Gould, Inc.

4DECISI(ONS OF NATIONAI. LABOR RELATIONS BOARD Gould, Inc. and Communications Workers of Amer- ica, AFL-CIO. Cases 39-CA-34 and 39-CA- 176 February 10, 1982 DECISION AND ORDER BB MEMBi RS FANNIN(;, JENKINS, A NI) ZIMMERMAN On December 31, 1980, Administrative Law Judge David S. Davidson issued the attached Deci- sion in this proceeding and on January 9, 1981, issued an erratum thereto. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings,2 and conclusions' of the Administrative Law i Respondent excepts to tie Administrattiv e L as Judge's ftinding a tvo- lation based on certain allegations added to the complaint just prior Io the hearing, contending that they were barred by Sec. 10(b) of the Act because no new charge had been f iled to support them We do rnot agree. Once a charge is filed the Board may deal with any related matters which arise out of the < original eveints withoiut a new charge being filed National I corikc (ompany \v N L.H.. 309 U S. 350 (1940); N'.L. R. v Fant Milling Co. 360 US 301 (1959); Sprucc Up Corporation. 194 NI RB 841 (1972); Fern Laboratories, Inc., 240 NLRH 487 (1979) 2 Respondent has excepted to certain credibility findings made by the Administrative L aw Judge It is the Board's established policy niot tI overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance or all of the relevant evidence con- vinces us that the resolutiuons are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enlfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for resversing his findings :' We agree with the Administrative Law Judge's colnclusion that Re- spiondent violated Sec 8(a)(1) by threatening to eliminate its "open door" policy Sec. 9(a) of the Act guarantees employcces the right to present their problems directly to management for adjustment as long as a union representative is afforded the opportunity to be present and the adjust- ment is not contrary to the contract. By threatening to deny this right and to cut off all direct communication between management and the employees because of the Union, Respondent was seeking to penalize ein- ployees for the exercise (of their statutory rights. Grahber Munu/cturolng Company, Inc., 158 NLRB 244 (1966). enfd 382 F 2d 990 (7th Cir 1967); Winn-Dixie Stores, Inc, 7Tumpa Division, 166 NLRB 227 (1967), enfd 414 F.2d 786 (5th Cir 1969)1 Omark- CCI. Inc., 208 NLRB 469 (1974); Rob- bins & Myers. Inc., 241 NLRB 1()2 fn. 7 (1979); irpton Elcctrw ('Conpuatv and Professional I'urniture Company, 242 NL RB 202 (1979). lcrfd 621 F2d 890 (8th Cir. 1980)) (G;. EF Rurine Equipmcent. Inc.. 252 NRB 8t,66 (1980) Respondent. however, relying on R W-United GreenJfijld Division, 245 NLRB 1135 (1979). contends that its statements concerning loss iof access to management were lawful as an accurate description iof the typical functioning of a grievance procedure in a unionized situation. However. that case is distinguishable because it involved comment on the role of a steward under a union contract and there was some question whether air open-dcxtr policy actually existed Here, to the contrary, the Admnilristra- tive Law Judge specifically found that Respondent was nlot merely de- scribing its understanding of a typical grievance prrocedure but was 260 NLRB No. 2 Judge and to adopt his recommended Order, as modified herein. 4 ArAMtNt) i) CONCI USIONS OF LAW Insert the following as Conclusion of Law 4: "4. By issuing warnings to its employees for vio- lating a rule prohibiting solicitation at any time on company property and by disparate enforcement of its rules, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Gould, Inc., Plantsville, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(c): "(c) Issuing warnings to its employees for violat- ing a rule prohibiting solicitation at any time on company property and disparately enforcing its rules." 2. Substitute the following for paragraph 2(b): "(b) Rescind any rule prohibiting solicitation by employees at any time on company property." threatening a total cessation of all cornacts between management and the employees In the absenlce if exceptionr s thereto, we pro Jirma adopt the Adminis- tra-ltive L aw Judge's dismissal of other allcgations of the complaint In regard to the Administrativ e Law Judge's reliance (on Essex Interna - tionul, Inc.. 211 NLRB 749 (19741, in noting that the no-soilicitation rule coinlaited in Respronid eit 's hanldbook was valid. we note that the Board has recently overruled Foexr and will now find such rules to he invalid See TR. U Bearoringi Divirion. ua Diiion of I R 4 Inc.. 257 NL RB 442 (1981) Nesertheless, the validity of the handbook rule herein was not conlltested and the Administrati' e Lawu Judge fiound that the ported rule was siolatlie of the Act. 4 We note that the Administrative Law Judge inadvertently failed toi fiid that the disciplinary warnings issued Ito Woodike, Curtis, and Symo- Ill vsiolated Sec. 8(a)(3) as well as Sec. 8(a)(1). We shall coirrect this in the Co(nclusions of I.aw We shall also correct the inadvertent failure iof the Administrative l.aw Judge to include in the nuotice his findings of sio- lations hy Respolidenl's threats to eliminate its open-droor policy and to lay off employ ees because of their support fir the Union We shall also modify par 2(b) of the recommended Order and the rinoice to prohibit Respondent from maintaining any rule prohibiting so- licitations "at arty time" on col mpany property in conformity with the Admillistrative I aw Judge's cease-and-desist order Member Zimnmermanl wrould not order Respondent to "neutralize the impact of the March 18 notices" posted by Respondent concerning the settlement of the pre vious unfair labor practice charges Those inotices ha'e nlu been fiound to v5iorlate the Act, and. in the absence of a silolation, Member Zimmerman considers the Board to be without porwer to order a rerrledy Sec 1(0a) of the Act, which sets foirlh the Board's remedial power, is specifically limited to the preientilin oif unfair labor practices Member Zirimcrm lan wrould rnot, as the majorinty does here, include a re- iedi al order with reference t act ivity not frurid violative of the /,cl He wuild mliodify the recommmended Order and notice accordingly 54 GOU()!L INC. 3. Substitute the attached notice for that of the Administrative Law Judge. IT- IS FURTH R ORI)I RI-I) that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. APPENDIX No ICEi To EmPI.Ot I IS POSTI) BY ORI)IR OF IHI: NATIONAl LABOR RFI ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives all employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with these rights. More specifically, WE WI.LL NOT promise and sponsor a chil- dren's Christmas party, with gifts, in order to discourage our employees from selecting Com- munications Workers of America, AFL-CIO, or any other labor organization, as their col- lective-bargaining representative. WE WILL NOT maintain any rule prohibiting solicitation by employees at any time on com- pany property in order to discourage our em- ployees from selecting Communications Work- ers of America, AFL-CIO, or any other labor organization, as their collective-bargaining rep- resentative. WE WILL NOT issue warnings to our em- ployees for violating any rule prohibiting so- licitation at any time on company property, nor disparately enforce our rules, in order to discourage our employees from selecting Com- munications Workers of America, AFL-CIO, or any other labor organization, as their col- lective-bargaining representative. WE WILL NOT post and/or circulate any no- tices to our employees which modify, alter, or detract from notices posted pursuant to orders of or agreements with the National Labor Re- lations Board. WI Wll . NOI threaten our employees with loss of access to our officials to discuss com- plaints and grievances in order to discourage our employees from selecting Communications Workers of America, AFL-CIO, or any other labor organization, as their collective-bargain- ing representative. WE Wlltl. NOT threaten our employees with layoff if they select Communications Workers of America, AFL-CIO, or any other labor or- ganization, as their collective-bargaining repre- sentative. Wi WILL NOT tell our employees that they have been denied merit increases because of a union in order to discourage our employees from selecting Communications Workers of America, AFL-CIO, or any other labor orga- nization, as their collective-bargaining repre- sentative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their Section 7 rights. WE WILL rescind the warnings issued to Dorothy Curtis, Marsha Woodtke, and Bar- bara Symolon which were issued under a rule prohibiting solicitation by employees at any time on company property, and inform those employees of that action. WE WILL rescind any rule prohibiting solici- tation by employees at any time on company property. GOULD, INC. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The original charge in Case 39-CA-34 was filed on Decem- ber 5, 1979, by Communications Workers of America, AFL-CIO (hereinafter called the Union). A complaint issued on February 8, 1980, alleging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by threatening its employees with various losses of benefit or other reprisals, by im- pliedly promising them benefits, by interrogating them, by promulgating, maintaining, and enforcing rules pro- hibiting solicitation and employee discussion of unions, and by providing a Christmas party with gifts for em- ployees and their families. Respondent filed an answer denying the commission of any unfair labor practices and raising as an affirmative defense that one or more of the allegations of the complaint was barred by Section 10(b) of the Act. On March 18, 1980, the parties entered into a settle- ment agreement which provided, among other things, s55 Dl)CISIONS O)F NATI()NAL L ABOR RELATIONS BOARD that Respondent would post a notice to its employees and comply with all its terms and provisions. Thereafter, on March 26, 1980, the Union filed the charge in Case 39-CA-176 alleging that Respondent had violated further Section 8(a)(1) of the Act by misrepre- senting the terms of the settlement agreement to its em- ployees. On April 17, 1980, an order consolidating cases. amended consolidated complaint and notice of hearing issued alleging that Respondent distributed notices to its employees on March 18, 1980, which violated the terms of the settlement agreement reached on the same day, in violation of Section 8(a)(1) of the Act, and that because of this conduct the settlement agreement was set aside and vacated. The consolidated complaint also restated the allegations contained in the original complaint. Thereafter, Respondent filed an answer denying the commission of any unfair labor practices and asserting as an affirmative defense that the settlement agreement had been improperly set aside.' A hearing was held before me in Hartford, Connecti- cut, on May 8 and 9, 1980. At the conclusion of the hearing the parties waived oral argument and were given leave to file briefs, which have been received from the General Counsel and Respondent. 2 Upon the entire record in the case, including my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCI USIONS I. THE BUSINeSS OF RESPONDENT Respondent is a Delaware corporation with a place of business in Plantsville, Connecticut, where it is engaged in the manufacture and nonretail sale and distribution of electronic relays and related products. Respondent annu- ally purchases and receives at this facility products, goods, and materials valued in excess of $50,000 which are transported to it directly from points outside the State of Connecticut. I find that Respondent is an em- ployer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. ITHIE IABOR ORGANIZArION INVOLVE[ The Union is a labor organization within the meaning of the Act. Hil. THE ALI. EGED UNFAIR I.ABOR PRACTICES A. Respondent's Alleged Violation of the Settlement Agreement 1. The facts As set forth above, on March 18, 1980, the parties en- tered into a settlement agreement providing for with- drawal of the original complaint in Case 39-CA-34. While the agreement provided that Respondent did not admit that it had violated the Act, it also provided that L The consolidated complaint was amended at the hearing to add alle- gations that Respondent had also created anl impression of surveillance among employees and had made some additional threats. 2 Errors in the transcript have been noted and corrected Respondent would comply with all of the terms and pro- visions of the following notice to employees which Re- spondent agreed to sign and post: NoTrict To EMPI.OYIEES POSI I) PURSUANTI TO A SIFTlI FMI-NI AGREIEMENT APIPROVI-I) BY AN OFFICER-IN-CHARGI OF rTHI NTiIONAl. LABOR RI.AIIONS BOARI) An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or assist unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these activities. WI wiI1.. NOT do anything that interferes with these rights. More specifically, We Wlll. NOT interrogate employees concerning their union sympathies or solicit employee com- plaints and grievances in order to discourage mem- bership in, or activities on behalf of, any labor orga- nization. WE WILL NOT threaten employees with loss of benefits or loss of access to the Company to discuss complaints and grievances in order to discourage employees from selecting a Union as their collec- tive-bargaining representative. WL Wlllt NOT tell employees that they would have been laid off from work if the Union had been selected as the employees' collective-bargaining rep- resentative. WEi Wl.I. NO'r sponsor a children's Christmas Party, with gifts, where the purpose is to discour- age employees from selecting Communications Workers of America, AFL-CIO, as their collective- bargaining representative. WE Wll.l. rescind and not maintain any rule pro- hibiting solicitation by employees on Company property in non-working areas during non-working time, nor any rule concerning talking about the Union, and WE WILL rescind the warnings issued to Dorothy Curtis, Marsha Woodtke, and Barbara Sy- molon under the prior rule. WE Wll.l NOT, in any like or related manner, re- strain, coerce, or interfere with employees in the ex- ercise of their Section 7 rights. Concurrent with the execution of the settlement agree- ment, Union Representative Walter Collins by letter agreed on behalf of the Union that, if the Union filed fur- ther unfair labor practice charges against Respondent at the Plantsville facility before a date scheduled for an election in Case 39-RC-5, the Union would also file a request to proceed with the election. The notice to employees was posted in Respondent's Plantsville, Connecticut, facility at approximately 4:30 GOULD, INC p.m., on March 18, and remained posted thereafter. In the meantime, at 3 p.m. on the same afternoon, Respond- ent distributed copies of the following "Notice to All Employees" signed by its operations manager, Thomas Burke, on Respondent's letterhead. Copies were given to day-shift employees as they left work for the day. As I announced this morning the Company and the National Labor Relations Board, on Monday, settled all the outstanding unfair labor practice charges which were blocking the election. We en- tered into this settlement in order to assure you, our employees, your right to vote in the union election. The major provisions of this settlement are as fol- lows: 1. The Company did not admit to any viola- tion of the law. 2. The Company was not found guilty of any violation of the law. 3. The election }will be held on March 27, 1980. 4. We have obtained assurances from the N.L.R.B. that they will not permit the CWA to block this new election. 5. We will post a Notice to Employees which simply states that we will not violate the labor law in the future. (This, of course, is what we have always said!!) I am sure that in view of the CWA's actions over the past 4 months, everyone clearly understands that the union will deny employees their most basic right to vote in order to satisfy their own selfish ends. On March 27th all employees will finally have the opportunity to reject-once and for all-these outside agitators. Thank you very much for your support during these past months and I hope that you will join with the vast majority of our employ- ees who will VOTE NO next Thursday. Later that evening, a revised "Notice to All Employees" was distributed to the employees working on the night shift. In that version paragraph 4 was changed to read, "We have obtained assurances from the C.W.A. that they will not block this new election." The revised notice was otherwise the same as the earlier version. On the following morning, at approximately 7 a.m., the fol- lowing additional notice signed by Burke was distributed to day-shift employees: The Notice which was passed out to employees yes- terday afternoon contained an error. The assurances regarding the fact that the election on March 27th will not be blocked were given by the C.W.A., not the National Labor Relations Board. We sincerely regret this error. 2. Concluding findings The complaint alleges that the notices distributed to employees by Respondent violated the terms of the set- tlement agreement, that the distribution of the notices was in derogation of the intent of the terms of the settle- ment agreement, that the settlement agreement was therefore vacated, and in addition that the distribution of the notices violated Section 8(a)(l) of the Act. Respond- ent contends that the notices contained no threats of reprisal or promises and therefore were protected by Section 8(c) of the Act and not in violation of Section 8(a)(1) of the Act. Respondent contends further that the notices did not violate the terms of the settlement agree- ment and that the settlement agreement should be rein- stated. There are two separate issues involved. One is wheth- er the notices violated Section 8(a)(1) of the Act; the other is whether the distribution of the notices breached the terms of the settlement agreement. With respect to the former, I find merit in Respondent's contentions. The notices contain neither threats nor promises, and com- ments about a Board decision similar to those made in Respondent's notices would not violate the Act.' The fact that the comments are directed to the terms of the settlement agreement and may be in violation of or in derogation of its terms does not warrant the conclusion that otherwise lawful notices become independent viola- tions of the Act. Accordingly, I shall recommend dis- missal of the allegations that the notices distributed to employees on March 18 violated Section 8(a)(l) of the Act. Different considerations, however, apply to the second issue. In Bangor Plastics, Inc., 156 NRLB 1165 (1966), en- forcement denied 392 F.2d 772 (6th Cir. 1968), the Board held that notices to employees which amounted to "a patent attempt to minimize the effect of the Board's notice" warranted setting aside a settlement agreement. The Board stated that, where the posting of a notice is the only affirmative action a respondent must take, the policy of the Act is not effectuated when the respondent undertakes to post with it "a statement evidencing to em- ployees its position that the posting of the Board's notice is to be considered nothing more than a mere formality and that the settlement agreement will not effect any change in Respondent's attitude toward the statutory rights of its employees." 4 I find that the notices distributed to employees by Re- spondent on March 18 warranted setting aside the settle- ment agreement under these principles. Thus. Respond- ent not only stressed that it had neither admitted nor been found to have committed violations of the Act, but it also falsely portrayed the official notice to employees as simply stating that Respondent would not violate the labor law in the future. This portrayal ignored totally the portion of the notice requiring rescission of rules against solicitation and warnings to employees and characterized the remainder of the detailed notice as no different from what Respondent had always said. The derogatory impact of Respondent's notice was especially strong with : spc.Cd ,0', a D' Ivlonn o,/ .Mtc(;r '-l.:dM,, n. (fC,. Ills NI R1 462 /1972) 4 61h Nl RH a 1167 See a'so .Southe(rn .lrhblaew Co.. In, . 157 NI RH 1{51 1966),: .%1,twl,,or ri, Ward & (Co. Int . 162 Nt .RB Iti. .76 377, 380I 9 ) IqO L ' 1,- l .'an. I, , 174 Nl R 1035, I036 37 ('190), entid 422 t 2d IS] (5th ( ir I )(s))l Irrp.' Specilohc/,. /itt, 177 NI R 1 30)6. 1("7 U8. crf'd 437 1: 2d ,1 22 lth Cir 1'71): IlL.,hanlm-lil/lim,, lc (';omprn. I19 Nt RH 12<() 91'721 \I R iH nion \ ,:r i rl I d, ,r/',lad', v. .. 11 2d "26 (1,1 ('ir 1q70) 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to first-shift employees, for this notice was given them as they left the plant before the official notice was posted. By the time they returned the next day and had an opportunity to read the Board's notice their view of it was necessarily influenced by Respondent's notice. Fur- thermore, as in Arrow Specialties, Inc.. supra, Respond- ent's notice "unfairly cast the Union in the role of the culprit" whose efforts to deny employees their right to vote "was frustrated by the Respondent's agreement to settle the case."5 The initial notice to first-shift employ- ees which misstated the facts in its paragraph 4 intensi- fied this effect, but even as amended, the basic claim re- mained unchanged. I find that by its characterization of the settlement in its notices to its employees Respondent patently attempted to minimize the effect of the Board's notice, sought to portray itself as blameless while placing on the Union the burden of responsibility for denial of employee rights, and indeed "so contradict[ed] the terms of the Board's required notice as to cancel the legitimate purpose of the required notice and amount to noncompli- ance" with its terms. 6 I find therefore that the Officer-in-Charge did not act improperly in setting aside the settlement agreement and in reinstating the allegations of the complaint in Case 39- CA-34. Accordingly, it is appropriate and necessary to consid- er on their merits the remaining allegations of the amended consolidated complaint. B. Alleged Threart at Employee Meetings 1. The facts The Union began an organizing campaign at Respond- ent's Plantsville facility sometime before July 1, 1979. On June 29, 1979, Union Representative Collins distributed a letter to all employees through which management offi- cials became aware of the Union's organizing efforts. Thereafter, starting in July, Respondent's operations manager, Thomas Burke, and personnel manager, Marga- ret Jorgensen, held a number of meetings with groups of from 12 to 20 employees at which the union campaign and company benefits were discussed. Three employees, Curtis, Hall, and Schatz, testified for the General Counsel to statements by Jorgensen and Burke at these meetings. Jorgensen, Thomas Burke. and Production Manager Paul Burke gave testimony, sub- stantially, although not entirely, in contradiction to that of the General Counsel's witnesses. Where their testimo- ny is in conflict, I have concluded that the versions of Thomas Burke and Jorgensen of their remarks are gener- ally more reliable than those of Curtis, Hall, and Schatz. Thus, it is apparent from the testimony of Curtis, Hall, and Schatz that their perception and recollection of the disputed conversations is at best partial and garbled and there are inconsistencies and evident improbabilities in their versions. For example, Curtis testified that an em- ployee asked Burke if employees would go back to the minimum wage and lose everything if the Union won the election, and that Burke replied that he believed so but ' 177 NLRB at 308 .V L. R v IUninn uaclonal de Trihuajaudor . ,upru. 61l I: 2d ail 93 would have to check with his attorney. Schatz testified that Burke told employees that if the Union came in they would lose all their benefits, their wages would go back to the minimum, and "that would be negotiated between the Company and the Union." Yet Curtis and Schatz also testified that Burke said that everything was negotia- ble, and Schatz testified further that Burke said that as a result of bargaining employees could end up with more, the same, or less than what they had. While Schatz could not recall that Burke said that wages and benefits would remain frozen during negotiations, she recalled that he used the word frozen in the meetings. Hall testi- fied that Burke said that their wages and benefits would "come to a halt" until the negotiating was over, and tes- tified similarly to Schatz as to Burke's use of the word "frozen." I find this testimony far less than coherent and far less plausible than Burke's version that he told em- ployees that everything was negotiable and that wages and benefits would remain frozen while negotiations took place. As for Jorgensen's statements, Hall testified that Jor- gensen told employees that they would definitely lose production bonuses because these were benefits Respond- ent wanted to give but did not have to give. Jorgensen denied making this statement, but her testimony as to what she said about production bonuses was not entirely consistent and her testimony was defensive in tone. Re- spondent called Delores Strauss, who attended a differ- ent meeting with Jorgensen from that attended by Hall, to testify generally as to what Jorgensen said about pro- duction bonuses, and the General Counsel called no wit- ness to corroborate Hall, although, as developed on cross-examination, Schatz was present with Hall at one meeting held by Jorgensen and testified that nothing was said about production bonuses at that meeting. Although less free from doubt, I have concluded that Hall's uncor- roborated testimony as to Jorgensen's statements about production bonuses, which closely parallels her testimo- ny about the same subject by Burke, also cannot be relied upon as accurately reflecting Burke's statements. Accordingly, I find that the following occurred of rel- evance to the allegations of the complaint at the employ- ee meetings held by Burke and Jorgensen. At Burke's meetings with employees he discussed, among other things, what would happen if the Union won the election and collective-bargaining negotiations began, and employees asked questions. Burke told em- ployees that Respondent would have to bargain in good faith and that everything would be negotiable except the minimum wage which was required by law and that it was possible that they would get more, the same, or less, than what they were presently receiving. Burke told em- ployees that production bonuses were negotiable just as the dental package, medical and health insurance, or holidays were. Burke said that he could not say how long negotiations would last, that two parties had to come to an agreement, and that there were cases where bargaining had gone on for over a year without an agreement being reached. Burke also said that benefits and wages would be frozen during the negotiation proc- ess. 58 GOUILI). INC. In the course of the meetings. employees raised ques- tions as to problems they were having. At one meeting employees. including Hall, mentioned some production material that was causing difficulty because they thought it did not meet specifications. Tom Burke asked Produc- tion Manager Paul Burke to check out the problem. At another meeting a woman complained that some of the production rates were set too high which made it diffi- cult for employees to meet them; Burke said that he would look into it. 7 Burke told employees about the so-called open-door policy that had been in effect, saying that his door was always open to employees who were free to come to him with problems they were unable to resolve with their supervisors or department managers. Burke also told employees that, if the Unionl were to represent them, any complaint would have to be handled through a union representative. that employees would not be free to represent themselves, and that they would have to rely on a third party to represent them." At Jorgensen's meetings with employees, she described and explained existing company benefits and told em- ployees that if the plant were organized all benefits would be negotiated x ith the Union. Jorgensen also mentioned the open door policy and told employees that, if the Union were elected, they would no longer have that policy and would no longer be able to come to her or Burke with a problem but would hae to go through a middleman." 2. Concluding findings In the light of the findings of fact above, I find allega- tions that Burke threatened to reduce wages to the mini- mum wage and that he and Jorgensen threatened loss of production bonuses are not supported by' the record evi- dence. There remain for consideration Burke's statements that employee wages and benefits would be frozen during the negotiation process, his responses to employee complaints, and his and Jorgensen's statements about what would happen to Respondent's open-door policy. As set forth above, during the employee meetings Burke told employees that he could not say how long negotiations would take but there were cases where bar- gaining had gone on for over a year without ani agree- ment being reached and that while negotiations took place wages and benefits would remain frozen. Up until this time, Respondent had a policy of granting merit in- ' Doroth) Curtis testified. Aithhoul coinlradiction. ;as to thte comnplaint about high production ralte I have credited her in this reptecl " In a letter to emplo ee, chotring this theme dated Novemhber 19. 1979. Burke ,,,role, "Among our i1most as ic rights and freedromn as indi- viduals is Ihe right to deal directls t ith eatch other. tilhoiul an outside group acting as a wall betelen us' Burke inittally testified Ihat he nmln- tioned the loss of access Io him ill resplonse to questions ahou, hot, gries- antens would he handled a ith a unlilon and told them Ihiat ii sas his ulder- standing that. under contractual grisairnce procedlures. an it omlplailll would ha'se to be handledl by a Ilionll represertcllatitte HotiLe C.r, frolm htis cross-examination aird his raising of the thenle ill his No,:cnmber 19 letter as well as the tetim rns ifof Curtis and Stchatz. I ll tn lIhat Iurke's Slale- menis about loss of access tol him ,cre directly raised hb hirrn lld not i qualified as merely his uldcriltanding of , hitl s Ultdd happlen undr ia d or tract 9 Hall testified without Conltradlclioll as 1to Jorgeniselns stalillltiltt, ah"ut the uopen-door polic, l and I hase redited her I Ihis regard creases to deserving employees. It conducted a general rex iew of all employees in August. but it also granted merit increases at any time based on recommendations of supervisors and department managers. Wage rates of newly hired employees were reviewed after 60 days of employment. The General Counsel contends that Burke's statements that wvages and benefits would be frozen during negotia- tions. especially when coupled with his statements that the negotiation process could take more than a year. were coercive because they threatened loss of the pres- ent benefit of eligibility for merit increases at any time. In .41lied Products Corporation, Richard Brotheri Dirision. 218 NLRB 1246 (1975), modified and remanded 548 F.2d 644 (6th Cir. 1977), 230 NLRB 858 (1977), enfd. 629 F.2d 1167 (6th Cir. 1980). the Board held that it is a vio- lation of Section 8(a)(5) and (1) of the Act for an em- ployer to suspend unilaterally a previously established merit w;age review of and/or increase program during negotiations with a certified union. Since Respondent would be obliged, upon the Union's demonstration of its majority in the election, to maintain in effect its current merit review policy until negotiations resulted in an agreement upon its change or an impasse, Burke's state- ment to employees that wages would be frozen constitut- ed a threat to employees to deprive them of benefits to which they would otherwise be entitled because they chose union representation. I find that such a threat vio- lates Section 8(a)(1) of the Act. I With respect to employee complaints, the General Counsel contends that Burke implied that the employee complaints would be remedied in the light of the context in which the complaints were made and were responded to. In one case enployees complained about materials which were giving them production problems. and in the other case an employee complained that she thought pro- duction rates were set too high. In the first case, Burke asked the production manager to look into the problem and in the second case he replied that he would look into the matter. Neither complaint appears to have been voiced in response to a direct request for employees to air their grievances. While it is not entirely clear if) vwhat context the complaints \were made, it appears that in Burke's meetings with employees he asked generally for questions and did not specifically ask employees to voice their complaints. I find this case distinguishable from Tendico. Inc., etc.. 232 NLRB 735. 748 (1977), and lHava Chemical. Inc., 235 NLRB 903, 907-908 (1978), and that there was no implied promise of benefit to employees by Respondent in relation to these employee complaints. Moreover, whatever the implications of Burke's instruc- tions to the production manager, Respondent could not be expected to ignore employee complaints about pro- duction problems however they come to Respondent's attention, particularly where there is no indication that the problem had been previously brought to manage- ment's attention and left unremedied I find that Re- spondent did not violate Section 8(a)(1) of the Act by so- '"Sc. alsko I rot" , lIt uS 5J/-1 ( I ""Ila 'I un, 2 17 si Rif - I I li' ,,i/, no lhpltimi u ( irtruuur, ao.i,,rr li, 'it04'I t RtB It 1 7 'tn 59 DECISIONS Or NATIONAL LABOR RELATIONS BOARD liciting grievances or by impliedly promising to remedy them. Finally, with respect to the discussion of the open door policy, the General Counsel contends that Burke's statements constituted a threat of loss of present benefits. Respondent contends that Burke's remarks were not a threat because he merely reiterated present policy and conveyed his understanding of how grievances are han- dled under most collective-bargaining agreements. As the Board has held, "selection by employees of a union does not preclude employees, as individuals, from going to their employer with their problems or griev- ances." " When an employer tells employees that a con- sequence of unionization will be to force their employer to close the previously open door, lacking any founda- tion in law such statements constitute threats on the part of the employer to curtail existing employee rights and to discontinue employee benefits as a consequence of em- ployees' choice to be represented by a union. The argument that Burke in this case made no such threat because he only conveyed his understanding of how grievances are handled under most collective-bar- gaining agreements is not persuasive. Burke was not en- gaged in a theoretical discussion of how collective bar- gaining works. As Burke testified on cross-examination, he told employees they would not be free to represent themselves and would have to rely on a third party to represent them. That depiction of this consequence of representation was an affirmative part of Respondent's campaign as appears from Burke's November 19 letter and Jorgensen's parallel statements in her meetings with employees. Thus, in his letter Burke depicted the Union as a "wall" which would come between him and the em- ployees, interfering with their "most basic rights and freedoms as individuals." Similarly, when Jorgensen ad- dressed employees, she told them that, if the Union were elected, they would lose their freedom to go directly to management with problems. I find that, by Burke's and Jorgensen's statements about the open-door policy, Respondent threatened em- ployees with the loss of a present condition of their em- ployment in violation of Section 8(a)(1) of the Act. C. .4lleged Violations Attributed to Jon Coutant According to employee Brenda Cannatelli in July 1979 her supervisor, Jon Coutant, told her that she had been identified in the office as one who handed out pamphlets for the Union. She testified that she told Coutant that she had done nothing of the sort and that she had only received the same letter from the Union which at least a hundred other employees had received. Cannatelli also testified that, on a night in October, a number of the employees on her line were talking while at work about statements Director of Operations Burke had made at a group meeting. When Coutant came by, they asked him about them, and according to Cannatelli, Coutant replied, "Just watch your step girls, don't get yourself in any trouble by talking on the line." Coutant denied that either incident occurred and testified that 'I Colonyj P'rirnig and L ahelin. Inc. 249 N.RH 223. 224 /198XO) employees were allowed to talk while they were work- ing. The allegations based on these incidents were added to the complaint by amendment at the hearing upon a rep- resentation by counsel for the General Counsel that these incidents did not come to counsel's attention until the week before the hearing. Cannatelli gave no written statement during the investigation of the case. Whether or not these amendments were barred by Section 10(b) of the Act, as Respondent contends, it is apparent that Cannatelli did not come forward with her version of these incidents until more than 6 months after the latter of them occurred, even though she was in attendance on March 17 at the time the initial complaint was scheduled for hearing. The passage of time and the absence of an occasion for Cannatelli to memorialize or focus on her recollection of these incidents until May 1980, while not a per se cause for discrediting her, certainly raises ques- tions as to the accuracy of her recollection of Coutant's statements. At the same time, Coutant had no occasion to focus on these incidents until considerable time had passed and after he had many other conversations with employees. Although the second of the incidents de- scribed by Cannatelli involved several other employees, no witness was called to corroborate Cannatelli. In these circumstances, I conclude that Cannatelli's recollection may not be relied on to establish the misconduct attribut- ed by her to Coutant and I will recommend that these allegations of the amended complaint be dismissed. In February 1980 at a meeting of employees in his de- partment, Coutant explained to them how merit increases were awarded and said that he would recommend em- ployees for them if their records warranted it. After the meeting, Cannatelli asked Coutant about a merit raise for herself, and he told her that he would recommend an in- crease for her because he thought her production quali- fied her for it. According to Cannatelli, Coutant told her that she would hear by March 10 whether she received it. On March 17, 1980, Cannatelli was present at the time and place for the hearing on the initial complaint in this case. Company officials, Tom and Paul Burke, saw her there. On the next day, when Paul Burke handed out Re- spondent's notices about the settlement agreement to night-shift employees, he bypassed Cannatelli and one other employee who was seated with her at a cafeteria table. Later Cannatelli asked Coutant if she was an em- ployee and if she was entitled to get the notice. Coutant said that she \was and took a copy out of his pocket for her to read. Later that evening, Cannatelli spoke to Coutant again, telling him that she did not think that bypassing her and her fellow enployee was right. Cannatelli then said she -would like to speak to him about her merit raise. Ac- cording to Cannatelli, Coutant replied, "You can forget about your merit raise." She testified that she asked why, and he started to laugh. She asked if it had anything to do with the Union, and he replied that it did. According to her, he added, "You're not going to get a merit raise." She told him that he had told her that the Union wouid have nothing to do with it, and he said, "It shouldn't 60 GOULD, INC have had but ... everything is being blamed on the Union." Cannatelli had last received a merit raise in the previous February. According to Coutant, when Canna- telli asked where her merit raise was, he replied that as far as he knew it was still on his boss' desk. He testified that he said nothing to her about the Union in that con- versation. With respect to these conversations, the circumstances and the conclusions differ. Here the testinony came only 6 weeks after the critical events. There is no question that Coutant had recommended a merit increase for Can- natelli before the March 17 scheduled hearing date, that after Cannatelli appeared for the purpose of observing the hearing she was bypassed by Burke in the distribu- tion of notices, and that she had a further conversation with Coutant about the increase. As to this conversation, none of the reasons for doubting the accuracy of Canna- telli's recollection which related to her other testimony apply. As between Cannatelli and Coutant, Cannatelli was more complete in her description of their conversa- tion, and Coutant's initial recollection was shown on cross-examination to be less than complete. Coutant's tes- timony that he told Cannatelli that he did not think she was supposed to get a notice on March 18 also supports her uncontradicted description of the manner in which she was bypassed, and his explanation that he did not think there were enough copies for all night-shift em- ployees does not explain why she was singled out or why copies were available in the personnel office. I have concluded that Cannatelli's version of her conversations with Coutant in February and March 1980 is to be cred- ited. I find that by March 17 Cannatelli had been identified as a union supporter. I find further that by Coutant's statements that Cannatelli had been denied a merit in- crease because of the Union, Coutant violated Section 8(a)(1) of the Act.'2 D. The INo-Solicitation Rule Respondent's employee handbook, which has been in effect for approximately 3-1/2 years, contains the follow- ing: solicitation/distribution rule: EMPLOYEES OF THE COMPANY Employees may not solicit for any purpose during working time. Employees may not distribute literature for any purpose during working time or in working areas. "Working time" includes the working time of both the employee doing the solicitation or distribu- tion and the employee to whom it is directed. NON-EMPLOYEES Persons not employed by the company may not solicit or distribute literature on company property for any purpose at any time. In addition, Respondent posted a notice on the employee bulletin boards throughout the plant in January 1979, 32 See Brown d Connolly Inc., 237 NLRB 271, 278 (1978), enfd 593 F.2d 1373 1st Cir 1979) which remained posted until removed in December 1979. That notice was as follows: NO SOLICITATION PLEASE! PLEASE BE REMINDED THAT IT IS CON- TRARY TO THE POLICY OF GOULD FOR AN EMPLOYEE TO CONDUCT ANY TYPE OF SOLICITATION WITHIN THE PHYSICAL LOCATION OF OUR PLANT, OR ON COMPA- NY TIME. THE RESTRICTIONS UNDER THIS POLICY PROHIBIT THE SALE OF RAFFLE TICKETS, CHANCES, ATHLETIC POOLS, OR ANY TYPE OF PERSONAL BUSINESS TRANSACTIONS WHICH ARE NOT AU- THORIZED BY THE MANAGEMENT OF GOULD. IF YOU HAVE ANY QUESTIONS REGARDING THIS RULE, MAKE CERTAIN THAT YOU CHECK WITH YOUR SUPERVI- SOR. YOUR COOPERATION IS APPRECIATED. PERSONNEL DEPARTMENT On February 25, 1980, Respondent posted still another notice to all employees as follows: (That notice is still posted within the plant.) NOTICE TO ALL EMPLOYEES In view of the continuing delay in the holding of the union election, we would like to take this op- portunity to re-state our NVo Solicitation and No Dis- tribution Rule. As you know, this rule is published on Page 15 of the Employee Handbook, which has been provided to all employees. This rule covers all forms of solicitation and dis- tribution by employees while on Company prem- ises. The rule is as follows: NO SOLICITATION/NO DISTRIBUTION EMPLOYEES OF THE COMPANY Employees may not solicit for any purpose during working time. Employees may not distribute literature for any purpose during working time or in working area. "Working Time" includes the working time of both the employee doing the solicitation or distribu- tion and the employee to whom it is directed. NON-EMPLOYEES Persons not employed by the company may not solicit or distribute literature on company property for any purpose at any time. The General Counsel contends that the notice posted in January 1979 which remained posted until around the time an election was scheduled to be held violates the Act because it banned all solicitation by employees within the plant. The General Counsel does not contend that the rule contained in the handbook or the notice 61 ID)ECISI()NS ()F NAI()ONA. L.AB()OR REIATIONS B()ARI) posted on February 25, 1980, violated the Act. Respond- ent contends that the January 1979 notice was supple- mentary to the handbook rule and that it applied only to commercial solicitation and not union solicitation. There is no evidence as to the circumstances surround- ing the posting of the January 1979 notice. Respondent argues that the limited application of that notice is appar- ent on its face from the use of the term "personal busi- ness transactions" and the examples of prohibited activi- ties. I do not agree. The notice uses the same term as the handbook in describing what is proscribed: namely, so- licitations. It makes no reference to the handbook and no effort to distinguish between the handbook rule and the notice rule. Nowhere is it suggested in the notice that Respondent has two policies with respect to two differ- ent kinds of solicitations. Respondent contends that its enforcement of the rule only as to union solicitation during working time shows that the handbook rule was intended to continue to govern union solicitation. How- ever, it appears that Respondent was even more lax with respect to enforcement of the posted rule as to personal solicitations unrelated to union activities than in its en- forcement relating to union solicitation. Moreover, disci- plinary warnings issued to employees Barbara Symolon and Dorothy Curtis refer to the no-solicitation policy posted on the bulletin board as the basis for their disci- pline for union solicitation during working time. I find that the bulletin board notice applied to all in-plant so- licitation but, in any event, the posted rule was at the very least ambiguous, and the ambiguity must be con- strued against Respondent.13 I find that by maintaining in effect the posted rule banning all solicitation in the plant during the 6-month period before the charge was filed, Respondent violated Section 8(a)(l) of the Act. 1 4 E. Paul Burke's Alleged Restriction on Talking About the Union According to employee Dorothy Curtis, in October 1979 while working she talked with another employee for about half an hour about her reason for supporting the Union. She testified that the next morning there was an employee meeting in the cafeteria, at which Paul Burke said that some people had complained about being harassed about the Union and that, if it did not stop, "harsh measures" would be taken. According to Curtis, Thomas Burke was also present at the cafeteria meeting. Paul Burke testified that he called a meeting in the plant cafeteria in October of the employees in Curtis' de- partment because of production problems. According to him, the subject of the Union did not arise during the ' l Mallory Batter), Comparny. etc., 23q1 NLRB 204 (1978) " 4 Eiex Inte rnatio nal. Inc., 211 NLRB 749 (1978) Although Respond- ent removed the offending notice in December 1979, and posted a news notice in February 1980 reminding employees of the valid handbook rule, the offending rule remained posted and ostensibly effective during the entire period from [he start of the union campaign until around the time the election was to have taken place. it was posted at the time employees were disciplined for solicitation and was specifically referred to in their disciplinary warnings, When it was removed. Respondent gave no reason and did nothing to neutralize its effect. I find in these circumstances that the removal of the offending notice and the posting of the February notice did not effectively remedy the violation or render moot the rele- vant allegations of the complaint meeting, but he did talk about harassment of employees with specific reference to an employee who had emo- tional problems. Jorgensen corroborated Paul Burke, and both testified that Thomas Burke was not present at this meeting. In the absence of corroboration, I am not persuaded that Curtis' testimony accurately reflects what Paul Burke said at this meeting. Possibly, sensitized by her own conversations at work the previous day and the re- luctance of the target of her conversation, she read into Burke's comments about harassment a reference to her- self. But whatever Burke said, I credit his testimony that he made no mention of the Union at this meeting. Ac- cordingly, I shall recommend that the allegation of the complaint based on this incident be dismissed. F. Enforcement of the No-Solicitation Rule On October 1, 1979, Supervisor Al Bailey gave em- ployee Barbara Symolon a written reprimand and warn- ing. By its terms the purpose of Bailey's discussion of the warning with Symolon was, "To advise Barbara of our no-solicitation policy which is posted on bulletin boards." The summary of discussion states: "This warn- ing is to document that Barbara has been reported by fellow employees for soliciting during working hours." It further states, "If solicitation continues, further disciplin- ary action may be necessary." On October 3, 1979, Bailey gave Dorothy Curtis a written reprimand and warning identical except as to names. In October or November, Bailey verbally warned employee Marsha Woodtke against soliciting. No other employees have been disciplined for solicitation. There is no testimony as to the circumstances leading to Symolon's warning, but Curtis and Woodtke testified without contradiction as to the circumstances of their warnings. Curtis was warned after she had talked for about half an hour with a fellow employee about her rea- sons for supporting the Union while both were working. Curtis had started the conversation by asking the em- ployee what she thought of the Union, and continued to talk to her after the employee replied that she did not want to get mixed up in it. When Bailey gave Curtis the warning on October 3, he told her that he did not want to give it to her but that he had to and that she should know better than to do what she had done. She replied that she knew better. Bailey told her that she was being warned for soliciting. In September or October Woodtke had a 10- or 15- minute conversation with another employee in her de- partment while they were working on their line. During the conversation one of them brought up the subject of the Union and Woodtke told the other employee that he should consider getting into a union shop. When he said that he was not interested, she continued the conversa- tion stating what she considered to be the advantages of union shops. When he said that he was not interested, she urged him to attend a union meeting and decide for himself. Later the same day, Bailey called her into the cafeteria where he told her that he had several complaints and was warning her for solicitation: he wanted her to stop. 02 GOUIt. 1), INC. She asked what he meant, and he said that she knew. She asked if he meant the Union and how she could so- licit for the Union when she did not know if she was for it or against it. She then asked to face her accusers, but Bailey said that would not be fair to them, and she said that he was not being fair to her. She then named the employee to whom she talked and said that she had been talking to him about the Union that morning. Bailey said that he was not her accuser. She then said they had all talked about the Union hut that no one said whether they were for or against it, and she suggested that Bailey bring everyone into the cafeteria because they had all been talking about it. At the end of the conversation Bailey told Woodtke that he believed her. She asked if there would be a written warning and what would come of it, but Bailey gave no answer. While the record does not establish the circumstances surrounding Symolon's warning, the warning itself is identical in form to that given Curtis, and Curtis' and Woodtke's warnings followed on-the-job conversations about unions. As these were the only warnings given by Respondent for solicitation, it is reasonable to infer that all three were based on alleged union solicitation. The General Coumsel contends that disciplinary warn- ings were violative because they were based on the posted overly broad no-solicitation rule. Respondent contends that the reference to the posted rule was a harmless error and that the warnings for solicitation during working time were based on and supported by the valid handbook rule under which they were lawful. The General Counsel contends in the alternative that. even if based on the facially valid handbook rule, the dis- cipline was unlawful because the rule was disparately en- forced rendering it invalid. As set forth above, I am not persuaded that there were two distinct no-solicitation rules applying to different sit- uations. Rather than harmless error, Bailey's reference to the posted rule in his warning supports the conclusion that both no-solicitation rules applied to solicitations gen- erally and certainly that the posted rule was construed by Bailey as applicable to union solicitation. I thus con- clude that the disciplinary actions were based on the overly broad posted rule and that they violated Section 8(a)(1) of the Act. 5 In addition, there is evidence to support the General Counsel's alternative theory. Collections were frequently taken on company time for Christmas presents, for the United Fund, for supervisors, and for gifts on special oc- casions such as marriages, illnesses, or resignations. Yet, disciplinary warnings were given only for union solicita- tion. Such disparate enforcement of a valid rule is unlaw- ful.i 6 I find that the disciplinary warnings to Symolon, Curtis, and Woodtke violated Section 8(a)(1) of the Act. G. The Christmas Part, On Sunday, December 9, 1979. Respondent held a children's Christmas party and family open house, which all employees were invited to attend with their children and grandchildren. No admission Ce was charged. At 1" 4. 11 d S. .F Memoriual fospitalV. Inc, 214 NLRH 413 (1978) 16 Capitol Record, Inc. 23311 NI. R 1041. 1044 4 ( 977) the party and open house. refreshments were provided and presents, costing approximately $4.75 apiece, were given to all children. The party was held in the plant cafeteria, and the open house consisted of self-conducted tours of the plant. No speeches were made by any man- agement official or employee, and no literature was posted in the plant regarding the union campaign or the election scheduled to be held on the following Thursday. Insofar as appears, Respondent made no reference to the party in any election campaign material or in connection with the Union until January 2. 1980, when Respondent distributed a letter to employees upon their return from Christmas and New Year's holidays. In the letter Respondent set forth its position with re- spect to the election. which had not taken place because of charges filed by the Union, and expressed its desire to have the election take place quickly. In the next to the last paragraph it stated: "I have enclosed with this letter a flyer which I hope you and your family will read care- fully. Although no company is perfect, I believe that we have made substantial improvements and gains in 1979, and look forward to the possibilities for 1980. However, w ith the many grave dangers and threats presented by the C.NW.A.. the future for 1980 is, at best, very uncer- tain." To this letter was attached a flyer containing the follow ing: HAPPY N E W YEAR??? 1 979 CONSISTENT WAGE INCREASES JO SECURITY EXCELLENT FRINGE BENEFITS (IN- CLUDING DENTAL) GOOD WORKING CONDITIONS FAIR TREATMENT PRODUCTIVITY BONUS INDIVIDUAL RIGHTS AND FREEDOMS CHRISTMAS PARTY AND SUMMER PICNIC 1980 WITH C.W.A. ???? BARGAINING INITIATION FEES SPECIAL PRIVILEGES FOR UNION "PETS" UNION SHOP AND DUES CHECK-OFF MONTHLY DUES UNION BOSSES FINES ASSESSMENTS STRIKES NO DUES NO STRIKES NO UNION RULES-VOTE-NO UNION Before December 1979, there had never been a chil- dren's Christmas party or an open house held at the plant. When Margaret Jorgensen started to work for Re- spondent as plant personnel manager in November 1978, h63l I)ECISIONS ()F NATI()ONAl. LABOR REI.ATI()NS BOARD she proposed implementation of a number of social events at the plant, including a family type Christmas party in 1978. Director of Operations Thomas Burke told her that plans had already been made for all annual Christmas dinner dance and that it was too late to plan such a party for that year but that they could think about it for the next year. In the spring of 1979., Jorgensen again proposed a number of social events, including a family Christmas party similar to one that her previous employer had held. Burke indicated that he liked the proposal but gave her no definite response and said that they could consider it. On September 1, 1979, Respondent's headquarters issued the following corporate policy memo: OPEN HOUSE PLANNING AND IMPLEMEN- TATION PUR POSE To provide an opportunity for employees, their families, and community representatives to visit Gould facilities, annually, in order to learn, first- hand, current facts about the Company, its person- nel, and the respective operation. POLICY All Gould units, including corporate and division headquarters, laboratories, sales offices, and manu- facturing facilities, will hold an open house at least once a year. Where appropriate, units should com- bine their open houses (i.e., consolidated sales of- fices). PROCEDURES Planning and inplementation of the open house will be the responsibility of the head of the oper- ation. A report of the present year's open house, includ- ing attendance, special activities conducted, repre- sentation of community and government leaders and other dignitaries, an overall evaluation of the event, and the date of the next open house must be submit- ted to the Vice President, Human Resources, no later than December Ist of each year. While each open house will differ, there are cer- tain guidelines which should be followed in order to present a positive, lasting image for the visitors. The attached checklist will provide the best means of as- suring a well-managed and successful open house and should be utilized in conjunction with the time- table provided. The attached checklist contained, among other things, a suggested guest list which included employees and fami- lies, customers, civic and government leaders, sharehold- ers, educators, clergymen, suppliers, manufacturers, deal- ers, competitors, retired employees, youth groups, pro- fessional societies, and special guests suggested by execu- tives. The checklist also indicated that, in setting the date and time, the open house could be tied in with the Com- pany's anniversary or special events and that other local events should be checked to avoid conflict. Thomas Burke testified that he decided to combine the open house required by corporate policy with a chil- dren's Christmas party in 1979 because the party recom- mended by Jorgensen would fit in nicely to draw people to the open house. Burke testified that he made the final decision to hold the children's Christmas party in late October or early November, but did not recall the date. According to Jorgensen, the decision was made in Octo- ber. Burke testified that the December 9 date was select- ed for the party because they wanted the party as close to Christmas as possible without interfering with family plans of employees over the Christmas holiday weekend or other things that had been scheduled. He testified that the weekend before Christmas was ruled out because the plant was to be closed on Christmas day and the preced- ing day and that the annual dinner dance for employees and spouses had already been scheduled for December 15, so that the weekend of December 8 and 9 was left as the closest available weekend to Christmas. Sunday, De- cember 9, was chosen to avoid interfering with other family activities, such as shopping or work. According to Burke, at the time that the date was picked for the children's Christmas party and open house he did not know when the election would be held. He testified that, after the representation petition was filed on October 15, he discussed with company officials the preferred date for an election and that, before a represen- tation hearing scheduled for November 7, they had talked about a December election date. Burke also testi- fied that shortly before November 7 the Union was told that Respondent would consent to an election if the par- ties could agree on a December date. He was aware through counsel that the Union had been insisting on an election date in November or early December. Jorgensen was put in charge of organizing and prepar- ing for the party, and she put together a committee of employee volunteers to plan the party, decorate the plant, purchase gifts for the children, arrange for refresh- ments, provide entertainment, and make displays to dem- onstrate the nature of the work done in the plant. While Jorgensen testified that employees were not paid for the time they spent preparing for the party and open house, her testimony was contradicted by a stipulation that 89 hours of paid overtime were worked on the day before the party in cleaning the plant in preparation for the party and open house. Employees were invited to attend and to bring with them their children, spouses, escorts, and in some cases, grandchildren, nieces, and nephews. ' 7 With one excep- tion, no invitations were extended to corporate officials, government officials, community leaders, or other non- employees. I 8 The total expense for the Christmas party was approxi- mately $4,400, of which slightly more than half was for toys given to the children who attended the Christmas party. The cost of the refreshments for the party was slightly under $1,000, and the rest went for decorations, supplies, and entertainment. Respondent paid the entire '' lhe onli s rritenll rlol ice of Ihe party was dlstrihultd to emplo yees hetrlen Noeemher 23 awnd 26 "' An invHiiatilon l as extlended tio a tBoard agent whAho did not attend 64 GOULD. INC. cost. Respondent did not submit a notice or report of the open house to corporate headquarters as required by the September memo on open house planning and implemen- tation, even after receiving a followup memo on January 8, 1980, reminding managers that headquarters wanted a schedule of events submitted no later than December 1 each year. Respondent has sponsored other social events for its employees in the past. There have been annual Christmas and spring dinner dances for employees and spouses with a portion of the cost borne by the employees. In 1979 there was a Christmas dinner dance, but none was held in the spring. Respondent also sponsored picnics at which employees paid the cost for their families. Usually Respondent bore more than half the cost of these events. After Jorgensen became manager, at her recommenda- tion Respondent also instituted other social events and activities for employees at its expense, including service awards luncheons, retirement gifts and celebrations, graduation parties for those completing high school equi- valency programs, staff Christmas luncheons, and free coffee and doughnuts for a perfect safety record. The General Counsel contends that the Christmas party constituted a benefit to employees which was cal- culated to interfere with their rights. Respondent con- tends that the party was a preelection social event which does not violate the Act and that the Christmas party was, in the light of Respondent's past sponsorship of social events, not a grant of benefits to employees. The Board has held that campaign parties are legiti- mate campaign devices, absent special circumstances. '9 Although in one case, Fashion Fair, supra, the Board noted that no mention was made of the union at the party, it is clear that campaign parties are sanctioned not as a permissible grant of benefits but as a normal incident of electioneering not likely to be viewed as a harbinger of future benefits. Respondent cites Fashion Fair as supporting its posi- tion. However, Respondent does not claim that its Christmas party and open house were incidents of elec- tioneering but rather that they were independent of the election. It therefore follows that the Christmas party and open house must be considered from the vantage point of general principles applicable to grants of benefits to employees during election campaigns. Despite Re- spondent's contention that corporate open-house policy was a reason for the party, many of the objectives of that policy were ignored, and only employees were invit- ed to the party and open house. One cannot avoid the conclusion that the open-house policy served as a ration- alization rather than as a reason for the Christmas party, and that Respondent's principal purpose was to provide a Christmas party for the employees and their families. Whatever conclusion might have been drawn if the Christmas party had been held as described and then for- gotten, Respondent itself chose to treat the party as a benefit in its New Year's greeting to employees. In its 19 The Zeller Corptration, 115 NL RB 762 11956); Lltyvd .4 Irv Rsfing Company, 123 NLRB 86 (1459)1; Fachion Iarr. Inc., etc. 157 NLRBH 1645 (1966), enfd a, modified 399 F 2d 764 (6th Cir 19681: 4gawain Iiod Mart. Inc.. et al d/h/a Ih, I-td Mlart 158 NL RH 1294 n19( ). enfd l38t F 2d 192 (It (lr 19h7) January 2 letter it referred to "substantial improvements and gains in 1979 and the uncertain future in 1980." In the attached leaflet among the eight items listed for 1979 was "Christmas Party and Summer Picnic" contrasted with incidents of union representation shown under "1980 with C.W.A. ????" The plain inference to be drawn by employees was that the Christmas party was a benefit granted in 1979 which would be continued with- out the Union, but the future of which would be uncer- tain with the Union. I find that the Christmas party was a grant of a benefit to employees. I find further that the Christmas party was not a per- missible grant of benefit. Although Respondent contends that the Christmas party represented only a minor vari- ation from Respondent's past social programs, 20 there had never been such a Christmas party before. It was not a substitute for the Christmas dinner dance, for which there was precedent, but was in addition to it. The Christmas party was the first social event unrelated to retirement or to other employee achievements for which Respondent paid the cost in full. While Respondent con- tends that the party was unrelated to the election and was the product of Jorgensen's precampaign recommen- dation, plus the corporate open-house policy, Respond- ent clearly was not blind to the relation between the timing of the party and the election, and Respondent drew upon the party in seeking to induce employees to reject union representation. Whether the decision to hold the party was made before or after the date of the elec- tion was fixed, clearly it was not made until after Re- spondent knew that there would be an election, and its position as to the timing of an election insured that the party and the election would not be far apart. I find that by holding the Christmas party and open house Re- spondent violated Section 8(a)(1) of the Act. 2 ' H. The Alleged Threat by Supervisor Terwillegar In early January 1980, Alice Chandler was transferred from one department to another in the plant. At the time of her transfer, her new supervisor, Glen Terwillegar, spoke to her at his desk. Terwillegar told her what the rules were and what was expected of her in his depart- ment. According to Chandler, he also told her that, if the Union were in the plant at that time, she probably would have been laid off and that they would not have transferred her.22 Chandler testified that no one else was present at the time of the conversation and that she was trained in her new department by "a little blonde girl, Kathy." Terwillegar, who was no longer employed by Re- spondent at the time of the hearing, did not testify nor was he shown to be unavailable. However, employee Candace Longo, who did not match Chandler's descrip- tion of Kathy, testified that, as employees were trans- ferred into the department, Terwillegar called on her to train them and that she was present when Terwillegar ': Sic Il',ltrri Samrphl. Bxt, and Printing (C.. Incl. 201) NIRBH 184 (1974) 2 ]iutiOv lr Ilousc Indulric,. Inc. 233 NIRHt 164 1170 1977) 22 Chandler lerstfiedi that She aS unsure 'hether Tcrv illegar ured the sord "prohlh" ' 65 DECISIONS O()F NATIONAL I.ABOR RELATIONS BOARD talked to Chandler about her transfer. According to Longo, Terwillegar explained to Chandler what her job would be, that Longo would be training her, and what the basic rules and regulations were. Longo's testimony includes the following sequence of questions and an- swers: Q. Did Alice Chandler say anything during this meeting? A. No. Q. Did she say anything at all about the transfer? A. She asked why she was being transferred. Q. What did Mr. Terwillegar say? A. He told her that she was being transferred be- cause Rundel was slow, and not because of the Union. Q. Did she raise the question of the Union, or did he'? A. I don't remember. Longo testified that she did not hear the subject of the Union discussed in any other way or context in this con- versation. While Longo contradicted Chandler as to who trained her and to her claim that her conversation with Terwil- legar was private, the quoted testimony corroborates Chandler that the Union was mentioned. While she could not recall who raised the question of the Union, there was no reason why Terwillegar would have taken pains to point out that Chandler was not being trans- ferred because of the Union unless something was said about it. I conclude that Longo's recollection of this con- versation was neither complete nor accurate and I have credited Chandler. I find that at the time of her transfer Terwillegar told Chandler that, if the Union were in the plant at the time, Respondent probably would have laid her off and would not have transferred her, implicitly threatening that Respondent would make less of an effort to preserve employment for employees when work was slack if they were represented by a union, thereby violat- ing Section 8(a)(1) of the Act.2: IV. 1 Hi RIL:MtI)Y Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As it has been found that Respondent's March 18, 1980, notices undermined the effectiveness of the Board's process and warranted setting aside the March settlement agreement, I shall recommend that the Order include a provision designed to neutralize the impact of the March 18 notices. 24 Upon the basis of the above findings of fact and the entire record in this case, I make the following: : lIhe Buncher Company,. 22q Ni.RB 217 (1977) :4 Ihc Brear/lh , C'ompany. 163 N.RBU h37 (1967): .,rrow . Specriari , Int . 177 N RB 306, enfrl 437 1; 2d 522 (Sth Cir) CONCL USIONS OF LAW 1. Gould, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with loss of access to Re- spondent's officials to discuss complaints and grievances, by telling an employee that she had been denied a merit increase because of the Union, by maintaining and en- forcing a rule prohihiting solicitation by employees at any time on company property, by promising and spon- soring a children's Christmas party with gifts, and by threatening employees with layoff in order to discourage them from engaging in union and protected concerted activities, Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law. and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 5 The Respondent, Gould, Inc., Plantsville, Connecticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising and sponsoring a children's Christmas party, with gifts, in order to discourage its employees from selecting Communications Workers of America, AFL-CIO, or any other labor organization, as their col- lective-bargaininlg representative. (b) Maintaining any rule prohibiting solicitation by em- ployees at any time on company property. (c) Issuing warnings to its employees for violating any rule prohibiting solicitation on company property, in order to discourage its employees from selecting Com- munications Workers of America, AFL-CIO, or any other labor organization, as their collective-bargaining representative. (d) Threatening employees with loss of access to Re- spondent's officials to discuss complaints and grievances in order to discourage employees from selecting Commu- nications Workers of America, AFL-CIO, or any other labor organization, as their collective-bargaining repre- sentative. (e) Threatening employees with layoff if they select Communications Workers of America, AFL-CIO, or any other labor organization, as their collective-bargain- ing representative. (f) Posting and/or circulating any notices to employees which modify, alter, or detract from notices posted pur- suant to orders or agreements with the National Labor Relations Board. :' Inl the cvenllt rli cxc ptiofns arc filed as provided by Sec 102 46 of tile Rules and Regulations of the National l.abor Relallons Board, the findings, conclusiorns. and recommenlded Order herein shall, as provided il Sec 1)2 48 oif Ihe Rules and Regulations, be adopted hy the Board and heccme its filldings, conlclusions. and ()rder, and all o(hjections thert,1o sh;lil he delcnicl s: liced for all purpos,c 66 GOULD, INC. (g) Telling employees that they have been denied merit increases because of a union in order to discourage employees from selecting Communications Workers of America, AFL-CIO, or any other labor organization, as their collective-bargaining representative. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Rescind the warnings issued to Dorothy Curtis, Marsha Woodtke, and Barbara Symolon issued under a rule which prohibited solicitation by employees on com- pany property, and notify those employees of that action. (b) Rescind any rules prohibiting solicitation by em- ployees on company property. (c) Notify its employees. in writing, that it has rescind- ed the notices which it distributed to employees on March 18, 1980. 67 (d) Post at its Plantsville, Connecticut, facility copies of the attached notice marked "Appendix. " 26 Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 39, after being duly signed by Respond- ent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Officer-in-Charge for Subregion 39, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Zh It the erent that this Order is enfiorced by a Judgment of a United Sl;tlte Court of Appealk, the word, in the notice reading "Poited by Order of the Nllional L abor Relations Board" shall read "Posled Pursu- ant to a Judgment of the United State, Court of Appeals Enforcing an Order of Ihe National Labor Relations oard"