Barry, R. G., Corporation

I) CISIONS OF NATIONAL. LABOR RELATIONS BOARD R. G. Barry Corporation and Local 45, International Molders and Allied Workers Union, AFL-CIO. Cases 9-CA-15974 and 9-RC-13482 February 10, 1982 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION CHAIRMAN VAN I)D WATIER ANI) MLMBIERS FANNING ANI) ZIMM11RMAN On September 29, 1981, Administrative Law Judge Thomas R. Wilks issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. 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,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, R. G. Barry Corporation, Canal Winchester, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHI:R ORI)tRF.I) that the election con- ducted on October 23, 1980, in Case 9-RC-13482 be, and it hereby is, set aside and this case is hereby remanded to the Regional Director for Region 9 for the purpose of scheduling and con- ducting a second election at such time as he deems the circumstances permit a free choice on the issue of representation. [Direction of Second Election and Excelsior foot- note omitted from publication.] I Respondent has excepted to certain credibility finrdings tlade by the Administrative Law Judge. It is the Board's established polic) nort to overrule an administrative law Judge's resolutiuons with respect to credi- bility unless the clear preponderance of all of the releallnt evidence con- vinces us that the resolutions are incorrect Stundard Dry Wall Produiti. Inc., 91 NLRB 544 (150()) elid 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings 260 NLRB No. 23 DECISION SI'ATMII.MNTNI 01OF TIHl CAStI THOMAS R. Wll KS, Administrative Law Judge: The hearing in this consolidated proceeding was held on August 12, 1981, in Columbus, Ohio, based on an unfair labor practice charge filed against R. G. Barry Corpora- tion (herein called the Respondent), by Local 45, Inter- national Molders and Allied Workers Union, AFL-CIO (herein called the Union), and a complaint issued by the Regional Director for Region 9 on November 28, 1980, and the Regional Director's Supplemental Decision and Order consolidating cases and notice of hearing issued on December 3, 1980. (All dates herein are 1980 unless oth- erwise noted.) The complaint alleges that the Respond- ent violated Section 8(a)(3) of the Act on or about Octo- ber 13, 1980, by issuing written warnings to four employ- ees for ". .. soliciting concerning the Union on compa- ny time, which contained a threat of suspension or termi- nation for the next ensuing violation of Respondent's rules, all contrary to the Respondent's established policy with respect to progressive discipline .... " The Re- spondent filed an answer which denied the commission of unfair labor practices. Pursuant to a Decision and Direction of Election issued by the Regional Director on September 30, an election by secret ballot was conducted on October 23, 1980, among certain employees of the Employer to de- termine whether such employees desired to be represent- ed by the Union for the purposes of collective bargain- ing. ' Upon the conclusion of the election, a tally of bal- lots disclosed the following results: Approximate number of eligible voters Void ballots Votes cast for the Petitioner Votes cast against the Petitioner Valid votes counted Challenged ballots Valid votes counted plus challenged ballots 112 3 21 85 106 107 On October 28, the Petitioner timely filed objections to conduct affecting the results of the election. Thereaf- ter, the Regional Director conducted an investigation of the objections. On November 26, the Union, upon ap- proval of the Regional Director, withdrew 17 of 19 ob- jections that it had alleged. Objections 6 and 8 were consolidated for hearing with the unfair labor practice case by the aforedescribed Sup- plemental Decision. Objection 6 parallels the unfair labor practice allegation. Objection 8 alleges: The Employer allowed employees known to the Employer to be opposed to Petitioner to engage in campaign activities against the Petitioner on the Employer's time, during work hours at the Gender The D)ecisilon sels foirth the appropriate bargaining unit as foillows All production and maintenance employees employed by the Em- ployer al its 5gi Gender Road, Canal Winchester, Ohio, facility, ex- cluding all office clerical employees. and all professional employees. guards and super itsor, as defined in the Act 120 R. G BARRY CORPORATION Road facility, to discourage selection of the Peti- tioner as the bargaining representative of the em- ployees. Post-hearing briefs were submitted by all parties. Upon the entire record in this case, including my ob- servation of the witnesses and their demeanor, and after an evaluation of the inherent probability of their testimo- ny and consideration of briefs, I make the following: FINDINI)INS 0 FACT 1. THEi RUSINESS 01 1 TlH RILSPONI)I.NT At all times material herein, the Respondent, a Dela- ware corporation, with an office and place of business in Canal Winchester, Ohio, has been engaged in the manu- facture and sale of footwear. During a representative period the Respondent. in the course and conduct of its business operations, purchased and received at its Canal Winchester, Ohio, facility, products, goods, and materials valued in excess of S50,0(X) directly from points outside the State of Ohio. It is admitted. and I find, that the Respondent is nov. and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 11. HI iI I iHOR OR(;ANIZ 1 ION INVOI \ ID It is admitted, and I find, that the Union is now, and has been at all times material herein. a labor organization within the meaning of Section 2(5) of the Act. III. Tli I:NI AIR I AB.OR PRACTIC FS A. Preliminary Is.sues At the hearing, the Respondent moved to dismiss the complaint on the grounds that it does not on its face allege conduct violative of the Act and that the Board agent during the investigation of the objections and unfair labor practices made statements to the Respond- ent's agents indicative of a personal belief that a hearing would inevitably result, thereby revealing the agent's bias and prejudice, As to the first part of the Respond- ent's motion, the complaint clearly alleges a discriminato- ry treatment of employees because of union activities. As to the second portion of the motion, it is unnecessary for me to decide whether the issue of bias of a Board investi- gator is relevant to the issues before me. or whether the alleged conduct in fact reveals bias, inasmuch as the Re- spondent sought to adduce no evidence in support of the motion. Accordingly, the motion is denied. B. BacAground The Union commenced its organizational activities of the Respondent's Gender Road, Canal Winchester, plant in the late summer of 1980. The employee organizing committee consisted of 10 employees. Four of those em- ployee organizers are the alleged discriminatees herein: Charles Davis, Samuel Martin, Kevin Dye. and Theo- dore F. Zaucha. They constituted four of the five em- ployees assigned to work in the mold department. As or- ganizing committee members, the alleged discriminatees engaged in activities in support of the Union commenc- ing that summer which consisted of solicitation of co- workers to sign authorization cards, holding of employee union meetings, and dissemination of union information to fellow employees. Davis, Dye, and Zaucha wore union-organizer identification badges on their person during work hours. The concentration of prounion activists in the mold department caught the attention and concern of the Re- spondent as is evidenced by the mid-September meeting held in a plant conference room with the molders by Plant Manager Robert Rupp. and Human Resource Man- agers Richard Smith and Donald Huey.2 At that meet- ing, Rupp discussed the union organizing effort and asked what the employees had to gain by unionization and what complaints they had. Various employee com- plaints were raised, but the primary expressed employee concern was the molders' wage level. The testimony of the discriminatees varies as to whether Rupp promised to reevaluate their grade level with a resultant upgrading and higher wage level, or whether he told them that such an evaluation had already been planned but was de- ferred because of the pending union organizing effort. or 'Whether he merely stated that the Respondent was "thinking" about a job reevaluation. As to other com- plaints, notes were taken by one manager and the em- ployees were told that the Respondent "w-ould check into it." Further attention was given by the Respondent to the mold shop employees early on the morning of October 13, when they were addressed in a meeting by Huey. Smith, and Mold Making Manager Robert Jalbert. At that meeting. Hues told the molders, according to Dye's uncontradicted testimony. that they were interrupting the whole plant. All discriminatees testified that the molders were then told by Huey that in the future they had to request permission of a foreman before they could leave the mold department for any reason, including work tasks, or personal needs. The discriminatees testi- fied that in the past they had frequent occasion to leave the department for work related and personal reasons and were never required to ask for permission nor to give notice to a supervisor. Huey did not testify with respect to this meeting. Smith testified that the mold employees were indeed in- structed at that meeting by Jalbert to seek explicit per- mission before they left their department. Jalbert did not testify. Smith testified in vague terms and with uncertain- ty in demeanor that such restriction is a normal rule: i.e.. "I think that's normal in every department they gen- erally do ... I would certainly think so [regarding the mold shop] . . .I believe they generally do." When asked whether the molders in actual past practice sought permission to move about the plant, he anis ered: "I don't know. I1-- would like to say that this again was not my responsibility for the administration of personnel - thic dlcrlrnimlllCet'es telstcilll,,ls is , th sl tran.,Ipireci i unlCiiLr itth i - ed ihe (enlctrail Couini llic ] i c Ulml dchilt cnicd I o [ake i, powt I rl ait stch c Idlt 'e , itl, prhflcrecl i ',clii¢ li' .11 tullnfair I.lb,,r pritilt .. c of litD.. n ii rl It crc.1t. 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD functions in the mold shop. That is Mr. Huey's responsi- bility-and Mr. Jalbert's." His demeanor was as uncer- tain as his testimonial responses. Finally, when faced with his contradictory pre-trial affidavit, he retracted his testimony to the effect that similar meetings were held in other departments for the purpose of restricting employ- ee movement. Thus I find that the discriminatees' testi- mony stands as uncontradicted by credible testimony, as I find Smith to have been an unreliable witness. Accord- ingly, on Monday, October 13, the Respondent placed unique restrictions upon the extra departmental move- ments of the molders for no demonstrable business rea- sons. 3 C. Solicitation-Distribution Rules Upon their entrance on duty, the Respondent presents to its employees, whom it refers to as "associates," a handbook in which is set forth the Respondent's employ- ment policies, rules called "Guidelines," and a progres- sive disciplinary system. The basic objective for the Re- spondent's guidelines and system of progressive disci- pline as described in the handbook and the testimony of Manager Huey is that of correction and rehabilitation through counseling. Guideline 3 states, inter alia: It is important that we do not interfere with our fellow Associates while they are working. There- fore, we do not permit solicitation for any reasons whatsoever on company time. Anyone who solicits on company time, or who bothers an Associate who is supposed to be working, is not acting in the best interests of our team effort. Such behavior will not be permitted. Each of us has a responsibility for the morale of our fellow teammates. Gossip or other insulting re- marks only serve to destroy our team spirit. Also set forth in the section entitled "Miscellaneous," under the heading "solicitations" is the following lan- guage: It is neither fair nor right to interfere with a fellow Associate who is working. Therefore, anyone who engages in any kind of soliciting on the job, and who thereby neglects his/her work, or in- terferes with someone else's work, will be subject to disciplinary action. Outsiders will not be permitted to come upon company premises to solicit Associates. Nor may Associate engage in solicitation during working time, when either of the persons involved is sup- posed to be working. The distribution of any kind a The General Counsel adduced evidence concerning the foregtoing mold department meetlings in part with testimony of an adverse v tlness, explicitly for the sole purpose of establishing union animus relesvant to the issue of the alleged discriminator) treatment of union supporters Ihe General Counsel disavowed any intenilon to adduce such as cvidence of an unfair labor practice The Union simila rl disavous ed ally intent in of alleging it as evidence of election interferencve The Respondenlt, obje-h tions to this evidence on grounds of relevancy were overruled. and it sals received for the limited purpose expressed by Ihe General Counsel Based upon the foregoing positions of the General Counsel and Ihe Union. the Respondent adduced no rebuttal lestinlony of leaflets, literature, etc., in working areas cannot be tolerated. Your breaks and lunch periods are yours to use as you wish. However, the company cannot and does not permit any form of soliciting of or by As- sociates during working time. The progressive disciplinary system states that viola- tion of a guideline will result in warning, counseling, a plan for corrective action, and a time schedule to meet- ing the "goals" of that plant. However, an exception is set forth for a "serious violation" which can "result in immediate discharge." The "Guide for Corrective Action" states as follows: Corrective action will be taken if you fail to live up to the plan for improvement that was suggested at the counseling session. The following Guidelines for Corrective Action are to be used only after the supervisor has coun- seled the Associate on previous operational Guide- lines infractions. However, if the infraction is of a very serious nature, such as fighting or theft, the Associate could be dismissed immediately. What happens after counseling? Ist Infraction-The supervisor will explain the infraction in detail to the Associate and prepare a written warning. This warning will include a plan of action to correct the problem. 2nd Infraction-The supervisor will prepare a second written warning and discuss it with his/her manager. A meeting will be held with the Associate. the supervisor and the manager to dis- cuss the infraction in detail and to plan a course of corrective action. 3rd Infraction-After a discussion between the supervisor and the manager, a third warning will be prepared and discussed with the next higher level of management. At this time a meeting will be held with the Associate, supervisor and man- agers to determine what course of action should be taken, including the possibility of termination. The intent of this policy is to provide counseling and feedback by the supervisor with the Associate. Part of this feedback is the setting of goals and timetables to reach these goals. We realize that there will be situations and/or individuals who do not respond to our hope that they will put forth their best effort in their job. If management determines that an Associate is not meeting the basic job requirements and that problem areas have not been resolved, a plan for corrective action will be designed to handle the As- sociate's specific problem. Manager Huey testified that it is the norm to follow the progressive disciplinary system, but that serious mis- conduct can result in immediate discharge, as is noted in the handbook itself. Thus Guideline 6 states: 122 R. G. BARRY CORPORATION The basic ingredient of teamwork is the honesty of our Associates. We expect each Associate to act in a trustworthy, honest and moral manner in their relations with each other and with the company. For this reason, committing any one of the follow- ing acts will result in immediate termination: Unauthorized possessions of company product or the property of another Associate. Willful destruction of the company's or an As- sociate's property. Fighting or using threatening language. Gambling during working hours and on com- pany premises. Possession or use of alcohol or illegal drugs or working under the influence of either. Possession of firearms or illegal weapons on company property. Smoking ili unauthorized areas. Sleeping on the job. Unauthorized use of company equipment or vehicles. It may seem needless to list the above acts. But in order for us to make sure we are providing you with a safe, secure and healthy work area, we feel we must make it clear that such acts will not he tol- erated. Elsewhere in the handbook on page lb. the marking, al- tering, removing, or handling of another employee's timecard is referred to as a "serious offense," but disci- pline is not described. D. The Reprimands On October 13. subsequent to the aforedescribed mold shop meetings. individual disciplinary meetings were held in the conference room at the plant by Hucy. Smith, and Jalbert at which meetings Zaucha, Davis, Martin, and Dye were presented each with a written warning form. The entries on each form were identical. The "Description of Infraction" was defined only as "violation of Guideline 3 regarding interfering with fellow associates of their work. specifically soliciting concerning the Union on company time." In the space designated "Pertinent Discussion (state all facts, times and dates of occurrence)" was the following: Based upon a specific complaint from associates(s) that they were talked to regarding supporting the union while on company time. Complaint filed with Human Resource Department (name(s) of complain- ant withheld to promote harmony). After the heading "action taken (state goals. timetable, and follow up plans)" was the following: "The next vio- lation of this guideline can result in suspension or termi- nation." The form was signed by Manager Jalbert and the president of manufacturing, Art Laganus, and reflect- ed that it was the first warning received by the employee in the past 6 months. Indeed. this was the first such warning for violation of Guideline 3 ever received by the four molders.4 Huey testified that it was his decision to issue the warnings and it was he who composed them. He testified that when he presented the warnings he asked the recipi- ents for their version. Inasmuch as he did not identify the other employees involved, and gave to them no de- tails or dates of the alleged misconduct, quite naturally the molders were unable to respond. Just what further statements Huey made at this meeting is unclear. None of the molders recall anything being stated beyond what the form disclosed. Huey testified that he told them indi- vidually that the complained-of incident occurred within the preceding week, that he had received formal com- plaints. that he could not disclose the names of the com- plainants because of their "fear" and "because of the things they had said to me." Huey testified that he told the four molders: . . .the next violation of that guideline, which has to do with interfering with other associates at work, including harassing, gossiping, intimidating, or solic- iting that. yes, it would result in suspension or ter- mination. The written formal warnings which form the basis for future discipline, however, are phrased much more broadly as they refer to "the next violation of this guide- line . . ." which would include violations short of intimi- dation or harassment of coworkers but are limited to purported solicitations "concerning the union on compa- ny time," as forming the conduct of interference with fellow employees' work. Huey's handwritten notes dated October 10, concern- ing his interview s with Zaucha, Martin, Davis, and Dye, do not reflect anyv discussion of harassment or intimida- tion but are limited to references of "solicitation of an as- sociate on company time." His note of the Dye interview reflects that Dye could not respond "because he didn't have the specific situation." Huey testified that the complaints of two female em- ployees, Dottie Harrop and Rose Beach, prompted these warnings. He testified that the complaints were made on October 13, the same day as the warning issuance. This testimony contradicts Huey's sworn affidavit submitted to a Board agent during the investigation of the case wherein he stated that those complaints were made on October 16. At the hearing he testified that October 16 was the date that he "actually wrote up the notes" of the complaint interview, aind that he erred because the Board agent discouraged him from resorting to notes not in his immediate possession. He testified that also on October 16 the original handwritten notes were typed into sum- maries. The summaries are dated October 16. The sum- mary regarding Harrop states that Harrop made her complaint on the date of the summary, i.e.. "this after- noonl." Beach's summary is dated October 16. Botlh em- ployces comnplained on the same date. IluC> lai itltl h l;ll ltc RiCfpilrld nl li.lr Oill rCi;uIi(III hI t ll gill/ kHrl .. ,[' pr io r hilrlg, for 1 s'r period 123 DECISIONS OF NAITIONAL LABOR RELATIONS BOARD Harrop's summary reflects that she complained of an incident that occurred a week earlier when she had occa- sion in the course of her duties to enter the mold shop when Zaucha "started in on her" about union cards he had given her, that "Charlie [Davis] and Ted [Zaucha] came up and grouped" around her, and that "Ted got mad and threw some things down and was hitting a pipe of something"; that she told them that her union feelings were private and that "they called [her] a stupid, silly broad and some other names," and that she pushed her "way out of there." She also purportedly recited that Rick Young, the fifth molder and nonorganizer, later told her that Davis was "mad" and that Young was "kind of afraid there for a minute of what [Davis] might do." She is quoted as saying that, "Since then the three of them come by and make comments to me when they see me." There was no reference to Kevin Dye in that summary. The summary concerning Rose Beach set forth that Zaucha had been "bothering" her and made "comments" to her "in front of the" plant bulletin board and "while at lunch." The summary further stated that she com- plained that "it started" the prior week when Zaucha came to the shipping department and solicited her signa- ture for a union card in a 10-minute conversation while she attempted to work and was joined by Martin who "started in on" her, at which point Zaucha told her "to go to hell," and told her that she did not know what she was talking about. She noted that Young was nearby and that he observed the conversation but took no part in it., Neither Harrop nor Beach testified in this proceeding nor did Young. Huey's testimony as to Harrop's and Beach's complaints considerably embellished upon his summaries of October 16 and contains stark inconsisten- cies. He testified that Beach had complained that she also was called names and was threatened, or "that's my un- derstanding from her." He also testified that Harrop complained that she was "surrounded" by Jbur associates in the mold shop who "yelled" and "screamed" at her. Huey testified that Harrop and Beach were presented with the written summaries of the event and explicitly agreed with it. Presumably, this occurred, if Huev is to be credited, 3 days after the reprimands, since he had testified that he did not even write up notes until Octo- ber 16. Huey testified that he responded to Harrop and Beach that "we could not do anything, that we-there were no managers, or anyone else that saw those particu- lar events." and that it was necessary' for them to file formal complaints in order for the Respondent to take any actions. Huey does not explain the inconsistency be- tween his testimony of what Beach and Hlarrop told him and what is set forth in the typewritten summaries. He does not explain why Rick Young was not considered to be a witness to these events. He does not explain why Dye was not referred to at all in the written summaries, why the yelling and screaming was not mentioned, why there is no reference to threats or name-calling in Beach's summary, ' There is no evidel ce Ihal thel Rsp,ondel illr I lcrviel ed founllg c in- cerning these alleged illncidenlt Zaucha, Martin, Davis, and Dye all testified concern- ing these alleged incidents. Their testimony is uncontra- dicted and credible. Zaucha testified that Harrop came into the mold department twice a day, that they fre- quently joked with one another, that he and others often taunted her jokingly as a "dumb broad," that he had given her a union card in the cafeteria and had asked her about signing it in the mold department and called her a "dumb broad" when she refused, and that she laughed in response. He testified that in the course of his job he does do some hammering but that he did not throw any- thing at or near her. As to Rose Beach, he admitted that he had engaged in a conversation with her on the job in an aisleway and had asked her to sign a card but that upon misunderstanding her, he gave her a card which she rejected and that he did respond "go to hell," which is an expression often used by both of them as common shop talk. He denied uttering any threats, or that Harrop was surrounded in the mold shop. Martin testified that with respect to the Harrop inci- dent he got involved at the end of the conversation and participated for 90 seconds but did not threaten her. He testified that he invited Beach to a union meeting but did not ask her to sign a union card. He denied making any threat to Harrop or Beach. Davis testified that Harrop often came to the mold department but could recall no specific conversation regarding a union card. He denied threatening Harrop, or preventing her departure from the mold shop. He admitted engaging a conversation with Beach in the plant aisle and that he had asked her several times to sign a union card as they encountered each other in the plant. He denied ever threatening her, or that he called her any name. Dye admitted that he had asked Harrop to sign a union card on several occasions and had discussed it with her for a few minutes at a time. Dye recalled the Harrop incident but testified that it involved a "lot of joking." He testified that he was engaged in work during the incident and denied preventing her departure. As to Rose Beach, he testified that he knew her well and had dated her and discussed the Union with her privately after work but not in the plant. E. Distribution of.Ilntiunion .aulerials On Friday, October 10. copies of antiunion news clip- pings were placed in the lunchroom in the morning during work hours by janitors Donaldson and Harring- ton. A copy was also posted by employee Lil Nelson on a wall near her work station about 7:15 a.m. where it re- mained until 2 p.m. On Monday, October 13. Dye formally complained to Manager Smith about these postings. Smith investigated and issued formal swarnings to Donaldson, Harrington, and Nelson on October 13 for v iolation of Guideline 3 based upon distribution of antiunion leaflets "during xwxorking hours." The reprimands constituted a first warn- ing and stated "this serves as an official notice that solici- tation for any reason whatsoever on company time calinot be permitted." The warnings contained no state- ment that a further violation could result in suspension or termination. The Respondent distinguishes the situa- 124 R G. BARRY CORPORATION tion involving these three employees from that of Zaucha, Martin, Davis, and Dye, in that it contends the latter involved serious misconduct fi There is no evidence of supervisory authorization or participation in the antiunion postings. Smith's testimony suggests that he assumed that the janitors, who as part of their duties have free access to all parts of the plant, uti- lized the Respondent's copying machine in that he asked Donaldson whether or not he had obtained permission to use the copy machine and Donaldson responded that he did not. Smith testified that he first saw a copy of the antiunion posting on Monday October 13 when he asked one of the janitors for a copy. The machine is located in an office within view of Smith's secretary but there are times during the day when no one is present in that office. Dye testified that when he held the position of lead operator in the past, he often used the machine to reproduce material for business and personal reasons and that "no one minded." Huey testified that on Monday October 13 at 9:30 a.m., he noticed an antiunion cartoon on a wall near Nel- son's work station. He questioned a supervisor whether he had observed who had posted it, but the supervisor did not know. There were no employees nearby. As to the antiunion newsclipping he testified that he first became aware of these when Smith showed him a copy on the 13th in the afternoon and told him that a "bunch of them" were found in the cafeteria and were being thrown away. He testified that he told Smith to investi- gate and 20 minutes later Smith returned and said he did not know who had done it. Inexplicably, Huey, who was aware of Dye's complaint concerning the janitors and Lil Nelson, did not connect the matter with these clippings. Smith, as noted above, testified he first saw a copy of the antiunion clippings on the afternoon of October 13 in consequence of his investigation of Dye's complaint. F. .4nal'vsi The General Counsel does not allege or argue that the Respondent's solicitation and distribution rules are pre- sumptively invalid.7 Furthermore, the General Counsel does not allege that the Respondent's enforcement of its solicitation rule, per se, was discriminatory. Rather, the General Counsel concedes the propriety of the issuance of the October 13 warnings but argues that the imposi- tion of the "modicum" of punishment to Zaucha, Martin, Davis, and Dye was discriminatory, i.e., the warning of suspension or termination, because it deviated from the progressive disciplinary system which, as applied to an- tiunion violators, entailed only a further step-two warn- ing for such rule violation. Therefore, what has been liti- gated herein as an unfair labor practice was not the im- position of the October 13 warning per se, but the issu- 6 During the year preceding October 13, no other warnings had been issued to any associate concerning solicitation or distribution of any kind. 7 In TR. Wa Bearmng Division, a Division of 7:R. a. Inc.. 257 NLRB 442 (1981), the Board held that "rules prohibiting employees from engag- ing in solicitation during wuorktime or working time without further clari- fication, are, like rules prohibiting such activity during 'working hours' presumptively invalid," but refused to find a siolation in that case be- cause the respondent had not been put on notice by a supporting allega- lion in the complaint ance of a warning of suspension or termination for fur- ther violation. I conclude that the General Counsel has proven herein that the alleged discriminatees were union activists, that the Respondent was adverse to the unionization of its employees, and that the alleged discriminatees received punishment for engaging in union activities in violation of work rules but that the punishment exceeds the type of punishment prescribed by the Respondent's normal progressive disciplinary warnings. The formal warnings issued to Zaucha, Martin, Davis, and Dye, and placed in their personnel files, and upon which future discipline was to be premised, are founded only upon violation of Guideline 3 in that they engaged in union solicitation during working time. There is no reference to other misconduct. The written warning pos- tulates future suspension or termination upon violation of Guideline 3, not upon future acts of misconduct in the nature of intimidation or threats to other employees. The disciplinary warnings are on their face contrary to the Respondent's progressive disciplinary system which was complied with in the case of antiunion activity. The Respondent contends, however, that it had rea- sonable cause to believe that in the course of violating Guideline 3, by engaging in union solicitation during working time, the four molders also engaged in serious misconduct; i.e., threats, name-calling, harassment, etc. No evidence was adduced by the Respondent to demon- strate that such conduct, if it had occurred, was of the same severity of misconduct which, according to past practice. compelled a deviation from the progressive dis- ciplinary system. Respondent adduced no evidence what- soever as to specific past examples of deviation from the normally applied progressive disciplinary system, nor specific examples of any situation where an employee was discharged for serious misconduct. Only Guideline 6 calls for "immediate termination" for violations specifically set forth in that section. The use of "insulting remarks" is covered by Guideline 3. Of the conduct alleged to have been engaged in by the alleged discriminatees, only threats to coworkers are covered by Guideline 6. Furthermore, that guideline calls for imme- diate discharge and not a warning. Nothing in the Octo- ber 16 typewritten summary of Rose Beach's complaint refers to threats. The October 16 typed summary of Har- rop's complaint is ambiguous at best as to whether she was in fact threatened by word or deed of all four union activists in the mold department. The only person who suggested to Harrop, according to that memorandum, that one of the four might do something fearful was Rick Young in reference to Davis, and that in itself constitutes double hearsay and subjective surmise of Young, not Harrop. It is Huey's testimony of what Harrop and Beach supposedly told him that conjures up a scene of explicit threats. I am unable, however, to accept Huey as a reliable witness. I find it incredible that he would have erroneously fixed the date of the Harrop and Beach com- plaints, not only in his affidavit to the Board agent, but also when he executed the written summary which re- ferred to the occasions as "this afternoon"; i.e., on Octo- ber 16. Surely he was aware of the sequence of events, if 125 DECISIONS ()F NATIIONAL L ABOR RELATIONS HOARD not the actual dates, when he executed those documents. Surely the date of the molders' discipline must have been at the forefront of his consciousness. He testified that he retained the Harrop-Beach summaries in the plant re- cords, "in the event we ever had to use them," and that Harrop and Beach reviewed his notes. Yet, after that, no reference to explicit threats was inserted therein and no correction was made as to dates or other inconsistencies noted above. Furthermore, it is most unbelievable that Huey would not have made explicit references to threats, harassment, etc., in the written warnings issued to Zaucha, Martin, Davis, and Dye, or in the oral presenta- tion had they in fact occurred, since that was supposedly the very gravamen of the extraordinary warning of sus- pension or discharge. I therefore do not credit Huey that he was in possession of the Harrop and Beach complaints prior to October 13. nor that Harrop and Beach told him that they were threatened. In the final analysis, the Respondent meted out the un- usual discipline of a warning of suspension or termination because of its purported belief that the four molders en- gaged in misconduct beyond mere solicitation during worktime. The Respondent has not established that in fact such misconduct occurred. The testimony of Zaucha, Martin, Davis, and Dye as to their conduct is uncontradicted and credible. I conclude, therefore, that the alleged misconduct did not occur. Furthermore, in light of the unreliability of Huey's testimony, the lack of any explicit reference to serious misconduct in the warn- ing, the lack of any meaningful investigation, the lack of any counseling accorded to the affected employees re- quired by the Respondent's personnel policies, I con- clude that on October 13 the Respondent did not even possess a good-faith belief that they had engaged in mis- conduct other than union solicitation during work hours. Therefore, I find that the Respondent deviated from its normal progressive discipline system and subjected Zaucha, Martin, Davis, and Dye to a more severe repri- mand than that given to antiunion employees because of their activities on behalf of the Union and thus discrimi- nated against them in violation of Section 8(a)(1) and (3) of the Act, as alleged in the complaint. IV. Tll: OBJECTIONS I do not conclude that the evidence supports the alle- gations in Objection 8 as alleged. I conclude that it ought not be sustained. There is no evidence that the Re- spondent instigated or authorized the distribution of an- tiunion material. There is insufficient evidence upon which to conclude that it knowingly acquiesced in the placement of such literature for the relatively short period of time involved on October 10. The Union contends that the Respondent interfered with the election by its uneven application of solicitation and distribution rules to union and antiunion employees, and thus committed a separate and distinct violation of the Act from that alleged in the complaint which forms a separate instance of objectionable conduct. In essence, this contention is encompassed by the unfair labor prac- tice issue litigated by the General Counsel. Disparity of treatment was rendered the prounion solicitors in that the normal discipline was applied to antiunion literature distribution whereas extraordinary punishment was af- forded the prounion solicitors. The Respondent's plant rules were equally invoked, but the punishment was not equivalent. It cannot be cogently argued that the Re- spondent encouraged antiunion employees by applying its normal progressive disciplinary system to them. Rather, the General Counsel correctly urged that the Respondent discouraged prounion employees by meting out greater punishment than was normally prescribed. The Union argues that inasmuch as the Respondent had violated Section 8(a)(1) and (3) of the Act during the critical preelection period, the election should be set aside. It is the policy of the Board to direct a new elec- tion whenever an unfair labor practice occurs during the critical preelection period inasmuch as conduct violative of Section 8(a)(l) of the Act is "a fortiori conduct which interferes with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1962). An exception to this policy is that an election will not be set aside despite vio- lative conduct when it is virtually impossible to conclude that such conduct could have affected the results of the election in light of such factors as isolation, triviality, nondissemination, and the small size of the unit. Super Thrift Markets, Inc. t/a Enola Super Thrift, 233 NLRB 409 (1977). Thus a supervisor's threat of discharge viola- tive of Section 8(a)(l) of the Act may not, per se, require a new election, particularly when only one employee in a unit of 850 employees is affected. Caron International Inc., 246 NLRB 1120 (1979); see also Thermo King Cor- poration, 247 NLRB 296 (1980) (involving a single threat in a unit in excess of 540 employees). The Respondent's conduct herein was directed at four union activists who constituted 40 percent of the Union's employee organizing committee. It occurred about 10 days before the election and within a context wherein antiunion activists who had engaged in similar conduct were not subjected to the same threat of suspension or discharge. Such awareness of treatment of union activists to whom the Respondent had previously directed a dis- play of union animus can reasonably be expected to have been disseminated to other employees. I, therefore, am unable to conclude that there was a virtual impossibility that the Respondent's violative conduct could have af- fected the results of the election. Accordingly, I must find that by violating Section 8(a)(l) and (3) of the Act, the Respondent interfered with the election. CONCILUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By its conduct found violative of the Act in section III, above, the Respondent has discriminated, and is dis- criminating, in regard to the hire and tenure or terms or conditions of employment of its employees, thereby dis- couraging membership in a labor organization, and has engaged in and is engaging in unfair labor practices pro- scribed by Section 8(a)(1) and (3) of the Act. 126 R. G. BARRY C()RPORATION 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. As to the objection in Case 9-RC-13482. I recommend that ObJection 6 be sustained and Objection 8 be over- ruled. Ttit Ri.Mi.i)\ Having found that the Respondent engaged in an unfair labor practice. I recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It is further recommended that the election in Case 9- RC-13482 be set aside and a second election directed. Upon the basis of the entire record, findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 8 The Respondent, R. G. Harry Corporation. Canal Winchester, Ohio, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Issuing written warnings to its employees concern- ing union solicitation on company time which contain a threat of suspension or termination for the next ensuing violation of its work rules contrary to its established policy with respect to progressive discipline because its employees have joined, supported, or assisted a union or engaged in other activity protected by the Act, and in order to discourage employees from engaging in such ac- tivities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Rescind and expunge from all its records and files the October 13, 1980, warnings of future suspension and termination for the next ensuing violation of its work rule, known as Guideline 3, issued to employees Theo- dore Zaucha. Samuel Martin. Charles Davis, and Kevin Dye. Post at its facility in Canal Winchester, Ohio. copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by the Respondent imme- 8 In the event no exceptions are filed as pro, ided hb Sec 102 4h of the Rules and Regulations of the National L abor Relations Board. the find- ings. conclusions. and recommended Order herein shall. as pros ided in Sec. 102 48 of the Rules and Regulations, he adopted hy the Board and become its findings, conclusions, and Order, and all obiections thereto shall be deemed waived for all purposes 9 In the event that this Order is enforced by a Judgment of a IUnited Stales Court of Appeals, the words in the notice reading "Po,Ied bh Order of the National L.ahor Relations Board" ' shall read "Plosted PIuru- ant to a Judgment of the lnited States Court of Appeals Ftllircing anl Order of the National I.abor Relations Board" diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered. defaced. or covered by any other material. (c) Notify the Regional Director for Region 9. in writ- ing. %within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX Notllci To ENMiP oi Ti s POSII I) HY ORI)tR OF I1H-I N I IONAI LAHOR Ri.I.A IONS BOARI) An Agency of the United States Government After a hearing at which all sides had an opportunity 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 or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form. join. or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE Wit i NOT issue written warnings to our em- ployees concerning union solicitation on company time which contain a threat of suspension or termi- nation for the next ensuing violation of our work rules contrary to our established policy with respect to progressive discipline because they have joined, supported, or assisted a union or engaged in other activity protected by the Act, and in order to dis- courage our employees from engaging in such ac- tivities. W wit ll NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the Act. WTi wii rescind and expunge from all our re- cords the October 13, 1980, warnings of future sus- pension and termination for the next ensuing viola- tion of our work rule. Guideline 3, issued to em- ployees Theodore Zaucha, Samuel Martin, Charles Davis, and Kevin Dye. R G. BARRY CORPORA IION 127