T. F. E. Industies

DECISIONS OF NATIONAL LABOR RELATIONS BOARD T. F. E. Industries, a Division of Dayco, Inc. and Local No. 64, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Patrick O'Connor. Cases I-CA- 11881 and 1-CA-11885 August 24, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 10, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, T. F. E. Industries, a Division of Dayco, Inc., Warwick, Rhode Island, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on January 12 and 13, 1977, at Providence, Rhode Island. I A stipulation by the parties relating to jurisdictional facts is marked as ALJ Exh. I and is received into the record. 231 NLRB No. 111 The charge in Case I-CA-I 1881 was filed on June 14, 1976, and an amended charge was filed on July 19, 1976. The charge in Case I-CA-11885 was filed on June 14, 1976. Case 1-CA-I 1881 and Case I-CA-I 11885 were duly consolidated by order on August 16, 1976. The complaint in this matter was issued on August 16, 1976. The issues concern (1) whether Respondent has violated Section 8(a)(1) of the Act by conduct of interrogation and promises of benefits, and (2) whether Respondent has violated Section 8(a)(3) of the Act by discriminatorily discharging three employees on June 11, 1976, and suspending one employee on said date because of union or protected concerted activities. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 2 T. F. E. Industries is a trade name and division fully owned by Dayco, Inc., an Ohio corporation, and is the Respondent herein. At all times material herein T. F. E., has maintained its principal office and place of business at 100 Gilbane Street, in the city of Warwick, State of Rhode Island (herein called the Warwick plant), and is now and continuously has been engaged at said plant in the manufacture, sale, and distribution of plastic industrial components and related products. Respondent in the course and conduct of its business causes, and continuously has caused at all times material herein, large quantities of plastics used by it in the manufacture of industrial components to be purchased and transported in interstate commerce from and through various States of the United States other than the State of Rhode Island, and causes, and continuously has caused at all times herein mentioned, substantial quantities of industrial components to be sold and transported from said plant in interstate commerce to States of the United States other than the State of Rhode Island. Annually Respon- dent received materials valued in excess of $50,000 directly from points located outside the State of Rhode Island. As conceded by Respondent, and based upon the foregoing, it is concluded and found that Respondent is, 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. 1. THE LABOR ORGANIZATION INVOLVED 3 Local No. 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 2 The facts herein are based upon the pleadings and admissions therein. 3 The facts are based upon the pleadings and admissions therein. 612 T. F. E. INDUSTRIES Ill. THE UNFAIR LABOR PRACTICE ISSUES A. Preliminary Issues4 1. Supervisory status At all times material herein, the following named persons occupied positions set forth with their respective names, and have been and are now agents of Respondent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: William Kelly, plant manager; Charles Orr, quality control foreman; Steve Moss, mainte- nance foreman; Walter Chapman, foreman; John Par- quette, foreman; and Joseph Merrill, extrusion department foreman. 2. The discharge and suspension of employees On or about June 11, 1976, Respondent did discharge or suspend those employees at its Warwick plant whose names appear below: Michael Groff - discharge Patrick O'Connor - discharge David Mozley - discharge Stanley Johnson - suspension Respondent has, since June 11, 1976, failed and refused to and continues to refuse to reinstate Michael Groff, Patrick O'Connor, and David Mozley to their former or substantially equivalent positions of employment. B. Interference, Restraint, and Coercion 1. The General Counsel alleged and Respondent denied that "On or about May 1, 1976, Respondent, by its supervisor and agent Walter Chapman on Respondent's premises, promised its employee economic benefit in the form of a wage increase to induce him to refrain from becoming or remaining a member of the Union or engaging in union or other concerted activities." The only witness presented with respect to this issue was O'Connor. O'Connor credibly testified to facts which support a finding of violative conduct as alleged. Thus, O'Connor credibly testified to the effect that Chapman made such unlawful promise in May 1976. What occurred is revealed by the following credited excerpts from O'Connor's testimony. A. Not the exact date, but sometime, I would say around May; sometime in May. Q. Where were you when he discussed it with you? A. Inside the plant, right outside my department. Q. Tell us, if you can, what he said and what you said? A. Well, he approached me and said that he was going to try to get me a fifteen cent raise, if the Union didn't tie his hands, and that I was doing a very good job and that I was one of the best workers they had in the pressure sensitive department. Considering the foregoing, I find and conclude, as alleged, that Respondent, by its supervisor and agent, Chapman, promised its employee economic benefits in the form of a wage increase to induce him to refrain from becoming or remaining a member of the Union or engaging in union or other concerted activities. Such conduct is violative of Section 8(a)(X) of the Act. It is so concluded and found. 2. The General Counsel alleged and Respondent denied that "On or about May 1, 1976, and at various times thereafter, Respondent by its supervisor and agent Steve Moss on Respondent's premises, interrogated its employees concerning their membership in/or activities on behalf of the Union." The only witness presented with respect to this issue was O'Connor. O'Connor credibly testified to facts which support a finding of violative conduct as alleged. Thus, O'Connor credibly testified to the effect that Moss interrogated him a few times during a period of time of April through June 1977. What occurred is revealed by the following credited excerpts from O'Connor's testimony. Q. Did anyone else from management of T. F. E. ever speak to you about the Union? A. Yes. Q. Who? A. Steve Moss. Q. When? A. Oh, a few times. Q. During what period? A. April through June. Q. Tell us what he said to you about the Union? A. Well, he just wanted to know how I felt about it, and how my friends in the plant felt about it. Q. And he asked you this on more than one occasion? A. Yes. Considering the foregoing, I conclude and find that Respondent, by its agent and supervisor, Moss, in April, May, or June, unlawfully interrogated an employee about his and other employees' feelings about the Union. There is no evidence of legitimate need for such interrogation. Nor is there evidence that assurances of nonreprisals were made. Accordingly, it is concluded that such interrogation was coercive and unlawful and therefore violative of Section 8(aX I) of the Act. 3(a). The General Counsel alleged and Respondent denied that "On or about June 8, 1976, Respondent by its supervisor and agent Charles Orr on Respondent's premis- es, offered its employee economic benefit to induce him to refrain from becoming or remaining a member of the Union or engaging in Union or other concerted activities." (b). The General Counsel alleged and Respondent denied that "On or about June 8, 1976, Respondent, by its supervisor and agent William Kelly on Respondent's premises, promised its employees economic benefit to induce them to refrain from becoming or remaining The facts are based upon the pleadings and admissions herein. 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Union or engaging in Union or other concerted activities." The facts relating to the issues set forth above are interrelated and are based upon a composite of the credited aspects of the testimony of Mozley and Kelly. As background, the facts reveal that in the past Mozley, while at work, had been attending school. Knowing that the Company had some program relating to reimbursement for expenses concerning school courses taken by employ- ees, Mozley in 1975 had tried to receive reimbursement for expenses connected with courses he was taking. Mozley's request for reimbursement had been rejected because his major was a science major and the Company's plan involved reimbursement for courses leading to a major in a job-related field of engineering or business. On June 8, 1976, the day before the NLRB representa- tion election, Supervisor Orr spoke to Mozley. What occurred is revealed by the following credited excerpts of Mozley's testimony. A. Charles Orr spoke to me on June the 8th, around five o'clock in the afternoon. Q. Could you tell us what he said, and what you said? A. I was standing outside in front of the sheet molding room, that was the job I had at that particular day; and he came up to me, we're on friendly terms, he was my boss when I was back in Quality Control, and he came over for a little chat. He said to me, "Are you still going to school?" and at that time, that semester I had dropped out. This was school, college, Rhode Island Junior College, and he said, did I - he asked me if I had ever tried to get any of my courses paid for there, because the company, Dayco Corporation had a policy of reimbursing employees who, as I understood it, I was told if they were in the right program, if they were in a business related program, the company would reimburse for different courses taken in that particular major. I told him that I had tried to, but I was rejected on - for the fact that I wasn't going into a business related major, and he said, "Well, you know, Bill Kelly sent me out here to ask you that", and I said, "Oh", and that was that. Later on the same date, Supervisor Kelly spoke to Mozley. What occurred is revealed by the following credited excerpts from Mozley's testimony. Q. What about Kelly? Did you have any conversa- tion with Kelly during that same period of time? A. Yes, I did, the same day, June 8th at night, approximately nine o'clock. Q. More than one? A. Yes; twice he came to talk to me. Q. All right, would you tell us what he said, and what you said, please, the first time? A. Mr. Kelly came into my sheet molding room. I had just taken a sheet out from under pressure, and I was pulling it out, taking apart the mold and bringing the sheet up, see what kind of condition it was in, and he came over to me and we were both looking at the sheet, looking for whatever imperfections might be in it. He asked me, "You know, Dave, we're thinking of moving Richard Piscopio, who was an inspector, into another job; so there might be an opening for an inspector", and I said, - he asked me, would I want to be one, and I said, "Well, I'd like to go back to that, yes." I said, "I'd rather stay on second shift like I was, previous, and working at this time, also." He said, "Well, yes", I could stay on second shift, I'd be the second shift Inspector. I was kind of curious; at the time I said, "Well Bill, you know I haven't had such a good attendance record lately" and he said, "Well, I'm aware of that, but you know, what's been the problem?" I said "Well, it's been a little alcohol related, drinking over the weekend, and maybe on Monday I don't feel much like coming into work; or seeing how I do work second shift, the warm weather was coming in and I'd go out for a day at the beach and get into a little drinking, and come three o'clock I just didn't feel like I should show up." So he says to me, "Well, you know, if we give you this new position, do you think this is going to be a problem?" I said, "No, because I realize that when you're an inspector, that is definitely something you have to show up every day for, because it's a small department, to have someone cover for you would be a very inconvenient situation, as opposed to when you're in production." I said, "No, I didn't think that I would have any problem in my new capacity, with drinking.", and then he left. Q. All right, was there a second conversation? A. Approximately fifteen minutes later he came back, and he asked me, he says, "You've been going to school lately, haven't you?", and I was little embar- rassed because I hadn't been doing too good in school, and I kind of, I says, "Well, you know, I kind of dropped out this semester, I wasn't doing too good." So he says, "Have you ever tried to be reimbursed for these courses?", and I says, "Well yes, I talked to Carl Wishart, who was the Auditor at the time, around December of '75, and I asked him if I could possibly be reimbursed for any of my courses, because like I said, I understood that that program did exist." "I was rejected by Mr. Wishart, I had a conversation with him and I told him that I was heading into a Science major, and he said, 'Well, really, this program, we're trying to-if you're going into engineering or business, that this is the kind of reimbursement we want to be involved with', and so therefore he said, 'I'm sorry, I can't do anything for you.' " So Mr. Kelly said, "Well, you know, Dave, there's been a little bit of a reorganization here in the plant, and now I'm head of this program in this plant", and he said, "Are you planning to go back to school at all?" I said, "Well, not next semester, but perhaps the semester afterwards," and he said, "Well, like I said, I'm head of the program now, and if you do go back to school, maybe we just won't have to mention your major, and we can reimburse you on a course by course basis." I 614 T. F. E. INDUSTRIES said, "Well, I'll consider it when it comes up again." He shook his head and left. Considering all of the foregoing, I am not persuaded that the facts reveal that Respondent, by Orr, offered Mozley economic benefit to induce him to refrain from becoming or remaining a member of the Union or engaging in union or other concerted activities. The facts reveal that the Company did have a program concerning reimbursement for certain school courses taken by employees. Orr's questioning of and remarks to Mozley were directed to whether Mozley was still going to school and whether he had tried to get reimbursement for such courses. Consider- ing the facts, I am not persuaded that Orr was aware that Mozley had unsuccessfully tried to get reimbursement for the courses Mozley had taken. Nothing in Orr's remarks suggested that Mozley was entitled to get anything other than that which he would rightfully be entitled to. Accordingly, the allegation of unlawful conduct by Orr will be recommended to be dismissed. Considering all of the foregoing I am persuaded, and conclude and find, that Respondent, by the conduct of Plant Manager Kelly on June 8, 1976, promised its employees economic benefit to induce them to refrain from becoming or remaining members of the Union or engaging in union or other concerted activities. Considering the timing of events, the pendency of the NLRB representation election to be held on June 9, 1976, the facts preponderate for a finding that Kelly's discussion with Mozley involved promises of benefits to Mozley, to wit being made an inspector and being allowed reimbursement for school expenses not normally allowed; and the facts preponderate for a finding that such benefits were offered as inducement to persuade Mozley to vote against union representation. In sum, the facts reveal that Respondent, by Kelly, on June 8, 1976, engaged in conduct violative of Section 8(a)(1) of the Act as alleged. It is so concluded and found. C. Alleged Discrimination The discrimination issues concern whether Respondent (a) retaliated against employees because its employees had voted for union representation, or (b) took disciplinary action for nondiscriminatory reasons, by (1) firing O'Connor and Groff on June II, 1976, for violation of rules in leaving company premises without permission and reporting back to work late from breaktime, (2) firing Mozley on June 11, 1976, for using vulgar language to management and not following supervisors' instructions, and (3) suspending Stanley Johnson for 3 days on June 11, 1976, for being late. The relevant facts concerning these issues and the contentions of the parties may be summarized as follows: I. Respondent has had published rules concerning employee conduct and discipline since early 1974. Such ' The facts are based upon a composite of the credited aspects of the testimony of Kelly. Chapman, Merrill, O'Connor, Walker, Mozley, and the exhibits in the record. ' Kelly credibly testified to such effect. Mozley's testimony reveals that he had argued against such interpretation of progressive discipline as regards a discipline issued to him before the critical events herein. 7 The General Counsel, utilizing in large part habitual lateness or habitual absence as an example, questioned Kelly as to the question of rules set forth certain violations deemed sufficient grounds for disciplinary action, ranging from reprimand to suspen- sion or discharge. Some of the published rules have indicated discipline alongside of such rules that suggest progressive steps of discipline from warning or warnings to suspension to discharge. Some of the rules have indicated progressive discipline from suspension to discharge. Some of the rules have indicated discipline of discharge only.5 Despite the suggestion that the way the rules were written that discipline was progressive only as to the specific rules related to, the facts clearly reveal that Respondent has interpreted and applied the rules on a basis that discipline was progressive on a combined basis. Thus, a warning for violation of one rule might set in effect a discipline of suspension for a subsequent violation of another rule.6 As to most of the rules, Respondent utilized oral warnings before the issuance of written warnings. As to some of the rules, those for which discharge was the set discipline, investigation or ascertainment of facts is utilized and oral warnings are not issued. After written warnings have been issued oral warnings are not used if discipline is warranted. Foremen or supervisors, however, use judgment in determining whether discipline is warranted. If discipline is warranted, written warning, suspension, or discharge is utilized as the progression may call for.7 In February 1976, Plant Manager Kelly found reason to remind his foremen and supervisors to enforce the rules equally. At such time Respondent had in its employment an employee named Karg, who was on parole. Apparently Respondent bent its rules to help keep Karg as an employee and out on parole. Around this time employee Walker wanted a wage increase ahead of the time scheduled, complained about disparate application of the rules, complained about Groff s and O'Connor's atten- dance, and threatened to go to EEOC with a complaint. As a result, Plant Manager Kelly told his supervisors that the rules were the same for everyone. The evidence relating to discharges of employees covering a period of time prior to the advent of the Union's organizing efforts reflects discharges on a number of occasions consistent with reasons set forth for discipline of warnings, suspension, or discharge in the published rules. Such is also true for the period of time after the event of the Union's organizing efforts. The evidence relating to warnings and suspensions, including the specific evidence concerning warnings and suspensions of Mozley, Groff, O'Connor, and Johnson reflects warnings and suspensions consistent with the purport of the published rules. The evidence relating to whether or not Respondent ignored its rules prior to June 11, 1976, is limited to testimony concerning the enforcement of rules concerning lateness or return to work, and to the rule concerning leaving from Respondent's premises without permission. flexibility in determining discipline. Kelly appeared a very frank, forthright and truthful witness, and answered such questions relating to discipline, habitual absences, and habitual lateness. The difference between consider- ation of lateness and habitual lateness, absence and habitual absences, at first blush present a confusing picture. I am persuaded that Kelly was an honest and truthful witness and that, considering his testimony as a whole and the logical consistency of facts, the facts are as set forth. 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the enforcement of the rule concerning leaving Respondent's premises without permission, Walker testi- fied to having left Respondent's premises without permis- sion, that on such occasion he was seen by his immediate supervisor. As to such testimony, however, no attempt was made to establish the date or approximate date that Walker left the premises without permission and when the same was observed by a supervisor. In view of Respondent's actions in reemphasizing the implementation of its rules in February 1976, such testimony is of inconsequential value in resolving the issues in this case. Further testimony by Walker was to the effect that he had seen a supervisor, Orr, leave the premises on Walker's bike during breaktime in 1974. Again, in view of Respondent's actions in February 1976, of reemphasizing its rules and since Orr was a supervisor, such evidence is of inconsequential value in resolving the issues in this case. The General Counsel also presented testimonial evidence by O'Connor to the effect that he had left the plant quite a few times on coffeebreaks, that he had taken his bike off the premises on breaks, and that he was never warned about taking his bike off the premises on breaks. Such testimony, however, did not refer to whether or not O'Connor had received permission to leave on such occasions. Nor did such testimony reveal the date or dates of such occurrences. Considering this and the evidence revealing Respondent's emphasizing its rules in February 1976, such evidence is of inconsequential value in resolving the issues in this case. The credited testimony of Chapman and the exhibits in the record relating to discipline imposed on Groff and O'Connor support a finding that Chapman did impose discipline on Groff and O'Connor after February and to the date of their discharge. The credited testimony of Chapman reveals Chapman to be a person who tried to be reasonable, who, on occasion when Groff and O'Connor drove up at the time for reporting to work, allowed them to punch in and then to park their car; who was aware of Groffs and O'Connor's tendency to overstay breaks and who warned them about such incidents; who was aware that Groff and O'Connor left the premises without permission; and warned them about such actions and that they should not do so unless in an emergency. 8 Chapman also gave Groff and O'Connor permission at times to leave the premises at lunchtime to go home, apparently for lunch. Considering, however, the imposition of discipline by Chapman in March and April 1976, on O'Connor, and in February, March, and April 1976, on Groff, it is clear that Chapman, although somewhat lenient and reasonable, did not ignore the rules in his supervision of Groff and O'Connor. 2. The facts reveal that the Union commenced its organizational activities directed at Respondent's employ- ees on or about April 20, 1976. As to the alleged discriminatees, the facts reveal that O'Connor and Groff signed union cards on April 22, 1976, that Johnson signed a union card on April 21, 1976, and that Mozley did not sign a union card. The facts also reveal that O'Connor, in addition to signing a union card, talked to Dave Walker 8 I credit Chapman's testimony over O'Connor's to this point as to any conflict thereto. and other employees about the Union. Mozley was not at the plant on the day that union cards were signed. Mozley, however, talked to other employees about the Union and did pass out some union leaflets on his shift. The bargaining unit involved in the representation election was small in number, consisting of 37 employees. The plant's work layout, however, is rather large. No contention and no evidence was submitted to support a basis of inference of company knowledge of specific employee union activity. Thus, no evidence was presented to reveal closeness of work stations, assembly line, or other factors normally considered with respect to the question of possible inference of company knowledge of union activity on the part of specific individuals. The evidence relating to Respondent's conduct violative of Section 8(aXl) does not reveal a basis of direct evidence of or supportive of an inference of specific company knowledge of union activity or beliefs by individuals. Rather such conduct revealed itself to be an unlawful campaign activity of the persuasion type excepting for Moss' interrogation of O'Connor. O'Connor's testimony as to such interrogation was presented in such a general manner that there are no details to suggest company knowledge, or that O'Connor revealed his own or other employees' preference for the Union. Although I set forth the above discussion and consider- ation of the question of company knowledge of employee union activity, the General Counsel's clear position as to the theory of his case excludes a contention that Respon- dent had specific knowledge of individual employee union activity or beliefs. Further, the General Counsel's theory is of such a nature that actual union activity or beliefs of the individual employees who were discharged is essentially irrelevant. Rather, the General Counsel's theory is broad based and simply that Respondent was irritated at its whole complement of employees for having selected the Union. Thus, the General Counsel contends that Respon- dent retaliated in a general effect by enforcement of rules because the employees selected the Union. 3. The evidence as to when Respondent first became aware of union activity is not precise. Kelly credibly testified to the effect that he first became aware of the Union when he received a petition for a representation election about a month before June 9, 1976. The testimony of O'Connor and Mozley placed the timing of some of Respondent's promises of benefits and interrogation in April, May, and June. O'Connor's testimony to the effect that Moss engaged in unlawful interrogation about union activities and beliefs set such as occurring during April through June. Such testimony was general in effect. In sum the evidence has probative value to reveal that Respondent acquired knowledge and commenced a campaign against the Union in May 1976. Respondent's campaign did not include any threats of reprisals but was rather geared to the promise of benefits to persuade individual employees to vote against the Union in the pending election. On the day before the election, Plant Manager Kelly made a speech to employees to present Respondent's 616 T. F. E. INDUSTRIES arguments against having a union. Kelly argued in effect that he had made beneficial changes for the employees and that if the employees voted for the union, they were in effect saying that he had not done a good job and were voting against him. Kelly told the employees in effect that he considered that if they voted for the Union it was a personal vote against him. 9 4. On June 9, 1976, the NLRB representation election was held for Respondent's employees and the employees voted 23 for, and 12 against, the selection of the Union as collective-bargaining representative. The Discharge of Mozley 5. On June 9, 1976, an incident occurred between David Mozley and one of Respondent's supervisors, Alfano. The details of such incident are set forth later herein. On June 9, 1976, Supervisor McCormick told Mozley that he was being suspended until further notice. It is clear that Mozley knew that such action related to his conduct toward Alfano. On June 10, 1976, Mozley had a discussion with Plant Manager Kelly. It is clear that Mozley knew at this time that Kelly was considering whether Mozley should be discharged. On June 10, 1976, Respondent decided to discharge Mozley effective as of June 9, 1976. Thereafter, on Monday, June 14, 1976, Mozley telephoned Foreman Chapman,t 0 told Chapman that he understood that he had been fired and that he had not been notified of it, and asked if it were true that he had been fired. Chapman told Mozley that it was true and asked Mozley to come down and talk it over a little bit. Prior to the events leading to Mozley's discharge on June 9, 1976, the following may be summarized as to Respon- dent's file record of warnings and discipline for Mozley. On September 11, 1975, Respondent noted a written warning for Mozley's failure to give notice of not reporting to work. On March 30, 1976, Respondent noted a written warning for Mozley's not showing up for work after having called and saying he would be late." On April 21, 1976, the records reveal that Respondent suspended Mozley for 3 days "for not calling up." The Events of June 9, 197612 On June 9, 1976, Mozley had lunch around 2 to 2:30 p.m. Mozley had a couple of beers with his lunch. Mozley then went to the plant at 3 p.m. and voted in the NLRB representation election. Afterwards, Mozley reported to his work station. Jack Covill, a person whose duties seem to be related to Respondent's production processes, told Mozley that Respondent had another job for him to do, that Mozley was being put on the flattening machine. Mozley went to the flattening machine. The day was a "hot" day and apparently the flattening machine work is "hot." Mozley asked Covill what it was that he was going to do. Covill told Mozley in effect that there was a problem with 9 1 am not persuaded that Kelly intended such remarks as a threat of retaliatory conduct if the employees selected the Union. The evidence reveals that Kelly's remarks were in effect answers to contentions made by the Union. 'o The pleadings establish that Chapman was a foreman. Chapman described himself as plant supervisor. " Whether Respondent gave Mozley a copy of such warnings is not the material, that there had been quite a few runs, that the material was thick and would not lay down flat, that they would have to try something new with the material, that Process Engineering Manager Alfano would tell him what to do, and that in the meantime he should set the machine up as he normally would. Mozley started setting the machine up and putting the material (a roll) on a spindle ready to thread through. Covill told Mozley in effect that he would get Alfano to tell him what to do. Covill left and later returned with Alfano. Covill told Alfano to tell Mozley what he had to do to get the material to lay down correctly. Alfano made some remarks to the effect that the material was too wide, that something was wrong with it, that maybe they could shrink the material. Alfano started to work on trying to thread the machine. Mozley considered that Alfano should be giving him instructions. Mozley also considered that Alfano was not setting the machine up properly. Mozley became angry, yelled at Alfano, called Alfano a "horse's ass" and an "ass hole." Mozley pushed Alfano aside and told him that he could do the job himself, that he knew what he was doing, that he worked on this machine. Alfano told Mozley, "Okay, that's it." Mozley's remarks to Alfano were loud and boisterous and were overheard by "Engineering Technician" McCor- mick. McCormick came up while Mozley and Alfano were talking and told Mozley to calm down, to knock off the cussing. Mozley did not immediately cease his talking but as a result of McCormick's remarks did finally cease his remarks. Alfano and McCormick left Mozley and went into the office to see Plant Manager Kelly. Alfano and McCormick reported the incident with Mozley to Kelly. Present with Kelly was a Mr. Cortjohn, director of labor relations of Respondent's parent company. Kelly asked Cortjohn how he should handle the matter. Cortjohn told Kelly to handle the matter the way he would normally handle it. Kelly told McCormick to suspend Mozley until further notice, until someone contacted him. In the meantime Mozley had tried to run some material through the flattener without much success. McCormick returned from the office to where Mozley was working and told Mozley that Kelly had told him to tell Mozley that he was suspended, that he should go home until further notice, until someone got in touch with him. Mozley asked McCormick when he thought Kelly would call him. McCormick told Mozley that he did not know. McCormick told Mozley to shut the machine down. Mozley refused to shut the machine down and told McCormick to shut the machine down himself. On June 10, 1976, Mozley contacted Plant Manager Kelly about the June 9, 1976, incident. What occurred is revealed by the following credited excerpts from Mozley's testimony. clear. The exhibits reveal that Morley signed a "Pay Roll Change Notice" with remarks to the effect of such warrungs. It appears that Respondent utilized such "Pay Roll Change Notice" as a record of warnings and construed the filing a recording of such warnings as a written warning. 12 The facts are based upon a composite of the credited aspects of the testimony of Mozley, Alfano, McCornuck, and Kelly. 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Yes, I did. The next morning, June 10th I called up the office and asked for an appointment with Bill Kelly, at an hour that was convenient with him. It was set up for eleven-thirty that morning. Q. Did you see him? A. Yes, I did. Q. Would you tell us what he said, and what you said? A. I came in, and I said, "Bill, how can you have one day offered me these benefits, and then the next day suspend me without even talking to me, and hearing my side of the story. He said, "Well, Dave, I had my hands full with the Union that day. I just went by what people told me. They came in, they said you were yelling and there was alcohol on your breath," and I said, "Bill, I had a couple of beers before I came in, there's the alcohol on my breath." He said, "Well, when did you have these beers?" and I said, "Well, I had them around two, two-thirty." He said, "Well, you know, you're not supposed to drink. I'd say it wouldn't be proper to drink anytime after twelve o'clock if you have to be in here at three o'clock." He went on in length about how alcohol has no place in the plant, and I said, "Well, Bill, I told you last night that I don't - I do have a little problem with alcohol, but like I never come in here when I'm drunk, because I realize you've got very expensive equipment around here, and I can't be coming in here drunk and working with this kind of expensive equipment. I realize that." So he said, "Well, let's call in Steve Alfano and Jim McCormick and let's see what they have to say." So Jim McCormick came in first. Steve Alfano didn't come in until later. So we got into a discussion and Bill Kelly - I remember one question he asked Jim, he says; about the alcohol, he says, "Well, would you say Dave was drunk at the time?" and Jim said, "No, I wouldn't say he was drunk. He wasn't staggering or anything like that, but he did have alcohol on his breath." Then Steve Alfano came in, and Bill Kelly went through what I had told him was my side of the story, and he capsulated whatever Steve said was his side of the story. Steve and I got into a discussion about how I can't be treating supervisors in this kind of way. That was no way to act. Previous to him coming in, I did tell Bill Kelly that I wouldn't object to apologizing to Steve. I really thought this incident was just a quick flare-up, and nothing more serious than that. So, then when they came back in, Steve and I had a discussion and then Steve left cause it was getting on towards lunchtime. So I asked Bill, I said, "Well, Bill," - Bill offered, he said, "Well, I'm still mulling this over in my mind. I'm still keeping in mind the idea of discharge." Then we go into another discussion about the way that the Union rules - not the Union; the plant rules works. I asked him why -I said the last suspension, I '1 Some of the questions directed to Kelly related to whether Kelly on June 9. 1976. directed McCormick to prepare the paperwork. This point seems to have been confused in the dialogue of the testimony and the questions that followed. Initially. witness Alfano was questioned as to several events. At one point, in a conclusionary manner, Alfano testified to the effect that McCormick prepared the paperwork. Later, apparently assuming this answer to be related to the events of June 9, 1976, witness had protested the suspension that John Parquette, he was the one who gave it to me; and I said, "Really, I think I should have had a warning, because in that particular offense, which was coming to work - not coming to work and not calling, I had had one warning already; but the rules say for a warning, a warning, and then a suspension, and then a dismissal. But I had only had one written warning for that particular thing, but I also had a written warning in absences." So he said, he applied the warning in absences, also into the same - up to the category of not coming into work and not calling in; and therefore, that the second time when I didn't come in and didn't call in, that was punishable by a suspension. Now I was in a position that I had used up one in suspensions, and that I could be liable for a dismissal; and he was going to keep that in mind. He didn't want to make a snap decision. I asked him when he thought he might make up his mind, and he said, "Well, this being a Thursday," he said, "If I don't call you before Monday, then you can consider yourself - that you can come back to work.", and I said, "All right,", and I left the meeting. On June 10, 1976, Plant Manager Kelly decided to discharge Mozley. Such decision was made after consulta- tion with the Company's attorney and with the parent company's labor relations director. Such decision was based upon a consideration of what Kelly would have done under normal circumstances. Thereafter, Supervisor McCormick was instructed to complete the paperwork concerning Mozley's discharge. On June 14, 1976, Mozley telephoned the plant, spoke to Foreman Chapman, told Chapman that he understood he had been fired and that he had not been officially notified of his discharge, and asked Chapman if it were true that he (Mozley) had been fired. Chapman told Mozley that it was true that he had been fired. 6. Michael Groff and Patrick O'Connor were fired on June 11, 1976, with the assigned reason that they were fired for leaving the premises on a coffeebreak and reporting back late. In addition to all of the foregoing facts, the following facts relevant to the issues involved may be noted. Respondent's records of warnings and discipline for Groff reveals the following: On February 10, 1975, Groff received a written warning for being late on February 3, 4, and 7; on November 7, 1975, Groff received a written warning for "damage done to the new slitter blade due to carelessness"; on February 6, 1976, Groff received a written warning for "coming in late" on February 2, 3, and 5; on March 15, 1976, Groff received a written warning for coming in late; and on April 2, 1976, Groff received a suspension of 3 days for coming in late. Kelly was asked if he had not testified to having instructed McCormick on June 9, 1976, to prepare the paperwork. Considering the events of June 10. 1976, 1 am persuaded that Kelly truthfully denied having given such instructions. Considering the exhibit as to the effective day of discharge. I am persuaded that McCormick was told on June 10, 1976. to prepare the paperwork, and did so, dating the same as June 9, 1976. 618 T. F. E. INDUSTRIES Respondent's records for Patrick O'Connor reveal the following: On March 4, 1976, O'Connor received a written warning for coming in late; on March 22, 1976, O'Connor received a second written warning for coming in late; and on April 22, 1976, O'Connor received a 3-day suspension for coming in late. The Respondent's employees have a break period each morning.14 The commencement of the break period is flexible and depends upon the arrival time of a coffee truck. The normal practice is that Foreman Chapman announces the break period upon the arrival of the coffee truck and, after the last employee has visited the coffee truck, allows the break to continue for about 10 minutes. Most of the employees are free to take their break immediately after Chapman has announced the break. A few of the employees assigned to jobs in the pressure sensitive room have to wait to be relieved by a leadman or someone else to take their break. Such employees in the pressure sensitive room on certain jobs take breaks one at a time. Much testimony was presented as to the determination of how long the break periods really were. The sum of the evidence persuades that the break periods averaged around 15 minutes in length. The facts reveal that Foreman Chapman had, in the past, been somewhat lenient with employees Groff and O'Connor as to attendance, as to overstaying breaks, and as to leaving the premises without permission. The facts reveal, however, that Chapman had tightened up with respect to the issuance of discipline to O'Connor and Groff, and had warned O'Connor and Groff about adhering to the rules concerning overstaying breaks and leaving Respondent's premises without permission. The facts are clear that O'Connor, at least, had agreed to abide by the 10-minute breaktime. Foreman Chapman had in the past, when he was going to be absent, alerted Foreman Merrill to the problem of locating O'Connor and Groff, apparently at the end of break periods and other times. Chapman had told Merrill of a place in the bushes near the plant where O'Connor and Groff liked to take their breaks. On June 10, 1976, Chapman apparently had to be away from the plant because of illness. On such date Foreman Merrill was executing the responsibilities of supervision normally carried out by Chapman. On June 10, 1976, the morning break period commenced around 10 minutes to 9 a.m. Sometime after the break period started, an office clerical called Foreman Merrill and asked for Groffs and O'Connor's labor tickets. Merrill apparently took a fast look for Groff and O'Connor and then left a note for Calabro, their leadman, that he was looking for Groff and O'Connor and could not find them. After Calabro had timed or estimated that O'Connor, whom he had relieved for break, had been gone for 10 minutes, Calabro looked for Groff and O'Connor and was unable to find them. Calabro then saw Merrill and told him in effect that the two were probably on break but he could 14 The facts are based upon a composite of the credited aspects of the testimony of Walker. Chapman, Kelly. Calabro. O'Connor, and Merrill. 1, I credit Merrill's timing of events. O'Connor testified to the effect that he and Groff returned to work from the break approximately 5 minutes late. not find them. Merrill and Calabro then both looked unsuccessfully for Groff and O'Connor. Later Groff and O'Connor, who had left the plant premises on their motorcycles without permission, returned to the plant around 9:30 a.m.15 Calabro told Groff and O'Connor that Foreman Merrill wanted to see them. Groff and O'Connor went to see Merrill. Merrill told Groff and O'Connor that the break period was for 10 minutes, that he knew they took more than 10-minute breaks, that, however, as long as he was foreman they should not let it happen again, that the next time they did they would go out the door, and that he had to tell his boss where they had been. Groff and O'Connor apologized and said that it would not happen again. Groff and O'Connor then returned to work. In the meantime, while Merrill was looking for Groff and O'Connor, Merrill had reported to Plant Manager Kelly that he could not find Groff and O'Connor. Later, after Groff and O'Connor had returned to work after breaktime, Merrill reported, about 20 minutes later, to Kelly that the two had returned to work. On June 11, 1976, Foreman Chapman and Plant Manager Kelly discussed Groffs and O'Connor's leaving the plant without permission during breaktime and returning late from said break. At this time Plant Manager Kelly decided to fire Groff and O'Connor for extending their break period and for leaving the plant premises during such time without permission. Merrill was present and had been called in apparently for the discussion concerning Groff and O'Connor and in connection with the issuance of discipline to Johnson for being late. Chapman then went out to see Groff and O'Connor and asked them if they had taken their motorcycles out on break the day before. Upon receiving an affirmative reply, Chapman told Groff and O'Connor that they were dismissed. 7. Stanly Johnson was given a 3-day suspension on June 11, 1976, for being late. Respondent's records and the testimony of witnesses reveal that on December 4, 1974, Johnson received a written warning for being absent and for being late for work; on December 9, 1974, Johnson received a second written warning for being late; and on March 31, 1976, Johnson was demoted as department leader because he punched a man working under him. In addition to all of the facts previously set forth, the following facts are relevant to the issue as to whether Respondent violated Section 8(aX3) and (1) of the Act by the issuance of the 3-day suspension to Johnson on June 11, 1976. Around 2 or 3 weeks before June I 11, 1976, Johnson apparently had car trouble, was absent from work, and explained the basis of his absence as having to have his car worked on. For some reason Respondent checked the place it thought Johnson was having his car fixed and from such check did not believe Johnson's explanation. Respondent did not discipline Johnson for this event. Whether the failure to discipline Johnson arose from uncertainty as to Considenng the total testimony of Memill and Calabro as to the timing of events, I am persuaded that such testimony of Merrill's is more credible than that of O'Connor's as to the timing of events. 619 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where Johnson had related or had his car fixed is not revealed by the evidence. On or about June 8, 1976, because of car trouble, Johnson was riding to work with his sister or a fellow employee named Oakley. On June 8, 1976, Johnson tho'ght he had asked Oakley for a ride to work, apparently had not made such a request, discovered he would be late for work, called Foreman Merrill, and told Merrill that he would be late and was told by Merrill in effect, "All right." Johnson thereafter reported to work late on June 8, 1976. On June 9, 1976, Johnson reported late for work. On June 8 and 9, 1976, Johnson spoke to Foreman Merrill and indicated in effect that part of his problem about getting to work on time was because he had a problem with his car battery. Merrill told Johnson he should get the battery fixed. On June 10, 1976, Johnson had apparently made arrangements with employee Oakley to ride to work. Oakley overslept on June 10, 1976, and called in and reported to Foreman Merrill that he and Johnson would be late. Oakley and Johnson reported late to work on June 10, 1976. On June 10, 1976, Foreman Merrill gave Johnson a verbal warning for reporting to work late. Merrill told Johnson that Kelly had said he was upset that the Union was voted in, that the men would try to get away with everything they could, and that this was why he was giving him the verbal warning. On June 11, 1976, Plant Manager Kelly consulted with Foreman Merrill about the imposition of discipline on Johnson. Kelly decided that Johnson had been habitually late and because of this and his past record that Johnson should receive a 3-day suspension. Kelly instructed Merrill to give Johnson a 3-day suspension for being late and to give Oakley a written warning for being late. Merrill then gave Johnson the 3-day suspension for being late and apparently gave Oakley a written warning for being late. Contentions and Conclusions The General Counsel contends that the discharges of Groff, O'Connor, and Mozley on or about June 11, 1976, and the suspension of Johnson on June II, 1976, for 3 days, were discriminatory and in violation of Section 8(a)(3) and (I) of the Act because Respondent retaliated against employees by enforcement of rules because the employees had selected the Union. Respondent contends that the discharge of Groff, O'Connor, and Mozley, and the suspension of Johnson were not for discriminatory or retaliatory reasons but were simply because the employees had violated plant rules or engaged in conduct warranting discipline. Considering all of the evidence, I am persuaded and conclude and find that the evidence is insufficient to reveal that Respondent retaliated against employees because they selected the Union on June 9, 1976, by enforcement of plant rules or discipline. First, I note that the General Counsel does not contend or argue a theory that Respondent had knowledge of the individual employees' union activities or desires or that such employees were singled out for discriminatory treatment on such basis. Nor would the facts support such theory. The evidence of violative conduct on Respondent's part is limited to unlawful promise of benefits and to unlawful interrogation. There is no evidence of threats of reprisals or other evidence to reveal a propensity to discriminate. There is evidence that Plant Manager Kelly indicated to employees before the election that a vote for the Union was a vote against him. This evidence, however, was in the context of campaign argument wherein the Union had argued that the employees were deficient in benefits, and Kelly was arguing to employees that he had secured benefits for them. The issue was posed by Kelly to the employees that if they voted for the Union, they were saying in effect that he had failed in securing benefits for them. It would be speculative to infer that this constituted a message of threat or reprisal if the employees voted for the Union or to assume from this that Kelly would be inclined to retaliate against employees if they voted for the Union. There is also evidence that Kelly was concerned that the employees, having selected the Union, might abuse violations of plant rules. This, coupled with enforcement of rules, does not mean, however, that rules are enforced in a discriminatory manner or as a means of retaliation. Much litigation occurred concerning Respondent's rules, enforcement thereof, and whether Respondent was lenient in the enforcement of rules. The overall evidence reveals that Respondent did enforce its rules, and did follow an across-the-board progressive discipline factor. The evi- dence revealed some leniency in the application of rules as regards O'Connor and Groff. It is clear, however, that Foreman Chapman had tightened up in the enforcement of rules with O'Connor and Groff and had warned the two employees about their conduct. The facts are also clear that Respondent was lenient as regards some violations of lateness and absences. The record of discipline clearly reveals that the rules were, however, generally enforced. As to the discharge of Groff and O'Connor, the background facts as to Chapman's tightening up of rules enforcement indicate the probability that Chapman would have instituted discharges for Groff and O'Connor under circumstances wherein Plant Manager Kelly was aware of their violations of the rules. The events leading to Groffs and O'Connor's discharges occurred while Chapman was away from work. The facts reveal that Kelly believed in enforcement of the plant rules, that Foreman Merrill was unhappy about not being able to find Groff and O'Connor on June 10, 1976, and that Kelly was aware of all the facts. Under these circumstances, I am persuaded that Chapman would not try to protect Groff and O'Connor, and I am persuaded that Respondent simply discharged Groff and O'Connor for violation of plant rules. I have considered the fact that the discharges of Groff, O'Connor, and Mozley, and the suspension of Johnson followed closely the date of the election on June 9, 1976. The facts are clear that the employees violated rules and engaged in conduct otherwise warranting discipline. Union activity does not insulate an employee from discharge for reasons unrelated to union activity. As to Mozley, the facts are clear that he engaged in name calling and acted insubordinately toward both Alfano and 620 T. F. E. INDUSTRIES McCormick on June 9, 1976. Although the facts reveal that vulgar and profane language was commonplace, the facts do not reveal that personally directed or personally insulting language was condoned. Mozley's calling Alfano a "horse's ass" and an "ass hole" was personally directed, insulting, and insubordinate in the context of the receipt of instructions. Similarly, Mozley's telling McCormick to shut the machine down himself was an act of insubordination. As to the contention that Respondent's June 8, 1976, offer of benefits insulated Mozley in effect from discharge, I note the following. The fact that promises of benefits are made in an election campaign does not necessarily reveal that such promises are sincerely meant or intended to be kept. In this case, I am persuaded that Respondent was trying to persuade Mozley to vote against the Union. I am not persuaded that Respondent intended to make him an inspector or to ignore his problem with alcohol. Even the dialogue between Mozley and Respondent's supervisors relating to the possibility of Mozley's getting the inspector's job was postulated upon the fact that Mozley's problem was one that he could control. The sum of the evidence reveals that Mozley had had a couple of beers shortly before being at work, became angry and insubordinate to a person, part of management, was insulting, and was fired because of this in connection with a background of warnings and suspension discipline. As to Johnson, Johnson was late for 3 days in a row. Under the circumstances, Respondent cannot be said to be without justification in giving a 3-day suspension for lateness. Oakley, the other employee late on June 10, 1976, was given a written warning. Considering all of the evidence, I conclude and find that the facts are insufficient to reveal that Respondent violated Section 8(a)(3) and (1) of the Act by the discharges of Groff, O'Connor, and Mozley, or the suspension of Johnson. Accordingly, it will be recommended that the allegations of conduct violative of Section 8(a)3) and (I) of the Act be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. T. F. E. Industries, a Division of Dayco, Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 64, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(aX 1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusins of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, T. F. E. Industries, a Division of Dayco, Inc., Warwick, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees about their or other employees' union activities or desires. (b) Promising or offering employees benefits to dissuade them from supporting the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agree- ments in accord with Section 8(aX3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at Respondent's plant at Warwick, Rhode Island, copies of the attached notice marked "Appen- dix." 7 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. i? In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Lahor Relations Board." 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employees about their or other employees' union activities or desires. WE WILL NOT promise or offer our employees benefits to dissuade them from supporting the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. T. F. E. INDUSTRIES, A DIVISION OF DAYCO, INC. 622