Custom Recovery

CUSTOM RECOVERY Custom Recovery, Dlv. of Keystone Resources, Inc. and United Steelworkers of America, AFL-CIO- CLC. Cases 10-CA-11825 and 10-RC-10569 June 16, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On October 8, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, Employer filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 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, Custom Recov- ery, Div. of Keystone Resources, Inc., Greensboro, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. [Direction of Second Election and Excelsior foot- note omitted from publication.] I The 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. 2 Member Walther would not find a violation for Supervisor Humphress' alleged threat to employee Waller concerning union solicitation in view of the following circumstances: Humphress knew Waller was campaigning for the Union during working time; Humphress prohibited Waller from campaigning during working time only and expressly permitted campaign- ing during lunch hour and breaktime; there is no evidence that the Respondent allowed nonunion solicitation during working time; and since there is only one violation of the Act in this matter, it is clear that the Respondent did not have any union animus or animus against Waller. For the reasons set forth by Chairman Miller in his dissenting opinion in Daylin, Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972), Member Walther does not adhere to the majority opinion in that Decision. Chairman Fanning and Member Penello disagree with their colleague because he has ignored the applicable law. For, as found by the Administrative Law Judge, in the absence of a valid rule the prohibition of employee solicitation interferes with employee rights unless the employer 230 NLRB No. 32 can affirmatively show impairment of production (Daylin Inc., supra). Here, Respondent had no rule and did not show production was impaired (in fact, it did not even produce employee witnesses to testify they were solicited). Further, in the absence of a valid rule whether or not other solicitation is allowed (mentioned by the Administrative Law Judge in a "moreover" context) is irrelevant. DECISION STATEMENT OF THE CASE JuLIus COHN, Administrative Law Judge: This consoli- dated proceeding was heard on May 26 and 27, 1976, in Greensboro, Georgia. Upon a charge filed and served on March 1, 1976, the Regional Director for Region 10 issued the complaint in this proceeding on April 22, 1976, alleging that Custom Recovery, Division of Keystone Resources, Inc., herein called the Respondent or Employer, violated Section 8(aXl) of the Act in various respects. Pursuant to a Decision and Direction of Election issued on February 19, 1976, an election was conducted among certain of Respondent's employees on March 19, 1976. The tally disclosed that of 78 valid votes counted 33 were cast for the Petitioner, 37 were cast against it, and 8 ballots were challenged. The challenges were sufficient in number to affect the results of the election, and on March 26, 1976, the Petitioner filed timely objections to conduct affecting the results of the election. On May 11, 1976, the Acting Regional Director issued a Supplemental Decision finding that six of the challenged ballots were cast by persons who were not employees of the employer on either the eligibility date or the date of election and were consequently ineligible to vote and the challenges to their ballots were sustained. The remaining two challenged ballots were not resolved as they were insufficient to affect the results of the election. As to the Petitioner's objections, Objections I and 3 were withdrawn by the Petitioner and the Acting Regional Director found that Objections 2 and 4 raised issues identical to those in the unfair labor practices found and accordingly ordered the cases consolidated for hear- ing. Respondent filed an answer denying the commission of unfair labor practices. Issues Whether Respondent by its supervisors and agents engaged in various acts of interrogation of its employees. Whether Respondent by its supervisors and agents threatened to close the plant if the Union were selected as the collective-bargaining representative. Whether Respondent threatened employees with loss of profit sharing and other benefits. Whether Respondent threatened employees with loss of work should the Union be selected as the representative of the employees. Whether Respondent threatened an employee with discharge because he engaged in union activity. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent, a Pennsylvania corporation, has a plant and place of business at Greensboro, Georgia, where it is engaged in the business of recycling nonferrous metals. During the past 12 months, Respondent purchased and received goods valued in excess of $50,000 from suppliers located outside the State of Georgia. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO-CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has been engaged at its Greensboro, Geor- gia, plant in the business of recycling nonferrous metals by processing them from shipments of scrap received from its sole customer, Western Electric. In October 1975 Respon- dent was advised that Western Electric was building a new plant in South Carolina and would cease sending scrap materials to Respondent as soon as it would be able to process them in its own plant. By December 1975, there was a reduction of 25 percent of the materials normally sent by Western Electric and this resulted in the layoff of about 24 employees at the end of January 1976. The employees were informed of this layoff at a meeting on January 26. By letter dated March 12, 1976, Western Electric notified Respondent that, effective June 30, 1976, scrap shipments to the Greensboro plant would be terminated. In the meantime the Union had filed a petition for a representation election on January 8, 1976. This initiated a campaign in the course of which Respondent held meetings at which six speeches were given by its general manager, Joseph Humphress. He spoke to assembled groups of employees, delivering the same speech to each shift. The speeches delivered on January 14 and 26 and March 15 are contended by General Counsel to have contained remarks violative of the Act. In addition, the General Counsel has alleged that Respondent's supervisors engaged in conduct including various acts of illegal interrogation of employees, a threat to close the plant, and a threat to discharge an employee because of his union activity. B. The Speeches Before beginning a discussion of the contents of the speeches, it is necessary to dispose of an issue raised by the General Counsel concerning the method of their delivery by Humphress which would be applicable to all the speeches. It is contended that Humphress did not read them exactly as written but rather looked out at his audience and made remarks which are not in the written text. This contention relies mainly on the testimony of Patrick Rush, one of the employees who had been laid off at the end of January, but who attended both of the meetings that month. Rush stated that Humphress had some sheets of paper in his hand while talking and, while he thought that Humphress was reading from the papers, he was not doing so word for word and was looking mostly at the audience. On cross-examination, Rush insisted that Humphress had not been reading from the papers he held in his hand despite being advised of testimony of others to the effect that Humphress actually read the speeches; and Rush rather testily stated that he knows when somebody is pretending and he knows when someone is reading from a paper and when he is not. He also stated that he did not know what was written on the papers Humphress was holding but did know that Humphress was not following it. As part of the text of the first speech on January 14, Humphress apologized to the employees for having to read the speech word for word, stating that his attorneys had advised that it was necessary to have a written record of the meetings. Humphress testified that he actually read the speeches word for word and, when he did glance up at times, he stopped reading for that moment. He said he just held the speech in front of him and read it without trying to maintain eye contact with the audience. John Reese, Respondent's production manager, said he was familiar with all the speeches, having helped in their preparation and read them over many times. He stated that there was no doubt that Humphress read the same speech verbatim to all shifts. The testimony of Rush to the effect that Humphress was not reading word for word from his papers is not supported by other employee witnesses who addressed this matter. Freddie Wright, an employee, testified with respect to a speech given by Humphress which, it turned out, did not relate to any allegation of the complaint. However, in the course of this testimony, Wright stated that Humphress appeared to be reading that speech. Elgin Armstrong, another employee, had submitted an affidavit to the Board in which he averred that Humphress appeared to be reading his speeches and then testified that at the time he gave his statement he believed that Humphress was reading the speeches. Finally another employee, Jessie James Howell, said during the course of his testimony concerning the March 15 speech that Humphress spoke from papers he had with him and appeared to be reading from them. Thus, Rush was the only witness who stated that Humphress was not completely reading his speeches and this was based upon his conclusions derived from observa- tion and not on actual knowledge. As all the other witnesses corroborated Humphress, I do not credit Rush, particularly as his testimony as a whole revealed a shaky recollection except for one or two items about which he was concerned. I therefore find that the speeches delivered by Humphress were read from prepared papers and the evidence is insufficient to find that he ad-libbed or departed from the texts. The complaint alleges that on or about January 20, 1976, Humphress threatened to close the plant if the Union were designated as collective-bargaining representative and, further, he threatened employees with loss of profit sharing, 248 CUSTOM RECOVERY attendance bonuses, wages, company-paid insurance, loans, and other benefits, and with loss of work if the Union were designated. By amendment to the complaint, it is also alleged that on March 15 Humphress threatened employees with loss of employment opportunities. All these allegations relate to the speeches made by Humphress. The record reveals that Humphress spoke to the employees on January 14 and 26, so it will be assumed that the allegations concerning his conduct on January 20 relate to either of the two dates in January. Patrick Rush testified that, at the beginning of the January 14 speech, Humphress stated that the Union was the cause of the Respondent's closing its plant in Atlanta. He said that Humphress also told the employees that, if the Union came in, the Company would cut off their profit- sharing checks and they would not be able to borrow money any longer. The text of the speech reads as follows: On Monday, we received a letter from the Steelworkers Union - that's the same Union we had before we had to close the plant over in Atlanta. Anyhow, the Union has asked the National Labor Relations Board to hold an election here to decide if you want a union. There is no further reference in the speech to the plant closing in Atlanta nor any discussion of the causes of that shutdown. Humphress stated that he mentioned the Atlanta plant purely as a means of identifying the Union involved herein. I find that the wording of this portion of the speech is not a sufficient basis for inferring that Respondent attributed the Atlanta closing to the Union. Nor are any facts given which would relate to the situation in the Greensboro plant so as to constitute a threat that the Greensboro plant would be shut down as a result of selection of the Union. The reference in the speech to profit sharing is as follows: Let me give you an example - Unions like to have as many people as possible doing as little work as possible. The reason for that is the more workers, the more money the union makes. Now in this plant, just ask yourselves what that would do to your profit sharing payout. There is nothing in this statement which implies that Respondent would cut out profit sharing, as contended. Humphress has merely indicated his opinion that a union may attempt to put more people to work, causing greater expense to the Company and thereby a reduction of profit sharing. I find that the reference in the speech concerning profit sharing is devoid of any threat to cut it out. Although Rush testified that Humphress said employees would not be able to borrow money, there is no reference to loans in any of the speeches. However, Humphress stated that the subject of loans came up during the course of the second speech when an employee asked a question about it. Humphress replied that the Company would adhere to the advice of counsel that it stop making loans because Respondent may be open to a charge of trying to influence employees or purchase votes. From the uncon- tradicted testimony of Humphress, it appears that Respon- dent had no established policy or structure concerning loans which were made on an individual basis in situations where an employee may have needed a few dollars to tide him over. As Respondent appeared to be acting in good- faith reliance on the advice of counsel in this matter, and there is no evidence that employees actually requested and were refused loans during the pendency of the petition, nor does it appear that Respondent linked the Union as the cause of its suspending any loan to an employee, nor did it indicate that loans would be completely stopped in the event of a union victory, I find that, by responding to the employee's questions in this manner during the course of a speech, Humphress, on behalf of Respondent, did not violate Section 8(aXl) of the Act.1 Two employees testified concerning the second speech which Humphress delivered on January 26. On this occasion Humphress had announced the layoff of 24 employees because Western Electric was doing some of the work at one of its own plants and was constructing another plant in South Carolina which would eventually require the shutdown of Respondent's plant. Freddie Wright testified that Humphress asked whether the employees did not think it would be hard to get new business if they were unionized or did they think it would be easier if they stayed the way they were. Wright also said that Humphress told the people it was going to be up to them to decide whether the Union was going to help them or hurt them. The other employee, Sidney Waller, also testified as to the announcement by Humphress of the layoff and the fact that Western Electric was going to move their work to South Carolina. Waller said that Humphress told them that he did not know what they were going to do if the place were shut down, but he said he was going to try and look around and get some other kind of business and would let them know. There is no reference to the Union in Waller's testimony. I find nothing in the testimony of these witnesses nor, indeed, the speech itself, which is part of this record, impermissible under Section 8(c) of the Act. In this connection it is noted that there is no issue in this proceeding regarding the layoff of the 24 employees at the end of January nor of the eventual closing of the plant at the end of June as a result of the loss of Respondent's sole customer. Humphress set forth only his personal experience and opinion "that unions hurt efficiency and make it harder to get new work." An employer is free to tell "what he reasonably believes will be the likely consequences of unionization that are outside his control," and not "threats of economic reprisal to be taken on his volition." 2 The final witness of General Counsel concerning a speech was Jessie James Howell. At the outset, he testified to a speech allegedly delivered on March 9. Although Respondent conceded that a speech had been given on that date, it was apparent that Howell was incorrect as to the time when the speech he was testifying about was given. Finally the General Counsel was permitted to amend paragraph 9(a) of the amended complaint so as to allege that the speech in question occurred on March 15 rather 2 N.LR.B. v. River Togs, Inc., 382 F.2d 198., 202 (CA. 2, 1967). 249 Cutter Laboratories, Inc., 221 NLRB 161 (1975). DECISIONS OF NATIONAL LABOR RELATIONS BOARD than on March 9. Before that speech was actually delivered a letter was passed around among the employees which had been received by Respondent from Western Electric advising that, effective June 30, scrap shipments to the Greensboro plant would be terminated. According to Howell, Humphress started to talk about the Union and told the employees "to take the right fork of the road because it was our future. If we did not take the right fork of the road we would be out of a job because Southern Bell was moving its material to another plant in South Carolina that they were building down there. And, that they were looking for a new company to move in. And, the new company would not come in where there was a union." While Humphress actually spoke about the same subjects as reported by Howell in his testimony, it is clear that Howell had taken these remarks out of context. According to the text of the speech, Humphress actually said: "several weeks ago, I told you that this plant was going to lose its only customer - Western Electric. As it stands now, we will stop receiving any busines from Western Electric by the end of June 1976 just 3 months away. If we are unable to find a new customer we will be out of business and this plant will be closed by the end of summer." Thus, at this point, the reference to the closing of the plant was not made in connection with the union organizational cam- paign but rather to the loss of the sole customer, Western Electric. Humphress went on to talk about the difficulty of obtaining new customers and stated his opinion as to unions and their methods. With reference to customers he said, "And the companies we hope to get are interested in one thing - a dependable company that delivers a good product each time." He said he did not think that the Union could help them in getting business. Finally, he said that he did not know whether a union would keep them from getting a new customer but he did know one thing for sure: "the Union sure as hell is not going to win us any customers, and it could hurt us in our efforts to change this plant into a new operation." While it is fairly obvious that in his speech Humphress was emphasizing that a union could possibly make it difficult for Respondent to obtain new business he did not say baldly that some company would not give them business if there were a union. I do not credit the testimony of Howell as to this latter statement. Apart from the fact that I have already found that the speeches of Humphress were delivered from prepared text, Howell was not certain in his testimony; he was confused as to the dates of the speeches and appeared to have them mixed up in his mind; he also said that on March 15, the same date of this speech, Reese also spoke to the employees when in fact Reese addressed them concerning voting procedures on the day before the election. Moreover, there is the uncontradicted testimony of Reese and Humphress to the effect that Howell was actually asleep during a portion of the March 15 speech and was rebuked by Humphress. Finally, Howell's testimo- ny is not corroborated by any other employee who attended the meeting. I find that the speech of March 15 contains a prediction of the possibility that Respondent may not be able to attract new customers, a consequence beyond its control, rather than a threat of action on its part which would result in the loss of employment opportunities should the employees select the Union as their collective- bargaining representative. It therefore does not violate the Act.3 Accordingly, on the basis of the above I find that Respondent, through its general manager, Humphress, did not violate Section 8(a)(1) of the Act as a result of the speeches he delivered on January 16 and 26 and March 15. C. The Alleged Interrogations 1. By Foreman Gary Cato It is alleged that on or about January 5 Foreman Cato unlawfully interrogated employee Grover Cochran. Coch- ran said that around the first of January while he was working Cato, his supervisor, came up and asked him if he knew anything about a union trying to come out there and Cochran replied that he did. Cato then asked him if it would help him any and Cochran said it probably would. Cato allegedly said that the Union would not do anything, the people would then go out on strike and would not get paid for that time, and the Company would have a right to hire new people. Upon cross-examination, it developed that Cochran had actually included the contents of two conversations he allegedly had with Cato. The discussion about strikes occurred, according to Cochran, on the occasion of the second conversation immediately after the July 14 speech by Humphress. Also, in relating the contents of the first speech on cross-examination, Cochran stated that Cato asked, "Do you know anything about a union," to which Cochran replied "Uh-huh, I didn't know anything about it." This is the opposite of what he said on direct examination. Cato denied ever talking to Cochran prior to the filing of the union petition on January 12, stating that he was unaware of the existence of the Union until he was informed by Humphress of the filing of the petition. He recalls a conversation with Cochran and other employees after Humphress delivered his January 14 speech when employees asked him various questions concerning it, to which he responded as best he could. He further denies asking any employees questions concerning their knowledge of a union. It is apparent that Cochran was confused, and his testimony concerning his alleged talks with Cato was inconsistent between direct and cross-examination. He also referred to a conversation occurring prior to the filing of the petition and the record is bare of any evidence of activity at that time. In these circumstances I do not credit Cochran and accordingly will dismiss this allegation of a violation of Section 8(aXl). Another employee, Sidney Waller, testified that, during a conversation about 4 or 5 days before the election, Cato asked him what he thought about the Union. Waller replied that "the way things are running it does not matter which way it goes." There followed a conversation in which Cato told him he would appreciate it if he would vote no and keep the Union out, that everything would be better off without the Union, and he urged Waller to talk to the 3 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). 250 CUSTOM RECOVERY other employees and help keep the Union out. However, on cross-examination Waller changed his testimony with respect to whether Cato asked him what he thought about the Union. Waller said at this point that Cato did not ask him any questions but just told him how he felt about the Union and hoped that Waller would vote no. Cato himself testified that he had not one but rather two conversations with Waller during the course of which the Union was mentioned. These occurred in January and in mid-Febru- ary and, according to Cato, were just normal general conversations in which Waller stated that he was in a mess with the Union because supervisors were avoiding him. Cato told him that this was because everyone was busy and the supervisors were spread out. Cato states that their conversations related to the economy and high prices and worry concerning their jobs in the event the plant was unable to find new business. In view of Waller's admission that Cato did not ask him questions concerning the Union or how Waller felt about the Union, I find that Cato did not unlawfully interrogate Waller concerning his sympathies for the Union. 2. By Foreman Richard Ellis Albert Shelton, an employee, stated that about 2 weeks before the election he had a discussion with his supervisor, Richard Ellis. This occurred in the yard where Shelton was working and Ellis asked him how he felt about the Union. Shelton replied by saying, "I am for anything if it will help." This was all of the conversation and Shelton had no further conversations with either Ellis or any other supervisor concerning the Union before the election. Ellis testified to a conversation with Shelton about the second week in March in which the Union was mentioned. He said he walked over to where Shelton was working and looked at his work and a conversation ensued about income tax refunds. Ellis said he did not think he was going to get anything back while Shelton said that he received his refund on Saturday. Shelton then said that he lost about $60 of it playing poker to which Ellis retorted, "Damn, Robert, you would have been better off to go to union meetings." Ellis then walked away and that was all of the conversation according to him. He denied asking Shelton any questions concerning the Union. In the circumstances, even if the incident occurred as related by Shelton, I find such casual query about the Union allegedly made by Ellis in a friendly atmosphere, unaccompanied by any threats or even pejorative language about the Union, not to be coercive and therefore not violative of Section 8(aXl) of the Act. It is also alleged that Ellis unlawfully interrogated Sidney Waller early in March. Waller testified that about 10 days before the election Ellis approached him while he was working on the first shift and asked how he was doing. Ellis then asked what he thought about the Union and Waller replied that the way things stood it did not matter. Ellis then asked whether they ever had any union meetings and Waller said he did not know because he had not been to any; Ellis then said that he would love to find out where the union meeting was going to be and whether he could go. He wanted to know who could tell him where the union meeting was going to be and Waller said that he did not know. Ellis then said he hoped that he would vote no. Ellis said that he had been told by Reese that he and Humphress thought well of Waller, to which the latter said he would leave it at that; that he had not decided which way he was going to vote and was not telling anybody. Waller also said that he had ridden to work with Ellis but they had not spoken more than a few words, and he told Ellis that he did not know anything about the Union. Ellis testified that he never had any conversation in the plant with Waller concerning the Union but, on the occasion when he asked for a ride to work, Waller asked what was going to happen and Ellis said that he did not know. Waller asked whether he thought the plant was going to close down and Ellis replied that he did not know that either. Waller then asked what he thought was going to happen if the Union came in and Ellis said that he had no knowledge of anything happening as far as the plant closing down. Ellis said he did not know about the plant's future because he did not know whether they were going to get another customer. In this exchange I credit Waller, as I was impressed with his sincerity and manner and, although somewhat garru- lous, was consistent in his testimony, while Ellis showed a lack of candor. Ellis contradicted himself; he testified on direct that Waller asked him what he thought would happen if the Union came in, while on cross he said that neither Waller nor Shelton asked him what he thought. All of Respondent's supervisors, including Ellis, stated they had received instructions and were provided with a list of what and what not to say to employees. In accordance with this, Ellis said that, if asked by an employee, he could and would state an opinion. Yet as to Waller, Ellis stated he kept telling him that he had no opinion. I find that Ellis coercively interrogated Waller as to what he thought about the Union, in violation of Section 8(aX I) of the Act. 3. By Foreman Jim Roper Freddie Wright testified that he had a conversation with Foreman Jim Roper while he was sitting on a payloader after a lunch break. Roper came over and asked what did he think about the Union, and Wright replied that he did not really think anything. Roper then began making a comparison of wages between Respondent and another company, Universal, where they had a union and the employees were making less money than at Respondent. Wright also said that Roper told him that the Union had a lot to do with the plant going out of business in Atlanta. As to that, Wright, on cross-examination, stated that he was the one that brought up the subject, by asking why the Atlanta plant went out of business. At first, Wright testified that Roper said that they (the Union) had a lot to do with it. Changing his testimony somewhat, Wright then testified that Roper could have said that the Union had something to do with the Atlanta plant. In view of this shading of testimony by Wright as between the direct and cross- examination, Wright's credibility as to whether Roper questioned him about the Union is in doubt. It is possible that Wright called over Roper, as the latter testified, and initiated a conversation concerning the Union, as contend- ed by Respondent. In view of this credibility resolution, I find the evidence insufficient to establish that Roper 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercively interrogated Wright concerning his feelings about the Union. 4. By Foreman Jewell Bryan Elgin Armstrong testified that after a meeting in the cafeteria he was in a boxcar with two other employees, Wilson and Ashley. He said they were talking when Bryan came in and asked what they all thought about the Union. Wilson had been saying that he was not going to vote for it because a union caused him to go bankrupt. Ashley had said that his dad had worked on a union job and that it was not worth anything. Bryan asked Armstrong what he thought and Armstrong made no comment. Bryan then said he would not vote for "no shit like that." Armstrong just walked off. Armstrong stated that this occurred after the meeting on the day before the election. This proved to be an error as the affidavit concerning this incident which Armstrong gave to the Board was dated March 10, 9 days before the election. Ashley, one of the employees involved, testified that the incident occurred about 3 or 4 weeks before the election. He said that they were standing around the boxcar and he and Wilson began talking about the Union. Wilson asked Armstrong what he thought about the Union. Armstrong replied that he did not know why he was asking that and Wilson said no more to him. Wilson was then talking about an experience he had with a union when Bryan came in and said he didn't see why we needed a union anyway and then walked away. Ashley said that Bryan talked only to Wilson and him and had his back to Armstrong at the time. Ashley stated he never heard Bryan ask Armstrong any questions. Bryan himself testified that he came by this car to check the material there. As he was walking through, he heard the employees discussing a union and Wilson was talking about having been involved. Bryan said he told Wilson that he did not think that they needed a union here; in his opinion, the Union was not worth a damn. He turned around and walked away. He denied asking Armstrong any questions about a union. With regard to this incident, it is clear that Armstrong was confused as to at least the date, while, on the other hand, Ashley credibly testified that Bryan did not talk to Armstrong at all. In these circumstances, I find that it has not been established by a preponderance of the credible evidence that the Respondent by Supervisor Bryan interro- gated Armstrong concerning the Union. 5. By Production Manager John Reese Sidney Waller testified that he was on the hill about 2 days before the election when Reese came up to him and asked what he thought about the Union. Waller told him the way "the thing is running it doesn't matter which way it goes." Reese said he hoped Waller did not make the wrong decision; he would make the right decision if he voted no and that that would help keep the Union out. Waller then walked off but turned around and noticed that Reese was writing something on a piece of paper. Reese himself testified that the only conversation he had was the day before the election after the 24-hour speech. Reese went to Waller and said that he hoped he had his support in this election and hoped that Waller was going to vote no. Reese said he did not ask any questions and that was the end of the conversation because he then walked on and talked to somebody else. He stated that he made an effort to talk to every employee on that date, asking them to vote no in the election. Other than the date, the only difference in the testimony of Waller and Reese is with regard to the opening of the conversation which Waller alleges began by Reese asking him what he thought about the Union. I credit Reese who testified in a forthright clear manner and freely stated that on the day of the election he spoke to many employees asking their assistance and expressing the hope that they would vote against the Union; and I find that the account of Reese is the more likely version of this conversation. There is nothing unlawful in that type of activity. Accordingly, I find that it has not been established that Respondent by Reese unlawfully interrogated Waller. D. The Alleged Threats To Close the Plant During the conversation described above between Freddie Wright and Foreman Jim Roper, Wright stated that Roper had said that the Union had a lot to do with the plant going out of business in Atlanta. On cross-examina- tion Wright said that, in response to Roper's telling him to ask any questions he may have, he asked why the Atlanta plant went out of business. Wright first said that Roper told him the Union had a lot to do with it, and then waffled by saying Roper could have said the Union had something to do with it. As related above, Roper testified that the conversation began when Wright called him over and asked when he thought the plant was going to close, to which Roper replied that he did not know but they were losing their customers. Wright then asked if he thought the Union had something to do with the closing at Atlanta. Roper said that he did not know, but he thought that they had problems with the working facilities there, that there were also strike problems and this was the same union. Even if we accept Wright's version of the conversation, admittedly it was he who initiated the portion concerning the plant closing in Atlanta. In the special context of this case where the subject of plant closure was uppermost in everyone's mind in view of the loss of Respondent's sole customer, a fact by this time known to all employees, I find this conversation much too ambiguous to infer that Roper was threatening Wright with plant closure should he vote for the Union. It had been made clear to all that the plant could very well close by June 30 or shortly thereafter, regardless of the outcome of the election. I therefore find that Respondent did not violate the Act as a result of this conversation between Roper and Wright and will dismiss such allegation. The other alleged threats, concerning loss of job opportunities and threats to close the plant uttered by Humphress during the course of his speeches, have already been previously discussed and I have found no violations of Section 8(aXl) deriving from the contents of the speeches. E. The Alleged Threat To Discharge Waller Waller testified that, about a week after the representa- tion hearing, Humphress and Reese came by the place 252 CUSTOM RECOVERY where he was working and Humphress stopped at a table and called Waller over. Humphress asked Waller to give him one of the union cards he had and Waller said he did not have any. Humphress said he was told that Waller had been passing out cards. Waller replied that he did not have any and he did not pass out any. He said if he had one he would give it to Humphress and let him sign it. Humphress then said, according to Waller, that from the time he came in the gate to the time he went out he was on company time, and he asked Waller if he understood that. Waller said he did. Waller recalled that Humphress also said that he had three or four employees and the foreman watching him and if he got anything on him he would be fired. On cross-examination Waller stated that he attended the NLRB hearing and was called to the witness stand but did not testify. As to the occurrence in the plant he said that Reese first asked him a question concerning his work, and then Humphress called him over and asked him for a union card. Waller denied that Humphress had told him that several other employees said that Waller was bothering them. Nor did he admit that Humphress had said Waller had been talking to employees when he should be working. Reese accompanied Humphress that day on a tour of the plant for safety reasons. Reese testified that before they left Waller's area, Humphress called over Waller and told him he had been informed by two other foremen and some employees that Waller was campaigning on company time and passing out cards. Waller did not respond and Humphress proceeded to tell him, "If I see anybody campaigning during working time or passing out cards during working time I am going to terminate them on the spot." Humphress told Waller that he did not care what they did on breaks and lunch because that was their own time. In his testimony, Humphress said people had reported to him that Waller was leaving his area and going over the plant attempting to talk to groups of people and get them to sign cards, and that this was within the first 10 days of February after the hearing before the Board. On that day he saw Waller, called him aside, and told him it had been reported that he had been campaigning for the Union and that this was strictly illegal during company time. During that time he should be working. He told Waller that during lunch hour or break time it was his own business, but during hours that he was supposed to be working they expected him to do just that. Finally, Humphress said he told Waller that anyone found campaigning for the Union during working time would be terminated on the spot. There is a considerable divergence between the versions of this incident as recounted by Waller and by Humphress and Reese. However, I shall assume, arguendo, the correctness of the account given by Humphress and Reese. In effect, Humphress threatened Waller with discharge should he be caught in union solicitation on company or working time. There is no evidence that Respondent had in existence any rule against solicitation. It has long been recognized, as the Supreme Court has stated, that "No restrictions may be placed on the employees' right to discuss self-organization amongst 4 N.L RB. v. The Babcock i Wilcox Company, 351 U.S. 105, 113 (1965). 5 Daylin Inc.. Discount Division d/bla Miller's Discount Dept. Stores, 198 NLRB 281 (1972). themselves unless the employer can demonstrate that a restriction is necessary to maintain production or disci- pline."4 The Board has more recently put it as follows: The correct view, however, is that any prohibition of solicitation, by rule or discipline, interferes with employee rights, and that such interference must - in the absence of a valid rule - be supported by an affirmative showing of impairment of production. s Having found that there is no valid rule, I further find that there has been no showing of impairment of produc- tion. Humphress testified that they had "a number of people who mentioned that Sidney Waller was leaving his area and going over the plant and attempting to get groups of people that he could talk to or talk with. And, I was told that he did this for the purposes of trying to get cards signed." Such a statement is hearsay, self-serving, and not probative of the question whether Waller's activities interfered with production. Finally, if it is contended that Humphress was enunciating a rule, its promulgation was indeed precipitous, and enforced by a threat directed to the most active of the union supporters who had shortly before testified at the representation hearing, and, moreover, discriminatory since it did not apply to other forms of solicitation. s In conclusion, I find that Respondent violated Section 8(aXI) of the Act by threatening Waller with discharge should he continue to engage in solicitation on behalf of the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth 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 certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By questioning employee Sidney Waller concerning his union activities, Respondent violated Section 8(a)(1) of the Act. 4. By threatening employee Sidney Waller with dis- charge should he continue solicitation on behalf of the Union, Respondent violated Section 8(aX 1) of the Act. 6 Ward Manufacturin& Inc., 152 NLRB 1270 (1965). 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not engage in other conduct violative of Section 8(aXl) of the Act, as alleged in the complaint. The Objections in Case 10-RC-10569 Having found that Respondent, by Humphress, did not threaten employees with loss of benefits should they vote for the Union in violation of Section 8(aXl) of the Act, I recommend that Objection 2 be overruled. As I have found that Respondent violated Section 8(aX1) of the Act by interrogating Sidney Waller and further by threatening him with discharge if he continued his union activity, I recommend that Objection 4 be sustained and a second election be directed.7 Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER8 The Respondent, Custom Recovery, Division of Key- stone Resources, Inc., Greensboro, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities. (b) Threatening employees with discharge unless they refrain from solicitation on behalf of the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes and policies of the Act: (a) Post at its Greensboro, Georgia, plant, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Company's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges other violations of Section 8(aXl) of the Act not found herein. IT IS ALSO RECOMMENDED that, in Case 10-RC-10569, Objection 4 be sustained and the election be set aside and the case remanded to the Regional Director for Region 10 for the purpose of conducting a new election at such time that he deems the circumstances permit a free choice of bargaining representative. 7 Dal-Tex Optical Compaony, Inc., 137 NLRB 1782 (1962). s 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. 9 In the event the Board's 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 Labor Relations Board." APPENDIX NOncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice. The Act gives the 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 choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT interrogate employees regarding their union activities. WE WILL NOT threaten employees with discharge unless they refrain from soliciting on behalf of United Steel Workers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. CUSTOM RECOVERY, DIVISION OF KEYSTONE RESOURCES, INC. 254