NTA Graphics

801 303 NLRB No. 155 NTA GRAPHICS 1 The parties have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex- amined the record and find no basis for reversing the findings. 2 In adopting the judge’s finding that the Respondent’s operations manager, David Tremonti, threatened employees with a loss of benefits if they chose union representation, we note that many of the credited witnesses testified that Tremonti spoke of specific existing benefits, such as work boots, uniforms, and insurance that would be lost. We also note that the threat was made in an atmosphere pervaded with other violations. See Kenrich Petrochemicals, 294 NLRB 519 (1989), enfd. in relevant part 893 F.2d 1468, 907 F.2d 400, en banc (3d Cir. 1990), cert. denied 111 S.Ct. 509 (1990). The judge found that numerous violations had been committed by Super- visors Scott and Hollis Shaffer. The Respondent argues that the judge failed to identify with sufficient clarity the Shaffer brother who committed each vio- lation. We find this contention without merit. A comparison of the violations found with the judge’s recital of the underlying facts reveals that it was Scott Shaffer who threatened cancellation of employees’ health insurance and threat- ened employees with lower wages and harsher discipline in the event of a union victory; and that it was Hollis Shaffer who threatened that the plant would close if the Union prevailed, indicated the futility of selecting union representation by telling employees that the Union would be kept out for 6 years, and threatened an employee that he would be fired if he attended a union meeting. (Several other violations were committed by the Shaffer broth- ers, but no exceptions were filed concerning those violations.) 3 See, e.g., Our Way, Inc., 268 NLRB 394, 411 (1983). 4 Tri-County Medical Center, 222 NLRB 1089 (1976). 5 All dates are in 1987. NTA Graphics, Inc. and Graphic Communications International Union, Detroit-Toledo Local 289 AFL–CIO–CLC. Cases 8–CA–20167, 8–CA– 20458, 8–CA–20732, and 8–RC–13648 July 21, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 31, 1989, Administrative Law Judge Hubert E. Lott issued the attached decision. The Gen- eral Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed cross- exceptions and a supporting brief. Both the Charging Party and the Respondent filed answering briefs. On April 4, 1990, the National Labor Relations Board remanded these proceedings to the judge for ad- ditional credibility determinations and factual findings. On July 5, 1990, the judge issued the attached supple- mental decision, containing his additional credibility determinations, findings, and conclusions. All parties filed additional exceptions and supporting briefs. The Board has delegated its authority in this pro- ceeding to a three-member panel. The Board has considered the decision, supplemental decision, and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order. 1. The judge found that the Respondent violated Section 8(a)(1) of the Act in numerous respects de- tailed in his two decisions. We adopt the judge’s find- ings2 except as follows. a. The Respondent promulgated an employee hand- book that contained the following provisions: (1) Employees are not permitted to distribute ad- vertising material, handbooks, or printed or writ- ten material of any kind in production and work- ing areas of the plant during working hours or when not working. (2) Employees are not permitted access to the in- terior of NTA facilities or other internal or outside work areas during off duty hours. This includes the parking lot. The judge found that those provisions did not prohibit the distribution of union literature in nonworking areas such as lunchrooms or rest areas. However, because he found that the Respondent’s operations manager, David Tremonti, had orally promulgated a rule forbidding the distribution of union literature anywhere on the Re- spondent’s property, the judge found the quoted rules to be overly broad, and that they violated Section 8(a)(1). The Respondent excepts to the judge’s finding. Although we agree with the judge that Tremonti’s orally promulgated no-distribution rule was unlawfully broad, we do not find, as the judge did, that the first paragraph of the rule as stated in the handbook was rendered unlawful by Tremonti’s statement. That para- graph, standing alone, is in conformity with established Board law that employers may lawfully prohibit the distribution of union literature in working areas of the plant.3 Although, as the judge found, Tremonti’s state- ment may have confused employees regarding the sweep of the Respondent’s policy concerning union so- licitation and distribution of union literature, the notice we are requiring the Respondent to post will make clear that employees are not precluded from engaging in all such solicitation and distribution. Like the judge, we find that the second paragraph quoted above is unlawful, but we do so for a different reason. The Respondent’s barring of off-duty employ- ees from its parking lot, with no adequate explanation, is unlawful on its face.4 Accordingly, we shall require the Respondent to rescind the second paragraph set forth above insofar as it denies access to the parking lot on the part of off-duty employees. b. The second amended complaint alleges that about October 13, 1987,5 Tremonti threatened an employee (Phillip Rogers) that if the Union was voted in, his progress toward becoming an apprentice and a journey- man printer would be slowed, and that Tremonti threatened an employee with unspecified reprisals on that same date. Rogers testified that on October 13, Tremonti told him that if the Union came in, he could demote Rogers to apprentice and that it would take Rogers 4 to 8 years to get a journeyman’s card. Rogers also testified that Tremonti said that he could make 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 We find that the threat was closely related to the subject matter of the complaint, and that the issue was fully and fairly litigated. 7 There is no allegation that either the promulgation of the handbook or the requirement that employees sign it violated the Act. 8 These findings are based on the testimony of the General Counsel’s wit- nesses, whom the judge broadly credited concerning the meeting. Rogers quit by demoting him to jogger at $4 an hour. Tremonti testified that, apparently in the same con- versation, he told Rogers that under the Union’s labor agreement, Rogers would have to enter an apprentice- ship program that could take up to 4 years, and that it would take up to 8 years for Rogers to become a journeyman. Tremonti did not deny having threatened to demote Rogers to jogger at $4 an hour. The judge found that Tremonti did not act unlaw- fully by telling Rogers that he could be demoted to ap- prentice if the Union came in, because Tremonti was discussing what could happen under a union contract. We adopt that finding. However, the judge made no specific finding concerning Tremonti’s alleged threat to make Rogers quit by demoting him to jogger at $4 an hour. On the basis of Rogers’ unrebutted testimony and the judge’s general crediting of Rogers’ version of the October 13 conversation, we find that Tremonti did make the threat as Rogers testified, and thereby vio- lated Section 8(a)(1).6 c. The judge found that Tremonti threatened to dis- cipline any employee who violated the Respondent’s unlawfully broad no-distribution/no-solicitation rule, but he inadvertently omitted a cease-and-desist provi- sion in the Order or the notice concerning this viola- tion of Section 8(a)(1). We shall amend the Order and the notice to add such provisions. 2. The complaint alleges that about June 6, the Re- spondent unlawfully discharged or otherwise termi- nated 16 named employees because of their union-re- lated activities and because they engaged in other pro- tected concerted activities. The judge dismissed this al- legation, and the General Counsel and the Union ex- cept. We reverse. The pertinent facts are set forth fully in the judge’s decision. On May 28, Tremonti called meetings of all employees at which he distributed the Respondent’s newly promulgated employee handbooks. The hand- books contained provisions stating that the relationship between the Respondent and its employees was one of employment at will (which the judge found to be con- sistent with Ohio law). They also contained an agree- ment stating that the employees have read, understand, and will abide by company rules. Tremonti instructed the employees to read the handbooks and to sign them before returning to work the following week.7 Accord- ing to the credited testimony, however, Tremonti did not mention any penalty for failing to sign the hand- books. On May 30, some 30 to 35 employees attended a union organizing meeting, at which many employees expressed dissatisfaction with certain portions of the handbook, including the at-will provision and certain provisions concerning safety, and indicated that they were unwilling to sign the handbooks. It also became reasonably clear at the meeting which employees in at- tendance supported the Union and which did not.8 Both the employees’ opposition to signing the hand- books and the identities of many of the prounion em- ployees were revealed to the Respondent at the meet- ing because, as the judge found, two of the Respond- ent’s supervisors engaged in unlawful surveillance of the meeting. On June 1, after the employees on the first shift reported to work, they were told by Super- visor Scott Shaffer that they would have to sign the handbooks if they wanted to work. When three of the employees answered that they were still reviewing the language of the handbooks and were unwilling to sign, Shaffer sent them home, saying that if they did not sign the handbooks they could be terminated. That evening, 10 third-shift employees reported for work without having signed the handbooks. They were told by Tremonti that they could work if they signed the handbooks, but the employees refused and left the premises. On June 2, six of the first-shift employees reported for work but refused to sign the handbooks. When Scott Shaffer told them to leave, they refused, stating that they wished to obtain written statements of dis- charge. They remained on the premises for about 2 hours, until they were escorted out by the police. On June 4 and 6, all 16 of the employees who had refused to sign their handbooks were sent letters from the Respondent stating that they had voluntarily quit their jobs. The six first-shift employees who had re- fused to leave on June 2 also were informed in their letters that their refusal to leave was an additional ground for discharge. Fifteen of the 16 employees had attended the May 30 union meeting and signed author- ization cards on that date. The 16th signed a card on June 2. All other employees signed the handbooks and were allowed to work. Contrary to the judge, we find that the 16 employees who refused to sign the handbook were discharged in violation of Section 8(a)(3). In this regard, we find, first, that the General Counsel has established a prima facie case that the Respondent’s actions were unlaw- fully motivated. Thus, there can be no doubt, on this record, that the Respondent harbored animus against the Union. We also have found that the Respondent had, by reason of its illegal surveillance of the union meeting, become aware of the identities of many of the prounion employees and of the employees’ opposition to signing the handbooks. Finally, the timing of the discharges–only a few days after the union meeting–in- 803 NTA GRAPHICS 9 Freeze had attended and been an active participant at the May 30 meeting. Shaffer denied making the statement attributed to him by Freeze. The judge, however, broadly credited the General Counsel’s witnesses, including Freeze, and broadly discredited both the Shaffer brothers. We find that Freeze’s testi- mony on this point was implicitly credited. 10 In finding the discharges to be unlawful, we do not rely on the fact, as found above, that the Respondent’s handbook contained an unlawful no-access rule. There is no evidence that the employees’ refusal to sign the handbooks was based in any way on the inclusion of the unlawful provision. Because we have found that the Respondent discharged the 16 employees in retaliation for their union activities, in violation of Sec. 8(a)(3) and (1), we find it unnecessary to decide whether the employees’ refusal to sign the hand- books was protected concerted activity, and thus whether the Respondent’s ter- mination of those employees for refusing to sign constituted an independent violation of Sec. 8(a)(1). The finding of such a violation would not affect the remedy. 11 See Cone Mills Corp., 298 NLRB 661 (1990). 12 The Respondent has excepted to the judge’s finding that the unit found appropriate by the Regional Director is, in fact, an appropriate unit for bar- gaining. We find no merit to this exception. The unit issue has been fully liti- gated, and the Board has previously denied the Respondent’s request for re- view. We shall not revisit this issue in this proceeding. 13 Employee Phillip Rogers also received sacrifice benefits. Rogers was not among the employees who were unlawfully discharged, but was suspended (initially indefinitely) for his involvement in an argument with an employee who did not support the Union. Because no action was taken against the other employee, the Union treated Rogers’ suspension (which it erroneously believed was a discharge) as a retaliation against his union sympathies, and accordingly authorized the payment of sacrifice benefits. The payments ceased when Rog- ers returned to work a few days later. 14 Dart Container, 277 NLRB 1369 (1985). Thus, this case is distinguish- able from Mailing Services, 293 NLRB 565 (1989), in which benefits appar- ently were made available to employees regardless of whether they were union members. Nor were employees here required to join the Union before the elec- tion in order to qualify for sacrifice benefits. Cf. Wagner Electric Corp., 167 NLRB 532 (1967). Nothing in Mailing Services should be interpreted as indicating that a union will be found to have interfered with an election merely by providing to its Continued dicates that the Respondent acted in retaliation against the employees’ demonstrated support of the Union. We further find that the Respondent’s reliance on the employees’ refusal to sign the handbooks was merely a pretext for ridding itself of a group of known or suspected union supporters. We base our finding on several factors. First, and most critical, is that the Re- spondent did not inform the employees that failure to sign the handbooks would result in discharge until after it had learned that a large number of prounion employees were opposed to signing. The significance of this intelligence could not have been lost on Tremonti and his fellow managers: all the Respondent had to do was to announce a new rule that probably would not be obeyed by numerous union supporters, and then to rely on those employees’ refusal to obey that rule as the stated reason for discharging them (or, which is the same thing, treating them as though they had resigned). Nor would it have mattered under the Respondent’s plan whether it had actual knowledge of the nonsigners’ union sympathies. Their refusal to sign would suffice to identify them in the mind of the Re- spondent as likely union supporters. The Respondent’s unlawful intentions are further disclosed by two statements made by Scott Shaffer on the morning of June 1. Union supporter Joe Freeze tes- tified that when he arrived for work that day, Shaffer greeted him by saying, ‘‘Good morning, Mr. Freeze, I hope you can find a new job.’’9 Later that morning, Shaffer told Scott Baker that the employees would be sent home early (at noon) that day. When Baker asked why, Shaffer said, ‘‘You guys should know why. You went to the Union meeting.’’ Finally, we observe that the Respondent did not have a practice of disciplining employees who refused to sign disciplinary warning notices. However, after the employees’ union sympathies became known, it imposed the requirement that employees sign the hand- books as a condition of continued employment.10 The judge also found that the Respondent would have been justified in denying reinstatement to the six first-shift employees who refused to leave the premises on June 2. Again, we reverse. As we have seen, the Respondent promulgated the penalty of discharge for failure to sign the handbooks in an unlawful attempt to get rid of the union adher- ents. The first-shift employees’ refusal to leave the plant, after being directed to leave when they refused to sign the handbook, was a direct result of the imple- mentation of the Respondent’s unlawful scheme. The employees’ peaceful refusal to leave the plant thus was provoked by the unlawful actions of the Respondent. In these circumstances, we find that the employees did not lose the protection of the Act by refusing to leave the plant for about 2 hours on June 2.11 Having found that the 16 employees who refused to sign the handbooks were unlawfully discharged, we shall order that they be offered reinstatement and be made whole for any loss of earnings and other bene- fits, as set forth in the remedy section of the judge’s decision, and that all references to their unlawful dis- charges be expunged from the Respondent’s records. 3. An election was held on September 25 in the unit found appropriate,12 and the Respondent filed four ob- jections. Two of the objections were overruled by the Regional Director, and the other two were overruled by the judge. The Respondent excepts only to the judge’s overruling of its Objection 1, which alleges that the Union impaired the employees’ free choice in the election by paying money to current and former employees. We find no merit to that exception. The payments in question, styled ‘‘sacrifice bene- fits,’’ were paid to employees who had joined the Union and who had been unlawfully terminated by the Respondent.13 As the judge found, sacrifice benefits have been provided for in the International Union’s constitution ‘‘as long as anyone could remember.’’ The benefits are intended to compensate members who have been discharged for union activities. The pay- ments here were not gifts, but instead were a normal incident of union membership.14 The record does not 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD new members, even during the critical period, benefits to which they would normally be entitled by virtue of their union membership. 15 In this regard, the sacrifice benefits paid here are analogous to the insur- ance premiums paid by the union in Turnberry Isle Country Club, 253 NLRB 416 (1980), in which the employer ceased to make the contractually required premium payments on behalf of the employees. The Board found that the union had not enhanced the employees’ benefits, but had merely enabled the employees to maintain the status quo. Here, the sacrifice benefits, paid in lieu of the discharged and suspended employees’ lost earnings, did not even restore the status quo, and thus clearly were not unreasonable. To similar effect, see Kux Mfg. Co. v. NLRB, 890 F.2d 804 (6th Cir. 1989) (reasonable union pay- ments to election observers not objectionable). 16 The Respondent argues that one of the recipients of the sacrifice benefits claimed, in a conversation in a bar, that employees had been paid money to help ‘‘get the Union involved in the Company,’’ or ‘‘for being with the Union.’’ Those statements, if there were such, were made on or about June 5, before the critical period began on June 12, and are therefore unobjectionable. In agreeing with the judge that the Respondent’s Objection 1 should be overruled, we do not rely, as the judge did, on the fact that the sacrifice ben- efit payments were not made with the intent of inducing employees to vote for the Union. See Easco Tools, 248 NLRB 700 (1980). 17 The Union requested recognition on June 11. On the basis of a payroll list dated June 10, the judge found that there were 18 employees in the unit at the time of the Union’s recognition request, of whom only 6 had signed cards. However, because we have found that the 16 employees who refused to sign the employee handbook were unlawfully discharged, and because those 16 were unit members who had signed authorization cards, there were 34 em- ployees in the unit when the Union requested recognition, of whom 22—a clear majority—were card signers. 18 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 19 In subsequent cases, the phrase ‘‘meritorious objection’’ has been broadly defined. See the summary of the case law in White Plains Lincoln Mercury, 288 NLRB 1133 (1988). However, in White Plains and in each of the deci- sions cited in relevant part therein, id. at 1136–1139, the union had challenged the validity of the election by filing objections. In this case the Union filed no objections. 20 We are aware of only one instance in which the Board issued a bar- gaining order despite the union’s having filed no election objections. In Peo- ples Gas System, 238 NLRB 1008, 1010–1011 (1978), enf. denied on other grounds 629 F.2d 35 (D.C. Cir. 1980), the employer initially had been found to have lawfully withdrawn recognition from the union. Subsequently, how- ever, the Board reversed itself and found the withdrawal of recognition unlaw- ful. In an election held in the interim, the union failed to file objections. The Board nevertheless imposed a bargaining order. It reasoned that the union was not seeking initial recognition, but instead was trying to recover the recogni- tion that had unlawfully been withdrawn from it. Moreover, in view of the Board’s original finding, it would have been futile for the union to have ob- jected to the election on the basis of the employer’s withdrawal of recognition. Those reasons for distinguishing Peoples Gas from Irving Air Chute do not exist here. We disagree with Member Cracraft that a bargaining order would be appro- priate if the Union proves to have won the election. The decisions she relies on all involved unions that had filed meritorious election objections, and there- fore do not control this case. Contrary to her contention, we do not believe that the judge’s brief transitional language in Pope Maintenance Corp., 228 NLRB 326, 343 (1977), in which the issue now before us did not arise, is a compelling basis for concluding that the Board in that case would have im- posed a bargaining order had the union not filed election objections. Nor do we see anything anomalous (or onerous) about requiring unions to file election objections if they wish to preserve the possibility of obtaining bargaining or- ders. Indeed, Member Cracraft’s proposed treatment of nonobjecting unions would have the anomalous effect of giving bargaining relief, not to unions whose organizing efforts had been irreparably damaged by employers’ unfair labor practices, but only to those who did not need such relief because their efforts had succeeded in spite of employers’ unlawful actions in the election. 21 Member Cracraft would retain jurisdiction over the case in order to deter- mine whether a Gissel bargaining order is warranted. While she agrees with her colleagues that the Union is not entitled to a Gissel bargaining order in the event that it has lost the election, this conclusion is premised on well-es- tablished precedent providing that ‘‘[i]n the absence of meritorious objections, an election is deemed valid; and the union, having failed to demonstrate its majority status, is obviously not entitled to a Board order compelling the em- ployer to bargain with it.’’ Bandag, Inc., 225 NLRB 72 (1976), citing Irving Air Chute, 149 NLRB at 629–630. On the other hand, if the Union has won the election, under Board precedent it may be entitled to a bargaining order in addition to a certification of representative. See Regency Manor Nursing Home, 275 NLRB 1261 fn. 5 (1985); Gordonsville Industries, 252 NLRB 563, 604 (1980), and the cases cited therein. The distinction her colleagues draw between these cases and the instant case, i.e., that the unions in Regency Manor and Gordonsville Industries had filed meritorious objections, is a dis- tinction without meaning. If the union wins the election, there is no certifi- cation of results to bar the issuance of a bargaining order. Her colleagues’ po- sition leads to the anomalous result of requiring a union to file objections to an election it knows it has won in order to receive a Gissel bargaining order that it is otherwise entitled to. There is no basis in logic or law for imposing such a requirement. The Board recognized as much in Pope Maintenance Corp., 228 NLRB 326, 343 (1977), when it adopted the judge’s decision find- ing that it was necessary to consider the union’s objections only ‘‘[i]n the event the revised amended tally of ballots shows that the Union did not get a majority of votes cast.’’ 22 Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). indicate that the size of the benefits paid was greater than the income the employees would have received had their employment with the Respondent contin- ued.15 Sacrifice benefits were paid not only before the critical period that began with the filing of the election petition, but also were paid after the election in the case of Michael Rogers and Robert Miller. Under all of these circumstances, we agree with the judge that the payment of sacrifice benefits did not interfere with the conduct of the election.16 4. The General Counsel has excepted to the judge’s failure to impose a bargaining order based on the Union’s having obtained authorization cards from a majority of the unit employees 17 and on the Respond- ent’s pervasive unfair labor practices.18 We find no merit to that exception. The Board, under appropriate circumstances, will af- ford bargaining relief even to a union that has lost an election. It will do so, however, only if the election is set aside on the basis of meritorious objections. Irving Air Chute Co., 149 NLRB 627, 629–630 (1964), enfd. 350 F.2d 176 (1965).19 In this case, the Union filed no objections to the election, and all the Respondent’s ob- jections have been overruled. There is, therefore, no basis for issuing a Gissel order. Irving Air Chute stands for the proposition that a party that does not ob- ject to an election has implicitly agreed to be bound by its result.20 We see no reason why the Union should not be bound by the result of the election in this case, if it does not receive a majority of the valid votes cast.21 5. In November, after the election, the Respondent unilaterally, and without bargaining with the Union, changed the shift hours of the unit employees. Because he found no basis for imposing a bargaining order, the judge recommended dismissal of the allegation that the Respondent’s unilateral change was unlawful. In reach- ing this result, the judge overlooked the possibility that the Union may have won the election. If it did, the Re- spondent’s unilateral change, made during the pend- ency of election objections, was unlawful.22 Until the 805 NTA GRAPHICS 23 Including, of course, the ballots of the employees who were unlawfully discharged for failing to sign the employee handbooks. 24 If this Order is enforced by a judgment of a United States court of ap- peals, 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.’’ determinative challenged ballots23 have been counted, we shall not know whether the Union received a ma- jority of the votes cast, and thus we cannot rule on whether the unilateral change was lawful or unlawful. We shall, therefore, hold that portion of the case in abeyance, and retain jurisdiction over it, until the Re- gional Director has counted the challenged ballots and issued the appropriate certification. When we are in- formed of the outcome of the election, we shall issue a supplemental decision on the issue of the unilateral change in hours. ORDER The Respondent, NTA Graphics, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promulgating an invalid no-access rule in the employees’ handbook. (b) Announcing an invalid no-solicitation/no-dis- tribution rule to employees. (c) Threatening to discipline any employee who vio- lates an invalid no-solicitation/no-distribution rule. (d) Threatening to keep the union from representing the employees for 6 years. (e) Threatening employees with loss of benefits if they choose a union. (f) Creating the impression among employees that their union activities are under surveillance. (g) Telling employees that it delayed an NLRB elec- tion. (h) Soliciting employees to engage in employee sur- veillance. (i) Interrogating employees about their union activity and that of other employees. (j) Threatening employees with cancellation of their health insurance if they select union representation. (k) Engaging in surveillance of a union meeting. (l) Threatening employees with lower wages, plant closure, and harsher disciplinary policy if a union rep- resented them. (m) Threatening employees with discharge if they attend a union meeting. (n) Indicating the futility of selecting a union. (o) Coercively informing employees that their prounion sympathies are traitorous. (p) Vilifying and coercing an employee by throwing a union leaflet at him and telling him to stick it up his ass. (q) Threatening to cause an employee to quit, by de- moting him and reducing his wages, if the union is se- lected as the employees’ bargaining representative. (r) Discharging or otherwise discriminating against any employee supporting Graphic Communications International Union, Detroit-Toledo Local 289, AFL– CIO–CLC. (s) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Remove from its employee handbook the provi- sion denying off-duty employees access to its parking lot. (b) Offer Bernard Buhr, Neal Davis, Nathan Elfring, Douglas Filas, David Rarick, Steven Reed, Gerald Rose, Clayton Russell, John Schultz, James Szachta, Scott Baker, Steven Lonchyna, Joseph Freeze, Kenneth Arnold, Michael Coleman, Robert Emerson, and Mi- chael Rogers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights and privileges pre- viously enjoyed. (c) Make each of the above-named employees whole for the loss of any pay and any other benefits he may have suffered as set forth in the remedy section of the judge’s decision. (d) Remove from its files any references to the un- lawful discharges, and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post its facility in Toledo, Ohio, copies of the at- tached notice marked ‘‘Appendix.’’24 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the challenges to the ballots of the above-named employees are overruled. IT IS FURTHER ORDERED that Case 8–RC–13648 is severed from these proceedings and remanded to the 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regional Director for the purpose of opening and counting the ballots of the above-named employees, as well as that of John Jackson, preparing a revised tally of ballots, and issuing the appropriate certification. IT IS FURTHER ORDERED that the allegation that the Respondent unlawfully changed the shift hours of unit employees is held in abeyance, and jurisdiction of that issue is retained, pending the Regional Director’s ac- tions in the representation case. APPENDIX NOTICE TO EMPLOYEEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT forbid all solicitation or distribution of materials for the Union. WE WILL NOT threaten to discipline employees who do not comply with an unlawful no-solicitation/no-dis- tribution rule. WE WILL NOT deny off-duty employees access to our parking lot. WE WILL NOT threaten to keep the union from rep- resenting employees for 6 years. WE WILL NOT threaten employees with loss of bene- fits if they choose a union. WE WILL NOT create the impression among our em- ployees that their union activities are under surveil- lance. WE WILL NOT tell employees that we delayed an NLRB election. WE WILL NOT solicit employees to engage in em- ployee surveillance. WE WILL NOT interrogate employees about their and others’ union activity. WE WILL NOT threaten employees with cancellation of their health insurance if they select union represen- tation. WE WILL NOT engage in surveillance of a union meeting. WE WILL NOT threaten employees with lower wages, plant closure, and harsher disciplinary policy if a union represents them. WE WILL NOT threaten employees with discharge if they attend a union meeting. WE WILL NOT indicate the futility of selecting a union. WE WILL NOT coercively inform employees that their prounion sympathies are traitorous. WE WILL NOT throw union leaflets at employees and tell them to stick them up their ass. WE WILL NOT threaten to cause an employee to quit, by demoting him and reducing his wages, if a union is selected as the employees’ bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL delete from our employee handbook the provision denying off-duty employees access to our parking lot. WE WILL offer Kenneth Arnold, Michael Baker, Bernard Buhr, Michael Coleman, Neal Davis, Nathan Elfring, Robert Emerson, Douglas Filas, Joseph Freeze, Steven Lonchyna, David Rarick, Steven Reed, Gerald Rose, Clayton Russell, John Schultz, James Szachta, and Michael Rogers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges pre- viously enjoyed. WE WILL make the above-named employees whole, with interest, for any loss of pay and benefits they may have suffered as a result of their discriminatory dis- charges. WE WILL remove from our files any reference to the unlawful discharges and notify the employees in writ- ing that this has been done and that the discharges will not be used against them in any way. WE WILL allow employees to distribute union mate- rials and solicit for the union in nonwork areas when employees are on nonwork time. NTA GRAPHICS, INC. Nancy Recko, Esq., for the General Counsel. Timothy McCarthy and Patricia Spengler, Esqs. (Shoemaker, Loop & Kendric), of Toledo, Ohio, for the Respondent. Samuel McKnight, Esq. (Klimist, McKnight, Sale & McCloud), of Southfield, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE HUBERT E. LOTT, Administrative Law Judge. The consoli- dated cases were heard in Toledo, Ohio, on August 22, 23, 24, and 25, 1988. Unfair labor practice charges were filed by Graphic Communications International Union, Detroit-Toledo Local 289, AFL–CIO–CLC (the Union) against NTA Graph- ics, Inc. (the Respondent) on June 12 and October 9, 1987, and February 9, 1988. Supplemental decision and order di- recting hearing on objections and challenges issued October 22, 1987, and final order consolidating cases and amended complaint issued March 31, 1988. The complaint alleges multiple independent 8(a)(1) viola- tions. It also alleges 18 discriminatory discharges in violation of Section 8(a)(3). The complaint charges the Respondent with violations of Section 8(a)(5) of the Act for refusing to recognize and bargain with the Union as exclusive bargain- ing representative of all the employees in a unit found appro- 807 NTA GRAPHICS 1 All dates refer to 1987 unless otherwise indicated. 2 There are several agreements in the back of the employee handbook, i.e., uniform agreement, tool agreement, hearing aide agreement, shoe agreement, and also an agreement that the employees have read, understand, and will abide by the company rules. This agreement also contains an ‘‘at will’’ clause stating, inter alia, that the booklet is not a binding employment contract and that employees may be terminated at any time. priate and for unilaterally changing hours of employment. Also at issue are 2 employer objections and 18 challenged ballots emanating from the Board conducted election on Sep- tember 25, 1987. The parties were afforded an opportunity to be heard, to call, to examine and cross examine witnesses, and to intro- duce relevant evidence. Since the close of the hearing, briefs have been received from the parties. On the entire record and based on my observation of the witnesses, and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION Respondent NTA Graphics, Inc. is an Ohio corporation with an office and place of business in Toledo, Ohio. Annu- ally, Respondent, in the course and conduct of its business operations sells and ships from its Toledo, Ohio facility products, goods and materials valued in excess of $50,000 directly to points outside the State of Ohio. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICES A. The 8(a)(1) Violations Attributed to David Tremonti David Tremonti is operations manager of NTA and an ad- mitted supervisor. Several witnesses for counsel for the General Counsel, namely Neal Davis, Steve Lonchyna, Michael Baker, Gerald Rose, Joseph Freeze, and James Szachta testified that they at- tended a company sponsored meeting of all employees in the lunch room on May 28,1 where David Tremonti distributed an employee handbook telling the employees to read and sign it if they agreed with the contents. According to these witnesses, Tremonti also said that the employees had many benefits such as safety shoes, uniforms, and health insurance which were given to them by the Company but if the union got in, the Company would start negotiations from zero. He further stated that he knew who the union ringleaders were, but he did not care; he just did not want employees talking about the union or distributing union literature on company property. Neal testified Tremonti said that if he found out who was distributing union material, action would be taken. Baker testified that Tremonti said if he found out who the union ringleaders were, they would be terminated. Szachta testified that Tremonti said, as he held a union leaflet in his hand; if he found out who distributed another union leaflet, he would reprimand or discharge him. Kenneth Arnold testified that on June 11 when he and other discharged employees returned to the plant to clean out their lockers, he overheard Tremonti tell Rick and David Mossing that before he would allow the discharged employ- ees to return to work, he would close the plant. Arnold was standing in line outside the plant gate about a foot from Tremonti when he heard the remark. Rick Mossing is a maintenance man and his brother David Mossing operates a steel shop on NTA property. Tremonti and the Mossings were inside the fence on company property. William Ruckreigle testified that on or about September 11, 2 weeks before the Board election, Tremonti held a meeting of all employees and told them that he could keep the union out of the plant for 6 years. He further told employees not to vote for the union out of sympathy for the discharged em- ployees because they would not be coming back unless by court order and if they did come back, they would be laid off because the Company lost the Foodland account. Phillip Rogers testified that on October 13, when he re- ceived a warning from Tremonti for excessive absenteeism, Tremonti told him that if the union came in, he could demote Rogers to apprentice and it would take him 4 to 6 years to get a journeyman’s card. That he could make Rogers quit by demoting him to jogger at $4 an hour. Tremonti further told Rogers that he could delay the union coming in for 2 to 4 years and by that time all the employees would have other jobs and Rogers would be alone with the union. Tremonti told him he got the NLRB election delayed until 1988 and that he knew how all the employees voted, that Rogers, Rog- ers’ brother, Jim Danford, Dave Cortez, Tracy Davis, Bob Miller, and Bill Ruckreigle voted for the union. He felt that Tracy Davis had stabbed him in the back. Rogers finally testified that the Union was holding weekly meetings after the election and on October 20 Tremonti asked him if he had gone to the union meetings. Then asked him if he would report to him what was happening at those meetings. Respondent’s Evidence David Tremonti testified that he held meetings for all em- ployees on May 28, at which time he explained the contents of the employee handbook which had been ordered on Feb- ruary 25 and delivered on May 22. He asked the employees to review it, sign the agreements2 in the back, and return them to the Company the following week. He specifically denied telling employees that they only had to sign the agreements if they agreed with them. He testified that he read some of the contents of a company letter to employees dated May 26, which set forth various company benefits that the employees receive and how the cost of doing business, including benefits, has increased. The letter also explains in detail the disadvantages of joining a union. He told employ- ees that he did not know who was involved with the union, did not want to know and did not care. He held up a union leaflet and said he found it in a working area and if he found anymore in working areas and who was responsible, he would reprimand that person. He also told employees that if the union came in, the Company would start negotiations at zero. Tremonti testified that the above is all he told the em- ployees. Tremonti testified that on June 11 when he was standing out in front of the plant, he did not say that he would close the plant before the discharged employees would return to 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work. This denial was supported by employee Rick Mossing who was standing with him on that day. Tremonti recalled having a conversation with Phillip Rog- ers in mid-October when he issued him a written warning for absenteeism. He was holding a labor agreement in his hand, and told Rogers that under the labor agreement he would have to enter an apprentice program which could take up to 4 years to complete and that it would take up to 8 years to become a journeyman pressman. Tremonti stated that he never told anyone that he got an NLRB trial postponed. He merely told enquiring employees that the trial date had been postponed. He did predict in a note to Supervisor Hollis Shaffer that when Phillip Rogers was discharged, the trial would be postponed because another unfair labor practice charge would be filed. Rick Mossing and employees Ricky Carter, Paul Cortez, and John Jackson testified that at the May 28 meeting Tremonti asked all employees to sign the handbook agree- ments and turn them in the following week. Mossing stated that Tremonti told employees that if the union came in bene- fits and everything would start at zero and be negotiated and they possibly could lose some benefits. Mossing testified that Tremonti told employees he did not want union literature distributed on company time in the press room and he did not hear anything about discharging union leaders. Employee David Gates testified that Tremonti told em- ployees they could distribute union leaflets in the parking lot or breakroom but not on work time. He heard nothing about union ringleaders. However, Tremonti mentioned that if the union came in, the Company would bargain from scratch. Ricky Carter, Paul Cortez, and John Jackson testified that Tremonti said he did not want the union but he did not want to know who was involved. He did not say employees would lose benefits or that union sympathizers would be dis- ciplined. B. The 8(a)(1) Violations Attributed to Scott Shaffer and Hollis Shaffer Steve Lonchyna testified that on May 26 and May 27, Scott Shaffer approached him in the pressroom and said he heard that Lonchyna was the union ring-leader. Lonchyna de- nied it. Shaffer then wanted to know if Scott Baker and Joe Freeze were the ringleaders on the day shift. Lonchyna said he did not know. Shaffer then told him that he knew who the ringleaders were on midnight shift. Lonchyna further tes- tified that on May 29 Shaffer told Scott Baker, Joe Freeze, and himself that their health insurance was expiring and if the Union prevailed, it would be canceled and used by the Company as a bargaining tool. This testimony was supported by the testimony of Scott Baker and Joe Freeze. On May 30, the Union held a meeting for all employees at Comfort Inn. Both Scott and Hollis Shaffer attended the meeting. Scott Shaffer was asked to leave by regional orga- nizer Thelma McConnell, which he did. As he was leaving, Scott Baker heard him tell employees that they better know what they are doing. Supervisors Randy Purdue and Hollis Shaffer remained in the meeting up until the time union au- thorization cards were about to be signed. On Monday, June 1, which was maintenance day, Scott Baker testified that Scott Shaffer told the employees they would be sent home at noon. When they asked why, Shaffer said, ‘‘You went to the union meeting.’’ Baker asked what that had to do with anything and Shaffer replied, ‘‘You’re fucking with the family.’’ On that same day, Shaffer asked Baker twice who the union ringleaders were. Joseph Freeze testified that on May 26 Scott Shaffer asked him if he was going to the union meeting. Shaffer told him that if the union got in, they would get lower wages and he, Shaffer would really be a prick and send Freeze home for more reasons such as web break (paper breaks and press is down). Freeze testified that on Friday, May 29, Shaffer asked him if he knew who the union ringleaders were. He accused Freeze of being a ring leader because Shaffer saw him talk- ing to Jerry Rose and David Rarick, who were trouble mak- ers. Nathan Elfring testified that on May 28 at 8 a.m. Scott Shaffer said to Hollis Shaffer, ‘‘There’s one of the ring- leaders.’’ He asked Hollis what Scott meant and Hollis said, ‘‘You don’t know anything about the union?’’ Elfring said no. Hollis Shaffer then said that if the union got in, they would just close the doors and move the plant elsewhere. John Schultz testified that on May 28 Scott Shaffer threw a union leaflet at him and told him to stick it up his ass. Robert Miller testified that on September 27 he was in the locker room with Phillip Rogers when Scott Shaffer entered and said he heard Miller voted yes and that he had a Bene- dict Arnold on his hands. Gerald Rose testified that on May 26 Hollis Shaffer asked him if he was going to the union meeting. Rose said yes and Shaffer replied, ‘‘Well, you know, if you go David Tremonti will fire you.’’ Then Shaffer asked him who the ringleaders were. William Ruckreigle testified that he and press operator John Jackson had a conversation with Hollis Shaffer on about October 15, wherein Shaffer told them that the union would be kept out for 6 years. Respondent’s Evidence Scott Shaffer admitted interrogating Joe Freeze about who started the union. During the week of May 25 he told Freeze that if he kept coming in 10 minutes late, he would have to give him written warnings instead of verbal warnings. After he found out about the Union, he told Freeze that if they worked under union rules he would have to be stricter. Shaffer testified that on May 28, he did not talk to Nathan Elfring and he did not tell John Schultz to stick a union leaf- let up his ass. He had no conversation with him. In the con- versation with Freeze, Lonchyna, and Baker, on June 1, Shaffer told them that the medical insurance had expired and a new policy was under negotiation between Tremonti and the insurance company. David Tremonti also testified that the Company’s health insurance contract expired on May 31 and the company had a 30-day grace period in which to negotiate a new service agreement with the Toledo health plan. Scott Shaffer denied ever saying that health insurance was can- celed because of the Union. He further denied telling Freeze that he hoped he could find a new job. He stated that he had no conversation with Robert Miller on September 27. Hollis Shaffer testified that he had a conversation with Gerald Rose on May 26 wherein Rose asked him if he knew anything about the Union. Shaffer replied that he was going to ask Rose the same question. Shaffer told Rose they were going about it the wrong way and they were just trying to shove it up his ass and then said he did not want to talk 809 NTA GRAPHICS about it anymore. Shaffer admitted talking to Nathan Elfring on May 28, telling Elfring that it would not surprise him if Tremonti closed the plant if the Union got in. Shaffer further admitted to a conversation with William Ruckreigle in mid- October wherein he told Ruckreigle that it would not surprise him if the Union would be kept out (of the plant) for 6 years and benefits would be reduced. Both Scott Shaffer and his brother Hollis admit attending the union meeting on May 30 with another supervisor, Randy Purdue. The events took place as described by General Counsel’s witnesses. Analysis and Conclusions I find, based on the demeanor of the witnesses, that David Tremonti did announce an invalid no-distribution rule at the May 28 employee meeting. I further find that Tremonti threatened to discipline any employee who violated the in- valid no distribution rule. I further find that because many rank-and-file employees corroborated Tremonti’s denial, that General Counsel did not prove by a preponderance of the evidence that Tremonti said he knew who the union ring- leaders were or that he would discharge them. I further discredit the uncorroborated testimony of Kenneth Arnold that Tremonti threatened to close the plant. Tremonti’s denial was supported by a rank-and-file em- ployee. I credit the testimony of William Ruckreigle because he was still employed when he testified and it is supported by admissions of other supervisors. Accordingly, I find that Tremonti threatened to keep the union out of the plant for 6 years. However, I do not find a violation in Tremonti’s statement that discharged employees would only be re- admitted by court order or that they would be laid off be- cause he lost the Foodland account. I further find that Tremonti threatened employees with loss of benefits because there was simply no general discussion of the negotiating process and it was stated in the context of other violations. I credit David Tremonti’s testimony over that of Phillip Rogers’ testimony with respect to demoting Rogers to ap- prentice if the Union came in, because I find that Tremonti was discussing what could occur under a union contract. However, I will credit the balance of Rogers’ testimony re- lating to delaying the Union’s representation in the NLRB election and knowing who voted for the Union. I also credit Rogers’ testimony relating to the October 20 conversation wherein Tremonti questioned him about the union meeting and solicited him to engaged in surveillance. Rogers’ testi- mony relating to these allegations is not denied. Scott Shaffer, Hollis Shaffer and Randy Purdue are admit- ted supervisors. I have credited all the testimony of General Counsel’s witnesses relating to these supervisors because it was more believable than the denial’s of the Shaffer brothers. Moreover, much of General Counsel’s testimony was cor- roborated and undenied or admitted by the Shaffers. Accord- ingly, I find that the Shaffers: (l) Created the impression that employees were under surveillance. (2) Interrogated employees concerning their and other employees’ union activities. (3) Threatened employees with cancellation of their health insurance. (4) Engaged in surveillance of a union meeting. (5) Threatened employees with lower wages and harsher disciplinary policy if the union prevailed. (6) Threatened employees with plant closure if the union prevailed. (7) Indicated the futility of selecting a union. (8) Coercively informed employees that their pro- union sympathies were traitorous. (9) Threatened employees with discharge if he at- tended a union meeting. (10) Vilified and coerced an employee by throwing a union leaflet at him and telling him to stick it up his ass. C. No-Distribution Rule in Employee Handbook The employee handbook contains the following rules: (l) Employees are not permitted to distribute adver- tising material, handbooks, or printed or written mate- rial of any kind in production and working areas of the plant during working hours or when not working. (2) Employees are not permitted access to the inte- rior of NTA facilities or other internal or outside work areas during off duty hours, this includes the parking lot. General Counsel contends that these two rules, in conjunc- tion, effectively prohibited the employees from distributing any union information and such prohibition is a violation of Section 8(a)(1) of the Act. It should be noted that the above rules do not prohibit dis- tribution of union literature in nonworking areas such as the lunchroom, the locker room or rest areas. However, these rules are virtually impossible to interpret given what Tremonti stated at the May 28 meetings, i.e., that he did not want employees distributing union literature on company property. In light of this admonition, I find that the above rules are overly broad and violate Section 8(a)(1) of the Act. D. Discharge of 16 Employees for Failure to Sign Employee Handbook For several months an employee handbook was being for- mulated by David Tremonti. The booklet was ordered in February and because it was being constructed and printed by in-house employees in their spare time, it was not deliv- ered until May 22. The handbook was presented to employ- ees at the May 28 meetings. At this time Tremonti explained the contents and called their attention to certain agreements in the book which are explained above in footnote 2. The ‘‘At Will’’ provision, which is part of one agreement, states that employees are terminable, at will, which is the law in Ohio. Tremonti testified that he instructed employees to sign the handbook agreements before returning to work the fol- lowing week. All the company witnesses testified that they were instructed to sign the agreements. All General Coun- sel’s witnesses testified that they were requested to sign the agreements only if they agreed with them. Three employees Scott Baker, Steve Lonchyna, and Joe Freeze reported to work on a skeleton maintenance crew on Monday, June 1, without signing the agreements. Shift Supervisor Scott Shaffer told them they would have to sign the agreements or they could not work. They responded that they were still re- viewing the language and would not sign. Scott Shaffer sent 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the employees home with instructions to sign the agreements or their employment would be terminated. John Wilhelm and Timothy Brewer signed the agreements and remained at work. After this incident Tremonti instructed his secretary to call all employees and remind them to have the signed agree- ments when they came to work beginning with the midnight shift that evening. She testified that she did this. When the midnight shift reported, 10 employees had not signed the agreements. Hollis Shaffer asked them if they were going to sign the agreements and Rose testified that he said no, they wanted to talk about what they did not agree with, but nothing specific was mentioned. Hollis Shaffer tes- tified that all Rose and the other employees complained about was the ‘‘At Will’’ provision. Tremonti, who was present, told the employees that all they had to do was sign the agreements and they could go to work. Gerald Rose and the others refused to sign and Rose wanted to know whether he was being fired. If so, he wanted it in writing. Ten em- ployees, Bernard Buhr, Neal Davis, Nathan Elfring, Douglas Filas, David Rarick, Steven Reed, Gerald Rose, Clayton Rus- sell, John Schultz, and James Szachta left the company prem- ises. The first shift reported to work on Tuesday, June 2. Baker, Freeze, Lonchyna, Kenneth Arnold, Michael Coleman, and Robert Emerson refused to sign the agreements after Scott Shaffer asked them to. Scott Shaffer instructed the employees to leave. They refused, stating that they wanted their dis- charge in writing. Finally, the police were called and es- corted the employees off company property. Two hours elapsed from the time the employees were instructed to leave until they finally departed. Gerald Rose testified that the discharged employees went to the plant at midnight on June 2, but the gate was closed. He asked if he had been discharged and the security guard said they would be notified of their status by mail. An emergency union meeting was held at 10 a.m. on June 2, and the employees were advised by the union to sign the handbook agreements under protest. On June 3, Joe Freeze, and several employees went to the company gate where Freeze said they were there to sign the agreements. Accord- ing to these employees, plant superintendent Frank Skwiera told them they were on a restricted list and would not be al- lowed in. Frank Skwiera denied hearing any employees say they would sign the agreements on June 3. On June 4 and 6 all the above discharged employees re- ceived a letter from the Company stating that they had vol- untarily quit their jobs. Tremonti testified that the Company had between 50 and 55 employees at the time of this incident and all but the 16 discharged employees signed the handbook agreements and were allowed to work. Fifteen of the sixteen discharged employees had attended the May 30 union meeting and signed union authorization cards on that date. Robert Emerson signed a union authoriza- tion card after his discharge on June 2. Between 30 and 35 employees attended the May 30 union meeting. Gerald Rose was the union’s employee contact and was very active in the union movement both inside and outside the plant. Analysis and Conclusions General Counsel asserts that the 16 employees were dis- charged for engaging in protected concerted conduct. Re- spondent, because of its surveillance of the union meeting on May 30 knew the employees had concerns over signing the agreements and based on this knowledge, abruptly switched its position making the signing a condition of employment, thus trapping the employees into either signing the agree- ments or being discharged. She cites no cases in support of her concerted activity theory. Counsel for Respondent argues that the employees knew they had to sign the agreements be- fore the May 30 union meeting and simply refused to do so because of the ‘‘At Will’’ clause. He further argues that the employees’ concerted activity was not protected because their action constituted a refusal to observe the employer’s right to set work rules and, in effect, insisted that they be permitted to work on their own terms citing inter alia, Bird Engineering, 270 NLRB 1415 (1984), and Inner Link Cable Systems, 285 NLRB 304 (1987). It must be noted at the outset that there are no allegations that the issuance of the handbook or the insistence that the employees sign the agreements violated the Act. There is also no evidence of disparate treatment since the signing con- dition applied to all employees. All but 16 of the 55 employ- ees signed the agreements and were allowed to work. This includes over half the employees who attended the May 30 union meeting and since there were 27 union card signers; this also includes 9 card signers who signed the agreements and were allowed to work. I credit Respondent’s witnesses when they testified that on May 28 they were told by Tremonti that they must sign the agreements, each of which had an employee signature line. It just does not make any sense to have agreements with em- ployee signature lines and then make signing voluntary, or only if the employees agreed with the contents of the em- ployee handbook. Therefore, I conclude and find, based on Inner Link Cable Systems and Bird Engineering that the em- ployees, in refusing to sign the agreements while at the same time insisting that they had not quit their employment were not engaged in protected activity. They instead were attempt- ing to set their own terms of employment and were defying the employer’s right to operate his business. Moreover, I find that the employees did not inform the Respondent that it was willing to sign the agreements after the fact since this testi- mony only came to light on rebuttal and was denied. How- ever, I am not persuaded that it would make any difference. Respondent would be justified in refusing reinstatement since many employees refused to leave the company premises after being discharged and required a police escort to remove them hours later. Accordingly, since Respondent satisfied its Wright Line, 251 NLRB 1083 (1980), burden of proof and General Coun- sel did not meet its Wright Line burden, I will recommend that the allegations pertaining to these 16 employees be dis- missed. E. Discharge of Michael Rogers on September 10 Michael Rogers began work for the Company in Novem- ber 1986. Rogers had first worked in the maintenance area for a few weeks, then served as a jogger in the pressroom until the spring of 1987. At that time Rogers asked Tremonti 811 NTA GRAPHICS if he could go to part-time status because he had obtained a job on a construction project. Tremonti agreed as long as he worked 15 to 20 hours per week. Rogers was employed as a part-time janitorial employee. In this capacity he was permitted to work his own schedule, and had little direct su- pervision. Rogers was never counseled or reprimanded when he failed to work 15 hours per week. Rogers attended the May 30 union meeting and signed a union authorization card. From April 12 to August 16 he worked 15 hours or more seven times. His last week he worked 5-3/4 hours. At that time plant superintendent Frank Skwiera discharged Rogers because his work was substandard and because the Company was eliminating part-time help. In early September, Tremonti rehired Rogers as a full-time employee on third shift. He worked a full week his first week back and during this time he told Hollis Shaffer that the employees needed a union in order to correct the inequi- ties that existed. Hollis told him that unions were no good and all they wanted was his money. On Tuesday, September 8, Rogers took sick at work and told Scott Shaffer that he could not continue working. Shaffer gave him permission to leave. On Thursday, September 10, Rogers came to work and handed Scott Shaffer a doctor’s excuse. Shaffer told him it was no good and fired him. Rogers went to see Tremonti, who said the same thing. The note Rogers brought Shaffer is mostly illegible but appears to be notes written on a pa- tient’s chart. Part of the note reads, ‘‘Need work slip— dizzy—diarrhea, nauseated started Tuesday.’’ According to Shaffer, Rogers was discharged because of his poor attendance, because he left work on September 9 and because of the fake doctor’s excuse. Scott Shaffer admit- ted that he never undertook any investigation of Rogers’ doc- tor’s excuse. He also admitted not looking at Rogers’ per- sonnel file before discharging him, nor was he aware that Rogers had only one warning dated February 23, in his per- sonnel file. Shaffer further admitted that employees routinely do not provide doctor’s slips when they are sick and that the Company has no policy with regard to doctor’s excuses. David Tremonti admitted that several employees had more warnings for absenteeism but were not discharged because they were pressmen and he needed them more than Rogers. He also stated that he believes in progressive discipline and that the company written warning notice has space for three warnings before discharge. Analysis and Conclusion I find that Rogers had some union activity and the Re- spondent was aware of it and that the crucial factor was Rog- ers’ conversation with Hollis Shaffer after his return to full- time work in September, just before the NLRB election. I further find that General Counsel established a prima facie case and Respondent failed to meet its Wright Line burden because their whole defense collapsed by their own admis- sions. Accordingly, I find that Michael Rogers was discharged because of his union activities. F. Discharge of Robert Miller on November 12 When Robert Miller was first employed in November 1986, he informed Respondent that he attended school during the day. Miller was assigned third shift, which at that time ran from midnight to 8:30 a.m. Consequently, his work schedule did not interfere with school. In the early spring, Miller was transferred to first shift because Hollis Shaffer said he needed experienced joggers on that shift. When Mil- ler was transferred to first shift Scott Shaffer was his super- visor and at that time Miller told Shaffer he would not be able to work first shift because it was interfering with his at- tendance at school. After 1 week, Miller was transferred to another shift. Miller attended the May 30 union meeting and signed a union authorization card. He also attended the union meeting held on June 2. Miller testified that he and employee Phil Rogers were frequent companions who rode to work to- gether. Prior to the September 25 NLRB election, Miller was given a bumper sticker reading, ‘‘I Believe Union’’ which he put on the rear bumper of his car. He parked his car near the entrance to the plant. Phil Rogers testified that the bump- er sticker was on Miller’s car shortly before the election and that Scott Shaffer asked him what he was doing with that shit on his car. Rogers explained that his father had given the bumper sticker to Miller. Rogers also testified that Hollis Shaffer observed the bumper sticker on Miller’s car. Accord- ing to Rogers, Tremonti frequently called Robert Miller, Phil’s ‘‘little union buddy.’’ This started shortly before the election. Shortly after the election, Scott Shaffer approached Miller and Phil Rogers and said he heard Miller voted yes and that he had a Benedict Arnold on his hands. During the week of November 9, Miller was scheduled to take midterm exams on Thursday and Friday which were scheduled to start at 8 a.m. During this period, Miller’s shift hours were from 7 p.m. to 7 a.m.. On Tuesday Miller re- ported to work at 7 p.m. and was informed by Shaffer that there had been a shift change and the hours had been changed to 8 p.m to 8 a.m.. Miller told Shaffer that he could not work until 8 a.m. because he had exams on Thursday and Friday. Scott Shaffer said he would talk to Tremonti and get back to him. Shaffer later told Miller that he could leave early that day but in the future he had to make other plans because of the shift change. According to Miller when he left work on November 11 he told Scott that he would not be able to work until 8 a.m. the rest of the week. Scott said he would talk to Tremonti and get back to him. On Thursday, November 12, Miller left work at 7 a.m. He stated that he presumed it was alright because Scott never got back to him. Miller reported to work at 8 p.m. on November 12 and Tremonti confronted him saying that if he ever walked out again without permission he would be considered a voluntary quit. Miller said he would not work until 8 a.m because exams were more important. Later that evening, Miller was told by a supervisor named Dale, in the presence of Hollis Shaffer, that he would have to work until 8 a.m. and Miller flatly refused. His timecard was punched out and Miller left. Analysis and Conclusions I find that Miller was a known union adherent and that Respondent committed an 8(a)(1) violation against him. However, I also find that there is no evidence that Respond- ent changed its work schedule to create a constructive dis- charge. I find that although Respondent accommodated Mil- ler by changing his shift, in the spring, and again in Novem- ber for the 1 day so he could attend school, Miller received several written warnings for missing work and being late. These written warnings began long before any union activity. 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On February 23, Rogers received a warning for being absent. Miller received another written warning on March 24 when he was absent although he said he would report to work. Miller received another written warning on April 6 for being absent. On October 9, he received a written warning because he said he would be late and never showed. He received an- other written warning on October 20 when he came to work 2-1/2 hours late. On November 13, Miller flatly refused to work the scheduled hours. Although General Counsel made a strong prima facie case, I find that Respondent satisfied its Wright Line burden with evidence that it would have discharged Miller, notwith- standing his union activities. Respondent’s evidence con- sisted of several written warnings which were caused by school conflicts and Miller’s flat refusal to work the sched- uled hours. Accordingly, I recommend dismissing the allegation relat- ing to Robert Miller. G. The Alleged 8(a)(5) Violations 1. Bargaining unit Although Respondent denied the appropriateness of the bargaining unit, no evidence was presented in support of its denial. The unit was fully litigated and a Decision and Direc- tion of Election was issued by the Regional Director on Au- gust 19. Respondent’s request for review on the unit issue was denied by the Board on September 25. Therefore, I find that the unit set forth below is appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time pressroom employ- ees employed by the employer at its Toledo, Ohio facil- ity, excluding all office clerical employees and profes- sional employees, guards and supervisors as defined in the act and all other employees. 2. Authorization cards and demand The Union made a demand for recognition in a letter to Respondent dated June 11. The demand was received and de- nied by Respondent’s letter dated June 15. No one disputes that a proper demand was made. Twenty-three union authorization cards were signed, dated and witnessed at the May 30 union meeting. Two union au- thorization cards were signed, dated, and witnessed on June 2 and 5. Two more union authorization cards were signed dated and witnessed on June 11 for a total of 27 signed union authorization cards whose validity and authenticity were not at issue. 3. Union’s majority status The Respondent furnished a payroll list, dated June 10, containing 18 employee names in the appropriate unit. I de- leted the names of Hollis and Scott Shaffer because of their supervisory status and added the names of Robert Miller, jogger in the press department and Michael Rogers who was a janitor in the press department. Both had signed union au- thorization cards and were discharged long after the demand. Thus, there were 18 employees in the unit, 6 of which had signed union authorization cards. Accordingly, on the date of the demand and thereafter the union represented 6 of 18 unit employees and did not represent a majority either then or any other time material herein. 4. Applicability of a bargaining order Having found that at no time material herein, did the Union represent a majority of Respondent’s employees in the unit found appropriate, I will not recommend the imposition of a bargaining order and will recommend dismissing this re- fusal to bargain allegation. 5. Respondent’s unilateral change in working hours Respondent admits that it changed the shift hours of the unit employees in November and the evidence is clear that it did not notify and bargain with the union over this change. However, since I found that the union did not represent the employees in the appropriate bargaining unit; I find that Re- spondent was under no obligation to notify and bargain with the Union over this change. Accordingly, I recommend dis- missing this 8(a)(5) allegation. H. Employer’s Objections to the Election A petition for election was filed by the Union on June 12 and an election was conducted on September 25. After the election, the employer filed four objections to the election. Two objections were overruled by the Regional Director and evidence was taken on the remaining two objections. Objection 1 alleges that petitioner paid sums of money to current and former employees which impaired the employees free choice in the election. The evidence established that when the 16 employees were discharged on June 1 and June 2, the union paid each dis- charged employee who had become members of the union a sacrifice benefit of $100 per week. For the first 2 weeks after their discharge the local paid them an additional $50 per week until they received their back wages. Again, before the employees received their unemployment checks the local paid the employees an additional $50 per week for 4 weeks. After that the employees received $100 per week from the International Union. Sacrifice benefits are authorized in the International’s constitution, article 27, section C, and have been in existence as long as anyone could remember. Pay- ment of the sacrifice benefits was also authorized by the President of the International Union by telegram dated July 1 and a followup letter dated July 15. There was no evidence that employees were paid any money to induce them to vote for the union. Accordingly, I shall recommend overruling Objection 1. Objection 3 asserts that petitioner and his agents made threats of physical harm to employees who did not favor unionization. The evidence offered established that on June 4 employees David Gates and Gerald Rose got into a fist fight at a local gas station. Since this employee conduct occurred outside the critical period, I will recommend overruling this objection. I. Challenges A tally of ballots issued after the election shows that ap- proximately 14 voters were listed as eligible. Thirty-one cast ballots, of which seven were cast for and five against the pe- titioner. There were 19 challenge ballots. The challenge ballot of John Jackson was withdrawn by the employer. The challenge to Hollis Shaffer will be sus- 813 NTA GRAPHICS tained since he is an admitted supervisor. The challenge bal- lots of Michael Rogers will be overruled because I have found him to be discriminatorily discharged. The challenges to the 16 employees discharged on June 1 and 2 namely, Kenneth Arnold, Michael Baker, Bernard Buhr, Michael Coleman, Neal Davis, Nathan Elfring, Robert Emerson, Douglas Filas, Joseph Freeze, Steven Lochyna, David Rarick, Steven Reed, Gerald Rose, Clayton Russell, John Schultz, and James Szachta should be sustained because they were not employed on the date of the election and were not dis- charged in violation of the Act. CONCLUSIONS OF LAW 1. Respondent NTA Graphics, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Graphic Communications International Union, Detroit– Toledo Local 289, AFL–CIO–CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time pressroom employees employed by the employer at its Toledo, Ohio facility, ex- cluding all office clerical employees and professional em- ployees, guards and supervisors, as defined in the Act, and all other employees constitute a unit appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Respondent violated Section 8(a)(1) of the Act by: (a) Promulgating an invalid no-distribution rule in the em- ployee’s handbook. (b) By announcing an invalid no-distribution rule to em- ployees. (c) By threatening to keep the union from representing the employees for 6 years. (d) Threatening employees with loss of benefits if they chose a union. (e) Creating the impression, among employees, that their union activities are under surveillance. (f) Telling employees that it delayed an NLRB election. (g) Soliciting employees to engage in employee surveil- lance. (h) Interrogating employees about their and other’s union activity. (i) Threatening employees with cancellation of their health insurance. (j) Engaging in surveillance of a union meeting. (k) Threatening employees with lower wages, plant closure and harsher disciplinary policy if the union represented them. (l) Threatening employees with discharge if they attended a union meeting. (m) Indicating the futility of selecting a union. (n) Coercively informing employees that there prounion sympathies are traitorous. (o) Vilifying and coercing an employee by throwing a union leaflet at him and telling him to stick it up his ass. 5. Respondent violated Section 8(a)(3) of the Act by dis- charging Michael Rogers. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. 7. All other allegations not mentioned above were not found to be violations of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an em- ployee, it must offer reinstatement and make whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), and to remove from his files any and all ref- erence to the discharge and warnings given to him. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION On October 31, 1989, I issued a decision entitled NTA Graphics, Inc., JD– 264–89. On April 4, 1990, the Board re- manded the case to me for further findings of fact and credi- bility resolutions. Paragraph 1 Findings and Conclusions I find based on the evidence that two issues are involved in resolving credibility. The first issue is whether as not Tremonti told employees on May 28 that they must sign the handbook agreements before returning to work. I resolved that issue by crediting Respondent’s witnesses for reasons stated in my decision. The second issue is whether or not Tremonti on May 28 made signing the agreements a condi- tion of further employment. A review of the testimony of all the witnesses including Ricky Carter indicates that notwith- standing Carter’s testimony, Tremonti did not mention any penalty on May 28 for failing to sign the agreements. The evidence supports a finding that employees were first told of the consequences of not signing on Monday June 1, 1987. However, the credibility resolution does not change my deci- sion since establishing a penalty for not signing the agree- ments is consistent with Respondent’s prior insistence that they sign, which predated the union meeting. The evidence indicates and I find that the penalty was triggered when em- ployees showed up for work on June 1 and told Scott Shaffer they had not signed or were not going to sign the agree- ments. There is in my opinion insufficient evidence to establish that Respondent promulgated the penalty to force a construc- tive discharge because the penalty was to be applied evenly to all employees and, in fact, was. Half the employees (ap- proximately 17) who attended the May 30 union meeting signed the handbook agreements and were not discharged. Moreover, there is no direct evidence of a causal relationship between events transpiring at the May 30 union meeting and Respondent’s decision to discharge any employee who re- fused to sign the agreements. Other evidentiary findings re- ferred to in the remand do not change the burden of proof or alter the weight of evidence. Paragraph 2 Findings and Conclusions With respect to Tremonti’s 8(a)(1) violations or May 28, I credited the testimony of all General Counsel witnesses listed on page 2 of my decision except where indicated on 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD page 6. I credited the testimony of all the page 2 witnesses and summarized their testimony regarding loss of benefits because they said essentially the same thing. Paragraph 3 Findings and Conclusions Several witnesses namely Lonchyna, Baker, Rose, and Freeze testified that on May 28 Tremonti told employees that he wanted no discussion of the union on company property. Respondent did not specifically contradict this testimony. Ac- cordingly, I find that Respondent on May 28 promulgated an unlawful no solicitation rule in violation of Section 8(a)(1) of the Act.