Hunter Douglas, Inc.

HUNTER DOUGLAS, INC Hunter Douglas, Inc. and Local 404, United ,Electri- cal, Radio & Machine Workers of America. Cases 22-CA-13511 and 22-CA-13588 23 December 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 19 June 1985 Administrative Law Judge D. Barry Morris issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent -filed a reply brief. The National Labor Relations Board has, delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. i The judge found that the Respondent violated Section 8(a)(1) and (2) of the Act by forming em- ployee committees, at whose meetings Respondent solicited and adjusted grievances and promised benefits; the judge also found a violation, of Section 8(a)(1) of the Act in Respondent's promulgating a no-solicitation and no-distribution rule.2 The dis- charge of Supervisor Jose Algarin, as part of Re- spondent's second-shift layoff, was not found by the judge to violate the Act, as he concluded the termination was not due to Algarin's refusal to commit unfair labor practices or prevent employees from unionizing. We agree. The judge also found that Respondent's layoff of its second-shift employees and Respondent's inter- rogation of an employee concerning his union ac- tivities did not violate the Act. After careful review of the entire record, we disagree with the judge for the reasons below. The Board held in Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied. 455 U.S. 989, that once the General Coun- sel makes a prima facie showing that protected conduct was a motivating factor in an employer's action against an employee, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of the protect- ed conduct. The employer cannot carry this ' On 21 August 1985 the General Counsel filed a motion to withdraw the charge in Case 22-CA-13521 which alleged that Respondent failed to recognize and bargain with the Union in violation of Sec 8 (a)(5) and (1) of the National Labor Relations Act On 3 September 1985 the Board, in an unpublished Order, granted the motion . Accordingly , Case 22-CA- 13521 has been severed and remanded to the Regional Director for fur- ther appropriate action 2 No exceptions were filed to these findings 1179 burden merely by -showing that it also had a legiti- mate reason for the action, but must "persuade" that the action would have taken place absent the protected conduct "by a preponderance of the evi- dence," Roure' Bertrand Dupont, Inc., 271 NLRB 443 (1984); NLRB Y. Transportation Management Corp., 462 U.S.. 393 (1983). If an employer fails to satisfy its burden of persuasion, a violation of the Act maybe found. Bronco Wine Co., 256 NLRB 53 (1981). We are not persuaded by the judge's findings that Respondent eliminated the second shift be- cause of a reduction in orders and has satisfied its burden of demonstrating that the same action would have taken place even in the absence of the protected conduct. Although the. judge found that the Respondent knew of the Union's activities, that the mass layoff occurred during the union cam- paign, and that John Santalla, the plant manager, manifested union animus, the judge's analysis fails to consider record evidence that demonstrates that the second shift was selected for layoff in order to defeat the union campaign. Respondent manufactures components of win- dow coverings, including venetian blinds, and it as- sembles window coverings from those components Respondent supplies components to fabricators who then assemble and sell the coverings. Approxi- mately 90 percent of Respondent's production is of components, and the remaining 10 percent involves assembly or fabrication of coverings. Respondent reaffirmed its commitment to its network of 50 to 60 fabricators in the spring of 1984.3 One conse- quence was that Respondent would assemble cov- erings only for its fabricators in the event fabrica- tors were unable to meet their own commitments. Otherwise, effective 1 September, orders received by Respondent for coverings were to be directed to one of its fabricators. George Shouldis, , Respondent's vice president and general manager, and John Brown, Respond- ent's director of manufacturing, met on several oc- casions between March and August in order to plan a labor reorganization. The reorganization was necessary as a result of the increasing reliance on their fabricator network. Around the beginning of September, when Respondent began, augmenting assembly of blinds for one of its fabricators, J. C. Penney, 'Shouldis and Brown had not arrived at a plan of reorganization, partly because' the changes contemplated were not thought to be major and partly because fabricators' orders were unpredict- able and sporadic. On 18 October the Respondent was informed that Penney would not be submitting 3 All dates hereafter are in 1984 unless otherwise indicated 277 NLRB No. 123 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any additional orders. On 23 October Shouldis di- rected Brown to devise a personnel reduction im- mediately.,' BHrown sought Santalla's recommenda- tion, which was to eliminate the second shift. The following ?day,' 24 October, the second shift was laid off., Shouldis' testified that Penney's notice of termi- nation was not a loss because Respondent did not rely on Penney's business and had not solicited this business. Respondent assembled coverings for Penney because ' Penney had committed itself beyond its fabrication capability for coverings in a nationwide retail campaign. Brown testified- that Penney's account was one of many factors in the second-shift layoff, but that the layoff -was not pre- cipitated by:any one event. Brown testified that he and Santalla had discussed plant reorganization, out of concern for slow work. When asked why Re- spondent could -not have given employees more notice- before,, loss, of their jobs, Shouldis testified that he thought , it best not to prolong any agony. Although` Brown denied having any particular knowledge of union activity before 29 October when the Union demanded recognition, Santalla was, very much aware of the union activity. This knowledge ^ is not, only -reflected in the establish- ment of employee committees, the soliciting and remedying of grievances; and in, the institution, of a no-solicitation/no-distribution rule, all of which were done unlawfully, but in Santalla's other at- tempts to interfere with employees' protected ac- tivities, Santalla directed ,Jose Algarin, the second- shift supervisor, to discharge, under pretext if nec- essary, employees whom Santalla, believed to be union activists or sympathizers. One employee, Anita Lavezzaris, kept interrupting Santalla with complaints of low pay during an employee commit- tee meeting. After that meeting, Santalla told Al- garin, "I don't care what you do, get rid of her. If anybody has anything to do with the Union, she's one ^of- them." - Santalla also sought, to- gather information on the Union's progress, Not only -did he ask Jose Algarin which employees might be involved in the union campaign, he asked employees themselves about their knowledge and involvement. Thus, on 20 Oc- tober, Santalla asked second-shift employee Rein- aldo Acevedo if he was going to the union meeting that day at the. Union's office. Santalla believed that the-second shift was the focus of union activi- ty and he told Algarin to rid the second shift of its "union teeth." - Respondent's elimination of the second shift on 24- October varied from previous layoffs in the manner in which the layoff was executed. Shouldis and Georgina Enriquez testified that in laying off the third shift in August 1983, Respondent attempt= ed to reassign third-shift employees among the other two shifts. The -impact of another layoff in January 1984 was spread among both the first and second shifts. In those layoffs, Respondent endeav- ored to retain the more senior and productive em- ployees. Regarding the October layoffs, Brown tes- tified that he thought it best to eliminate the second shift due to its lower productivity, greater management, availability on the first shift, reduction in indirect costs, and security considerations. How- ever, this fails to explain why Respondent deviated from its previous practice 'of considering individual seniority or qualifications.4 Considering that Respondent's officers, - Shouldis and Brown, had discussed personnel reorganization for some time, and considering that Penney's with- drawal of further orders was not seen as cata- strophic, it is not credible that they would accept Santalla's recommendation and act upon it with such great haste. Additionally, this layoff deviated from previous layoffs in that it involved elimination of an entire shift rather than a reduction in the number of overall employees based on individual considerations. Indeed, Santalla's undisputed desire to rid the second shift of its union sympathizers goes a long way in explaining how and why the second shift was eliminated in the manner in which it was. Accordingly, we conclude that the Re- spondent has failed to carry 'its burden under Wright Line of persuading by a preponderance 'of the evidence that it would have laid off the second shift in the absence of union activity.' The abrupt- ness of the layoff, coming as it did' at the time of the union drive, supports - an inference of illegal motivation. Corrugated Partitions West, 275 NLRB 894, 903 (1985). We find the layoff of second-shift employees would not have happened as it did were; it not for the ' desire of the Respondent to impede - union activity and therefore violated Section 8(a)(3) and (1) of the Act. - As found by the judge, Santalla questioned em- ployee Victor Nunez ' twice about union activity and Nunez' involvement in union affairs. The first interrogation happened in Santalla's office, where Nunez had gone for a Band-Aid, Santalla asked him 'if it was true he wanted to get into the Union again. The other instance of interrogation occurred in the plant, near the restro'oms. Santalla inquired if it was true Nunez was trying to get the Union back - into the place. Both times Santalla told Nunez that 4 Santalla's testimony that the seven or so employees retained were not ` laid off due to their having been absent at the time the layoff was an-. nounced, or were moved to the first shift for reasons of special, knowl- edge or to fill the first shift does not demonstrate adherence to past prac- tice HUNTER DOUGLAS, INC. 1181 his inquiries were confidential. While Nunez testi- fied that he was a union supporter, this support was not openly displayed. Santalla's questioning of Nunez had no legitimate purpose and the questions, obliquely, were designed to determine Nunez' in- volvement in protected activities. As we recog- nized in Corrugated Partitions West, 275 NLRB 894 (1985), where the interrogation was engaged in by the plant manager in a calculated fashion, such in- terrogation reasonably tends to interfere with the exercise of employees' protected rights. Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). See also Allied Letter`craft Co., 272 NLRB 612 (1984). Accordingly, we find, contrary to the judge, that the Respondent violated Section 8(a)(1) of the Act by interrogating Nunez. AMENDED CONCLUSIONS OF LAW Insert the following after Conclusion of Law 5 and renumber Conclusions of Law 6 and 7 as 8 and 9, respectively. "6. The General Counsel made a prima, facie case under Section 8(a)(3) and (1) of the Act that union animus was a motivating factor in the Re- spondent's layoff of second-shift employees, and the Respondent has failed to show by a preponder- ance of the evidence that those employees would have been laid off in the absence of union activity and Respondent's animus. "7. The Respondent violated Section 8(a)(1) of the Act by interrogating employee Victor Nunez as to the presence and extent of any union activity and of the involvement of himself and other em- ployees in the union campaign." AMENDED REMEDY In addition to those remedies ordered by the judge, we shall order the Respondent to offer Gus- tavo Acevedo, Santos Asencio, Baudilio Ayala, Gloria Carrasquillo, Samuel Cintron, Rosura Colon, Armando Cruz, Dario DeLahoz, Stella De- Lahoz, Nursel Dulger, Georgina Enriquez, Melva Finley, Virginia Gambini, Freweiwi Ghebrehiwet, Jorge Gonzalez, Harry Harmon, Louis LaMadrid, Ana Luna, Anita Lavezzaris, Gilberto Martinez, Julio Miranda, Edna Morales, Jose Morales, Irma Morton, Cesar Navarro, Edward Nieduzak, Flor Padilla, Wilfredo Poma, Romona Quinonez, Carmen Rivera, Richard Rodriquez, Jesus Salazar, Jesus Soto, Peter Tantillo, and Edna Torres imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or any other rights and privileges previously en- joyed, and make them whole for any loss of earn- ings or other benefits suffered as a result of the dis- crimination against them. The loss of earnings and benefits incurred by these employees as a,result of the unlawfully motivated discharges shall be deter- mined as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See gen- erally Isis Plumbing Co„ 138 NLRB 716 (1962). ORDER The National Labor Relations Board orders that the Respondent, Hunter Douglas, Inc., Maywood, New Jersey, its officers, agents, successors, ' and as- signs, shall 1. Cease and desist from (a) Forming committees of employees and con- vening meetings of such committees to solicit em- ployee grievances and, to remedy such grievances in order to discourage employees from supporting Local 404 or any other labor organization. (b) Granting benefits to employees, and remedy- ing their grievances in order to discourage employ- ee support for Local 404 or any other labor organi- zation. (c) Promulgating a no-solicitation rule or, a no- distribution rule in order to discourage its employ- ees from supporting Local 404 or any other labor organization. (d) Discharging or laying off its employees for engaging in union or other protected activity. (e) Coercively interrogating any employees about their union support or activities. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw, all recognition from, and com- pletely disestablish, the employee committees formed in September 1984, and refrain from recog- nizing them or their successors as representatives of any of its employees for the purpose of dealing with them concerning wages, grievances, rates of pay, or other conditions of employment. (b) Offer Gustavo -Acevedo, Santos Asencio, Baudilio Ayala, Gloria Carrasquillo, Samuel Cin- tron, Rosura Colon, Armando Cruz, Dario DeLa- hoz, Stella DeLahoz, Nursel Dulger, Georgina En-, riquez, Melva Finley, Virginia Garnbini, Freweiwi Ghebrehiwet, Jorge Gonzales, Harry Harmon, Louis LaMadrid, Ana Luna, Anita Lavezzaris, Gil- berto Martinez, Julio Miranda, Edna, Morales, Jose Morales, Irma Morton, Cesar Navarro, Edward Nieduzak, Flor Padilla, Wilfredo Poma, Romana Quinonez, Carmen Rivera, Richard Rodriquez, Jesus Salazar, Jesus Soto, Peter Tantillo, and Edna; Torres immediate and full reinstatement to their 11$2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former jobs or; if-those jobs no longer exist, to sub- stantially- eq=uivalent positions, without prejudice to their -seniority or any other rights or privilieges previously enjoyed, and make them whole for any loss of - earnings and - other benefits suffered as a result of the discrimination against them, in the manner set forth in-the remedy section of the deci- sion. (c) Remove from its files any reference to the unlawful, discharges and ,notify the employees in writing that this has_ been done and that the dis- charges will not be used against them in any way. (d) Preserve and, on 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. - - .,(e) Post at its facility-in Maywood, New Jersey, copies of the attached notice marked, "Appendix."5 Copies of, the notice,, on forms provided by the Re- gional Director for Region 22, after being signed by the Respondent's authorized representative, shall, be posted by .the Respondent 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 Respondent to ensure that' the notices are not altered,, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days. from the date of this Order what steps the Respondent 'has taken to comply. 5 If 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 Nation- al Labor Relations' Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor-Relations Board" APPENDIX NOTICE TO EMPLOYEES 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 ordered us to post and abide by this notice. -WE WILL NOT ' form employee committees or convene meetings of such committees to solicit em- ployee grievances,,-to remedy - grievances, or grant benefits to employees for the purpose of discourag- ing employee support for Local 404 or any other- labor organization. WE WILL NOT promulgate or enforce no-solicita- tion or no-distribution rules in order to discourage our employees from joining, supporting, or assist- ing Local 404 or any other labor organization.' WE WILL NOT discharge or lay off our employ- ees for the purpose of interfering with their union or other protected activity. WE WILL NOT coercively interrogate any em- ployees about union support or activities. WE WILL NOT in any like ' or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section- 7 of the Act. WE WILL withdraw all recognition from, and completely disestablish the employee committees formed in September 1984 and WE WILL NOT rec- ognize them or their successors as the representa- tives of any of our employees for the purpose of dealing with us concerning wages, grievances, rates of pay or other conditions of employment. -WE WILL offer Gustavo Acevedo, Santos Asen- cio, Baudilio Ayala, Gloria Carrasquillo, Samuel Cintron, Rosura Colon, Armando Cruz, Dario De- Lahoz, -Stella DeLahoz, Nursel Dulger, Georgina Enriquez, Melva Finley, Virginia, Gambini, Frewerwi Ghebrehiwet, Jorge Gonzalez, Harry Harmon,. Louis LaMadrid, Ana Luna, Anita -La- vezzaris, Gilberto Martinez, Julio Miranda, Edna Morales, Jose Morales, Irma Morton, Cesar Na- varro, Edward Nieduzak, Flor Padilla, Wilfredo Poma, Romana Quinonez, Carmen Rivera, Richard Rodriquez, Jesus Salazar, Jesus Soto, Peter Tan- tillo, and Edna Torres immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to -their seniority or any other rights or privileges previously enjoyed and- WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge,' less any net interim earnings, plus interest. WE WILL_ remove from our files any reference to the unlawful discharges and WE WILL-notify the employees in writing that this has been" done and that the discharges will not be used- against them in any way. - HUNTER DOUGLAS, INC. Gary A. Carlson, Esq. and C. John Cicero, Esq., for the General Counsel. Bruce P. McMoran, Esq' (Norris, McLaughlin & Marcus), Somerville , New Jersey, for the Respondent. - HUNTER DOUGLAS, INC. 1183 DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in Newark, New Jersey,, during February and March 1985. Upon charges filed on 26 October, 5 November, and 7 December 19841 a con- solidated complaint was issued on 20 December alleging that Hunter Douglas, Inc. (Respondent) violated Section 8(a)(1), (2), (3),'and (5) of the National Labor Relations Act. Respondent filed an answer denying the commission of the alleged unfair labor practices. The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, argue orally, and file briefs. -.Briefs were filed by the General Counsel and by Respondent. On the entire record of the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Respondent, a corporation with a place of business in Maywood, New Jersey, is engaged in the manufacture, assembly, and distribution of window - blinds, other window coverings, and their components. It annually ships from, its Maywood facility goods valued in excess of $50,000 to consumers located outside the State of New Jersey. Respondent admits that it is an employer- engaged in commerce within the meaning of Section 2(2),'(6), and (7) of the Act, and I so -find. In addition, Local 404, United Electrical, Radio & Machine Workers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are: 1. Did Respondent's formation of employee commit- tees at whose meetings Respondent solicited and adjusted grievances, violate Section 8(a)(1) and (2) of the Act? 2. Did Respondent promulgate a no-solicitation and no-distribution rule in violation of the Act? 3. Did Respondent unlawfully interrogate an employee concerning his union activities? 4. Did Respondent discharge the employees working on the second shift because of their union activities? 5. Did Respondent discharge a supervisor in violation of the Act? 6. Was Respondent's failure to recognize and bargain with the Union a violation of Section 8(a)(5)? B. The Facts 1. Background Respondent'is one of the world's major manufacturers of window coverings, which include various types- of ve- I All dates refer to 1984 unless otherwise specified. - netian blinds. Respondent both assembles blinds in its own plants and supplies components to firsts which' do their own assembly. The present case involves,Respond- ent's plant in Maywood, New Jersey, where the compa- ny assembles blinds for customers located in the eastern, part of the United States. Prior to October 1984 two shifts of employees assem- bled blinds at the Maywood plant, where 63 employees worked on the first shift and 42 employees worked on the second shift. In addition, at various times 'employees worked on the third shift, assembling sales kits. 2. The Union's efforts to organize In August 1984 Yolanda Ramos, any employee at the Maywood plant, contacted Jose Lugo, the union business agent, and told him that the employees wanted to form a union. A meeting was held on 29 August at the Union's office which six employees attended. A. second meeting was held at the Union's office on 15 September at which time leaflets were distributed. Ayala, a second-shift em- ployee, handed out approximately 25 leaflets to fellow employees during September. lie subsequently distribut- ed approximately 200 copies of another leaflet. A third union meeting was held at the Union's office on 29 September. Another leaflet was distributed and Ayala handed out approximately 200 copies to employ- ees during the third week of October. On 20 October a fourth union meeting was held at the Union's office, which 11 employees attended. During this- meeting Lugo handed out union authorization cards to the employees. 3. Meetings with employees Jose Algarin, the supervisor of the second shift, who appeared to me to be a credible witness, testified that in late August or early September an anonymous letter came to the attention of John Santalla, the plant manag- er. The letter mentioned names of several employees who were trying to organize a union. One of the em- ployees named was Maria Manjarez. Santalla asked Al- garin if he thought that Manjarez would have "anything to do with the Union " Algarin replied that he did not think so. Yolanda Ramos ceased her employment with Respondent during the, first week of September, shortly after the anonymous letter arrived at the Maywood plant. The day after she left Respondent's employment, Santalla called a meeting of the second-shift employees, at which he told the employees that Yolanda left of her own free will and that her leaving did not have "any- thing to do with the Union." Santalla also said that he wanted to create a committee comprised of employees from each of the different sections of the plant and that he would try to meet with the committee on a weekly basis. One of the tackers' questioned Santalla about tack- ers' pay and Santalla replied that he would talk to the tackers after the general meeting. During the meeting be- tween Santalla and the tackers one of the employees, Anita Lavezzaris, kept interrupting, complaining that the tackers' pay was too low. After the meeting Santalla asked Algarin the name of the employee who kept inter- rupting. After Algarin replied, Santalla told him, "Get rid of her. I don't care what you do, get rid of her. If 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anybody has anything to do with the Union, she's one of them." , - ` ' Employee, committee meetings were held on 18, 20, and 27 , September and 5-and 17 October. The meetings were held in the plant cafeteria on working time, with Santalla present at each meeting. At the first committee meeting of first-shift employees, Nunez, who represented the employees on the first shift, mentioned that there were problems with the heating system and the air con- ditioning. -Santalla wrote down the problems that the em- ployees mentioned. At the first meeting of the committee of second-shift employees Santalla had a list of problems which he had drafted at the `first-shift committee meet- ing. Santalla asked the second-shift employee committee to read the draft and add any suggestions that they had. Santalla and the committee members discussed the condi- tions of the bathrooms, lack of cleanliness in the cafete- ria, water coolers, lack of public telephone for employ- ees to use, lack of emergency lights in the plant, lack of an oven, malfunctioning vending machines, and lack of lights in the employee parking lot. A question was also raised concerning pay. Santalla said that he would try to resolve the problems. As the meeting was breaking up, Santalla told the committee members to continue speak- ing to the other employees and that he was going to at- tempt to have weekly meetings. At the second meeting Santalla distributed to the rep- resentatives a list of problems and solutions. Santalla told the committee members to review the list and suggest items that should be added. One employee said that the employees were interested in receiving more money. Santalla replied that the Company was trying to initiate an incentive pay plan. At the third meeting 'Santalla dis- tributed General Counsel's Exhibit 6 which contained a list of. problems and proposed solutions and the action that Respondent had taken or proposed to take to imple- ment each of the solutions. In addition, Santalla asked each of the employees present where they had worked previously and whether there was a union. Some an- swered that there was a union and some answered that there was no union. At the fourth meeting one of the employees brought up the issue of pay. Santalla replied that the question of pay'was being reviewed. At this time medical insurance was also discussed. Santalla then presented the employ- ees with a list of shop` rules and asked the committee members for their opinion on the rules. The rules were distributed to the employees several days after the meet- ing. The rules list various offenses such as damaging or theft of company property, possession of drugs, punching another employee's timecard, fighting, and gambling. Rule 32 prohibits "solicitation of an employee while either the employee doing the soliciting or the person being solicited is on working time." Rule 33 prohibits "distribution of advertising material, handbills, or other- literature in working areas of the 'plant at any time." 4. Events leading to the termination of the second shift Respondent primarily sells through its network of 50 to 60 licensed independent fabricators. Approximately 90 percent of the Company's window coverings are manu- factured by these fabricators. During August Respondent confirmed its commitment to its fabricator network. It advised its retail customers that it would discontinue ac- cepting orders outside its fabricator group effective Sep- tember 1. Around Labor Day J. C. Penney Co., one of Respond- ent's fabricators, approached Respondent advising it that it had oversold its capacity and asked for assistance. Re- spondent advised J. C. Penney that it would assist by producing blinds in its Maywood facility. The initial orders from J. C. Penney -arrived during the first week of September. On 18 October O. B. Kelley, vice presi- dent of Respondent, learned that J. C. Penney had decid- ed to discontinue placing orders with Respondent. In re- sponse to the loss of the Penney orders, George Shoul- dis, vice president and general manager of Respondent, instructed John Brown, director of manufacturing, to im- mediately develop a plan to "reduce our manpower needs." On the same day Brown responded to Shouldis' suggestion that the second shift be eliminated. On 24 Oc- tober Respondent terminated Algarin, the supervisor of the second shift, together with '35 second-shift employ- ees. 5. Authorization cards At the union meeting held on 20- October Lugo handed out union authorization cards to the employees present. Employees who were at the meeting signed cards at that time. Lugo also gave blank authorization cards to some of the employees to obtain the signatures of fellow employees. Ayala, Enriquez, Edna Torres, Jose Ramos, Tantillo, and Nunez authenticated the cards that they themselves signed. Lugo witnessed four employees execute cards at the union meeting on 20 October.2 Ayala witnessed 14 employees sign cards on 22 Octo- ber.3 Enriquez witnessed four employees sign cards on 20 October4 and eight employees sign cards on 22 Octo- ber.5 In addition, Jose Ramos witnessed Correa sign a card and Estrada witnessed Mora and Delgado sign cards. Employees who solicited cards and to whom signed cards were returned authenticated 26 cards.6 In addition, some cards were authenticated by persons who recog- nized the signature on the cards.? 2 Cruz, Lopez, Santalla, and Estrada. 3 Stella Delahoz, Ghebrehiwet, Lopez, Martinez, Navarro, Padilla, Poma, Mario Rivera, Rich Rodriguez, Salazar, Ana Soto, Jose Soto, Asencio, and Yohannes. 4 Vasquez, Teresa Gonzalez, de Jesus, and Otero. s Colon, Gambim, Nelson Santiago , Ponfilio Lopez, Jorge Gonzalez, Cintron, Ana Luna, and Morales. 6 Ayala so authenticated cards executed by Carrasquillo , Dario Dela- hoz, Benita Gonzalez, Julio Miranda, Quinones , Carmen Rivera, Romero, Antequera, and Harmon Torres so authenticated a card signed by Lama- drid. Ramos so authenticated cards signed by Chevere, Cruz, Davila, Fraccet, and Cayetano Luna Nunez so authenticated cards signed by Arias, Elba Rodriguez, Angel Rosario, Lilibet Rodriguez, Irma Pagan, Casar Solorzano, Milagro Solorzano, Jesus Soto, Mimer, Fraiisisco Mi- randa, and Pittman. ' Algann identified the signatures of Elsy Luna, Sylvester Franticelli, Diaz, Nieduzak , Dombaysi, and Dulger Enriquez identified the signature of Nancy Fraticelli, and Ramos identified the signature of Rosa Cruz HUNTER DOUGLAS, INC 1185, By letter dated 26 October the Union requested recog- nition as the representative of Respondent's production and maintenance employees. Respondent rejected the re- quest by,letter dated 30 October. Discussion and Analysis A. Employee Committees An employer violates Section 8(a)(1) and (2) of the Act by forming a committee of employees and dealing with that committee to solicit and resolve employee grievances. NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959); Lawson Co., 267 NLRB 463 (1983), enfd. in perti- nent part 753 F.2d 471 (6th Cir. 1985). Santalla an- nounced in early September, after learning that the em- ployees were beginning to organize, that he was going to form employee committees and that he would meet with them on a weekly basis to discuss problems and possible remedies. The committee meetings were called by San- talla, were held in the plant cafeteria, and Respondent paid the employees for attending. Essentially the same employees attended each committee meeting. Santalla set the agenda for the committee meetings, was present at each meeting, drafted a list of what he wanted the com- mittee to discuss, and presented it to the committees. As Santalla himself testified, "I wanted input from them to open up to me to tell me what- they felt their problems were. I needed them to, think that I was acting to their needs." Algarm credibly testified that Santalla told him that the committees" were a "smoke screen" for the Union. Based on the foregoing, I find that Respondent formed and dominated' the employee committees in viola- tion of Section 8(a)(1) and'(2) of the Act. B. Solicitation of Grievances and Granting of Benefits As, the Board recently stated in J. Coty Messenger Serv- ice, 272 NLRB 268, 269 (1984): [T]he promise of increased benefits was a "deliber- ately embarked upon . . '. course of action designed to convince the employees that their demands [would] be met through direct dealing with Re- spondent and that union representation could in no way be advantageous to them. Obviously such con= duct must, of necessity, have 'a strong coercive effect on the employees"freedom'of choice, serving as it does to eliminate, by unlawful means and tac- tics, the very reason for a union's existence."8 In the instant proceeding Respondent used the em- ployee committees to solicit grievances. The committee members in response made suggestions with respect to pay; the conditions in the bathrooms and in the cafeteria; medical insurance; lack of a public telephone; emergency lights; lights in the employee parking lot; and malfunc- tioning vending machines. In its answer to the complaint Respondent admitted that "during the months of Septem- ber and October, 1984, it made improvements to produc- tion techniques and to the physical plant including but not limited to: repair of broken restroom plumbing, ex- s Teledyne Dental Products Corp„ 210 NLRB 435 (1974) terminating and fumigating, the plant, arranging -for the installation of a new public telephone on the premises, repair of plant heating units, repair of exterior Jighting, and posting of available positions." General ,'counsel's Exhibit 26 contains the list of problems and, solutions prepared by Santalla. In view,of the above, I find that Respondent solicited grievances and granted benefits to the employees in violation of Section 8(a)(I) of,the Act. C. Promulgation of No-Solicitation and No- Distribution Rules When faced with a union organizing campaign "an employer may not for union reasons promulgate a no-so= licitation and/or no: distribution rule." Brigadier Indus- tries Corp., 271 NLRB 656, 657 (1984). While the Board held in Our Way, Inc., 268 NLRB 394 (11983), that a: rule prohibiting solicitation and distribution on behalf of a, union during working time is presumptively valid, the presumption of validity may be rebutted by a showing that the rule was adopted for a discriminatory purpose. State Chemical Co., 166 NLRB 455 (11967), enfd. 404 F.2d 1382 (6th Cir. 1968). In State Chemical among the factors cited by the Board in determining that the Gener- al Counsel made out a prima facie case rebutting the pre- sumption of validity were that the rule was promulgated at a,time of intensive union activity and that Respondent was hostile to union organizational efforts., Under such circumstances, the Board held that it was incumbent upon the Respondent to show that the rule was required in order to maintain production or discipline. In the in- stant proceeding, the rules were promulgated at a time of intense union activity. Employees had been attending union meetings and handing out union literature. Santalla created employee committees to serve as a "smoke screen" to thwart the Union. Santalla's attitude towards the Union was clear. He told Algarin to "get rid", of La- vezzaris and that "if anybody has anything to do with the Union; she's one of them." Consequently I believe that the General Counsel has made out a prima facie case rebutting the presumption of validity. Respondent :has not shown that the rules were required in order to main- tain production or discipline. Accordingly, I find, that Respondent's promulgation of the rules was motivated by a purpose to interfere with the employees' right to self-organization, in violation of Section 8(a)(1) of the Act. State Chemical, Co., supra at 456. D. Employee Interrogation Nunez testified that during the first week of October he had-a conversation with Santalla,`his supervisor, con- cerning the Union, He, testified. ' I went up to the office., I went to get' a band-aid, because I had wounded my finger. And when I went up there, I went behind his chair, and at that- time he said to me that he wanted to ask me some- thing. He wanted to know if it was true that I wanted to get into the Union again. I said John, you know that I promised you that I do not, want to know anything about unions; and I am not going to join any unions. He said . . , , that matter was some- 1186 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing between he and I, and that no one else was to know, about it. Nunez testified that he had another conversation with Santalla concerning the Union, which took place in the area of the restrooms. Nunez testified: [Santallal told me that he wanted to [ask] a confi- dential question of me. That he wanted to know if it was true that we were trying to get the Union back in the place. I told him ... "I promised you that I wasn't going to get into a union, and I don't want to talk about it anymore." Santalla confirmed the fact that he had one or two conversations with Nunez concerning unions. He testi- fied- Q. Do you recall what happened during these conversations? A. Basically it was in passing have you heard anything about union activity. Q. What did he respond to you? A. His response was that he had no knowledge of union activity and wasn't active. In 'Rossmore House, 269 NLRB 1176 (1984), the Board restated the test for evaluating whether interrogations violate the Act, as follows : "Whether under all of the circumstances the interrogation reasonably tends to re- strain, coerce , or interfere with rights guaranteed by the Act." The Board cited Graham Architectural Products v. NLRB, 697 F.2d 534, 541 (3d Cir. 1983), where the court stated: In deciding whether questioning individual cases amounts to the type of coercive interrogation that section 8(a)(1) proscribes, one must remember two general points. Because production supervisors and employees often work closely together, one can expect that during the course of the workday they will discuss a range of subjects of mutual interest, including ongoing unionization efforts. To hold that any instance of casual questioning concerning union sympathies violates the Act ignores the realities of the workplace . . . . If section 8(a)(1) deprived the employers of any right to ask non-coercive ques- tions of their employees during such a campaign, the Act would directly collide with the Constitu- tion. What the Act proscribes is only those in- stances of true "interrogation" which tend to inter- fere with the employees' right to organize. In the instant proceeding, on the first occasion Nunez was not summoned to Santalla's office. Instead, he went there to get a band-aid at which time Santalla asked him if he "wanted to get into the Union again." During the second conversation the two met casually near the rest- rooms at which time Santalla asked Nunez whether "it was true we were trying to get the Union back in the place." Under the totality of the circumstances, I find that Santalla's questioning of Nunez was not coercive and therefore was not in violation of Section 8(a)(1) of the Act. E. Elimination of the Second Shift The complaint alleges that Respondent discharged 35 employees who had been working on the second shift because of their union activities. While 37 of the 42 em- ployees on the second shift signed authorization cards, 36 employees on the first shift also signed authorization cards but were not discharged. Respondent maintains that the elimination , of the second shift was motivated by legitimate business rea- sons. Thus, during August Respondent advised its retail customers that beginning September it would no longer accept orders from them but would direct such orders to its network of fabricators. On 18 October Respondent learned that J. C. Penney would no longer place its orders with Respondent. On 23 October Shouldis in- structed Brown to immediately develop a plan to reduce manpower. Brown responded on the same day with the plan to eliminate the second shift. Brown decided to eliminate the second shift rather than to spread the layoff over both shifts because of lower productivity on- the second shift, greater management availability on the first shift, reduction in direct costs, and security consider- ations. When faced with decreased manpower needs at other plants, Respondent similarly eliminated the second shift in October at its Kent, Washington plant and in Jan- uary 1985 at its Ontario, California plant. Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 19'81), cert. denied 455 U.S. 989, approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Board requires ,that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision. Once this is established, the burden shifts to the employer to demon- strate that the "same action would have taken place even in the absence of the protected conduct." In the instant proceeding, Respondent had knowledge of the Union's activities, Santalla displayed animus to- wards the Union, and the timing of the discharges was such that they occurred during the union campaign. Nevertheless, it is questionable whether the General Counsel has made a prima facie showing sufficient to support the inference, that protected conduct was a moti- vating factor in Respondent's decision to eliminate the second shift. The General Counsel's theory about the reason for the discharges is not entirely clear. It would appear that the General Counsel's basic thrust is that ap- proximately 90 percent, of the second-shift employees signed authorization cards. However, the discharges oc- curred before Respondent was aware of the signing of the cards and before the Union demanded recognition. In addition, 36 employees on the first shift signed authoriza- tion bards but they were not discharged. In any event, I believe that Respondent has demonstrated that it decided to eliminate the second shift because of a reduction in orders and had satisfied its burden of demonstrating that the "same action would have taken place even in the ab- HUNTER DOUGLAS, INC. sence of the protected conduct." Accordingly, the alle- gation is dismissed. F. Termination of Algarm The complaint alleges that Respondent discharged Al- garin, a supervisor, because he refused to commit unfair labor practices and failed to prevent the employees from unionizing. In mid-September, after one of the committee meetings, Santalla told Algarin to "get rid" of Lavez- zaris. Algarin testified: I explained, John, I have no reason-I just can't Are somebody like that. And he told me that he didn't care what I did. He asked me various questions, whether she was late, whether she was constantly absent. And he told me to keep an eye on her, and if she goofed anything up, to get rid of her: I never got the chance to get rid of the young lady. Be- cause she went on disability about a month after that. Algarin also testified that during October Santalla asked him "to look around and who would I think 'would have anything to do with the union." Algarn re- plied that he didn't know. Algarm further testified that Santalla told him: [T]hat he was aware that some of the employees were trying to organize a union and that he be- lieved that it was-eoming from my shift. And he asked me to listen to see what I could dig up.- If I heard anything and let him know. Algarin testified that Santalla'never threatened that he would lose his job if Lavezzaris was not fired. He also testified that he did not believe he was terminated be- cause he did not fire Lavezzaris. Indeed, in mid-Septem- ber when Algarin told Santalla that he could not fire La- vezzaris without a valid reason, Santalla instructed Al- garin to "keep an eye on her, and if she goofed anything up, to get rid of her." There is no indication in the record that Algarin told Santalla that he would not go along with that suggestion. In addition, when Santalla told Algarm to "listen around to see what I could dig up," there is no indication that Algarin refused to do so. Respondent argues that Algarin's supervisory position was eliminated because there was no need for the posi- tion once the second shift was eliminated. In this connec- tion, on the memorandum of 23 October in which Brown proposed to eliminate the second shift, Shouldis noted, "Implemented immediately! What about supervisor re- duction?" Brown replied on that same memorandum on 24 October that Algarm would also be terminated. An employer may not discharge a supervisor for refus- ing to commit unfair labor practices or because the su- pervisor fails to prevent unionization. Parker-Robb Chev- rolet, , 262 NLRB 402, 403 (1982), affd. 711 F.2d 383 (D.C Cir. 1983). I do not believe that the General Coun- sel has proven that Algarin was discharged because he refused to fire Lavezzaris or because he failed to prevent the employees from unionizing. Although in mid-Septem- ber Algarin told Santalla that he could not fire Lavez- zaris without a valid reason, he at no time indicated to 1187 Santalla that he would not go along with Santalla's sug- gestion of looking for a pretext. In addition, he did not indicate to Santalla that he would not be on the lookout for union supporters, as requested by Santalla. In any event, inasmuch as Algarin was the supervisor of the second shift and the second shift was eliminated, the need for Algarin's employment no- longer existed. Ac- cordingly, the allegation is dismissed. G. Authorization Cards The General Counsel introduced the authorization cards of 73 employees. The General Counsel relied on four methods to authenticate the cards: (1) testimony of the employees who signed the cards; (2) testimony of card solicitors who observed employees signing cards; (3), testimony of employees who received the cards from signers; and (4) testimony of individuals familiar with the handwriting of the signers. Ayala, Enriquez, Torres, Ramos, Tantillo, and Nunez authenticated the cards that they themselves signed. Cards may also be authenticated by a witness who actu- ally saw the employee sign the card. McEwen Mfg. Co., 172 NLRB 990, 992 (1968), enfd. 4191 F.2d 1207 (D.C. Cir. 1969). Thus, Lugo witnessed four employees execut- ed cards; Ayala witnessed 14 employees sign cards; Enri- quez, witnessed 12 employees sign cards; Ramos wit- nessed one employee sign a card; and Estrada witnessed two employees sign cards. In addition, cards may be authenticated through the testimony of employees who solicited them and to whom signed cards were 'returned. McEwen Mfg. Co., supra at 992. Ayala authenticated cards executed by nine employ- ees; Torres authenticated a card signed by one employee; Ramos authenticated cards signed by five employees; and Nunez authenticated cards signed by 11 employees. On 24 October there were 118 employees in the unit-. Thus, the above-mentioned 65 cards represent a majority of the unit employees. It is therefore unnecessary for me to decide whether the eight cards authenticated by Al- garn, Enriquez, and Ramos on the basis of their being familiar with the signatures on those cards, were proper- ly admitted. In this' condition I note, however, that non- expert opinion based on familiarity may be utilized to es- tablish the genuineness of a signature. Federal Rules of Evidence 901(b)(2); U.S. v. Saputski, 496 F.2d 140, 142 (9th Cir. 1974); 3 Wigmore, Evidence,, § 693-694 (Chad- bourn rev. 1970). H. Refusal to Bargain On 29 October Respondent received the Union's letter dated 26 October in which the Union requested recogni- tion. Respondent rejected the request on 30 October. The complaint alleges that since 29 October Respondent has refused to recognize and bargain with Local 404 as the exclusive collective-bargaining representative of the unit. The General Counsel requests that I issue a Gissel bargaining order. In J. Coty Messenger Service, supra, 272 NLRB 268, the Board stated: 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In determining whether a bargaining order is warranted to remedy the Respondent 's misconduct in this--case we applied the test set out in NLRB v. Gissel' Packing Co., 395 U.S. 575 (1969). There, the Court described two types of situations where bar- gaining ' orders are appropriate : ( 1) "exceptional" .,cases marked by "outrageous" and "pervasive" unfair labor practices ; and (2) "less extraordinary" cases marked by "less pervasive" practices. The Court thus approved the Board 's use of a bargain- ing order in "less extraordinary" cases where the employer's unlawful conduct has a "tendency to un- dermine [the union's] majority strength and impede the election processes." In Gissel, the Court pointed out (395 U.S. at 615): We emphasize that under the Board's remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. The only violations which I have found in this pro- ceeding are those relating to the employee committee meetings and the promulgation of the no-solicitation and no-distribution rules. The meetings with employees oc- curred on 18, 20, and 22 September and 5 and 17 Octo- ber. The no-solicitation and no-distribution rules were promulgated on 17 October. It was between 20 and 24 October, subsequent to the meetings and to the promul- gation of the rules, that the Union obtained the authori- zation cards from the employees.9 The activities which I have found to have violated the Act did not "hinder" the Union from "obtaining a card majority." See Allbrit- ton Communications, 271 NLRB 201, 205 (1984). Similar- ly, in Sidex Furniture Corp., 270 NLRB 497 (1984), the Board did not impose a bargaining order even though Respondent violated the Act by interrogating its employ- "Thus on 20 October the Union obtained 16 cards, on 21 October 1 card, on 22=October 39 cards, on 23 October 8 cards, and on 24 October 9 cards. ees in regard to their union activities and by granting a general wage increase during the organizational period. Under the circumstances I do not believe that Respond- ent's "conduct makes the possibility of holding a_ fair election" in the appropriate unit "so unlikely as to war- rant a bargaining order." Allbritton Communications, supra at 205. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By establishing employee committees and soliciting grievances and promising to remedy them in order to discourage employees from supporting Local 404 or any other labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 4. By remedying employee grievances and granting benefits in order to discourage employee support for Local 404 or any other labor organization, Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By promulgating no-solicitation and no-distribution rules for the purpose of interfering with union organiza- tion, Respondent had engaged in unfair labor' practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not violate the Act in' any other manner alleged in the complaint. THE REMEDY Having found that Respondent had engaged in unfair labor practices, I find it necessary to order Respondent to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]