Hudson Oxygen Therapy Sales Company

HUDSON OXYGEN THERAPY SALES CO. Hudson Oxygen Therapy Sales Company and Sales Drivers & Dairy Employees, Local Union 166, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Judith Anne Worth. Cases 21-CA-19602, 21-CA-20209, and 21-CA-20553 September 24, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On March 17, 1982, Administrative Law Judge Michael D. Stevenson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, t 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. In his Decision, the Administrative Law Judge apparently inadvertent- ly referred to the case reported at 257 NLRB 1193 (1981) as being the one in which the Board overruled Respondent's objections to the election and certified the Union involved herein as the collective-bargaining rep- resentative The Board's Decision and Order against Respondent, report- ed at 257 NLRB 1193, which issued September 4, 1981. found Respond- ent violated Sec. 8(a)(5) by its refusal to bargain with the Union. That decision shows that the Board overruled Respondent's objections to the election and certified the Union on March 18, 1981. 2 The Administrative Law Judge's Conclusions of Law are hereby modified to reflect that Respondent's conduct in promulgating and post- ing the no-solicitation/no-distribution/no-access policy found to be over- broad on its face constituted a violation only of Sec, 8(aX)( while its con- duct in promulgating and posting such policy in retaliation for employ- ees' union support or other protected concerted activities constituted a violation of Sec. 8(a)(3) and (I). Chairman Van de Water would not find that the statements made by Supervisor May to employee Gomez constitute either unlawful coercion or interrogation, but rather constitute legitimate expressions of opinion regarding unionization protected by Sec. 8(c) of the Act. The Chairman would also find the no-solicitation, no-distribution rule promulgated by Respondent to be invalid, but does so under the standard announced in Essex Intrernational. Inc.., 211 NLRB 749 (1974). See the dis- senting opinion in Intermedics, Inc. and Surgilronicsr Corporation. a wholly owned subsidiary of nriermedics Inc., 262 NLRB 1407 (1982). With regard to the no-access rule, the Chairman finds the rule unduly restrictive and an infringement on employees' Sec. 7 rights. He would not, however, grant employees who are not working unlimited access to an employer's premises at any time of the day or night. In his view, a reasonable accommodation between employees' and employer's rights can be made by the promulgation of reasonable rules. For example, employ- ees should be permitted access to the employer's property outside the fa- cility for 30 minutes before and after shift changes to permit employees to solicit or distribute for organizational purposes Further, the employer can impose restrictions on littering of the premises where literature is dis- tributed. While not fully endorsing the broad prohibition on access set forth in GTE Lenkurt. Incorporatrd, 204 NLRB 921 (1973), he does en- dorse the view that off-duty employees' access to an employer's property 264 NLRB No. 4 and conclusions2 of the Administrative Law Judge, as modified herein. 3 AMENDI D CONCI.USIONS OF LAW 1. Substitute the following for Conclusion of Law 3(b): "(b) By promulgating and posting a no- solicitation/no-distribution/no-access policy, which was issued in retaliation for employees' union sup- port or other concerted activities." 2. Insert the following as Conclusion of Law 4(c): "(c) By promulgating and posting a no- solicitation/no-distribution/no-access policy which was overbroad on its face." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Hudson Oxygen Therapy Sales Company, Teme- cula, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Counseling or otherwise disciplining employ- ees for any infractions of company rules which are invalid or which are enforced discriminatorily against employees because of their union activities or other protected concerted activities. (b) Promulgating, posting, or otherwise enforc- ing the no-solicitation/no-distribution/no-access rules set forth in its October 6, 1980, memorandum because said rules are overbroad and because they were issued to retaliate against employees for union activities or other concerted protected activities. can be subject to greater limitations The Chairman would also find that the no-access rule swas applied discriminatorily in this case Finally, the Chairman does not rely upon the Administrative Law Judge's comments in fn. 10 of his Decision. 3 Pursuant to Hickmort Foods. Inc.. 242 NLRB 1357 (1979), we find. contrary to the Administrative Law Judge, that a narrow order rather than a broad order is appropriate to remedy the violations found herein. We also find it appropriate to modify the language in pars. I(a), I(b), and 2(a) of the Administrative Lasw Judge's recommended Order, and the corresponding paragraphs in the notice, so as to conform the language to the nature of the violations. Additionally, we have corrected the appar- ently inadvertent error in par 2(b) of the Administrative Law Judge's recommended Order and the corresponding paragraph in the notice to read "union T-shirts" rather than "company T-shirts," we have corrected the reference to "company time" in that same paragraph of the recom- mended Order to read "worktime" in conformity with the findings in the Decision and with the notice, and we have added the appropriate lan- guage to the expunction provisions in the recommended Order and the notice. Sterling Sugars. Inc., 261 NLRB 472 (1982) 4 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board " I All dates herein refer to 1980 unless otherwise indicated 61 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Interrogating employees directly or indirectly about union activities or their support for the Union or making coercive and disparaging remarks about the Union. (d) Using security guards to arrest, restrain, or otherwise take employees into custody without probable cause and through the use of excessive force under conditions calculated to chill employee support for the Union. (e) Promulgating and enforcing any unilateral changes in employee 96-hour no-fault attendance policy. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Cancel, withdraw, and rescind the no- solicitation/no-distribution/no-access rules set forth in its October 6, 1980, memorandum and the revi- sions of the 96-hour no-fault absentee policy authorizing counseling, oral and written warnings, and suspensions prior to the accumulation of 96 hours of unexcused absences within a year from the employee's anniversary date of hire. (b) Expunge from the file of Rita Elaine Gomez any and all written reports, notations, or memoran- da reflecting counseling or other discipline for the distribution of union T-shirts on worktime, and notify her in writing that this has been done and that evidence of this unlawful disciplinary action will not be used as a basis for future discipline against her. (c) Expunge from the files of Judith Anne Worth, Joyce Johnson, and any other affected member of the bargaining unit, any and all written reports, notations, or memoranda reflecting coun- seling or other discipline for excessive absenteeism prior to the accumulation of 96 hours of unexcused absences within a year from the employee's anni- versary date of hire, and notify them in writing that this has been done and that evidence of these unlawful disciplinary actions will not be used as a basis for future discipline against them. (d) Make whole all employees who were sus- pended or otherwise disciplined solely as a result of the unilateral revisions of the 96-hour no-fault at- tendance policy by computing all lost pay and/or benefits in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Florida Steel Cor- poration, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (e) Upon request, bargain with the Union about any revisions of the 96-hour no-fault attendance policy applicable to unit employees and embody in a signed agreement any understanding reached. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order respecting rescission of all disciplinary ac- tions. (g) Post at its Temecula, California, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive .days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WIL. NOT counsel or otherwise disci- pline employees for any infractions of compa- ny rules which are invalid or are enforced dis- criminatorily against employees because of their union activities or other protected con- certed activities. WE WILL NOT promulgate, post, or other- wise enforce the no-solicitation/no-distri- bution/no-access rules set forth in our October 6, 1980, memorandum because said rules are overbroad and because they were issued to re- 62 HUDSON OXYGEN THERAPY SALES CO. taliate against employees for union activities or other protected concerted activities. WE WILL NOT directly or indirectly interro- gate employees about their union activities or their support for the Union or make disparag- ing remarks about the Union. WE WILL NOT use security guards to arrest, restrain, or otherwise take employees into cus- tody without probable cause and through the use of excessive force under conditions calcu- lated to chill employee support for the Union. WE WILL NOT promulgate or enforce any changes in our 96-hour no-fault attendance policy for bargaining unit employees without first giving notice to Sales Drivers & Dairy Employees, Local Union 166, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, and afford- ing said Union an opportunity to bargain over said changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL expunge from the file of Rita Elaine Gomez any and all written reports, no- tations, or memoranda reflecting counseling or other discipline for the distribution of union T- shirts on worktime, and WE WILl notify her in writing that this has been done and that evi- dence of this unlawful disciplinary action will not be used as a basis for future discipline against her. WE WILL expunge from the files of Judith Anne Worth, Joyce Johnson, and any other af- fected member of the bargaining unit, any and all written reports, notations, or memoranda reflecting counseling or other discipline for ex- cessive absenteeism prior to the accumulation of 96 hours of unexcused absences within a year from the employee's anniversary date of hire, and WE WILL notify them in writing that this has been done and that evidence of these unlawful disciplinary actions will not be used as a basis for future discipline against them. WE WILL make whole all employees, who were suspended or otherwise denied work op- portunities solely as a result of the unilateral revisions of the 96-hour no-fault attendance policy for any loss of pay or benefits, plus in- terest. WE Wll.l, upon request, bargain with the Union over any and all significant changes which we desire to make in employee absentee policy or other terms and conditions of em- ployment, and embody in a signed agreement any understanding reached. HUDSON OXYGEN THERAPY SALES COMPANY DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge: This case was heard before me at Riverside, California, on September 17 and 18, 1981,1 pursuant to an amended order consolidating cases and amended consolidated complaint and notice of hearing issued by the Regional Director for the National Labor Relations Board for Region 21 on September 4, 1981, and which is based on charges filed by Sales Drivers & Dairy Employees, Local Union 166, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (Cases 21-CA-19602 and 21-CA-20209), and by Judith Anne Worth (Case 21-CA-20553) (herein called the Union and Worth, respectively), on September 30 (Case 21-CA-19602) and April 23, 1981 (Case 21-CA- 20209), and on August 11, 1981 (Case 21-CA-20553). The complaint alleges that Hudson Oxygen Therapy Sales Company (herein called Respondent) has engaged in certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein called the Act). Issues A. Whether Respondent violated the Act by engaging in any or all of the following acts because its employees were engaged in union organizing activities or other con- certed protected activities: (1) Issuing a written warning to employee Rita Elaine Gomez. (2) Arresting, handcuffing, and taking into custody em- ployee Mary E. Kolf. (3) Issuing and posting of a rule prohibiting the distri- bution of any noncompany materials on Respondent's premises, including the lunchroom and other nonworking areas, and prohibiting solicitation on company premises during worktime; and a second rule prohibiting employ- ees from entering Respondent's premises except during their scheduled work hours. (4) Issuing and posting on a bulletin board of a rule which authorized members of the Employee Safety Committee to issue warnings to employees (for infrac- tions of safety rules). (5) Threatening employees with reprisals in order to discourage them from joining or assisting the Union. (6) Creating the impression through supervisors' state- ments to employees that the employees' union activities were under surveillance. (7) Interrogating employees with respect to union ac- tivities, membership. and sympathies. B. Whether Respondent unilaterally changed its disci- plinary policy regarding employee attendance when it All dates herein refer to 19q() unless otherwise indicated 63 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was under a duty to give notice to the Union and afford the Union an opportunity to bargain about said change in violation of Section 8(a)(5) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits that it is a California corporation engaged in the manufacture of oxygen therapy equip- ment and having a facility located in Temecula, Califor- nia. It further admits that during the past year, in the course and conduct of its business, it has sold and sent goods and materials valued in excess of $50,000 to cus- tomers outside the State of California. Accordingly, it admits, and I find, that it is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE I.ABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Sales Drivers & Dairy Employees, Local Union 166, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALI.EGED UNFAIR LABOR PRACTICES A. The Facts In 1971, Respondent opened its present facility in Cali- fornia with about 75 employees. The business has grown to approximately 725 employees at the present time. Re- spondent also maintains facilities in Ohio and Florida. In 1975, and again in 1977 or 1978, a union (not the Charging Party here) attempted without success to orga- nize Respondent's employees. The present Union began its organizing activities in the summer and company management became aware of union activities sometime in late July or early August. At this time, Respondent decided to oppose the union organizing campaign. A fac- tion of Respondent's employees also opposed to the Union evolved. The pro- and antiunion campaigns in- cluded distribution of T-shirts, pamphlets, and handbills and virtual nonstop debate which reached a crescendo in the 2 weeks before the election held on October 3. The Union won the election and was subsequently cer- tified as the unit's collective-bargaining representative.2 The unit in issue included Respondent's production and maintenance employees numbering approximately 625. This group of employees is regulated by about 20-25 su- pervisors. Certain events both before and after the elec- tion are relevant to the present case. 2The Board decision overruling Respondent's objections to the elec- tion is reported at 257 NLRB 1193 (1981). Beginning with the preelection events, I first note briefly the testimony of Rita Elaine Gomez, probably the most active union organizer. Gomez began working for Respondent in 1975, and is currently employed as a qual- ity control inspector on the 7 a.m.-3:30 p.m. shift. Gomez was accused of distributing prounion T-shirts on company time on September 8 in violation of company rules. She testified that she admitted the offense to com- pany officials under duress. She presently denies the act at issue. For its part, Respondent denies duress and denies any discipline of Gomez, although a notation of her infraction was prepared for her file and remains there today. A second incident involving Gomez occurred on April 16, 1981. She was accused of talking to her mother and to an acquaintance, both of whom are also Respondent's employees, for several minutes in the early morning just after Gomez had clocked in and just as her mother was clocking out. The mother of Gomez did not testify, but Gomez testified that she spoke to her mother for a very brief period and that such personal conversations as that were common in the plant and tolerated by company su- pervisors. All agree that for this alleged infraction of company rules Gomez was disciplined. I will resolve all conflicts in the evidence and provide additional details below in the "Analysis and Conclusions" section of this Decision. At approximately the same time that Respondent's management learned of the union activity, they entered into a contract with Price Security Systems of Temecula, California. (Resp. Exh. 27.) According to this agreement, Respondent was to receive the services of a single, sta- tionary armed guard beginning on or about August 18. Helen Hudson, coowner and, for 15 years, vice president for administration, testified at the hearing that there was no connection between the hiring of a security guard and union activities. Rather, she testified that a fight had oc- curred on the company driveway which resulted in a stabbing. As a result, Respondent decided to hire a secu- rity guard. A short time later, this single guard was at- tacked by a man with a knife and the Company obtained the services of a second guard. Both patrolled the com- pany premises during the evening hours only. On the week preceding the election, Mrs. Hudson became alarmed at observing 15-20 employees and union people milling about on the company driveway when she re- ported for work at 6 a.m. Consequently, she again con- tacted Price Security and "ordered round-the-clock secu- rity guards on the premises, and increased numbers at the times when there were a lot of people gathering." No representative of Price Security testified. However, Mrs. Hudson continued her testimony that, on the day of the election, she reported to work about 4:30 a.m. At this time there were lights, banners, and some activity, but very few people. Between 6 and 6:30 a.m., she testified, there were about 75-100 persons in the driveway. Voting began sometime between 6 and 6:30 a.m. In addition, shift changes at 7 a.m. added to the expected confusion. a : Since there was a north gate and a south gate. it is unclear to me how the 75-100 people Mrs. Hudson describes were distributed--assum- Conrinued 64 HUDSON OXYGEN THERAPY SALES CO. One of the employees who arrived in advance of her 7 a.m. shift was Mary Kolf, a Respondent employee for 3 years. On October 3, Kolf reported to Respondent's premises about 5 a.m. and began distributing union hand- bills to cars entering Respondent's premises. Both proun- ion and procompany factions were represented at the north gate where Kolf was stationed. In addition, two se- curity guards were there; one of them was Harvey Young. Young told Kolf not to cross a certain line there- by entering company property while she was engaging in union activities. While subsequent events are in conflict, all sides agree that at some point security guard Young grabbed Kolf, handcuffed her behind her back, and pushed her up the driveway about 200 feet away. Ac- cording to Kolf, Young immediately expressed some mis- givings about his actions and attempted to unlock her handcuffs. Unable to find his own key, Young borrowed a key from another guard and agreed to release her if she promised not to do it again. When Kolf refused to make such a promise on the grounds that she had not done anything wrong, Young released her anyway. She was able to vote and report for work by 7 a.m. At the time of this incident, Kolf was 59 years old. Turning next to Monday, October 6, the first workday after the Union had won the election, I note a meeting held about 9 a.m. at Respondent's plant. A discussion of company rules 18 and 19 ensued. These rules are found in The "The Employee Handbook." effective January 1 (G.C. Exh. 2) and, according to Personnel Manager Rayona Bremner, a witness at the hearing, the rules originated in 1978. On pages 15-16 of the handbook the following appears: Rules and Discipline Violation of the following rules will result in the discipline specified. 18. Distributing non-company literature in work areas [first offense] 3-day Suspension [second offense] Discharge Soliciting on company premises during work time 3-day Suspension Discharge Since about July, Bremner and other supervisors and managers noted widespread violations of the rules in- volving selling of Avon products, ceramics, tacos, and the solicitation of employees to sign union cards. Subse- quent to this, Jeff Stefan, then a company executive, al- legedly held about 10 departmental meetings with em- ployees to tell them of their rights under rules 18 and 19. That is, employees could distribute or solicit before or after work, on lunchtime, or on either of the two breaks ing arguendo the accuracy of her estimate Even more unclear is just what all these people were doing: were they merely waiting to report for work, to vote. to ditrihbue flyers, or to otherwise persuade voters to their particular side With the exception of the incident intolving Mrs. Kolf, infra. there is no evidence that an) of these employees or union people were in any way dlsorderl! allowed employees on each shift. Notwithstanding these meetings and announcements, further violations of the rules were reported beginning about 2 weeks before the election, but fewer than had occurred previously. Bremner took up the matter with the business owners, Mr. and Mrs. Hudson, but it was decided to take no action until the election was over, due to the great con- fusion then prevailing. Thus, according to Bremner, it was decided on October 6 to prepare a memorandum for employees and post it on various company bulletin boards around the plant. It reads as follows: MEMORANDUM TO: ALL EMPI OYEES FROM: PERSONNEl SUBJECT: ENFORCEMENT OF COMPANY POLICIES DATE: OCTOBER 6, 1980 Effective immediately the following Company poli- cies will be enforced completely: RULES AND DISCIPLINE 18. Distributing non- 3-Day company literature in work Suspension-Discharge areas 19. Soliciting on 3-Day Company premises during work Suspension-Discharge time It is the intent of these rules that no distributing of brochures, catalogs or other non-company materials shall take place within the Plant facility, including Plant lunchroom. The selling or purchasing of Avon, ceramics, decorating items, etc. is strictly pro- hibited as well as any other activity of a soliciting nature such as ballgame pools, paycheck pools, col- lections for birthday and/or shower gifts, etc. All such activities must be restricted to areas out- side the Plant facility and must be limited to non- working time. For security reasons, the present Company policy regarding trespassers will be fully enforced effective immediately. No persons, except employees during their scheduled working hours, and persons authorized by manage- ment and wearing proper identification badges will be permitted to enter the Plant or any of its facili- ties, including the Plant lunchroom. It should also be noted that this regulation forbids employees to enter the Plant during off-hours unless called in to perform a job assignment. If you have any questions regarding any of the above, please consult your Employee Handbook or contact your Supervisor/Foreman. [G.C. Exh. 3.] Another aspect of this case relates to the activities of the plant safety committee. This committee was original- 65 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly organized by Mrs. Hudson in 1975. She testified that due to the rapid growth of the Company certain safety and housekeeping violations had become apparent. More- over, the nature of Respondent's business made them particularly vulnerable to regulation by the Food and Drug Administration and to inspection by Cal-OSHA. Accordingly, she asked each departmental supervisor to appoint a nonsupervisory employee to the committee. This resulted in membership of 20-25 employees which, except for about 5 employees who have remained on the committee since its beginning, changes yearly. Meetings are usually held once each month. Basically, the committee members observe safety or health violations and bring them to the attention of the responsible employee or a supervisor. When originally formed, the committee could issue only oral safety warn- ings but not written warnings as such. As early as No- vember 1975, committee minutes reflect a reference to a possible future system of ticketing violators.4 Another reference was made in committee minutes for April 1976. 5 Other committee minutes, e.g., April 30, 1976, refer to a problem of employee noncompliance with safety com- mittee warnings. (Resp. Exh. 12.) On May 11, 1976, a suggested form was first circulated to committee mem- bers to be used for written warnings to safety and health violators. (Resp. Exh. 12.) This form was adopted and used until March, when it was announced that new forms were being prepared. (Resp. Exh. 17.) The record shows that this new form was used to "ticket" safety/health violators as early as May 6. (Resp. Exh. 24.) A lesser penalty was represented by a safety card, printed in English and Spanish, documenting the viola- tor's oral consultation with a member of the safety com- mittee and requiring the offender to consult further with the company nurse within 24 hours. (Resp. Exh. 20.) Mrs. Hudson testified that the old safety card (Resp. Exh. 20) not requiring a consultation with the company nurse had been in existence since 1976. She also testified in answer to counsel's leading question with respect to the new safety card: Q. And the new card, that came into circulation about April of 1980? A. Yes. However, a "Memorandum" from Mrs. Hudson dated October 8 seems to contradict this testimony: 4 In reles ant part, the memorandum to employees reads as follows: There have been occasions when a Committee member has issued a safety warning and been ignored. If this continues. we will start a system of ticketing violators. A copy of the ticket would be kept in your personnel folder.- We don't want to do this. [Resp. Exh. 9.] 1ni relevant part, the minutes read: There was a brief discussion of problems. These included: . . . s , 4) Something should be done about repeated accidents, such as issu- ing warnings which would become part of employee's personnel record. [Resp. Fxh. 10.1 MEMORANDUM TO: SAFETY COMMITTEE MEMBERS FROM: HELEN HUDSON SUBJECT: SAFETY/HOUSEKEEPING VIOLATION CARDS DATE: OCTOBER 8, 1980 Within the next couple of days you will receive a supply of cards and information cards from Gail. The cards will be in English and Spanish. They will read: You have just been seen committing an unsafe act/poor housekeeping act. This card is being given to you as documentation of an oral consultation. Please take it to the Nurse's Office within 24 hours. She will discuss with you the action that has just occurred. Safety is everyone's job. Cleanup time is all the time. After you have spoken once to an individual about a specific unsafe act or poor housekeeping habit, you may give them one of these cards. On the back of the card (if English speaking, please on Spanish side; if Spanish speaking, place on Eng- lish side) place a sticker with the offender's name and employee number. Then fill out one of the forms supplied and take to Gail immediately. Gail will follow-up with an interview within 24 hours. If the same person repeats the offense a second time, you should contact his/her supervisor and a safety violation form should be issued at that time. Thanks for your help and cooperation. Let's see if this doesn't improve things by the next Safety Meet- ing. cc: Plant Supervisors [G.C. Exh. 5] On October 7, a regularly scheduled safety committee meeting was held. (Resp. Exh. 19.) Among other matters discussed was the alleged deplorable condition of the plant. It was reported that litter was strewn about, and, apparently on or before October 6, someone had defecat- ed in an area of the plant not appropriate for that pur- pose. Moreover, safety committee members reported that employees were uncooperative and hostile towards them. Someone had written prounion graffiti on plant walls and there was chewing gum in the water fountains. As a result of this meeting, Mrs. Hudson prepared the memo- randum of October 8, supra, and caused it to be append- ed to plant bulletin boards for about 2 weeks. Finally, the General Counsel has alleged a violation of Section 8(a)(5) of the Act with respect to unilateral changes in Respondent's no-fault absenteeism policy. As reflected in Respondent's employee handbook of January I (G.C. Exh. 2, pp. 12-13), the policy is as follows: 66 HUDSON OXYGEN THERAPY SALES CO. NO FAULT AI ENI)ANC! POt ICY (Applicable to Plant non-managerial and non- exempt employees) Each employee will be permitted to be absent a total of 96 hours per year based upon the employ- ee's anniversary date. Not included as part of the 96 hours are absences which are considered to be auto- matically excused. These follow: i. Death in immediate family (includes spouse, child, parents, brother, sister, guardian, your grand-par- ents, grandchildren, mother-in-law, and father-in- law). 2. Jury duty. 3. Military reserve training. 4. Vacation days. 5. Compensatory time. 6. Authorized leaves of absence. 7. Provable emergencies due to natural disasters (i.e., earthquakes, severe storms, etc.). 8. Time off for a work related injury. Any employee who is absent 24 hours during the first thirty calendar days of employment will be ter- minated. It is possible for a good employee to be terminated and recommended for rehire at some later date when her/his problems are over. This will only occur in unusual cases. Employees who have completed thirty days of em- ployment can be absent three separate periods, each of indefinite length, providing she/he is unable to attend work due to sickness, injury, or disability. Regardless of the length of time absent for any one of the three incidents, only 32 hours can be charged against the total of the 96 hours. Whenever an em- ployee is absent for any reason other than the ex- cused eight reasons, she/he must communicate with the Company regarding her/his condition at least once every three days. Failure to comply with this rule will result in termination. The burden of proof of sickness, injury or disability, rests with the em- ployee. The number of occurrences of absences are not re- stricted as long as the employee does not exceed 96 hours from one company anniversary date to the next. Employees clocking in MORE than 3 minutes late or clocking out early will have the TOTAL time charged against their 96 hours. In other words, if you are 3 minutes late, the time will NOT be ap- plied against your 96 hours. However, if you are 4 minutes late, the full 4 minutes will be included as part of your 96 allowable hours (5,760 minutes). Termination will occur after the 96th hour. To testify on this matter, Respondent's director of op- erations, Michael Chunka, was called as an adverse wit- ness by the General Counsel. Hired on January 5, 1981, Chunka testified with respect to the administration of the policy before he was hired and then described the changes made by him after. Prior to Chunka's tenure, the sole consistent means of notice to employees regarding use of the 96 hours was employee paychecks with a stub reflecting the number of hours charged to the 96 hours. Occasionally, department heads would counsel employ- ees with respect to excessive use of the 96 hours, but this was not done uniformly throughout the plant. When Chunka was hired he believed the plant suffered from excessively high absenteeism and resulting high turnover due to violation of the 96-hour rule. Accordingly, Chunka, in concert with lower ranking subordinates, for- mulated a preliminary system of warnings and discipline to employees whose rate of use of their 96 hours was such as to indicate probable violation of the policy prior to the employee's anniversary date, thereby resulting in termination. Each employee not in violation of the policy receives, on the employee's anniversary date with the Company, a new period of 96 hours. Further, expla- nation of this new preliminary system formulated by Chunka will be described below. B. Analysis and Conclusions I. The distribution of union T-shirts Contrary to her testimony, I find that Gomez did in fact distribute a T-shirt decorated with a union logo during worktime. This occurred near the end of Gomez' shift sometime between 2:55 p.m. and 3:15 p.m. Gomez passed the T-shirt to another employee who held it against herself to check the fit. This incident was wit- nessed by employee Laurine Cendejas, who credibly tes- tified at the hearing describing the incident. Cendejas also testified that she mentioned the incident to her roommate, Diane Eckstein, also an employee of Re- spondent, and Eckstein reported the matter to her super- visor, Judy Cierley.6 Cierley reported it to the personnel supervisor, Bremner. Bremner then arranged a meeting between Gomez, her immediate supervisor, Doug Har- ding, the former director of operations, Jeff Stefan, and herself. Gomez was confronted with the information re- ceived by Bremner third-hand. First, Gomez denied the matter, then admitted she may have given out a couple at 3:25. While Gomez testified that she only admitted the matter because she felt under duress, I find the contrary to be the case. Gomez is 28 years old and an outspoken union organizer. One of the supervisors, Stefan, was a personal friend of hers. Accordingly, I do not credit her disavowal of the oral confession.7 In addition, I believe Cendejas. As a result of this incident, Gomez was orally warned and a document reflecting this oral warning was placed in her file. Respondent contends that Gomez was not dis- ciplined for her behavior, nor was the "counseling the basis for any future discipline." (Br., p. 16.) 1 reject this assertion for the written memorandum is clearly disci- I Cierley testified at the hearing as to other matters, but did not cover this point. I There is record evidence that Gomez had been untruthful in the past (G.C. Exh. 12) and that Gomez had once been fired by Respondent in 1978 for misconduct. then rehired. In discrediting her present testimony. I do not rely on any of the past evidence. 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plinary in tone and content and the fact that it was placed permanently in Gomez' record shows an intent to use it against her in the future. Why else was it placed there?" I find further that the oral warnings and subsequent written memo of said warning violates Section 8(a)(1) and (3) of the Act as alleged by the General Counsel. The treatment of Gomez was completely disparate com- pared to the treatment of procompany employees engag- ing in the same activity. 9 Gomez credibly testified that, about I week before the election, she observed Anna Lee passing out company T- shirts to employees during working time. Gomez told Supervisor Jim May about this activity, but he replied that it was company business and it was okay. James May was a witness at the hearing. No longer employed by Respondent, May testified that at the time Gomez complained to him he was the manager of quality con- trol. Essentially, he admitted the conversation with Gomez (he recalled that Gomez had complained of Jay Hanley rather than Anna Lee) but added that he told Gomez he would check on this understanding of compa- ny policy with the personnel office. He did this and was told by Bremner that neither side was authorized to dis- tribute T-shirts on company time. About an hour later, May reported back to Gomez that he had been mistaken before. May also testified that Bremner reacted to May's report of Gomez' observation by saying that the report could not be true as Hanley had been told not to do this. May made no independent investigation of Gomez' com- plaints. Bremner, who had ordered the company T-shirts in the first place and asked Hanley to distribute them, testi- fied that she called Hanley into her office after May's report and Hanley had denied the accusation of Gomez. ° No other supervisor was present at the time. 8 The memorandum placed in Gonimez file reads as follows: Re: Rita Elaine Gomez On 9/9/80 it was brought to the attention of Rayona Bremner, Personnel Manager, that Elaine Gomez had been seen by 2 witnesses to be passing out Teamster teeshirts at approximately 3 p.m. on 9/8/80 at shift change for injection molding machine operators. On 9/9/80, Doug Harding, Jeff Stefan and Rayona Bremner talked with Elaine regarding the incident. She was informed that there was good information that the incident had occurred and that this was not allowed on working time. Elaine, at first, denied the charge, but after being told that sources of the information were very good ones, she then stated. "Well, I did at 3:26; 2 people asked me for shirts and I gave them to them. I didn't think that would hurt anything." She was informed that if she continued this type of activity, the next incident would definitely result in disciplinary action and that a record of this particular incident would be placed in her Personnel File. She was further informed that she is not allowed to solicit for the union on either her own working time or that of other employ- ees. [G.C Exh. 6.] 9 Cf. Stoddard-Quirk Management Co., 138 NLRB 615 (1962). i0 No issue is raised by the General Counsel with respect to whether the Company's distribution of T-shirts violated Sec. 8(a)(1) of the Act as an unlawful attempt to coerce employees into support for the Company Accordingly, I make no findings. However, I do note that the Board has ruled that distribution of company T-shirts prior to an election may vio- late the Act. See The Tappan Company, 254 NLRB 656 (1981); Catalina Yachts, 250 NLRB 283, 289 (1980). Further, it has been held treat an em- ployer's granting of a benefit (or things of value like a T-shirt) immedi- Janice (Jay) Hanley testified at the hearing and, like Gomez, denied that she was distributing company T- shirts on worktime. She also testified that she received about 10-12 company T-shirts from Bremner sometime before the election. The T-shirts were distributed to her by Bremner in the latter's office about 11 a.m.-just before lunch; i.e., during worktime. It is unnecessary for me to decide whether Hanley was distributing T-shirts on working time as reported by Gomez to May. The disparate treatment of Gomez com- pared to Hanley is striking and yet there is more. Janet Williams, a former employee of Respondent, tes- tified that, about 2 weeks before the election, she ob- served her supervisor, Judy Cierley, distributing compa- ny T-shirts to two different employees, Marguerite Brotherton and one other, during worktime. She also stated that Cierley had distributed T-shirts on a second occasion. In evaluating the credibility of Williams, I note that she was fired by Respondent because she was unable to perform her work adequately, I also note that Cierley and Brotherton, two current employees of Respondent, were called as witnesses and denied the charges made by Williams." I also note that Williams' testimony was at variance with her affidavit in certain respects. On bal- ance, however, I credit Williams' testimony because she was a credible witness without bitterness against Re- spondent for her discharge which she considered unfair. and because her testimony is consistent with that pro- vided by other witnesses regarding Respondent's practice in the union campaign. Finally, Kolf testified that 8-10 days before the elec- tion T-shirts were passed out in the assembly department by the assembly supervisor, Hazel Best. About 1:15 or 1:30 p.m., an announcement was made over the PA system that the company T-shirts were there and ready to be picked up on break. Instead of waiting for the break, about 150-200 assembly employees got in line and began to receive T-shirts. 2 On cross-examination, Kolf admitted that some of the employees in line were on their breaks. The entire distribution took about 20-30 minutes. While Supervisor Best made the announcement and distributed the T-shirts, the entire operation was overseen by Elliot Geis, the assembly manager. He first denied that anyone received a T-shirt who was not on break, but on cross-examination admitted some employ- ees not on break may have gotten through. I credit Kolfs account of this episode because it is more consist- ent with the other evidence and because she was the more credible witness. ately prior to an election may also violate Sec 8(a)(1) of the Act See Trailways, Inc., 237 NLRB 654 (1978). i Two other witnesses were named by Williams at the hearing but not in her affidavit as receiving T-shirts from CierlcS: Diane Epstein and Minnie Anzures. They were employed by Respondent when Williams left but were never called as witnesses. However, I draw no adverse infer- ence from their failure to be called, as they were equally available to both sides. 12 Not only were some of the T-shirts being passed out on worktime, but the use of company supervisors and the company PA system in their distribution is further evidence of disparate treatment of Gomez. 68 HIUO)SON OXYGEN THERAPY SAl VtS C( In sum, I find that , ion i/ ila!ed i compallaiy rule re- garding distributing uniton i -shirls on sworktime and that she was unlrtilthfutil in hcl t1sinloil) rt gailding this epi- sode. I find further that the rulh .\as lt 11 evenly enforced and that Gomez as a tnionl slpj)jtcl xkias dis iplined while others conmintting sinil.i acts were not. Accord- ingly, I find that Rcspondinl \ iolatcid Scction 8(a)(1) and (3) of the Act 1.l 2. The impression of sur\ cillance inlld threat', of repii:lls for tiiltl aCtivSitS Gomez was inwvolved in a seciond incileit oln April Ib6 1981.14 At this time. (io., -z elo,~ ked ill aout 0: 55 a m. and participated in tiso seiparate 'l,ntilsiallions unrelated to her work. First, she talked to lhet mother wsho t as then in the process of clockilin out. She also spoke to Worth on some personal nlattc. Gomez used about 5 to 8 minutes after the shift beganl and w as observed by sev- eral superxisors other than her 1o1. AhouLt 3:25 p m.. on the same day, G(omez recci, Lct ; l .t ill1 firs-lex el warn- ing from her immediate supervKisor. Mail Hurk Gomez refused to sign the warnirg Instad she wrote a state- ment on the back of the sairning, the gist of which was not to deny the infraction, biut to claitil that she w as being singled out for discipline for aclivities done by many others in the plant. (G.C I xh. 7.) According to Gonelm. as tlirk ga e hcr the wtarning, he first denied that she ; as heitlg single d out and he cited the example of coinpallt supporter Hantily who had been discipline(i tir a similar li'fene (ionmez reiter- ated her objection because Hatile * had been observed by Burk committing Ihe inflactiott. \hile in Gomez' case, Burk had not seen thIe inrialt ionr lather, other supervi- sors had seen it. 'l henll :. t iiig to (iomez, Burk added: He then said thalt hstlltliicl s Ihi ( 'onpanll does things that are so ol iotus but that s as something that he had to do. \ ili. It lie m1.iant ;\ rile up, that he had to givxe me Q. (G.C ) \\ hat cle s did he 'isa A. I don't relnemlhbei ri:lit 1io\. Q. Was anything alhoit the unlion mentioned at this meeting' A. Yes, he dirt mentiont thaL when I took the side I took, that I xt old l e b tncoutlelring things like this all the time, beinlg \\t ilten tip anid being w atched. ] % O crricactin bh ia t c ou,,, . t,, h is , I rin 1 , til id hler ., to a i(i- lation or evenLn ia ,ad ' -rk rule ih .Iain lmplS t. 'pc ill at) hen tlhe rule has not bcdll citis .liftrtd t, il.,t ir% I i' , nauntli priiduIction stand- ards, suppilrls tilte Ill lk ilC t 'i:t l i ii lh iti 1h t t i he'1 i. ed upoun as, prcicxlt, anti iI upr tiL rl : , 111 11 ' irll t lll i l'' ;I, tllillilnillrt lit n iit, t Neptune 4aier ift Ir t j, .tl. i 'x I R l 551 F 1 tI Si6. 57t 14th Cir 1977), F'/r'trts /tlatti,. (CtnP.'r, Inc, 240t N\I tI13 8i S72 (0979) I:;iill\. I vill find heltw hi a lill, rtil Illi qicii, ill tilS Inr lI lul as oscrbroad " Ihe OcGteral ( ,1ni:- I dti t Iti ,l] itg hu thnt the o trlllll gi\II to, (,nincz oit Apil hI ti \ I i,halit\t I lL A, I i bt lat lilt that 1 i, prbiti'a- lise as hackgrowuiid it t celilt ol h,r[ ai', p:i,mn, (13 34 I5 In fat, sihenl (inslilt / rt l ci c ti s r' ltH it ii frtlil IBlurk. sit read il and resptntutd "()h h that's , hil thes tr i ,rt tokin. ;it tre for Any qualilty ci)iruirol tipion. t o it Stiii ii,,-t..ls hl lt. i3' I sid a rn would no)l sh ctn hb litirk 1int c e . 11i11i wi tr ne tintl a i Based on this testilnon . thc ( ienral . t'oinsel alleges that Respondent violated SccLtioll S(a)ll) 01 the Act by giving Gomez an impessic n thit tier uniion activities were under surveillansc, and 11, threalc ning (imez? with reprisals in order to discourage uniont acti ities. I will recommelnd that these allegations he dismissed. To determine ,ithether a resloniidelnt has cir ated anl irn- pression of surveillance of its emnlplhces' union activities, the test applied by the Boatrd 1is thetllir the eI1ploo\ Ces could reasonably assimen fliol Ie la: ta.lion t ticllolnlentsl of a respondleit that their unl Inll a li ilics had been p;la ed under sur eillali. ie I:t tlc in tiit ceate, he evi- dence smipl, does not slippOll the A:llIegatit(, First, Burk testified andi deied thai hl hadi said, "sometimes the Comipaii li)es thigs that are so obvi- ous." lie admitted sa) ing that "people ire xwatching you," particularly Ieferrintg to the 7 It) 8 a.m. period before he arri ,ed. lie later reiterated that itn tt others were watching (ilnmcz at any tittle to Ilike sIe site. \i as not il a it ork arca other than heet- o xn or engaging in nionwi ork activities duriing xorktinc. ThIhre xi as no con- versation relati e to reprisals for ui!n aciis tile. I ha e previously found that Goniez \kas niot gnitrally a credi- ble wiitness and specifically di tl-redit lihrI hIt.e. It is highly implausible that i la c.tpaml sllper \ i tor \,otild sympathize with Gomez under a.ll circtiinltacllc, since she wsas a highly voca! lnion uiipp orter andit had. in effect, admitted the infractiion Here. I am asked to be- lieve that, after Gomce stated she was going to the NIRB, Burk first sympathized s ith her, then told her that her union activities Niould be wNaLtched. This seems contradictory to me and e txlremcl unlike(l. Another factor causing me to dishelie e CGoumen is that. by April 1981, there was litile untionl acti I\ ili progress so there Wiould be no reason to imipls to (itc, ne that tier union activities would be vatehedl. Finally. (-oinez' testirnony inl issue was, in part. the result t' leadilng questilons. I simply do not belie e her testinolly. 3. Interrogationi iegardtiing tinsit actities anid coercive statements to discourage utiinl s1ippoirt This is the final allegatiotn hriutight by the General Counsel involving CGomez.. ll agree that on April 17. 1981, Gomez had a conversalion xwith Jint May, the man- ager of quality control and a super isor of Burk as \%ell as Gomez. According to Gionez, she Wnerlt to May to complain about Burk's w riteclp of the pre\ ious day. The conversation occurred in Burk's office about mid-after- noon and allegedly lasted about I1-/2 hours. ()nl! the Itvo of them %iere present. but Hurl ki as ill and ollt May advised her not to be so hoslile to\%,tl] the CotinpanN T]o this, Gomez responlded that she r.cally x ats not hostile toward the Conmpany except shen hic5 engaged in unfair acti ities. Then May cited a personal employment experience he had had at Disneyland \ here he belonged to the Teamsters Union, but the Unioni did ery little for him. Gomez further testified that lMaN concluded his re- marks by saying that compatn las. er- \would fight hard I Sit'hr tltllni r , It\ . t 71 ) N1 I R i5, Ih ti ) st, ',w t h I,rI, tlupl.I, 22i NI.R i lh i (1 7 ',T h9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to keep the Union out as long as possible which would probably be about 2 years. Meanwhile, Gomez was ad- vised to be less vocal about the Union and just do her job. May testified that he talked to Gomez only for about 15 minutes at the time and place in question. Based on the cross-examination of Gomez and the testimony of May, I find that May, a company supervisor, did violate Section 8(a)(1) of the Act in his statements to Gomez.'7 I credit Gomez' testimony regarding the content of the conversation. While Gomez initiated the conversation to protest the writeup by Burk, May clearly initiated the discussion of Gomez' support for the Union. May first told Gomez that he was not trying to talk her out of her support for the Union; then he proceeded to do just that: (1) May had a negative experience with a union at Dis- neyland; (2) there would be a delay in the Union's certi- fication due to the Company's appeal in the Federal courts; and (3) that Gomez should give Chunka, the new operations manager, a chance before bringing in a union and start having to pay dues. May also stated that he did not specifically ask her if she supported the Union since it was common knowledge that she did, but that Gomez did refer to her support of the Union. I find that in the conversation May violated Section 8(a)(l) of the Act by linking Gomez' disciplinary writeup to her support for the Union. He further conveyed to her that, since the Union would be kept out for an ex- tended period due to company appeals, the Union would be powerless to assist Gomez. Just as the Company was responsible for taking Gomez back after a prior termina- tion in 1978, just as they were responsible for assigning her to a good job in quality control, so too would they continue to protect her interests in the future, he implied. The inarticulated further premise was that if Gomez per- sisted in her support for the Union, further writeups or other discipline would continue and the Union would be powerless to do anything about it. Further, May intimat- ed that the new operations manager was brought in to remedy the problems which led to support for the Union in the first place.' While I find no formal interrogation relative to union activities, I do find that the statements made by May were designed to coerce Gomez in the ex- ercise of her Section 7 rights and therefore violated Sec- tion 8(a)(l) of the Act.'9 I also find that many of May's statements while declarative were designed to call for re- sponses from Gomez relative to her union sympathies and therefore were a type of indirect interrogation pro- hibited by the Act. 20 " Florida Steel Corporation, 224 NLRB 45 (1976). 'I See Catalina Yachts. supra at 286-287. 9g See Vincent ei Vincent ofAllentown Mall. Inc.. 259 NLRB 1025, fn. 9 (1981). I note that May had no apparent legitimate purpose in discussing the Union with Gomez. Also, he gave no assurance against reprisals. 20 The Board has held that, even with respect to employees who have openly declared their union sympathies, an employer is not free to probe directly or indirectly into their reasons for supporting the Union Such probing tends to have a coercive effect on employees. PPG Industries. Inc., Lexington Plant, Fiber Glass Division. 251 NLRB 1146 (1980). 4. The "arrest" and handcuffing of Kolf by security guard Young on the morning of the election I begin by discrediting Kolfs account of the incident. I find her testimony to have been evasive, inconsistent, and contradictory with respect to whether she stepped over the line designated by security guard Young as sep- arating public property from Respondent's property. First, Kolf testified that she never crossed the line; then, when impeached by her affidavit on cross-examination, she admitted crossing the line which Young had ordered her not to cross. Moreover, employee Joseph Sykes, who was generally a credible witness, testified that Kolf had stepped over the line three to four times before her arrest. I believe that she was 8-10 feet over the line at the time of her arrest as described by Sykes, and had been there before.2 ' Accordingly, the General Counsel's case will rise or fall primarily on Respondent's version of the facts surrounding the immediate incident. However, other facts are needed to put the matter in proper per- spective. First, the actions of Young at issue occurred on the morning of the day set for election. For the preceding 2 weeks and before, both sides had campaigned hard for their respective positions. While the security guards were ostensibly hired to protect Respondent's property and to keep order, some of them joined the fray. Young, in par- ticular, was especially provocative toward the union or- ganizers, and was described by Kolf as unfriendly and discourteous. Moreover, he and possibly other security guards were observed by prounion employees wearing distinctive green company T-shirts prior to the election. These were sometimes worn under a uniform jacket which was unzipped to make the shirt visible. Mrs. Hudson admitted in her testimony that sometime within the 2 weeks before the election someone had called her attention to the fact that "Harvey [Young] had a T- shirt." Mrs. Hudson took no action based on that infor- mation. I find specifically that Respondent's owners were aware that security guards, or at least one of them, Young, were acting as part of the election campaign on behalf of the Company by wearing company T-shirts. 22 An excellent discussion of the Board's rulings with re- spect to agency is found in F & D Enterprises, Inc., d/b/a Westward Ho Hotel, 251 NLRB 1199, 1207 (1980). There, Administrative Law Judge Burton Litvack described the test of agency as: ... a contractual relationship, deriving from the mutual consent of principal and agent that the agent shall act for the principal. But the principal's con- sent . . . may be manifested in conduct . . . as well as by words. Authority to act as an agent in any given manner will be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority. [Citing Interna- Z' I note Kolts financial interest in this case because of a civil lawsuit she filed against the Company as a result of this incident. z2 Mrs. Hudson first testified that she had knowledge that security guards were wearing company T-shirts; then she testified that she only knew that Young had one. It is clear to me she knew exactly what was happening with reference to the security guards 70 HUDSON OXYGEN THERAPY SALES CO. tional Longshoremen's and Warehousemen's Union (Sunset Line and Twine Co.), 79 NLRB 1487 at 1508 (1948).] In the past, the Board has applied these principles of agency law to unfair labor practice cases involving secu- rity guards. For example, in N'ational Paper Company, 102 NLRB 1569 (1953), enforcement denied 216 F.2d 859, 868 (5th Cir. 1954), the company entered into a con- tract with a security guard firm for services of armed guards on the employer's premises. Like the instant case, the employer argued that the guards were hired only to protect its property and its employees in the event of a strike. The Board rejected this argument and found a violation of Section 8(a)(l) of the Act for the surveil- lance of employees by the guards. Also like the instant case, the conduct of a particular guard was in issue and the Board found the employer responsible for the acts of the guard: We find . . . that National [Employer] and South- ern [Security Guard Firm also named as respond- ent] are accountable for Fier's conduct, whether or not they had actual knowledge of or expressly au- thorized such conduct. [Making of threatening and abusive telephone calls to a union official and a striker] . . . Such conduct was . . . not outside the general scope of his authority or employment.23 In light of the cited precedent and the facts and cir- cumstances of the present case, I find that, when Young arrested Kolf, he was acting as Respondent's agent and it was reasonable for Respondent's prounion employees to perceive that Young, having worn a company T-shirt, was acting directly for Respondent at the time. Mrs. Hudson's lack of action upon receiving knowledge of Young's T-shirt attire served to confirm the agency rela- tionship prior to the arrest of Kolf.2 4 Respondent is therefore responsible for the subsequent act of arresting Kolf. For it is no consequence that Respondent had: . . . not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted.2 5 After Respondent learned of Kolfs treatment by Young upon arrival of police at the plant, it again appears that Respondent did not disavow the acts of Young.2 6 This serves to further support the General Counsel's alterna- tive theory of condonation or ratification by Respondent of Young's activities regarding Kolf. I agree with this 2a See also M. . Landau Stores. Inc.. d/bla ClarkAr Stores, 168 NlRB 273 (1967), enfd. in pertinent part 407 F.2d 199 (6th Cir. 1969); Clear Lake Hospital, 223 NL RB 1. 7 (1976): Coors Container Company. 238 NLRB 1312, 1319-20 (1978). 24 II is unnecessary to determine whether, without more, a security guard employed by a third party is the agent of an employer, who has a contract with the third party like that in the instant case. 25 Laborers anrd Haod Carriers Local No. 341. affiliated with Laborers' In- ternalional Union of North 4merica. ,AFL-CIO (Bannister-Joce -l. eonard). 223 NLRB 917. 919 (1976). 26 I do not suggest necessarily that any after-the-fact disavowal would have been sufficient to divest Respondent of liability for NYoung's actions. contention and find that, even if agency did not exist at the time of Kolfs unlawful arrest, Respondent was nev- ertheless responsible because it ratified or condoned Young's actions. In its brief, p. 25, Respondent argues that even if Young is found to be its agent, there is no violation of Section 8(a)(l) of the Act. I cannot agree. Putting aside the question of Young's authority to make an arrest, and the apparent lack of probable cause reflected on this record,27 certain facts are beyond dispute. First, while I have discredited Kolfs account of her behavior, it is clear to me that she was doing no more than attempting to campaign for the Union in a high-spirited and irre- pressible style. Second, the method used to restrain Kolf can only be characterized as barbaric and shocking; hands pulled behind her back, handcuffed, taken up to the company premises several feet away, then released once Young found someone with a key. The spectacle of a prounion employee being thusly re- strained by an openly procompany security guard on the morning of the election in the presence of other employ- ees representing both sides who had not yet voted seems to me calculated to coerce employees in the exercise of their rights guaranteed them by Section 7 of the Act. That is, such an act would tend to have a chilling effect on the prounion employees who would shortly be voting in the election. 2 Accordingly, I find that Kolfs arrest violated Section 8(a)(1) of the Act. 29 5. The October 6 no-solicitation/no-distribution/no- access memorandum Paragraph 12(a) and (b) of the consolidated amended complaint alleges that on October 6 Respondent promul- gated rules restricting solicitation, distribution, and access to Respondent's premises in retaliation for em- ployee protected activity. For me, there are two issues raised: whether the rules are overbroad in and of them- selves and therefore violate the Act, 30 and whether they were issued in retaliation for employee union activity. On both counts, I am constrained to find for the General Counsel. I begin by finding that rules 18 and 19, supra, were in effect as of 1978. In addition, Respondent's employee handbook (G.C. Exh. 2), page 49, states: Trespassers No persons other than employees are permitted on the Company premises without proper authoriza- tion. You are expected to assist in keeping trespass- ers out. 27 Kolf had every right to enter the property to vote, to report for work, or, under Board law, to campaign for the Union prior to her work shift beginning :8 See Lippincott Industries, 251 NI. RB 262, enforcement granted 661 F.2d 112 (9th Cir 1981). 29 See also Har-ney\ Wagon Wheel. Inc. d/b/a Harvey's Resort Hotel & Harvey; Inn, 236 NLRB 1670, 1680 81, enfd 550 F2d 1139 (9th Cir. 1978); Warehouse Foods, a Division of .L E. Carter and Company. Inc., 223 NLRB 506, 509 (1976). so While not specifically alleged in the complaint, this issue is closely related to the second issue and was fully litigated at the hearing. Crown Zellerbach Corpruation, 225 NLRB 911. 912 (1976) 71 I)l ( ISIONS OF NATIONAI. LABOR RELA IO)NS I( I \ARI No one except empllloyees during their scheduled working hours is permitted to enter the plant unless permission has been granted by the appropriate su- pervisor or higher managrriir ent It should be noted that this regulation forbids you to enter the plant during your off-hlouis unless you have been called in to perform a job assignmlnt. Thus, this policy, too, was on the books at least as of 1980 and possibly before. I find further from Respond- ent's owin evidence that. prior to the election, enforce- ment of these rules narid policies was either extremely lax or nonexistent I am told, fr example, that nonemployee Mormon missionaries were soliciting in Respondent's lunchroom In addition, Avon. ceramics, and other types of solicitations verte in evidence all of this as of July. Then, Respondtlnl coltends, enforcement was toughened primarily througih the effiorts of Stefan. I find. how c r, that as of August Respondent's en- forcement o(f the rules in issue continued to hbe extremely lax or nonceistent. I have serious dloubts whether Stefnim actually held mctiCings or not as testified to by Bremner, in which Stefani allegeodly told employecs that they could engage iin solicitatiois anid distributions both before and after work. on their lunch hour, and on their breaks. I do know that, tlhe ruills anrrd Stcfan's alleged meeting not- ,withstanding, Qua(lit! Control Mianiager May thought it was pcr-missible foir co mpainy '-shirts to be distributed on company time, hut not union Sl-shiits. I further know that despite the presence (of sccurity guards in and arounld the preimscs, ;bih( 2 ,eeks bhefore the election, Brener again rtcceivd rieports of solicitations by Avorn products. ceramics, and it former r employee selling blouscs. tacos, anld tortillas out of the back enid of her car at the plant. (Resp r, hr. 27 ) Respondent contends that Bremrner and the lluldson ;agreed rnot to begin any spe- cial entforcmcrlnt aciitiitis t this time, lest they he faced with other charges omn the (terneral Counsel. (Resp. br.. p. 28 ) I reject this claim. for it is clear to me that the issue before the election, both in July aind again 2 weeks hecfore the election, w\as nott regular ienforcement verslus special cllforrcilient. Raitheil it .'as a;ny enforcenment versus nro 'nforIcernillt. Iecause the rules existed but were llCVer ciifortc d, ill ar regular or consistent way, the memlorandum (1 ()ctob-r () nllust be viewed as an at- tcnlpt to set lsc\ polic.y id ich;inig te Staltus quo. I find that the rules in issue are overbroad and violate the Act Any doubt of this is obviated by a sentence from the lenrilorrilrndnn ( ( ' xh. 3): It is the inlrtnt i ths,,e rules thilt no distributing of br(ochures, cat:dogs, or o(ther iiol-conmpany materi- als ih;all take playce \ilhin te ll, planl facility. "3 : tCIl il S111t C thIe u .1 TL K , Il lidi tac tIo CrTptovycs Ihait tlCy may englage in proiltrtd aIiD it ilurilig periras i1i the workda;y wvhen the) are properly 'Iwt tliclaigtcd il prlformilrg their work tasks. and be- c;USIc I illll InO o lr% c'd tht 'Scile111 [rlie.'illis ictilurred, t find that Re- 1lsilld .lir el ,i t , d tl s \L i* prlrollgallig [aid mtirniiiiliin g iltes ruisl . I:R Wi flBaring~ ihvi,,(. u imlpn ,/ I:R W. In., 257, NiLRB 442. In g 1i)81) ' c Ai',, wtm'd loh /mbhgic, (uportriotn. 260 NLRIJ 61. in). 8 (1{)2) Although T;R.W. was announiced several months after the October 6 memorar;lnlin was issued. said rules would have beecn iri alid unider the lo)ard's rrior decisions as well, because they prohibited solicitatiori of union sup- port by employees inside the plant during the entire workday. : 2 Of course, the Board has always held that employees niay engage in union activities in work areas on their own time. a a I further find, in agrerement with the (ieneral Counsel, that Respondent's ori-access rule is similarly invalid as overbroad. In Co,,ntinrenlal Bus Syst)emr Inc., 229 NLRB 1262 (1977), the Board established cr!tain guidelines by whllich no-access rules arc to be measured. Such a rule is valid only if it (1) limits access solely vith respect to the interior of the plant and otiler working areas; (2) is clear- ly disseminated to all enmployces; and (3) applies to off- duty employees seeking access to the plalnt for any pur- pose. Since the rule hrcit denlies tff-duty' employees access to "anly of its [the planl's] facilities, including the plant lunch room" it is inv alid. No busilness reasons are advanced to justify no-access to parking lots, gates, the lunchroonls aid other notlworking areas. " 4 The next question is , htether the mienmoranldum of Oc- tober 6 was issued to retaliate against enployees for their union activities. In deciding this question. I note first the timing. October 6 wuas the next workday after the Re- spondent had lost the election. Where an employer's change of policy coincides with the employees' union ac- tivities, an inference is warranted that the change was discriminatorily rotivated.: ) In this case. there is no evi- dence to explain as ay the inference. I have found above that certain of Respoident's rules Nseire osverbroad and that they were enftorced inconsistenrly anid sometimes not at all. Respondent undoubltedly felt that it was to its ad- vantage in the approaching election tor maintain lax en- forcement of the rules. I he eletion heing over, Re- spondernt then helieced it \was lnecessary, to reestablish control over eniployecs \%inh respect to the rules in ques- In its brief (pp. 1 7, ?). Resp lndcnt states: Respondent issued ita rlimeiranduin containiing an ar- guably overbroad no-solIcilation policy. However. that policy rtniinUled o/stted jir ,ty trVo icteCks and was never entIr'c'd again t cmnpiov es. Respondent also sublnlit the testinmony of Geis to show that he properly explained thie rules to employees. Even crediting this testinmony argoueni. tlhere is no refer- ence made tio permis ible localtions to solicit, only to ;:2 See MlodeJ, I ui, ltm l i h;ter Clr Rlprodr ii,, Corporation. 259 NI.RI' 555 (IsI81) illd Ipal ilihl:lr fni 2 Cf. fic,d it l':lectri t1oanufac- turirlr, Corporationrn, 2t1,) Nt I' l ! r 7I, I (, 11' 2) - 1 1 R( (iraph.l/s 'rh .. ' i R41Rt 1 3 IU 3 (X)4 W )74); Mualhlry Brttrcry C(rmpalh r /P.lto'"r r1 t a; , I-, ('. /l ' . ' in, NlRB 214. 205 (1'78). 34 ( onlm, nl r l BRls .Syslcc . iptru i al 20t2 Ia,\'ort tlo,, ,rt, (Cu rn :,! . tl[ 1. ';d' Inc, 249 NlRI 1270, 1276 19)80 : I' 1he (ti-cri] C(ounsel ,tds-ri,,,s ern Jil a i6 tl i Rsponti'delnl was re- quireid to hbrganrli t 11 it 111L't ti 1t' , : s I IIgt i 1ge policy with respect 1r cniterrcelmlent of Ihe rules ',,c. rdingly. I makle no ilindings on thai Issue. 72 HUDSON OXYGEN THERAPY SALES CO. time. As to whether the policy was ever enforced. it is unnecessary to show that it was. The promulgation of a new policy in retaliation for employee union activities violates Section 8(a)(l) of the Act, and I so find. 37 Final- ly, as to whether a remedial order is warranted, there is a clear need for one. Even if Respondent's conduct was minimal, the Board has recently questioned the contin- ued vitality of the de minimis doctrine."R Here, as I un- derstand the evidence, the rules in issue remain in the employee handbook (G.C. Exh. 2) notwithstanding the fact that they are no longer posted on company bulletin boards. Accordingly. a de minirmis issue is simply not present here. "3 6. The October 8 memorandum and the employee safety committee The General Counsel contends that on October 8 Re- spondent gave members of the safety committee authori- ty to issue warnings to fellow employees in retaliation for employee protected concerted activity. This allega- tion has several weaknesses and I will recommend to the Board that it be dismissed. The General Counsel does not allege that the memo- randum of October 8 constitutes a unilateral change in conditions of employment violative of Section 8(a)(5) of the Act. Nor does the General Counsel challenge the structure of the safety committee or its purpose. The safety committee is described in the employee handbook, effective January 1, some several months before the union campaign. Indeed, as reflected in "The Facts." the committee's existence began in 1975. It is un- necessary to repeat the several references made in the committee minutes over the years to the need for an ef- fective enforcement mechanism. The employee handbook (p. 48) reads: Members [of the safety committee] are fully author- ized to take positive action when they see safety rules are being violated and when they discern cir- cumstances in which the safety of employees is being threatened. A method of ticketing employee safety violations oc- curred as early as May 6. (Resp. Exh. 24.) 1 found above that Mrs. Hudson was inaccurate in testifying that the new safety card was in use as early as April. However, this was a mere change in form rather than substance. Respondent would have had to bargain over the estab- lishment of a safety committee if one were not in exist- ence before the election;40 it is less clear that Respond- 37 Paceco. a Diviwon of Freuhauf Corporation, 237 NLRB 399 (1978), vacated and remanded 601 F.2d 180. fn. 11ii 5th Cir 1979). 38 Robert King d/b/a Regency at the Rodewav Inn. 255 NLRB 961, fn. 5 (1981. 39 In Paceco. a Division of Freuhauf Corporation. supra. the toard dis- posed of another contention advanced by Respondent-that employees felt free to engage in open union solicitation both before and after the brief posting of the October 6 memorandum. The Board stated, fn. 4. "an employee's subjectise state of mind is not probative evidence of employ- er restraint and coercion violative of Section 8(a)(1)." 40 Gulf Power Company, 156 NL RB 622. 625 (1966). enfd. 384 F2d 822 (5th Cir 1r,67) ent would have had to bargain over the change in en- forcement such as I found occurred in this case. In any event, no issue is presented in the case over unilateral change. What does appear clear to me is that the type of change in enforcement procedure which I find occurred here is such a minuscule part of the safety committee function as to preclude a finding of retaliation for union activities.4 1 While the questionable timing element is present-5 days after the Union won the election-other facts and circumstances combine to outweigh any infer- ence of discriminatory conduct or intent. That is, I find a preexisting system such as described above and the lack of any evidence to show retaliation. 42 7. The change in Respondent's no-fault attendance policy Respondent concedes in its brief (p. 43) that it made some changes in the enforcement of its absenteeism policy in February 1981. Respondent contends that said changes were not material, but, rather, concerned only the enforcement of the prior existing policy. In Mike O'Connor Chevroletr-Buick-GMC Co.. Inc., 209 NLRB 701, 703 (1974)., enforcement denied 512 F.2d 684 (8th Cir. 1975). the Board held that: . . . absent compelling economic considerations for doing so, an employer acts at its peril in making changes in terms and conditions of employment during the period that objections to an election are pending and the final determination has not yet been made. In this case, the Board denied Respondent's objections to the election on September 4, 1981, in an order published at 257 NLRB 1193 (1981). Since the unilateral changes were made while Respondent's objections to the election were pending, the next step is to determine whether said changes were of a type prohibited by the Board. In Murphy Diesel Company, 184 NLRB 757 (1970), enfd. 454 F.2d 303 (7th Cir. 1971), the Board instructs us to determine first whether the changes at issue are mate- rial, substantial, and significant changes in work rules and practices governing the affected employees' condi- tions of employment. With the above guide, I turn to the unilateral changes which occurred here. First, the original policy: "The number of occurrences of absences are not restricted as long as the employee does not exceed 96 hours from one 41 I will assume arguando that a system contemplating enforcement of safety rules and regulations by nonlaper'isors employees 'who are not al- leged to he agents of management nor other'wise acting in bad faith can be the subject iof an 8 (a)(31 retaliation charge under certain circum- stances. Whether this assumption is accurate or not, the proof of the nec- essary surrounding circumstances is lacking in this case 42 To the extent the General Counsel relies on the testimony of Gomez, a member of the safety committee in 1977 for about 4-5 months, that she lacked authority to issue written warnings. I discredit Gomez here. The safety committee minutes of March 3, 1978 (Resp Exh. 3). wvhich indicate (iGomez attended the meeting. refer to authority for wri- teups by committee members Gomez was discredited on cross-examina- tion nli this point 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company anniversary date to the next."4 3 Next, the new policy: (1) Any employees exceeding the guidelines of I to 2 days per month would receive an oral consultation with their supervisor. (2) These employees would be observed for a period of 4-6 weeks to see whether improvement occurred. If not, they would receive a written warning. (3) If an employee still had not improved, then they would be given a I-day suspension. This would not be charged against the 96 hours. The only other discipline was discharge for exceeding the 96 hours. While the 96 hours renews itself on the employment anniversary date of every employee who has not exceeded it, the three- stage warning system does not.44 Despite Chunka's lucid description of the new policy as described above, in actual practice there appeared to be confusion in the minds of lower ranking supervisors. For example, employee Judith Worth, a witness at the hearing, received an oral consultation on February 6, 1981 (G.C. Exh. 8).45 She received a written warning on July 1, 1981 (G.C. Exh. 9), together with a I-day suspen- sion at the same time. She was also warned by her fore- man that further excess absenteeism would result in a 3- day suspension. Another employee named Joyce Johnson was recommended for a 3-day suspension by her fore- man, but this was changed to a I-day suspension by Chunka (G.C. Exh. 10). Approximately four employees have received suspensions pursuant to Chunka's policy. The discrepancies between the policy as described by Chunka and as implemented by supervisors and foremen are apparent. Furthermore, I credit Worth when she tes- tified that the first notice she had of the new policy was upon receipt of an oral warning by her supervisor. Respondent contends that, based on the Board's deci- sion in Amoco Chemicals Corporation, 237 NLRB 394 (1978), I am required to dismiss the allegation herein. I cannot agree. In Amoco the employer merely formalized its supervisors' counseling practices with respect to ex- cessive employee absences. Central to the opinion, how- ever, as found by the Administrative Law Judge at 396: No new penalties are imposed on employees by virtue of the counseling program, and it is clear that the employees had been made aware of the employ- ee handbook . . . that excessive absenteeism . . . would result in disciplinary action. In the instant case, there are new penalties in the form of one or more day suspensions and written warnings. This fact renders the Amoco case inapplicable to the present case.4 6 As the Board stated in Womac Industries, Inc., 238 NLRB 43 (1978): 43 Employee handbook, p. 13 (GC. Exh. 2) 44 Just what effect any of the three disciplinary steps in I year have on an employee exceeding a I-2-day-absence-per-month rate in a subsequent year is not clear Chunka testified that written guidelines were distributed to foremen and supervisors but none was ever offered at hearing. 45 Under Respondent's system, all oral consultation is documented by a written memo in the employee's file. 4e Similarly, the case of Care Anhbulance. Inc.. d/b/a American Ambu- lance, 255 NLRB 417 (1981)., is not applicable to the present case. Plant rules clearly affect conditions of employment and are mandatory subjects of collective bargaining. I .. [T]he initiation of new and more stringent rules with respect to absenteeism which represents a sig- nificant change from prior practice without consult- ing or bargaining with the Union violates Section 8(a)(5) and (1) of the Act. 47 I find that the unilateral changes at issue here are ma- terial, substantial, and significant. I further find that the policy is not uniform but is surrounded by confusion and uncertainty. For example, I cannot say with certainty whether an employee can be suspended for I day and/or 3 days in the same year; the effect of the written warn- ings or suspension on an employee in a subsequent year cannot be ascertained; and, finally, there is no reliable evidence that nonsupervisory employees were ever given notice of the new disciplinary policies. In my judgment these factors enhance the General Counsel's claim that a violation of the Act occurred here. Respondent argues that notwithstanding my findings above, there can still be no violation of the Act found as the Union failed to demand bargaining on the issue. I reject this claim for two reasons: First, based on Mike O'Connor Chevrolet, supra, there is no duty on the part of the Union to demand bargaining while Respondent's ob- jections to the election are pending on appeal before the Board. The cases cited by Respondent are inapposite be- cause they deal with unions whose status as bargaining agent is not in litigation. Alternatively, even if the Union had a duty to demand bargaining on the unilateral change in issue here, they are excused because I find any demand or protest would have been futile. As the basis for this finding, I note the totality of the evidence in this case and the unfair labor practices found herein. I note further, and in particular, the credited testimony of Gomez regarding a conversa- tion with Jim May, quality control manager, on or about April 17, 1981. There, May told Gomez in part that company lawyers would fight hard to keep the Union out as long as possible, which would probably be about 2 years. More importantly, I note the lack of evidence that the Union was even given notice of the unilateral changes.4 8 Worth testified that she was first aware of the change on or about July 1, 1981, when she was first given her written warning dated June 30, 1981 (G.C. Exh. 9). Although she was a member of the union orga- nizing campaign, this fact does not impute her knowl- edge, such as it was, to the Union. Even if the Union were on notice in July 1981, this was some 6 months after the alleged formulation of the policy and the Union was faced with a fait accompli. For all of the reasons herein stated, I find that Respondent violated Section 8(a)(5) and (1) of the Act as alleged by the General Counsel by making the unilateral changes in its absentee policy. 4 9 47 See also Wilkinson Manufacturing Company. 187 NLRB 791, 796 (1971), Nathan Littauer Hospital Association, 229 NLRB 1122 (1977). 4s Cf. Walter Pape, Inc., 205 NLRB 719 (1973) 49 Kroehler Mfg. Co., 222 NL.RB 1269 (1976), is an important case as it involves an alleged unilateral change in an employer's absentee program. Continued 74 HUDSON OXYGEN THERAPY SALES CO. Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with the op- erations of Respondent described in section 1, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing com- merce and the free flow thereof. CONCI.USIONS O: LAW i. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Sales Drivers & Dairy Employees, Local Union 166, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(l) and (3) of the Act: In affirming the 8(a)(5) violation, the Board rejected the employer's de- fense that the union failed to request bargaining on the issue. the Board found no clear and unequivocal waiver of the right to bargain and I make the same finding here. In addition. the Board rejected the employ- er's economic defense as unsupported by the facts. Here, I do not under- stand Respondent to be raising an economic defense so I have not dis- cussed the matter. I suffices to say that there is no eXidence to justify Respondent's actions on that basis (a) By disciplining employee Gomez for distributing union T-shirts during worktime when other employees distributing company T-shirts on worktime were not dis- ciplined. (b) By promulgating and posting a no-solicitation/no- distribution/no-access policy which was overbroad on its face and which was issued in retaliation for employee union support or other concerted activities. 4. Respondent violated Section 8(a)(1) of the Act: (a) Through its supervisor, May, by interrogating em- ployee Gomez about her union activities, and by making coercive and disparaging statements about the Union. (b) Through its agent, Young, by causing the arrest of employee Kolf without probable cause, and by the use of excessive force under conditions which were calculated to chill support for the Union in an election scheduled to begin a few minutes after Kolfs arrest. 5. Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing its employee no-fault at- tendance policy. 6. Respondent has committed no other unfair labor practice. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action which I find necessary to effectuate the policies of the Act. [Recommended Order omitted from publication.] 75