March 4, while Hunt and his partner, Bob Hancock, sumed that he intended such consequence. In such cir- were working outside, a cleanup was begun in the cumstances intent to encourage or discourage is suffi- plant," which generated much refuse.' I ciently established." Hunt removed two heater fans and Bob Hancock re- The natural consequences of Respondent's discharge moved miscellaneous scrap from the dumpsters which of Rine, a union partisan, following on the heels of they put in a cardboard box and placed in a Dodge van Shay's remarks at the February 5 luncheon, was to dis- used on company premises "in the work procedures out- courage membership in a labor organization. Any other side." Later in the day when Hunt went to remove the conclusion would be at odds with the realities of the in- fans from the van, the driver of the van Franklin Rood, dustrial world and in opposition to sound reason. Thus it asked him "if [he] had any permission or if [he] had ever must be deemed that Respondent intended such result, had any permission to remove what he was removing that Respondent's conduct was "'inherently destructive' . . . referring to the two heater fans." Hunt responded of important employee rights," and that an unfair labor that he and Bob had gotten the material out of the practice may be found "even if the employer introduces dumpster and that they "had permission to remove evidence that the conduct was motivated by business things that had been in the dumpster." Rood then considerations." See N.LR.B. v. Great Dane Trailers, watched Hunt put the fans into his automobile and Inc., 388 U.S. 26 (1967). Had Respondent not intended return to work. On his way to his automobile, Hunt the consequences of its act, i.e., discouragement of union passed the security guard and waved. activity, Rine obviously would not have been dis- Rood reported the incident to Nicolai and the follow- charged. Rine was the victim of Shay's antiunion stance, ing statement was prepared for Rood: for no reasonable employer, except for an ulterior pur- pose, would have fired a man because he was unable to On Tuesday, March 4, 1980, I was driving the com- meet an impossible condition set by his employer, in this pany van, when Jim Hunt came over to the van and case a demand for a doctor's report which Rine was not told me that he had asked and received permission given a fair opportunity to obtain before he was dis- to take two heater motors that had come from the charged.'f trash. I sat in the van while he took the two motors E. The Discharge of James Hunt and walked out to his car, put them in his car and came back. I thought nothing further of the things. The UAW had its first organizing meeting for employ- The next morning Bob Hancock came and asked me ees of Respondent on January 22, 1980. Employees what had happened to the two heater motors and I James Hunt, Joe Hadley, and Roy Rine, alleged discri- told him that [Jim] took them, telling me that he minatees, became part of the UAW organizing effort at had permission to do so. this meeting. James Hunt signed a card and a "UAW organizing Nicolai called Hunt into his office on March 17, 1980. committee form" and received a packet of authorization Hunt had been absent from March 4 to 17 because of ill- cards to distribute at the Fort Custer plant. Before work ness. Nicolai showed Hunt the statement"9 allegedly on January 23, Hunt discussed the Union with other em- given by Franklin Rood, the employee who witnessed ployees, distributed authorization cards, and received the removal, and read him rule 33 on theft. ° When signed cards in return. All of his activity was observed by Plant Manager Dennis Konecny and Foreman Danny James Hunt was wearing his UAW button on March 4. His partner, Weymouth. At this time Konecny warned Hunt that Bob Hancock, was not wearing a union button and there is no evidence "any organizing for any union" was to be "done on ... indicating he was a union partisan. "any organizing for any union" was to be "done on . . . s In general, refuse from the plant either found its way as scrap into personal time and not on company time." Weymouth the dumpsters which were ultimately carried away by trash pickup trucks also asked "what his [Hunt's] reasons were for wanting a and returned empty to Respondent; or, as in the case of vendor parts union." Nevertheless, Hunt continued to distribute cards such as the heater motors, it was "sent back to the vendor for new every day for a week after the first day of distribution on parts." Vendor parts were not normally put into the trash system. ~~~~~~~~~~~~~~,every day for a week after The statement was admitted for the purposes of proving that it was January 23 and to wear his UAW button openly on his the document Nicolai showed to Hunt and the document upon which Ni- shirt pocket every day until his discharge on March 17, colai relied in discharging Hunt. It was not admitted to prove the truth 1980. of the matters asserted therein, as Rood did not testify and, therefore, did not verify the signature as his own and the statement as true. " Rule 33 reads as follows: " Even if Fisher, Rine's foreman, were justified in requesting a doc- tor's slip from Rine, he was not justified in demanding and expecting its 33 Theft of any Company, Government or Employee Property immediate production. Fisher's demand for immediate production of a doctor's slip created a no-win situation with which Rine was expected to Violation of any work rule will result in disciplinary action, which comply. Even if Rine had had a good-faith desire to comply with Fish- will range from verbal reprimand to discharge depending on the seri- er's demand, it was impossible for him to do so without being permitted ousness of the violation and whether it is a first violation or a recur- time between the demand for the doctor's slip and its expected produc- rence. A combination of work rule violations will be dealt with ac- tion. cording to the circumstances of each case. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B., 347 U.S. 17, 45 (1954), the Supreme Court Transferred in the last part of January or the first part opined, "[A]n employer's protestation that he did not of February to work outside, Hunt "was in charge of intend to encourage or discourage must be unavailing moving the vehicles from inside the plant to the outside where a natural consequence of his action was such en- ... of taking care of the shipping, handling of the couragement or discouragement. Concluding that en- trucks coming in to pick up the vehicles for shipment." couragement or discouragement will result, it is pre- On March 4, while Hunt and his partner, Bob Hancock, sumed that he intended such consequence. In such cir- were working outside, a cleanup was begun in the cumstances intent to encourage or discourage is suffi- plant," which generated much refuse. " ciently established." Hunt removed two heater fans and Bob Hancock re- The natural consequences of Respondent's discharge moved miscellaneous scrap from the dumpsters which of Rine, a union partisan, following on the heels of they put in a cardboard box and placed in a Dodge van Shay's remarks at the February 5 luncheon, was to dis- used on company premises "in the work procedures out- courage membership in a labor organization. Any other side." Later in the day when Hunt went to remove the conclusion would be at odds with the realities of the in- fans from the van, the driver of the van Franklin Rood, dustrial world and in opposition to sound reason. Thus it asked him "if [he] had any permission or if [he] had ever must be deemed that Respondent intended such result, had any permission to remove what he was removing that Respondent's conduct was ..inherently destructive' . . . referring to the two heater fans." Hunt responded of important employee rights," and that an unfair labor that he and Bob had gotten the material out of the practice may be found "even if the employer introduces dumpster and that they "had permission to remove evidence that the conduct was motivated by business things that had been in the dumpster." Rood then considerations." See N.LR.B. v. Great Dane Trailers, watched Hunt put the fans into his automobile and Inc., 388 U.S. 26 (1967). Had Respondent not intended return to work. On his way to his automobile, Hunt the consequences of its act, i.e., discouragement of union passed the security guard and waved. activity, Rine obviously would not have been dis- Rood reported the incident to Nicolai and the follow- charged. Rine was the victim of Shay's antiunion stance, ing statement was prepared for Rood: for no reasonable employer, except for an ulterior pur- pose, would have fired a man because he was unable to On Tuesday, March 4, 1980, I was driving the com- meet an impossible condition set by his employer, in this pany van, when Jim Hunt came over to the van and case a demand for a doctor's report which Rine was not told me that he had asked and received permission given a fair opportunity to obtain before he was dis- to take two heater motors that had come from the charged. " trash. I sat in the van while he took the two motors E. The Discharge of James Hunt and walked out to his car, put them in his car and came back. I thought nothing further of the things. The UAW had its first organizing meeting for employ- The next morning Bob Hancock came and asked me ees of Respondent on January 22, 1980. Employees what had happened to the two heater motors and I James Hunt, Joe Hadley, and Roy Rine, alleged discri- told him that [Jim] took them, telling me that he minatees, became part of the UAW organizing effort at had permission to do so. this meeting. James Hunt signed a card and a "UAW organizing Nicolai called Hunt into his office on March 17, 1980. committee form" and received a packet of authorization Hunt had been absent from March 4 to 17 because of ill- cards to distribute at the Fort Custer plant. Before work ness. Nicolai showed Hunt the statement"' allegedly on January 23, Hunt discussed the Union with other em- given by Franklin Rood, the employee who witnessed ployees, distributed authorization cards, and received the removal, and read him rule 33 on theft. 0 When signed cards in return. All of his activity was observed by Plant Manager Dennis Konecny and Foreman Danny James Hunt was wearing his UAW button on March 4. His partner, Weymouth. At this time Konecny warned Hunt that Bo b Ha"ncoc. w as not wearing a union button and there is no evidence "any orgaizing fo any unin" was t be "don on . indicating" he was a union partisan. "any organizing for any union" was to be "done on . . . 1 in general, refuse from the plant either found its way as scrap into personal time and not on company time." Weymouth the dumpsters which were ultimately carried away by trash pickup trucks also asked "what his [Hunt's] reasons were for wanting a and returned empty to Respondent; or, as in the case of vendor parts union." Nevertheless, Hunt continued to distribute cards suc h as t he heate r motors, it was "sent back to the vendor for new every day for a week after the first day of distribution onmparts." Vendor parts were not normally put into the trash system. every ay fo a wek aftr thefirst ay ofdistrbutio on 1 The statement was admitted for the purposes of proving that it was January 23 and to Wear his UAW button Openly On his the document Nicolai showed to Hunt and the document upon which Ni- shirt pocket every day until his discharge on March 17, colai relied in discharging Hunt. It was not admitted to prove the truth 19g0. of the matters asswrted therein, as Rood did not testify and, therefore, did not verify the signature as his own and the statement as true. I Rule 33 reads as follows: " Even if Fisher, Rine's foreman, were justified in requesting a doc- tor's slip from Rine, he was not justified in demanding and expecting its 33. Theft of any Company, Government or Employee Property immediate production. Fisher's demand for immediate production of a doctor's slip created a no-win situation with which Rine was expected to Violation of any work rule will result in disciplinary action, which comply. Even if Rine had had a good-faith desire to comply with Fish- will range from verbal reprimand to discharge depending on the seri- er's demand, it was impossible for him to do so without being permitted ousness of the violation and whether it is a first violation or a recur- time between the demand for the doctor's slip and its expected produc- rence. A combination of work rule violations will be dealt with ac- tion. cording to the circumstances of each case. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B., 347 U.S. 17, 45 (1954), the Supreme Court Transferred in the last part of January or the first part opined, "[A]n employer's protestation that he did not of February to work outside, Hunt "was in charge of intend to encourage or discourage must be unavailing moving the vehicles from inside the plant to the outside where a natural consequence of his action was such en- ... of taking care of the shipping, handling of the couragement or discouragement. Concluding that en- trucks coming in to pick up the vehicles for shipment." couragement or discouragement will result, it is pre- On March 4, while Hunt and his partner, Bob Hancock, sumed that he intended such consequence. In such cir- were working outside, a cleanup was begun in the cumstances intent to encourage or discourage is suffi- plant," which generated much refuse. " ciently established." Hunt removed two heater fans and Bob Hancock re- The natural consequences of Respondent's discharge moved miscellaneous scrap from the dumpsters which of Rine, a union partisan, following on the heels of they put in a cardboard box and placed in a Dodge van Shay's remarks at the February 5 luncheon, was to dis- used on company premises "in the work procedures out- courage membership in a labor organization. Any other side." Later in the day when Hunt went to remove the conclusion would be at odds with the realities of the in- fans from the van, the driver of the van Franklin Rood, dustrial world and in opposition to sound reason. Thus it asked him "if [he] had any permission or if [he] had ever must be deemed that Respondent intended such result, had any permission to remove what he was removing that Respondent's conduct was ..inherently destructive' . . . referring to the two heater fans." Hunt responded of important employee rights," and that an unfair labor that he and Bob had gotten the material out of the practice may be found "even if the employer introduces dumpster and that they "had permission to remove evidence that the conduct was motivated by business things that had been in the dumpster." Rood then considerations." See N.LR.B. v. Great Dane Trailers, watched Hunt put the fans into his automobile and Inc., 388 U.S. 26 (1967). Had Respondent not intended return to work. On his way to his automobile, Hunt the consequences of its act, i.e., discouragement of union passed the security guard and waved. activity, Rine obviously would not have been dis- Rood reported the incident to Nicolai and the follow- charged. Rine was the victim of Shay's antiunion stance, ing statement was prepared for Rood: for no reasonable employer, except for an ulterior pur- pose, would have fired a man because he was unable to On Tuesday, March 4, 1980, I was driving the com- meet an impossible condition set by his employer, in this pany van, when Jim Hunt came over to the van and case a demand for a doctor's report which Rine was not told me that he had asked and received permission given a fair opportunity to obtain before he was dis- to take two heater motors that had come from the charged. " trash. I sat in the van while he took the two motors E. The Discharge of James Hunt and walked out to his car, put them in his car and came back. I thought nothing further of the things. The UAW had its first organizing meeting for employ- The next morning Bob Hancock came and asked me ees of Respondent on January 22, 1980. Employees what had happened to the two heater motors and I James Hunt, Joe Hadley, and Roy Rine, alleged discri- told him that [Jim] took them, telling me that he minatees, became part of the UAW organizing effort at had permission to do so. this meeting. James Hunt signed a card and a "UAW organizing Nicolai called Hunt into his office on March 17, 1980. committee form" and received a packet of authorization Hunt had been absent from March 4 to 17 because of ill- cards to distribute at the Fort Custer plant. Before work ness. Nicolai showed Hunt the statement"' allegedly on January 23, Hunt discussed the Union with other em- given by Franklin Rood, the employee who witnessed ployees, distributed authorization cards, and received the removal, and read him rule 33 on theft. 0 When signed cards in return. All of his activity was observed by Plant Manager Dennis Konecny and Foreman Danny James Hunt was wearing his UAW button on March 4. His partner, Weymouth. At this time Konecny warned Hunt that Bo b Ha"ncoc. w as not wearing a union button and there is no evidence "any orgaizing fo any unin" was t be "don on . indicating" he was a union partisan. "any organizing for any union" was to be "done on . . . 1 in general, refuse from the plant either found its way as scrap into personal time and not on company time." Weymouth the dumpsters which were ultimately carried away by trash pickup trucks also asked "what his [Hunt's] reasons were for wanting a and returned empty to Respondent; or, as in the case of vendor parts union." Nevertheless, Hunt continued to distribute cards suc h as t he heate r motors, it was "sent back to the vendor for new every day for a week after the first day of distribution onmparts." Vendor parts were not normally put into the trash system. every ay fo a wek aftr thefirst ay ofdistrbutio on 1 The statement was admitted for the purposes of proving that it was January 23 and to Wear his UAW button Openly On his the document Nicolai showed to Hunt and the document upon which Ni- shirt pocket every day until his discharge on March 17, colai relied in discharging Hunt. It was not admitted to prove the truth 19g0. of the matters asswrted therein, as Rood did not testify and, therefore, did not verify the signature as his own and the statement as true. I Rule 33 reads as follows: " Even if Fisher, Rine's foreman, were justified in requesting a doc- tor's slip from Rine, he was not justified in demanding and expecting its 33. Theft of any Company, Government or Employee Property immediate production. Fisher's demand for immediate production of a doctor's slip created a no-win situation with which Rine was expected to Violation of any work rule will result in disciplinary action, which comply. Even if Rine had had a good-faith desire to comply with Fish- will range from verbal reprimand to discharge depending on the seri- er's demand, it was impossible for him to do so without being permitted ousness of the violation and whether it is a first violation or a recur- time between the demand for the doctor's slip and its expected produc- rence. A combination of work rule violations will be dealt with ac- tion. cording to the circumstances of each case. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B., 347 U.S. 17, 45 (1954), the Supreme Court Transferred in the last part of January or the first part opined, "[A]n employer's protestation that he did not of February to work outside, Hunt "was in charge of intend to encourage or discourage must be unavailing moving the vehicles from inside the plant to the outside where a natural consequence of his action was such en- ... of taking care of the shipping, handling of the couragement or discouragement. Concluding that en- trucks coming in to pick up the vehicles for shipment." couragement or discouragement will result, it is pre- On March 4, while Hunt and his partner, Bob Hancock, sumed that he intended such consequence. In such cir- were working outside, a cleanup was begun in the cumstances intent to encourage or discourage is suffi- plant," which generated much refuse. " ciently established." Hunt removed two heater fans and Bob Hancock re- The natural consequences of Respondent's discharge moved miscellaneous scrap from the dumpsters which of Rine, a union partisan, following on the heels of they put in a cardboard box and placed in a Dodge van Shay's remarks at the February 5 luncheon, was to dis- used on company premises "in the work procedures out- courage membership in a labor organization. Any other side." Later in the day when Hunt went to remove the conclusion would be at odds with the realities of the in- fans from the van, the driver of the van Franklin Rood, dustrial world and in opposition to sound reason. Thus it asked him "if [he] had any permission or if [he] had ever must be deemed that Respondent intended such result, had any permission to remove what he was removing that Respondent's conduct was ..inherently destructive' . . . referring to the two heater fans." Hunt responded of important employee rights," and that an unfair labor that he and Bob had gotten the material out of the practice may be found "even if the employer introduces dumpster and that they "had permission to remove evidence that the conduct was motivated by business things that had been in the dumpster." Rood then considerations." See N.LR.B. v. Great Dane Trailers, watched Hunt put the fans into his automobile and Inc., 388 U.S. 26 (1967). Had Respondent not intended return to work. On his way to his automobile, Hunt the consequences of its act, i.e., discouragement of union passed the security guard and waved. activity, Rine obviously would not have been dis- Rood reported the incident to Nicolai and the follow- charged. Rine was the victim of Shay's antiunion stance, ing statement was prepared for Rood: for no reasonable employer, except for an ulterior pur- pose, would have fired a man because he was unable to On Tuesday, March 4, 1980, I was driving the com- meet an impossible condition set by his employer, in this pany van, when Jim Hunt came over to the van and case a demand for a doctor's report which Rine was not told me that he had asked and received permission given a fair opportunity to obtain before he was dis- to take two heater motors that had come from the charged. " trash. I sat in the van while he took the two motors E. The Discharge of James Hunt and walked out to his car, put them in his car and came back. I thought nothing further of the things. The UAW had its first organizing meeting for employ- The next morning Bob Hancock came and asked me ees of Respondent on January 22, 1980. Employees what had happened to the two heater motors and I James Hunt, Joe Hadley, and Roy Rine, alleged discri- told him that [Jim] took them, telling me that he minatees, became part of the UAW organizing effort at had permission to do so. this meeting. James Hunt signed a card and a "UAW organizing Nicolai called Hunt into his office on March 17, 1980. committee form" and received a packet of authorization Hunt had been absent from March 4 to 17 because of ill- cards to distribute at the Fort Custer plant. Before work ness. Nicolai showed Hunt the statement"' allegedly on January 23, Hunt discussed the Union with other em- given by Franklin Rood, the employee who witnessed ployees, distributed authorization cards, and received the removal, and read him rule 33 on theft. 0 When signed cards in return. All of his activity was observed by Plant Manager Dennis Konecny and Foreman Danny James Hunt was wearing his UAW button on March 4. His partner, Weymouth. At this time Konecny warned Hunt that Bo b Ha"ncoc. w as not wearing a union button and there is no evidence "any orgaizing fo any unin" was t be "don on . indicating" he was a union partisan. "any organizing for any union" was to be "done on . . . 1 in general, refuse from the plant either found its way as scrap into personal time and not on company time." Weymouth the dumpsters which were ultimately carried away by trash pickup trucks also asked "what his [Hunt's] reasons were for wanting a and returned empty to Respondent; or, as in the case of vendor parts union." Nevertheless, Hunt continued to distribute cards suc h as t he heate r motors, it was "sent back to the vendor for new every day for a week after the first day of distribution onmparts." Vendor parts were not normally put into the trash system. every ay fo a wek aftr thefirst ay ofdistrbutio on 1 The statement was admitted for the purposes of proving that it was January 23 and to Wear his UAW button Openly On his the document Nicolai showed to Hunt and the document upon which Ni- shirt pocket every day until his discharge on March 17, colai relied in discharging Hunt. It was not admitted to prove the truth 19g0. of the matters asswrted therein, as Rood did not testify and, therefore, did not verify the signature as his own and the statement as true. I Rule 33 reads as follows: " Even if Fisher, Rine's foreman, were justified in requesting a doc- tor's slip from Rine, he was not justified in demanding and expecting its 33. Theft of any Company, Government or Employee Property immediate production. Fisher's demand for immediate production of a doctor's slip created a no-win situation with which Rine was expected to Violation of any work rule will result in disciplinary action, which comply. Even if Rine had had a good-faith desire to comply with Fish- will range from verbal reprimand to discharge depending on the seri- er's demand, it was impossible for him to do so without being permitted ousness of the violation and whether it is a first violation or a recur- time between the demand for the doctor's slip and its expected produc- rence. A combination of work rule violations will be dealt with ac- tion. cording to the circumstances of each case. MODEL A AND MODEL T MOTOR CAR CORP. 567 asked if he were familiar with the rule, Hunt replied that steal, openly took the fans without stealth, and honestly he was, but that he did not consider this theft since he believed that he was permitted to take the fans, all of had gotten blanket permission from Connie, the previous which must have been apparent to Nicolai when he dis- plant supervisor, to take scrap from the dumpsters. He charged Hunt. offered to return the fans to the Company, but Nicolai To meet its burden Respondent asserts that "the Re- did not respond and asked him to leave the room. When spondent had a rule that was generally known to the em- he returned, Nicolai told him he was discharged. ployees." If such assertion refers to a rule governing the The reason for Hunt's discharge was described as removal of scrap from the dumpsters, the credited evi- "Theft of company property to heater motors, 3/4/80 dence does not support this assertion. Respondent further Co. Rule 33." maintains that "Respondent constantly enforced the theft Apparently, Respondent had not written or published rules in the situations in which it was aware of the anything for employees specifically concerning the re- theft." However, the examples offered by Respondent moval of scrap from the dumpsters. 21 Rather it was com- were for theft of tools or materials, items of value to Re- municated orally through the employees' immediate fore- spondent used in production by Respondent. Hunt's dis- men. Dennis Konecny, plant manager at the Fort Custer charge was the only one for removing scrap from the plant, received a memorandum from Jim Krider, general dumpster. Hunt was discharged as a thief, which he was manager, directing the foremen upon requests from em- not. He was deprived of any benefit of the doubt al- ployees to remove scrap for personal use, to orally though the penalty for his alleged offense could have inform them, "that they did not have the authority and been in a range from a verbal reprimand to a discharge. that neither did [Konecny] and the only way [to] get au- Moreover, Hunt's offense was innocuous since the scrap thority was through Jim Krider." This directive was to fans were of such slight value that Respondent did not be shared only upon an employee's request to remove want them returned. Hunt's offense as it may have affect- scrap and was never publicized generally in the plant. ed Respondent's business operation was minimal. Ac- Understandably, it is difficult to discern what specific cordingly, it appears that Respondent has not carried its policy was to be followed by employees to gain valid burden and it is found that the motivation for Hunt's dis- permission to remove scrap: Whether written permission charge was to discourage union activity. By Hunt's dis- from Krider was necessary; whether oral permission charge, Respondent violated Section 8(aX3) of the Act. from Konecny was sufficient; or whether permission The credible evidence reveals no legitimate business jus- could be obtained at all from anyone. It is reasonable, tification for Hunts discharge nor has Respondent dem- tifi cation for Hunt's discharge nor has Respondent dem- therefore, to infer from Respondent's varying policies that employees must have been confused as to what o n str at ed b y e v a sa f ac to ry that employees must have been confused as to what e mploy ee , would have been discharged even in the ab- process was to be followed to gain permission and whose employee would have been discharged even i the ab- permission was valid. It is, therefore, a rational inference sence of his protected conduct. Indeed no action was that Hunt had a good-faith belief that he did not need to taken against Hancock although he likewise removed seek permission every time he wished to remove scrap tems fromthe on the same t retrieved and that his belief was reasonable under the circum- e heater ans stances. stances. F. Discharge of David Hall It is clear that the General Counsel has met his burdenF Dicha oDv H of establishing a prima facie case by producing sufficient David Hall was hired by Respondent on June 26, evidence to support the inference that protected conduct 1979, at the Burnham Street plant, and after 3 months was a "motivating factor" in Respondent's decision to transferred to the Elm Street plant. He was discharged discharge Hunt in conformity with the teachings of from the Elm Street plant on September 18, 1979, for his Wright Line, a Division of Wright Line, Inc., 251 NLRB poor attendance record. On January 11, 1980, David 1083 (1980). These factors are controlling in this respect: Hall returned to Respondent and talked with Vonda (1) Hunt was an aggressive union partisan, (2) Respond- Shay, the president's wife, about whether the Company ent harbored union animus of sufficient intensity as to would rehire him. He was rehired and reported to work cause it to commit unfair labor practices, (3) there was on January 14, 1980. Subsequently, he was discharged on no proof that other employees had been discharged for February 29, 1980, because of a company policy not to removing scrap from dumpsters although such removal rehire employees who had been discharged for cause. had been apparently commonplace, (4) the rules in re- Mark Nicolai, Respondent's personnel director, was spect to employee removal of dumpster scrap were not hired on January 21, 1980, 7 days after Hall had been re- well defined, (5) no evidence was offered that Hunt was hired by Mrs. Shay with the approval of the previous an unsatisfactory employee, (6) the heater fans were of personnel director. When Nicolai became personnel di- such insignificant value that when Hunt offered to return rector, he instituted a policy of not rehiring persons who them his offer was not accepted, and (7) whereas Hunt had been discharged for cause, but because he was hired was discharged for theft, an intentional crime, the cred- after Hall was rehired did not know who David Hall ited evidence indicates that he harbored no intent to was, nor did he know of David Hall's employment histo- ry. Consequently, when Nicolai was asked by Harry " A written memorandum allowing removal of scrap from dumpsters Shay, Respondent's president, what David Hall was with a supervisor's approval was posted on the plant bulletin board prior to March 17, but there is no credible evidence that it was posted before doing in the plant, he was unable to respond without March 4, the day Hunt allegedly removed the heater fans for his personal asking who David Hall was. Shay explained that Hall use without permission from Respondent. had been discharged for cause and had "created quite a MODEL A AND MODEL T MOTOR CAR CORP. 567 asked if he were familiar with the rule, Hunt replied that steal, openly took the fans without stealth, and honestly he was, but that he did not consider this theft since he believed that he was permitted to take the fans, all of had gotten blanket permission from Connie, the previous which must have been apparent to Nicolai when he dis- plant supervisor, to take scrap from the dumpsters. He charged Hunt. offered to return the fans to the Company, but Nicolai To meet its burden Respondent asserts that "the Re- did not respond and asked him to leave the room. When spondent had a rule that was generally known to the em- he returned, Nicolai told him he was discharged,.ployees." If such assertion refers to a rule governing the The reason for Hunt's discharge was described as removal of scrap from the dumpsters, the credited evi- "Theft of company property to heater motors, 3/4/80 dence does not support this assertion. Respondent further Co. Rule 33." maintains that "Respondent constantly enforced the theft Apparently, Respondent had not written or published rules in the situations in which it was aware of the anything for employees specifically concerning the re- theft." However, the examples offered by Respondent moval of scrap from the dumpsters.2" Rather it was com- were for theft of tools or materials, items of value to Re- municated orally through the employees' immediate fore- spondent used in production by Respondent. Hunt's dis- men. Dennis Konecny, plant manager at the Fort Custer charge was the only one for removing scrap from the plant, received a memorandum from Jim Krider, general dumpster. Hunt was discharged as a thief, which he was manager, directing the foremen upon requests from em- not. He was deprived of any benefit of the doubt al- ployees to remove scrap for personal use, to orally though the penalty for his alleged offense could have inform them, "that they did not have the authority and been in a range from a verbal reprimand to a discharge. that neither did [Konecny] and the only way [to] get au- Moreover, Hunt's offense was innocuous since the scrap thority was through Jim Krider." This directive was to fans were of such slight value that Respondent did not be shared only upon an employee's request to remove want them returned. Hunt's offense as it may have affect- scrap and was never publicized generally in the plant. ed Respondent's business operation was minimal. Ac- Understandably, it is difficult to discern what specific cordingly, it appears that Respondent has not carried its policy was to be followed by employees to gain valid burden and it is found that the motivation for Hunt's dis- permission to remove scrap: Whether written permission charge was to discourage union activity. By Hunt's dis- from Krider was necessary; whether oral permission charge, Respondent violated Section 8(aX3) of the Act. from Konecny was sufficient; or whether permission The credible evidence reveals no legitimate business jus- could be obtained at all from anyone. It is reasonable, ticaonfrH t'dshrgnrhsRepdntem S fo~~t~ r ^m R~~po~dS ^mg~c~ t i fi c at io fo r Hun's d is c h ar g e no ha R es po n d e n; d e m - therefore, to infer from Respondent's varying policies osrtdb rdbeeiec htHnastsatr that employees must have been confused as to what eonstr ated by have ev end isharged a sain facto ry process was to be followed to gain permission and whose semployeeo would have been discharged evenatn the ab- permission was valid. It is, therefore, a rational inferenc e ten ofai s pnst Hanc conduct. Indeedk no action was that Hunt had a good-faith belief that he did not need to itak en fro m tst H ancoc ker on th he likewise removed seek permission every time he wished to remove scrap tems fro m h the dumpster on the same day Hunt retrieved and that his belief was reasonable under the circum- stances. F icag fDvdHl It is clear that the General Counsel has met his burden F . D irc harge ofDovid H au of establishing a prima facie case by producing sufficient David Hall was hired by Respondent on June 26, evidence to support the inference that protected conduct 1979, at the Burnham Street plant, and after 3 months was a "motivating factor" in Respondent's decision to transferred to the Elm Street plant. He was discharged discharge Hunt in conformity with the teachings of from the Elm Street plant on September 18, 1979, for his Wright Line, a Division of Wright Line, Inc., 251 NLRB poor attendance record. On January 11, 1980, David 1083 (1980). These factors are controlling in this respect: Hall returned to Respondent and talked with Vonda (1) Hunt was an aggressive union partisan, (2) Respond- Shay, the president's wife, about whether the Company ent harbored union animus of sufficient intensity as to would rehire him. He was rehired and reported to work cause it to commit unfair labor practices, (3) there was on January 14, 1980. Subsequently, he was discharged on no proof that other employees had been discharged for February 29, 1980, because of a company policy not to removing scrap from dumpsters although such removal rehire employees who had been discharged for cause. had been apparently commonplace, (4) the rules in re- Mark Nicolai, Respondent's personnel director, was spect to employee removal of dumpster scrap were not hired on January 21, 1980, 7 days after Hall had been re- well defined, (5) no evidence was offered that Hunt was hired by Mrs. Shay with the approval of the previous an unsatisfactory employee, (6) the heater fans were of personnel director. When Nicolai became personnel di- such insignificant value that when Hunt offered to return rector, he instituted a policy of not rehiring persons who them his offer was not accepted, and (7) whereas Hunt had been discharged for cause, but because he was hired was discharged for theft, an intentional crime, the cred- after Hall was rehired did not know who David Hall ited evidence indicates that he harbored no intent to was, nor did he know of David Hall's employment histo- ry. Consequently, when Nicolai was asked by Harry " A written memorandum allowing removal of scrap from dumpstersShay, Respondent's president, what David Hall Was with a supervisor's approval was posted on the plant bulletin board prior digi h lnh a nbet epn ihu to March 17, but there is no credible evidence that it was posted beforewithout March 4, the day Hunt allegedly removed the heater fans for his personal asking who David Hall was. Shay explained that Hall use without permission from Respondent. had been discharged for cause and had "created quite a MODEL A AND MODEL T MOTOR CAR CORP. 567 asked if he were familiar with the rule, Hunt replied that steal, openly took the fans without stealth, and honestly he was, but that he did not consider this theft since he believed that he was permitted to take the fans, all of had gotten blanket permission from Connie, the previous which must have been apparent to Nicolai when he dis- plant supervisor, to take scrap from the dumpsters. He charged Hunt. offered to return the fans to the Company, but Nicolai To meet its burden Respondent asserts that "the Re- did not respond and asked him to leave the room. When spondent had a rule that was generally known to the em- he returned, Nicolai told him he was discharged,.ployees." If such assertion refers to a rule governing the The reason for Hunt's discharge was described as removal of scrap from the dumpsters, the credited evi- "Theft of company property to heater motors, 3/4/80 dence does not support this assertion. Respondent further Co. Rule 33." maintains that "Respondent constantly enforced the theft Apparently, Respondent had not written or published rules in the situations in which it was aware of the anything for employees specifically concerning the re- theft." However, the examples offered by Respondent moval of scrap from the dumpsters.2" Rather it was com- were for theft of tools or materials, items of value to Re- municated orally through the employees' immediate fore- spondent used in production by Respondent. Hunt's dis- men. Dennis Konecny, plant manager at the Fort Custer charge was the only one for removing scrap from the plant, received a memorandum from Jim Krider, general dumpster. Hunt was discharged as a thief, which he was manager, directing the foremen upon requests from em- not. He was deprived of any benefit of the doubt al- ployees to remove scrap for personal use, to orally though the penalty for his alleged offense could have inform them, "that they did not have the authority and been in a range from a verbal reprimand to a discharge. that neither did [Konecny] and the only way [to] get au- Moreover, Hunt's offense was innocuous since the scrap thority was through Jim Krider." This directive was to fans were of such slight value that Respondent did not be shared only upon an employee's request to remove want them returned. Hunt's offense as it may have affect- scrap and was never publicized generally in the plant. ed Respondent's business operation was minimal. Ac- Understandably, it is difficult to discern what specific cordingly, it appears that Respondent has not carried its policy was to be followed by employees to gain valid burden and it is found that the motivation for Hunt's dis- permission to remove scrap: Whether written permission charge was to discourage union activity. By Hunt's dis- from Krider was necessary; whether oral permission charge, Respondent violated Section 8(aX3) of the Act. from Konecny was sufficient; or whether permission The credible evidence reveals no legitimate business jus- could be obtained at all from anyone. It is reasonable, ticaonfrH t'dshrgnrhsRepdntem S fo~~t~ r ^m R~~po~dS ^mg~c~ t i fi c at io fo r Hun's d is c h ar g e no ha R es po n d e n; d e m - therefore, to infer from Respondent's varying policies osrtdb rdbeeiec htHnastsatr that employees must have been confused as to what eonstr ated by have ev end isharged a sain facto ry process was to be followed to gain permission and whose semployeeo would have been discharged evenatn the ab- permission was valid. It is, therefore, a rational inferenc e ten ofai s pn t Hanc conduct. Indeedk no action was that Hunt had a good-faith belief that he did not need to itak en from th H ancoc k on theh he likewise removed seek permission every time he wished to remove scrap tems fro m h the dumpster on the same day Hunt retneved and that his belief was reasonable under the circum- stances. F icag fDvdHl It is clear that the General Counsel has met his burden F . D irc harge ofDovid H au of establishing a prima facie case by producing sufficient David Hall was hired by Respondent on June 26, evidence to support the inference that protected conduct 1979, at the Burnham Street plant, and after 3 months was a "motivating factor" in Respondent's decision to transferred to the Elm Street plant. He was discharged discharge Hunt in conformity with the teachings of from the Elm Street plant on September 18, 1979, for his Wright Line, a Division of Wright Line, Inc., 251 NLRB poor attendance record. On January 11, 1980, David 1083 (1980). These factors are controlling in this respect: Hall returned to Respondent and talked with Vonda (1) Hunt was an aggressive union partisan, (2) Respond- Shay, the president's wife, about whether the Company ent harbored union animus of sufficient intensity as to would rehire him. He was rehired and reported to work cause it to commit unfair labor practices, (3) there was on January 14, 1980. Subsequently, he was discharged on no proof that other employees had been discharged for February 29, 1980, because of a company policy not to removing scrap from dumpsters although such removal rehire employees who had been discharged for cause. had been apparently commonplace, (4) the rules in re- Mark Nicolai, Respondent's personnel director, was spect to employee removal of dumpster scrap were not hired on January 21, 1980, 7 days after Hall had been re- well defined, (5) no evidence was offered that Hunt was hired by Mrs. Shay with the approval of the previous an unsatisfactory employee, (6) the heater fans were of personnel director. When Nicolai became personnel di- such insignificant value that when Hunt offered to return rector, he instituted a policy of not rehiring persons who them his offer was not accepted, and (7) whereas Hunt had been discharged for cause, but because he was hired was discharged for theft, an intentional crime, the cred- after Hall was rehired did not know who David Hall ited evidence indicates that he harbored no intent to was, nor did he know of David Hall's employment histo- ry. Consequently, when Nicolai was asked by Harry " A written memorandum allowing removal of scrap from dumpstersShay, Respondent's president, what David Hall Was with a supervisor's approval was posted on the plant bulletin board prior digi h lnh a nbet epn ihu to March 17, but there is no credible evidence that it was posted beforewithout March 4, the day Hunt allegedly removed the heater fans for his personal asking who David Hall was. Shay explained that Hall use without permission from Respondent. had been discharged for cause and had "created quite a MODEL A AND MODEL T MOTOR CAR CORP. 567 asked if he were familiar with the rule, Hunt replied that steal, openly took the fans without stealth, and honestly he was, but that he did not consider this theft since he believed that he was permitted to take the fans, all of had gotten blanket permission from Connie, the previous which must have been apparent to Nicolai when he dis- plant supervisor, to take scrap from the dumpsters. He charged Hunt. offered to return the fans to the Company, but Nicolai To meet its burden Respondent asserts that "the Re- did not respond and asked him to leave the room. When spondent had a rule that was generally known to the em- he returned, Nicolai told him he was discharged,.ployees." If such assertion refers to a rule governing the The reason for Hunt's discharge was described as removal of scrap from the dumpsters, the credited evi- "Theft of company property to heater motors, 3/4/80 dence does not support this assertion. Respondent further Co. Rule 33." maintains that "Respondent constantly enforced the theft Apparently, Respondent had not written or published rules in the situations in which it was aware of the anything for employees specifically concerning the re- theft." However, the examples offered by Respondent moval of scrap from the dumpsters.2" Rather it was com- were for theft of tools or materials, items of value to Re- municated orally through the employees' immediate fore- spondent used in production by Respondent. Hunt's dis- men. Dennis Konecny, plant manager at the Fort Custer charge was the only one for removing scrap from the plant, received a memorandum from Jim Krider, general dumpster. Hunt was discharged as a thief, which he was manager, directing the foremen upon requests from em- not. He was deprived of any benefit of the doubt al- ployees to remove scrap for personal use, to orally though the penalty for his alleged offense could have inform them, "that they did not have the authority and been in a range from a verbal reprimand to a discharge. that neither did [Konecny] and the only way [to] get au- Moreover, Hunt's offense was innocuous since the scrap thority was through Jim Krider." This directive was to fans were of such slight value that Respondent did not be shared only upon an employee's request to remove want them returned. Hunt's offense as it may have affect- scrap and was never publicized generally in the plant. ed Respondent's business operation was minimal. Ac- Understandably, it is difficult to discern what specific cordingly, it appears that Respondent has not carried its policy was to be followed by employees to gain valid burden and it is found that the motivation for Hunt's dis- permission to remove scrap: Whether written permission charge was to discourage union activity. By Hunt's dis- from Krider was necessary; whether oral permission charge, Respondent violated Section 8(aX3) of the Act. from Konecny was sufficient; or whether permission The credible evidence reveals no legitimate business jus- could be obtained at all from anyone. It is reasonable, ticaonfrH t'dshrgnrhsRepdntem S fo~~t~ r ^m R~~po~dS ^mg~c~ t i fi c at io fo r Hut' d is c h ar g e no ha R es po n d e n; d e m - therefore, to infer from Respondent's varying policies osrtdb rdbeeiec htHnastsatr that employees must have been confused as to what eonstr ated by have ev end isharged a sain facto ry process was to be followed to gain permission and whose semployeeo would have been discharged evenatn the ab- permission was valid. It is, therefore, a rational inferenc e ten ofai snstHcated conduct. Indeedl no action was that Hunt had a good-faith belief that he did not need to itak en fro m tst H ancoc ker on th he likewise removed seek permission every time he wished to remove scrap tems fro m h the dumpster on the same day Hunt retneved and that his belief was reasonable under the circum- stances. F icag fDvdHl It is clear that the General Counsel has met his burden F . D irc harge ofDovid H au of establishing a prima facie case by producing sufficient David Hall was hired by Respondent on June 26, evidence to support the inference that protected conduct 1979, at the Burnham Street plant, and after 3 months was a "motivating factor" in Respondent's decision to transferred to the Elm Street plant. He was discharged discharge Hunt in conformity with the teachings of from the Elm Street plant on September 18, 1979, for his Wright Line, a Division of Wright Line, Inc., 251 NLRB poor attendance record. On January 11, 1980, David 1083 (1980). These factors are controlling in this respect: Hall returned to Respondent and talked with Vonda (1) Hunt was an aggressive union partisan, (2) Respond- Shay, the president's wife, about whether the Company ent harbored union animus of sufficient intensity as to would rehire him. He was rehired and reported to work cause it to commit unfair labor practices, (3) there was on January 14, 1980. Subsequently, he was discharged on no proof that other employees had been discharged for February 29, 1980, because of a company policy not to removing scrap from dumpsters although such removal rehire employees who had been discharged for cause. had been apparently commonplace, (4) the rules in re- Mark Nicolai, Respondent's personnel director, was spect to employee removal of dumpster scrap were not hired on January 21, 1980, 7 days after Hall had been re- well defined, (5) no evidence was offered that Hunt was hired by Mrs. Shay with the approval of the previous an unsatisfactory employee, (6) the heater fans were of personnel director. When Nicolai became personnel di- such insignificant value that when Hunt offered to return rector, he instituted a policy of not rehiring persons who them his offer was not accepted, and (7) whereas Hunt had been discharged for cause, but because he was hired was discharged for theft, an intentional crime, the cred- after Hall was rehired did not know who David Hall ited evidence indicates that he harbored no intent to was, nor did he know of David Hall's employment histo- ry. Consequently, when Nicolai was asked by Harry " A written memorandum allowing removal of scrap from dumpstersShay, Respondent's president, what David Hall Was with a supervisor's approval was posted on the plant bulletin board prior digi h lnh a nbet epn ihu to March 17, but there is no credible evidence that it was posted beforewithout March 4, the day Hunt allegedly removed the heater fans for his personal asking who David Hall was. Shay explained that Hall use without permission from Respondent. had been discharged for cause and had "created quite a 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scene and it was a rather violent discharge" and, there- 28 employees. Although a good worker when present, fore, Hall should not have been rehired. Nicolai was Hadley was frequently absent or late. He was terminated unable to find a second application in Hall's file, so he for his absenteeism only when Respondent decided to called Hall into his office and asked Hall if a second ap- terminate 28 people even though Respondent knew of plication had been filled out. His reason for calling Hall Hadley's union activities as early as the first or second into the office was in actuality to determine how he got week of February. Given these circumstances, Respond- rehired. Unable to determine how Hall got rehired, Ni- ent's actions do not "suggest a predetermined plan to dis- colai prepared Hall's last check, and, under Harry Shay's cover a reason to discharge" Hadley "and thus rid the instruction, discharged Hall on February 29, 1980. facility of a union activist."" The General Counsel alleges that Hall was discharged Accordingly, for the reasons noted above, it is found for union activity protected by Section 7 of the Act. Respondents discharge of Joe Hadley did not violate This allegation is based on a conversation that supposed- Seon 8( the ly took place between Hall and Jim Lauren, a repre- sentative with West Coast Industrial Relations, during an H. Le to Kathy Lauderdale employee luncheon at the Elm Street plant on February 22, 1980. During this luncheon Lauren allegedly ques- Kathy Lauderdale started June 25, 1979, at Respond- tioned Hall about whether the employees needed a union ent's Burnham Street facility where she remained until and Hall answered affirmatively. August. In August she moved to the Fort Custer plant, Counsel for the General Counsel failed to adduce any and in September transferred to the Elm Street plant in evidence that Hall's response to Lauren's query was personnel. She began working as the secretary to the di- communicated to any representative of Respondent. Hall rector of personnel, Mark Nicolai, at the end of January wore a union insignia. 1980 after serving as the secretary to the previous direc- The General Counsel has failed to establish a prima tor of personnel from the time of her transfer to the Elm facie case sufficient to support the inference that protect- Street plant ed conduct was a motivating factor in Respondent's deci- She was employed until April 8, 1980, as Nicolai's sec- sion to discharge Hall after he was rehired. Furthermore, retary and she left voluntarily. After she left Respond- Respondent has adduced sufficient evidence to support ent's employ, she testified for the Depament of Labor an inference that Respondent would have discharged progm, an s e testified for te eatent of abo Hall in the absence of protected conduct on the basis of the plant at the time of Tom Mell's death rehiring of in- Respondent's policy not to rehire employees discharged d vidal at t h t e m M el s d eat n o for cause. The 8(a)3) allegation in connection with dividuals, about Dave Hall. She also spoke to Pete Cas- Hall's discharge is dismissed. sidy from the Steelworkers about "[t]he conditions of how Dave Hall got rehired. The conditions of [her] ter- G. The Discharge of Joe Hadley mination and why it involved David Hall." She also dis- Joe Hay ws hired by Rt on A t cussed the above issues with Linda Rabin of the National Joe Hadley was hired by Respondent on August 31, Labor Relations Board and gave testimony on the seven 1979, and was terminated April 11, 1980, after a slow- m en who were discarged ave tesimoy on the seve down in production necessary to produce higher quality m e n w h o w e re d b sc hard on N o v em b er 2, 99, f o r cars was instituted. 22 This slowdown resulted in the ter- u o n b u o n s a nd o n and mination of 28 employees who had the worst absentee H all, all employees discharged by Respondent. and productivity records in the weeks ending April 11, On May 8, 1980, Respondent, through counsel Jona- 18, and 25. Hadley was one of three terminated on April than Miller, sent a letter (G.C. Exh. 16) to Katherine 11 and the other 25 followed in the next 2 weeks. The Lauderdale suggesting legal action if she were to contin- three terminated on April 11 were discharged by Nico- ue her testimony before "various organizations and/or lai, the personnel director. His decision to terminate governmental entities." In this letter Respondent states Hadley was based on Hadley's excessive absenteeism. that "[a] person should always furnish such information The remaining 25 were terminated by a management which dictated by her conscience [sic]," but that "[i]f the group. Company is damaged by any furnishing of any informa- The General Counsel has shown that Hadley was a tion which is incorrect, or about which a person has so union partisan. Hadley distributed union authorization little knowledge as to make the matter misleading then cards and literature and wore a UAW button daily. He the Company will pursue their legal remedy." The Gen- was known to supervisors at the air cargo facility as a eral Counsel claims that the May 8, 1980, letter constitut- union activist. ed a violation of Section 8(a)(l) of the Act. However, it appears that Respondent has successfully As asserted by Respondent "there is no violation of demonstrated that it would have taken the same action the law either on the basis of the content of the letter against Hadley in the absence of his engaging in union nor as to Kathy Lauderdale inasmuch as she was not an activities. Hadley and many other employees were on employee at the time of the receipt of the letter." More- layoff when Respondent found it necessary to terminate over, the General Counsel has cited no authority for his claim that the fact that "Lauderdale was not an employ- n Hadley worked for Respondent from August 31 to December 28, ee of Respondent at either the time of the testimony or 1979, when he voluntarily quit. He was rehired January 17, 1980, laid off for lack of work on March 3, to March 13, 1980, and again from April 3 the tme she received the letter is immaterial." That part until April 17, 1980. He was finally terminated the last time he was on layoff. " Wright Line, supra. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scene and it was a rather violent discharge" and, there- 28 employees. Although a good worker when present, fore, Hall should not have been rehired. Nicolai was Hadley was frequently absent or late. He was terminated unable to find a second application in Hall's file, so he for his absenteeism only when Respondent decided to called Hall into his office and asked Hall if a second ap- terminate 28 people even though Respondent knew of plication had been filled out. His reason for calling Hall Hadley's union activities as early as the first or second into the office was in actuality to determine how he got week of February. Given these circumstances, Respond- rehired. Unable to determine how Hall got rehired, Ni- ent's actions do not "suggest a predetermined plan to dis- colai prepared Hall's last check, and, under Harry Shay's cover a reason to discharge" Hadley "and thus rid the instruction, discharged Hall on February 29, 1980. facility of a union activist."" The General Counsel alleges that Hall was discharged Accordingly, for the reasons noted above, it is found for union activity protected by Section 7 of the Act. onden's d o J H di n vioa This allegation is based on a conversation that supposed- S ect o n d8a t 3 do h eAct ly took place between Hall and Jim Lauren, a repre- S ec t lo n 8(a)(3) of the Act. sentative with West Coast Industrial Relations, during an H. Letter to Kathy Lauderdale employee luncheon at the Elm Street plant on February 22, 1980. During this luncheon Lauren allegedly ques- Kathy Lauderdale started June 25, 1979, at Respond- tioned Hall about whether the employees needed a union ent's Burnham Street facility where she remained until and Hall answered affirmatively. August. In August she moved to the Fort Custer plant, Counsel for the General Counsel failed to adduce any and in September transferred to the Elm Street plant in evidence that Hall's response to Lauren's query was personnel. She began working as the secretary to the di- communicated to any representative of Respondent. Hall rector of personnel, Mark Nicolai, at the end of January w o r e a u nio n insignia. 1980 after serving as the secretary to the previous direc- The General Counsel has failed to establish a prima tor of personnel from the time of her transfer to the Elm facie case sufficient to support the inference that protect- Street plant. ed conduct was a motivating factor in Respondent's deci- She was employed until April 8, 1980, as Nicolai's sec- sion to discharge Hall after he was rehired. Furthermore, r e a s e ft v a At s left sen- Respondent has adduced sufficient evidence to support e t 's epo s h e te f t h Dprtm e o f Labor, an inference that Respondent would have discharged'Aprpogam sh e testified for the Department of Labor, Hall in the absence of protected conduct on the basis of C E T A plat ram, and spoke about "safety conditions at Respondent's policy not to rehire employees discharged divipduls a tbt h e t m e o f a T o m M el s d eat h l r e h so t n g o fCa' for cause. The 8(aX3) allegation in connection with dividuals, about Dave Hall. She also spoke to Pete Cas- Hall's discharge is dismissed. sidy f r o m t h e Steelworkers about "[t]he conditions of how Dave Hall got rehired. The conditions of [her] ter- G. The Discharge of Joe Hadley mination and why it involved David Hall." She also dis- Joe Hadley was hrediD by Respondent on August 31, cussed the above issues with Linda Rabin of the National Joe Hadley was hired by Respondent on August 31, , . A * 1 1979, and was terminated April 11, 1980, after a slow- L ab o r R el atio ns B o a r d and gave testimony on the seven down in production necessary to produce higher quality m en w h o w e r e discharged o n N o v em b er 2, 1979, f o r cars was instituted." This slowdown resulted in the ter- wearing u nio n b u tt o n s a nd o n Rin e, Hadley, Hunt, and mination of 28 employees who had the worst absentee H al l, all employees discharged by Respondent. and productivity records in the weeks ending April 11, On M a y 8, 19 8 0 , Respondent, through counsel Jona- 18, and 25. Hadley was one of three terminated on April than Miller, sent a letter (G.C. Exh. 16) to Katherine 11 and the other 25 followed in the next 2 weeks. The Lauderdale suggesting legal action if she were to contin- three terminated on April 11 were discharged by Nico- ue her testimony before "various organizations and/or lai, the personnel director. His decision to terminate governmental entities." In this letter Respondent states Hadley was based on Hadley's excessive absenteeism. that "[a] person should always furnish such information The remaining 25 were terminated by a management which dictated by her conscience [sic]," but that "[i]f the group. Company is damaged by any furnishing of any informa- The General Counsel has shown that Hadley was a tion which is incorrect, or about which a person has so union partisan. Hadley distributed union authorization little knowledge as to make the matter misleading then cards and literature and wore a UAW button daily. He the Company will pursue their legal remedy." The Gen- was known to supervisors at the air cargo facility as a eral Counsel claims that the May 8, 1980, letter constitut- union activist. ed a violation of Section 8(a)(l) of the Act. However, it appears that Respondent has successfully As asserted by Respondent "there is no violation of demonstrated that it would have taken the same action the law either on the basis of the content of the letter against Hadley in the absence of his engaging in union nor as to Kathy Lauderdale inasmuch as she was not an activities. Hadley and many other employees were on employee at the time of the receipt of the letter." More- layoff when Respondent found it necessary to terminate over, the General Counsel has cited no authority for his claim that the fact that "Lauderdale was not an employ- " Hadley worked for Respondent from August 31 to December 28 ee of Respondent at either the time of the testimony or 1979, when he voluntarily quit. He was rehired January 17, 1980, laid off for lack of work on March 3, to March 13, 1980, and again from April 3the time she received the letter is immaterial." That part until April 17, 1980. He was finally terminated the last time he was on layoff. 1 Wright Line, supra. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scene and it was a rather violent discharge" and, there- 28 employees. Although a good worker when present, fore, Hall should not have been rehired. Nicolai was Hadley was frequently absent or late. He was terminated unable to find a second application in Hall's file, so he for his absenteeism only when Respondent decided to called Hall into his office and asked Hall if a second ap- terminate 28 people even though Respondent knew of plication had been filled out. His reason for calling Hall Hadley's union activities as early as the first or second into the office was in actuality to determine how he got week of February. Given these circumstances, Respond- rehired. Unable to determine how Hall got rehired, Ni- ent's actions do not "suggest a predetermined plan to dis- colai prepared Hall's last check, and, under Harry Shay's cover a reason to discharge" Hadley "and thus rid the instruction, discharged Hall on February 29, 1980. facility of a union activist."" The General Counsel alleges that Hall was discharged Accordingly, for the reasons noted above, it is found for union activity protected by Section 7 of the Act. onden's d o J H di n vioa This allegation is based on a conversation that supposed- S ect o n 8 3 of the Act. ly took place between Hall and Jim Lauren, a repre- S ec t lo n 8(a)(3) of the Act. sentative with West Coast Industrial Relations, during an H. Letter to Kathy Lauderdale employee luncheon at the Elm Street plant on February 22, 1980. During this luncheon Lauren allegedly ques- Kathy Lauderdale started June 25, 1979, at Respond- tioned Hall about whether the employees needed a union ent's Burnham Street facility where she remained until and Hall answered affirmatively. August. In August she moved to the Fort Custer plant, Counsel for the General Counsel failed to adduce any and in September transferred to the Elm Street plant in evidence that Hall's response to Lauren's query was personnel. She began working as the secretary to the di- communicated to any representative of Respondent. Hall rector of personnel, Mark Nicolai, at the end of January w o r e a u nio n insignia. 1980 after serving as the secretary to the previous direc- The General Counsel has failed to establish a prima tor of personnel from the time of her transfer to the Elm facie case sufficient to support the inference that protect- Street plant. ed conduct was a motivating factor in Respondent's deci- She was employed until April 8, 1980, as Nicolai's sec- sion to discharge Hall after he was rehired. Furthermore, r e a s e ft volu nt l y. After s left sen- Respondent has adduced sufficient evidence to support e t 's epo s h e te f t h D e p ent ofLbr an inference that Respondent would have discharged'Aprpogam sh e testified for the Department of Labor, Hall in the absence of protected conduct on the basis of C E T A plat ram, and spoke about "safety conditions at Respondent's policy not to rehire employees discharged divipduls a tbt h e t m e o f a T o m M e l s d e a t h l r e h so t n g o fCa' for cause. The 8(aX3) allegation in connection with dividuals, about Dave Hall. She also spoke to Pete Cas- Hall's discharge is dismissed. sidy f r o m the Steelworkers about "[t]he conditions of how Dave Hall got rehired. The conditions of [her] ter- G. The Discharge of Joe Hadley mination and why it involved David Hall." She also dis- Joe Hadley was hrediD by Respondent on August 31, cussed the above issues with Linda Rabin of the National Joe Hadley was hired by Respondent on August 31, , . A * 1 1979, and was terminated April 11, 1980, after a slow- L ab o r R el atio ns B o a r d and gave testimony on the seven down in production necessary to produce higher quality m en w h o w e r e discharged on November 2, 1979, for cars was instituted." This slowdown resulted in the ter- wearing u nio n b u tt o n s and on Rine, Hadley, Hunt, and mination of 28 employees who had the worst absentee H al l, all employees discharged by Respondent. and productivity records in the weeks ending April 11, On M a y 8 , 19 8 0 , Respondent, through counsel Jona- 18, and 25. Hadley was one of three terminated on April than Miller, sent a letter (G.C. Exh. 16) to Katherine 11 and the other 25 followed in the next 2 weeks. The Lauderdale suggesting legal action if she were to contin- three terminated on April 11 were discharged by Nico- ue her testimony before "various organizations and/or lai, the personnel director. His decision to terminate governmental entities." In this letter Respondent states Hadley was based on Hadley's excessive absenteeism. that "[a] person should always furnish such information The remaining 25 were terminated by a management which dictated by her conscience [sic]," but that "[i]f the group. Company is damaged by any furnishing of any informa- The General Counsel has shown that Hadley was a tion which is incorrect, or about which a person has so union partisan. Hadley distributed union authorization little knowledge as to make the matter misleading then cards and literature and wore a UAW button daily. He the Company will pursue their legal remedy." The Gen- was known to supervisors at the air cargo facility as a eral Counsel claims that the May 8, 1980, letter constitut- union activist. ed a violation of Section 8(a)(l) of the Act. However, it appears that Respondent has successfully As asserted by Respondent "there is no violation of demonstrated that it would have taken the same action the law either on the basis of the content of the letter against Hadley in the absence of his engaging in union nor as to Kathy Lauderdale inasmuch as she was not an activities. Hadley and many other employees were on employee at the time of the receipt of the letter." More- layoff when Respondent found it necessary to terminate over, the General Counsel has cited no authority for his claim that the fact that "Lauderdale was not an employ- " Hadley worked for Respondent from August 31 to December 28 ee of Respondent at either the time of the testimony or 1979, when he voluntarily quit. He was rehired January 17, 1980, laid off for lack of work on March 3, to March 13, 1980, and again from April 3th e t im e s h e received the letter is immaterial." That part until April 17, 1980. He was finally terminated the last time he was on layoff. 1 Wright Line, supra. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scene and it was a rather violent discharge" and, there- 28 employees. Although a good worker when present, fore, Hall should not have been rehired. Nicolai was Hadley was frequently absent or late. He was terminated unable to find a second application in Hall's file, so he for his absenteeism only when Respondent decided to called Hall into his office and asked Hall if a second ap- terminate 28 people even though Respondent knew of plication had been filled out. His reason for calling Hall Hadley's union activities as early as the first or second into the office was in actuality to determine how he got week of February. Given these circumstances, Respond- rehired. Unable to determine how Hall got rehired, Ni- ent's actions do not "suggest a predetermined plan to dis- colai prepared Hall's last check, and, under Harry Shay's cover a reason to discharge" Hadley "and thus rid the instruction, discharged Hall on February 29, 1980. facility of a union activist."" The General Counsel alleges that Hall was discharged Accordingly, for the reasons noted above, it is found for union activity protected by Section 7 of the Act. onden's d o J H di n vioa This allegation is based on a conversation that supposed- S ect o n d8a t 3 do h eAct ly took place between Hall and Jim Lauren, a repre- S ec t lo n 8(a)(3) of the Act. sentative with West Coast Industrial Relations, during an H. Letter to Kathy Lauderdale employee luncheon at the Elm Street plant on February 22, 1980. During this luncheon Lauren allegedly ques- Kathy Lauderdale started June 25, 1979, at Respond- tioned Hall about whether the employees needed a union ent's Burnham Street facility where she remained until and Hall answered affirmatively. August. In August she moved to the Fort Custer plant, Counsel for the General Counsel failed to adduce any and in September transferred to the Elm Street plant in evidence that Hall's response to Lauren's query was personnel. She began working as the secretary to the di- communicated to any representative of Respondent. Hall rector of personnel, Mark Nicolai, at the end of January w o r e a u nio n insignia. 1980 after serving as the secretary to the previous direc- The General Counsel has failed to establish a prima tor of personnel from the time of her transfer to the Elm facie case sufficient to support the inference that protect- Street plant. ed conduct was a motivating factor in Respondent's deci- She was employed until April 8, 1980, as Nicolai's sec- sion to discharge Hall after he was rehired. Furthermore, r e a s e ft volu nt l y. After s left sen- Respondent has adduced sufficient evidence to support e t 's epo s h e te f t h D e p ent ofLbr an inference that Respondent would have discharged'Aprpogam sh e testified for the Department of Labor, Hall in the absence of protected conduct on the basis of C E T A plat t h and spoke about "safety conditions at Respondent's policy not to rehire employees discharged divipduls a tbt h e t m e o f a T o m M e l s d e a t h l r e h so t n g o fCa' for cause. The 8(aX3) allegation in connection with dividuals, about Dave Hall. She also spoke to Pete Cas- Hall's discharge is dismissed. sidy f r o m the Steelworkers about "[t]he conditions of how Dave Hall got rehired. The conditions of [her] ter- G. The Discharge of Joe Hadley mination and why it involved David Hall." She also dis- Joe Hadley was hrediD by Respondent on August 31, cussed the above issues with Linda Rabin of the National Joe Hadley was hired by Respondent on August 31, , . A * 1 1979, and was terminated April 11, 1980, after a slow- L ab o r R el atio ns B o a r d and gave testimony on the seven down in production necessary to produce higher quality m en w h o w e r e discharged on November 2, 1979, for cars was instituted." This slowdown resulted in the ter- wearing u nio n b u tt o n s and on Rine, Hadley, Hunt, and mination of 28 employees who had the worst absentee H al l, all employees discharged by Respondent. and productivity records in the weeks ending April 11, On M a y 8, 19 8 0 , Respondent, through counsel Jona- 18, and 25. Hadley was one of three terminated on April than Miller, sent a letter (G.C. Exh. 16) to Katherine 11 and the other 25 followed in the next 2 weeks. The Lauderdale suggesting legal action if she were to contin- three terminated on April 11 were discharged by Nico- ue her testimony before "various organizations and/or lai, the personnel director. His decision to terminate governmental entities." In this letter Respondent states Hadley was based on Hadley's excessive absenteeism. that "[a] person should always furnish such information The remaining 25 were terminated by a management which dictated by her conscience [sic]," but that "[i]f the group. Company is damaged by any furnishing of any informa- The General Counsel has shown that Hadley was a tion which is incorrect, or about which a person has so union partisan. Hadley distributed union authorization little knowledge as to make the matter misleading then cards and literature and wore a UAW button daily. He the Company will pursue their legal remedy." The Gen- was known to supervisors at the air cargo facility as a eral Counsel claims that the May 8, 1980, letter constitut- union activist. ed a violation of Section 8(a)(l) of the Act. However, it appears that Respondent has successfully As asserted by Respondent "there is no violation of demonstrated that it would have taken the same action the law either on the basis of the content of the letter against Hadley in the absence of his engaging in union nor as to Kathy Lauderdale inasmuch as she was not an activities. Hadley and many other employees were on employee at the time of the receipt of the letter." More- layoff when Respondent found it necessary to terminate over, the General Counsel has cited no authority for his claim that the fact that "Lauderdale was not an employ- " Hadley worked for Respondent from August 31 to December 28 ee of Respondent at either the time of the testimony or 1979, when he voluntarily quit. He was rehired January 17, 1980, laid off for lack of work on March 3, to March 13, 1980, and again from April 3th e t im e s h e received the letter is immaterial." That part until April 17, 1980. He was finally terminated the last time he was on layoff. 1 Wright Line, supra. MODEL A AND MODEL T MOTOR CAR CORP. 569 of the complaint referring to the May 8, 1980, letter is cease and desist therefrom and take certain affirmative dismissed. action designed to effectuate the policies of the Act. It also having been found that Respondent unlawfully dis- I. Foreman Wagner's Alleged Threat of Closure and charged Michael Smead on November 2, 1980, Roy Rine Relocation on February 11, 1980, and James Hunt on March 17, The General Counsel plants his claim that Foreman 1980, respectively, and has since failed and refused to re- William Wagner's remarks were in violation of Section instate them, in violation of Section 8(aX3) of the Act, it 8(a)X) of the Act on the following incident described by is recommended that Respondent remedy such unlawful employee Charles Pelfrey in the record as follows: conduct. In accordance with Board policy, it is recom- mended that Respondent offer the foregoing employees Well, I asked Mr. Wagner if there was any truth immediate and full reinstatement to their former positions to the Company moving to Indiana because there or, if such positions no longer exist, to substantially had been rumors going around that the Company equivalent positions, without prejudice to their seniority was going to move. Frequently rumors travel or other rights and privileges previously enjoyed, dis- through the Company, and he told me that he throughn the Company, and he told me that heg missing if necessary any employees hired on or since the wasn't sure whether or not the Company was going. . . nto move, but if it wasn that he had planned on dates of their discharges to fill any of said positions, and moving with the Company. I asked him if the em- make them whole for any loss of earnings that they may ployees would have the opportunity to move with have suffered by reason of Respondent's acts herein de- the Company or whether they would just be left tailed, by payment to them of a sum of money equal to behind, and if the Company would hire all new em- the amount they would have earned from the date of ployees, and he told me that the Company would their unlawful discharge to the date of an offer of rein- probably give the employees a chance to relocate statement, less net earnings during such period, with in- except for the union organizers. He said that the terest thereon, to be computed on a quarterly basis in the Company would not be taking them with them, be- manner established by the Board in F. W. Woolworth cause if they moved, that is what they would be Company, 90 NLRB 289 (1950), and Florida Steel Corpo- trying to get away from in the first place. ration, 231 NLRB 651 (1977).2 It is further recommended that Jeffrey Smith and Since Wagner's remarks were highly speculative and Richard Burton be reimbursed for any lost pay by reason lacked positiveness, it is not found that they, as claimed of their aforesaid unlawful suspensions, with interest, in by the General Counsel, constituted threat of closure and accordance with the Board's usual policy and that their relocation. suspensions be expunged from their personnel records. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, 1. Respondent is an employer engaged in commerce and pursuant to Section 10(c) of the Act, I hereby issue within the meaning of Section 2(2), (6), and (7) of the the following recommended: Act, and it will effectuate the purposes of the Act for ju- risdiction to be exercised herein. ORDER 25 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. The Respondent, Model A and Model T Motor Car 3. By interfering with, restraining, and coercing em- Reproduction Corporation, Battle Creek, Michigan, its ployees in the exercise of the rights guaranteed them by officers, agents, successors, and assigns, shall: Section 7 of the Act, Respondent has engaged in unfair 1. Cease and desist from: labor practices within the meaning of Section 8(a)(l) of (a) Discouraging union or concerted activities of its the Act. employees or their membership in United Steelworkers 4. By unlawfully discharging Michael Smead on No- of America, AFL-CIO-CLC, or International Union, vember 2, 1980, Roy Rine on February 11, 1980, and United Automobile, Aerospace and Agricultural Imple- James Hunt on March 17, 1980, Respondent has engaged ment Workers of America (UAW), or any other labor in unfair labor practices within the meaning of Section organization by unlawfully discriminatorily discharging 8(aX1) and (3) of the Act. its employees or discriminating in any other manner with 5. By unlawfully suspending Jeffrey Smith and Rich- respect to their hire or tenure of employment or any ard Burton for 3 days commencing February 18, 1980, term or condition of employment in violation of Section and ending February 21, 1980, for lawfully distributing 8(a)(3) and (1) of the Act union literature at Respondent's plant on February 14, 1980, Respondent has violated Section 8(a)(l) of the Act. their union activities or sympathies 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- 24 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). tion 2(6) and (7) of the Act. 1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the THE REMEDY findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and It having been found that Respondent has engaged in become its findings, conclusions, and Order, and all objections thereto certain unfair labor practices, it is recommended that it shall be deemed waived for all purposes MODEL A AND MODEL T MOTOR CAR CORP. 569 of the complaint referring to the May 8, 1980, letter is cease and desist therefrom and take certain affirmative dismissed. action designed to effectuate the policies of the Act. It also having been found that Respondent unlawfully dis- I. Foreman Wagner's Alleged Threat of Closure and charged Michael Smead on November 2. 1980, Roy Rine Relocation on February 11, 1980, and James Hunt on March 17, The General Counsel plants his claim that Foreman 1980, respectively, and has since failed and refused to re- William Wagner's remarks were in violation of Section instate them, in violation of Section 8(aX3) of the Act, it 8(a)(l) of the Act on the following incident described by is recommended that Respondent remedy such unlawful employee Charles Pelfrey in the record as follows: conduct. In accordance with Board policy, it is recom- mended that Respondent offer the foregoing employees Well, I asked Mr. Wagner if there was any truth immediate and full reinstatement to their former positions to the Company moving to Indiana because there or, if such positions no longer exist, to substantially had been rumors going around that the Company equivalent positions, without prejudice to their seniority was going to move. Frequently rumors travel or other rights and privileges previously enjoyed, dis- through the Company, and he told me that he wasnt sre wethr ornotthe ompny ws ging missing if necessary any employees hired on or since the wasn't sure whether or not the Company was going , ... r, . - . to move, but if it was, that he had planned on d at es o f their discharges to fill any of said positions, and moving with the Company. I asked him if the em- m a ke t h em w ho le fo r any l o ss o f earnings that they may ployees would have the opportunity to move with have suffer ed b y reason of Respondent's acts herein de- the Company or whether they would just be left tailed , b y payment to them of a sum of money equal to behind, and if the Company would hire all new em- t h e am o unt they would have earned from the date of ployees, and he told me that the Company would their unlawful discharge to the date of an offer of rein- probably give the employees a chance to relocate statement, less net earnings during such period, with in- except for the union organizers. He said that the t erest thereon, to be computed on a quarterly basis in the Company would not be taking them with them, be- manner established by the Board in F. W. Woolworth cause if they moved, that is what they would be Company, 90 NLRB 289 (1950), and Florida Steel Corpo- trying to get away from in the first place. ration, 231 NLRB 651 (1977)." It is further recommended that Jeffrey Smith and Since Wagner's remarks were highly speculative and Richard Burton be reimbursed for any lost pay by reason lacked positiveness, it is not found that they, as claimed of their aforesaid unlawful suspensions, with interest, in by the General Counsel, constituted threat of closure and accordance with the Board's usual policy and that their relocation. suspensions be expunged from their personnel records. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, 1. Respondent is an employer engaged in commerce and pursuant to Section 10(c) of the Act, I hereby issue within the meaning of Section 2(2), (6), and (7) of the the following recommended: Act, and it will effectuate the purposes of the Act for ju- risdiction to be exercised herein. ORDER 25 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. T h e Respondent, Model A and Model T Motor Car 3. By interfering with, restraining, and coercing em- Reproduction Corporation, Battle Creek, Michigan, its ployees in the exercise of the rights guaranteed them by officers, agents, successors, and assigns, shall: Section 7 of the Act, Respondent has engaged in unfair 1. Cease and desist from: labor practices within the meaning of Section 8(a)(l) of (a) Discouraging union or concerted activities of its the Act. employees or their membership in United Steelworkers 4. By unlawfully discharging Michael Smead on No- of America, AFL-CIO-CLC, or International Union, vember 2, 1980, Roy Rine on February 11, 1980, and United Automobile, Aerospace and Agricultural Imple- James Hunt on March 17, 1980, Respondent has engaged ment Workers of America (UAW), or any other labor in unfair labor practices within the meaning of Section organization by unlawfully discriminatorily discharging 8(a)1) and (3) of the Act. its employees or discriminating in any other manner with 5. By unlawfully suspending Jeffrey Smith and Rich- respect to their hire or tenure of employment or any ard Burton for 3 days commencing February 18, 1980, term or condition of employment in violation of Section and ending February 21, 1980, for lawfully distributing 8(a)(3) and (1) of the Act. union literature at Respondent's plant on February 14, Unlawfully interrogating employees in respect to 1980, Respondent has violated Section 8(a)(l) of the Act. their union activities or sympathies. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- ^ ^ practies afectingcommece witin th meanig of ec- 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). tion 2(6) and (7) of the Act. 11 In the event no exceptions are riled as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the THE REMEDY findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and It having been found that Respondent has engaged in become its findings, conclusions, and Order, and all objections thereto certain unfair labor practices, it is recommended that it shall be deemed waived for all purposes MODEL A AND MODEL T MOTOR CAR CORP. 569 of the complaint referring to the May 8, 1980, letter is cease and desist therefrom and take certain affirmative dismissed. action designed to effectuate the policies of the Act. It also having been found that Respondent unlawfully dis- I. Foreman Wagner's Alleged Threat of Closure and charged Michael Smead on November 2. 1980, Roy Rine Relocation on February 11, 1980, and James Hunt on March 17, The General Counsel plants his claim that Foreman 1980, respectively, and has since failed and refused to re- William Wagner's remarks were in violation of Section instate them, in violation of Section 8(aX3) of the Act, it 8(a)(l) of the Act on the following incident described by is recommended that Respondent remedy such unlawful employee Charles Pelfrey in the record as follows: conduct. In accordance with Board policy, it is recom- mended that Respondent offer the foregoing employees Well, I asked Mr. Wagner if there was any truth immediate and full reinstatement to their former positions to the Company moving to Indiana because there or, if such positions no longer exist, to substantially had been rumors going around that the Company equivalent positions, without prejudice to their seniority was going to move. Frequently rumors travel or other rights and privileges previously enjoyed, dis- through the Company, and he told me that he wasnt sre wethr ornotthe ompny ws ging missing if necessary any employees hired on or since the wasn't sure whether or not the Company was going , ... r, . - . to move, but if it was, that he had planned on d at es o f their discharges to fill any of said positions, and moving with the Company. I asked him if the em- m a ke t h em w ho le fo r any l o ss o f earnings that they may ployees would have the opportunity to move with have suffered by reason of Respondent's acts herein de- the Company or whether they would just be left tailed , by payment to them of a sum of money equal to behind, and if the Company would hire all new em- t h e am o unt they would have earned from the date of ployees, and he told me that the Company would their unlawful discharge to the date of an offer of rein- probably give the employees a chance to relocate statement, less net earnings during such period, with in- except for the union organizers. He said that the t erest thereon, to be computed on a quarterly basis in the Company would not be taking them with them, be- manner established by the Board in F. W. Woolworth cause if they moved, that is what they would be Company, 90 NLRB 289 (1950), and Florida Steel Corpo- trying to get away from in the first place. ration, 231 NLRB 651 (1977)." It is further recommended that Jeffrey Smith and Since Wagner's remarks were highly speculative and Richard Burton be reimbursed for any lost pay by reason lacked positiveness, it is not found that they, as claimed of their aforesaid unlawful suspensions, with interest, in by the General Counsel, constituted threat of closure and accordance with the Board's usual policy and that their relocation. suspensions be expunged from their personnel records. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, 1. Respondent is an employer engaged in commerce and pursuant to Section 10(c) of the Act, I hereby issue within the meaning of Section 2(2), (6), and (7) of the the following recommended: Act, and it will effectuate the purposes of the Act for ju- risdiction to be exercised herein. ORDER 25 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. T h e Respondent, Model A and Model T Motor Car 3. By interfering with, restraining, and coercing em- Reproduction Corporation, Battle Creek, Michigan, its ployees in the exercise of the rights guaranteed them by officers, agents, successors, and assigns, shall: Section 7 of the Act, Respondent has engaged in unfair 1. Cease and desist from: labor practices within the meaning of Section 8(a)(l) of (a) Discouraging union or concerted activities of its the Act. employees or their membership in United Steelworkers 4. By unlawfully discharging Michael Smead on No- of America, AFL-CIO-CLC, or International Union, vember 2, 1980, Roy Rine on February 11, 1980, and United Automobile, Aerospace and Agricultural Imple- James Hunt on March 17, 1980, Respondent has engaged ment Workers of America (UAW), or any other labor in unfair labor practices within the meaning of Section organization by unlawfully discriminatorily discharging 8(a)1) and (3) of the Act. its employees or discriminating in any other manner with 5. By unlawfully suspending Jeffrey Smith and Rich- respect to their hire or tenure of employment or any ard Burton for 3 days commencing February 18, 1980, term or condition of employment in violation of Section and ending February 21, 1980, for lawfully distributing 8(a)(3) and (1) of the Act. union literature at Respondent's plant on February 14, Unlawfully interrogating employees in respect to 1980, Respondent has violated Section 8(a)(l) of the Act. their union activities or sympathies. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- ^ ^ practies afectingcommece witin th meanig of ec- 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). tion 2(6) and (7) of the Act. 11 In the event no exceptions are riled as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the THE REMEDY findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and It having been found that Respondent has engaged in become its findings, conclusions, and Order, and all objections thereto certain unfair labor practices, it is recommended that it shall be deemed waived for all purposes MODEL A AND MODEL T MOTOR CAR CORP. 569 of the complaint referring to the May 8, 1980, letter is cease and desist therefrom and take certain affirmative dismissed. action designed to effectuate the policies of the Act. It also having been found that Respondent unlawfully dis- I. Foreman Wagner's Alleged Threat of Closure and charged Michael Smead on November 2. 1980, Roy Rine Relocation on February 11, 1980, and James Hunt on March 17, The General Counsel plants his claim that Foreman 1980, respectively, and has since failed and refused to re- William Wagner's remarks were in violation of Section instate them, in violation of Section 8(aX3) of the Act, it 8(aX1) of the Act on the following incident described by is recommended that Respondent remedy such unlawful employee Charles Pelfrey in the record as follows: conduct. In accordance with Board policy, it is recom- mended that Respondent offer the foregoing employees Well, I asked Mr. Wagner if there was any truth immediate and full reinstatement to their former positions to the Company moving to Indiana because there or, if such positions no longer exist, to substantially had been rumors going around that the Company equivalent positions, without prejudice to their seniority was going to move. Frequently rumors travel or other rights and privileges previously enjoyed, dis- through the Company, and he told me that he wasnt sre wethr ornotthe ompny ws ging missing if necessary any employees hired on or since the wasn't sure whether or not the Company was going , ... r, . - . to move, but if it was, that he had planned on d at es o f their discharges to fill any of said positions, and moving with the Company. I asked him if the em- m a ke t h em w ho le fo r any l o ss o f earnings that they may ployees would have the opportunity to move with have suffered by reason of Respondent's acts herein de- the Company or whether they would just be left tailed , by payment to them of a sum of money equal to behind, and if the Company would hire all new em- t h e am o unt they would have earned from the date of ployees, and he told me that the Company would their unlawful discharge to the date of an offer of rein- probably give the employees a chance to relocate statement, less net earnings during such period, with in- except for the union organizers. He said that the t erest thereon, to be computed on a quarterly basis in the Company would not be taking them with them, be- manner established by the Board in F. W. Woolworth cause if they moved, that is what they would be Company, 90 NLRB 289 (1950), and Florida Steel Corpo- trying to get away from in the first place. ration, 231 NLRB 651 (1977)." It is further recommended that Jeffrey Smith and Since Wagner's remarks were highly speculative and Richard Burton be reimbursed for any lost pay by reason lacked positiveness, it is not found that they, as claimed of their aforesaid unlawful suspensions, with interest, in by the General Counsel, constituted threat of closure and accordance with the Board's usual policy and that their relocation. suspensions be expunged from their personnel records. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, 1. Respondent is an employer engaged in commerce and pursuant to Section 10(c) of the Act, I hereby issue within the meaning of Section 2(2), (6), and (7) of the the following recommended: Act, and it will effectuate the purposes of the Act for ju- risdiction to be exercised herein. ORDER 25 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. T h e Respondent, Model A and Model T Motor Car 3. By interfering with, restraining, and coercing em- Reproduction Corporation, Battle Creek, Michigan, its ployees in the exercise of the rights guaranteed them by officers, agents, successors, and assigns, shall: Section 7 of the Act, Respondent has engaged in unfair 1. Cease and desist from: labor practices within the meaning of Section 8(a)(l) of (a) Discouraging union or concerted activities of its the Act. employees or their membership in United Steelworkers 4. By unlawfully discharging Michael Smead on No- of America, AFL-CIO-CLC, or International Union, vember 2, 1980, Roy Rine on February 11, 1980, and United Automobile, Aerospace and Agricultural Imple- James Hunt on March 17, 1980, Respondent has engaged ment Workers of America (UAW), or any other labor in unfair labor practices within the meaning of Section organization by unlawfully discriminatorily discharging 8(a)1) and (3) of the Act. its employees or discriminating in any other manner with 5. By unlawfully suspending Jeffrey Smith and Rich- respect to their hire or tenure of employment or any ard Burton for 3 days commencing February 18, 1980, term or condition of employment in violation of Section and ending February 21, 1980, for lawfully distributing 8(a)(3) and (1) of the Act. union literature at Respondent's plant on February 14, Unlawfully interrogating employees in respect to 1980, Respondent has violated Section 8(a)(l) of the Act. their union activities or sympathies. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- ^ ^ practies afectingcommece witin th meanig of ec- 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). tion 2(6) and (7) of the Act. 11 In the event no exceptions are riled as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the THE REMEDY findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and It having been found that Respondent has engaged in become its findings, conclusions, and Order, and all objections thereto certain unfair labor practices, it is recommended that it shall be deemed waived for all purposes 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Unlawfully soliciting grievances from employees in payroll records, social security payment records, time- order to influence their union affection. cards, personnel records and reports, and all other re- (d) Continuing in effect an invalid no-solicitation rule. cords necessary to analyze the amount of backpay due (e) Unlawfully threatening reprisals because of em- under the terms of this recommended Order. ployees' union sympathies. (d) Post at its facilities at Battle Creek, Michigan, (f) In any like or related manner interfering with, re- copies of the attached notice marked "Appendix."2' straining, or coercing employees in the exercise of the Copies of said notice, on forms provided by the Regional rights guaranteed them under Section 7 of the Act. Director for Region 7, after being duly signed by Re- 2. Take the following affirmative action which will ef- spondent's representative, shall be posted by it immedi- fectuate the policies of the Act: ately upon receipt thereof, and be maintained by it for 60 (a) Offer Michael Smead, Roy Rine, and James Hunt consecutive days thereafter, in conspicuous places, in- immediate and full reinstatement to their former positions cluding all places where notices to employees are cus- or, if such positions no longer exist, to substantially tomarily posted. Reasonable steps shall be taken by Re- equivalent positions, without prejudice to their seniority spondent to insure that said notices are not altered, de- or other rights and privileges, discharging if necessary faced, or covered by any other material. any employees hired to replace them, and make them (e) Notify the Regional Director for Region 7, in writ- whole for any loss of pay that they may have suffered by ing, within 20 days from the date of this Order, what reason of Respondent's unlawful discharge of them in ac- steps the Respondent has taken to comply herewith. cordance with the recommendations set forth in the sec- IT IS FURTHER RECOMMENDED that the complaint be tion of this Decision entitled "The Remedy." dismissed insofar as it alleges violations of the Act other (b) Make whole Jeffrey Smith and Richard Burton, than those found in this Decision. with interest, for any lost pay they may have suffered by reason of their unlawful suspensions from February 18 to i In the event that this Order is enforced by a Judgment of a United 21, 1980. States Court of Appeals, the words in the notice reading "Posted by (c) Preserve and, upon request, make available to the Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Board or its agents, for examination and copying, all Order of the National Labor Relations Board." 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Unlawfully soliciting grievances from employees in payroll records, social security payment records, time- order to influence their union affection. cards, personnel records and reports, and all other re- (d) Continuing in effect an invalid no-solicitation rule. cords necessary to analyze the amount of backpay due (e) Unlawfully threatening reprisals because of em- under the terms of this recommended Order. ployees' union sympathies. (d) Post at its facilities at Battle Creek, Michigan, (f) In any like or related manner interfering with, re- copies of the attached notice marked "Appendix."' straining, or coercing employees in the exercise of the Copies of said notice, on forms provided by the Regional rights guaranteed them under Section 7 of the Act. Director for Region 7, after being duly signed by Re- 2. Take the following affirmative action which will ef- spondent's representative, shall be posted by it immedi- fectuate the policies of the Act: ately upon receipt thereof, and be maintained by it for 60 (a) Offer Michael Smead, Roy Rine, and James Hunt consecutive days thereafter, in conspicuous places, in- immediate and full reinstatement to their former positions eluding all places where notices to employees are cus- or, if such positions no longer exist, to substantially tomarily posted. Reasonable steps shall be taken by Re- equivalent positions, without prejudice to their seniority spondent to insure that said notices are not altered, de- or other rights and privileges, discharging if necessary faced, or covered by any other material. any employees hired to replace them, and make them (e) Notify the Regional Director for Region 7, in writ- whole for any loss of pay that they may have suffered by ing, within 20 days from the date of this Order, what reason of Respondent's unlawful discharge of them in ac- steps the Respondent has taken to comply herewith. cordance with the recommendations set forth in the sec- IT Is FURTHER RECOMMENDED that the complaint be tion of this Decision entitled "The Remedy." dismissed insofar as it alleges violations of the Act other (b) Make whole Jeffrey Smith and Richard Burton, than those found in this Decision. with interest, for any lost pay they may have suffered by reason of their unlawful suspensions from February 18 to In the event that this Order is enforced by a Judgment of a United 21, 1980. States Court of Appeals, the words in the notice reading "Posted by (c) Preserve and, upon request, make available to the O r d e r o f t h e N at i o n al L a b o r R el ations B o a rd " shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Board or its agents, for examination and copying, all order of the National Labor Relations Board." 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Unlawfully soliciting grievances from employees in payroll records, social security payment records, time- order to influence their union affection. cards, personnel records and reports, and all other re- (d) Continuing in effect an invalid no-solicitation rule. cords necessary to analyze the amount of backpay due (e) Unlawfully threatening reprisals because of em- under the terms of this recommended Order. ployees' union sympathies. (d) Post at its facilities at Battle Creek, Michigan, (f) In any like or related manner interfering with, re- copies of the attached notice marked "Appendix."' straining, or coercing employees in the exercise of the Copies of said notice, on forms provided by the Regional rights guaranteed them under Section 7 of the Act. Director for Region 7, after being duly signed by Re- 2. Take the following affirmative action which will ef- spondent's representative, shall be posted by it immedi- fectuate the policies of the Act: ately upon receipt thereof, and be maintained by it for 60 (a) Offer Michael Smead, Roy Rine, and James Hunt consecutive days thereafter, in conspicuous places, in- immediate and full reinstatement to their former positions eluding all places where notices to employees are cus- or, if such positions no longer exist, to substantially tomarily posted. Reasonable steps shall be taken by Re- equivalent positions, without prejudice to their seniority spondent to insure that said notices are not altered, de- or other rights and privileges, discharging if necessary faced, or covered by any other material. any employees hired to replace them, and make them (e) Notify the Regional Director for Region 7, in writ- whole for any loss of pay that they may have suffered by ing, within 20 days from the date of this Order, what reason of Respondent's unlawful discharge of them in ac- steps the Respondent has taken to comply herewith. cordance with the recommendations set forth in the sec- IT Is FURTHER RECOMMENDED that the complaint be tion of this Decision entitled "The Remedy." dismissed insofar as it alleges violations of the Act other (b) Make whole Jeffrey Smith and Richard Burton, than those found in this Decision. with interest, for any lost pay they may have suffered by reason of their unlawful suspensions from February 18 to In the event that this Order is enforced by a Judgment of a United 21, 1980. States Court of Appeals, the words in the notice reading "Posted by (c) Preserve and, upon request, make available to the O r d e r o f t h e N at i o n al La b o r R el ations B o a rd " shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Board or its agents, for examination and copying, all order of the National Labor Relations Board." 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Unlawfully soliciting grievances from employees in payroll records, social security payment records, time- order to influence their union affection. cards, personnel records and reports, and all other re- (d) Continuing in effect an invalid no-solicitation rule. cords necessary to analyze the amount of backpay due (e) Unlawfully threatening reprisals because of em- under the terms of this recommended Order. ployees' union sympathies. (d) Post at its facilities at Battle Creek, Michigan, (f) In any like or related manner interfering with, re- copies of the attached notice marked "Appendix."' straining, or coercing employees in the exercise of the Copies of said notice, on forms provided by the Regional rights guaranteed them under Section 7 of the Act. Director for Region 7, after being duly signed by Re- 2. Take the following affirmative action which will ef- spondent's representative, shall be posted by it immedi- fectuate the policies of the Act: ately upon receipt thereof, and be maintained by it for 60 (a) Offer Michael Smead, Roy Rine, and James Hunt consecutive days thereafter, in conspicuous places, in- immediate and full reinstatement to their former positions eluding all places where notices to employees are cus- or, if such positions no longer exist, to substantially tomarily posted. Reasonable steps shall be taken by Re- equivalent positions, without prejudice to their seniority spondent to insure that said notices are not altered, de- or other rights and privileges, discharging if necessary faced, or covered by any other material. any employees hired to replace them, and make them (e) Notify the Regional Director for Region 7, in writ- whole for any loss of pay that they may have suffered by ing, within 20 days from the date of this Order, what reason of Respondent's unlawful discharge of them in ac- steps the Respondent has taken to comply herewith. cordance with the recommendations set forth in the sec- IT Is FURTHER RECOMMENDED that the complaint be tion of this Decision entitled "The Remedy." dismissed insofar as it alleges violations of the Act other (b) Make whole Jeffrey Smith and Richard Burton, than those found in this Decision. with interest, for any lost pay they may have suffered by reason of their unlawful suspensions from February 18 to In the event that this Order is enforced by a Judgment of a United 21, 1980. States Court of Appeals, the words in the notice reading "Posted by (c) Preserve and, upon request, make available to the O r d e r o f t h e N at i o n al La b o r R el ations B o a rd " shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Board or its agents, for examination and copying, all order of the National Labor Relations Board."