Rood Industries, Inc.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rood Industries, Inc. and District Lodge 117, Inter- national Association of Machinists and Aero- space Workers, AFL-CIO. Cases 7-CA-22930 and 7-CA-23394 22 January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 11 July 1985 Administrative Law Judge Leonard M. Wagman issued the attached decision. The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Rood Indus- tries, Inc., Sturgis, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility fmd- mgs The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the' relevant evidence 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 examined the record and find no basis for reversing the findings No exception was taken to the judge's dismissal of the alle- gation that the Respondent's no-solicitation rule violated Sec. 8(a)(1) of the Act 2 In agreeing with the judge that the Respondent, through President Rood, violated Sec. 8(a)(1) of the Act by advising employees that he would not run an organized shop, Member Johansen concludes that Rood's remarks constituted a threat of reprisal rather than a warning about the futility of Joining or supporting a union Charles Morris, Esq., for the General Counsel. John S. Schauer, Esq. (Seyforth, Shaw, Fairweather & Ger- aldson), of Chicago, Illinois, for the Respondent. Wayne E(fler, Business Representative, of Battle Creek, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE Workers, AFL-CIO on 15 December 1983,1 the Region- al Director for Region - 7 issued a complaint in Case 7- CA-22930 on 27 January against the Respondent, Rood Industries, Inc. Thereafter, on a further charge filed by the Union in Case 7-CA-32334 on 26 April against the Respondent, the Regional Director for Region 7 issued an order on 29 May consolidating the two cases and amending the complaint against Respondent. The con- solidated complaint' alleged that Respondent violated Section 8(a)(1) of the National Labor Relations Act by coercively interrogating its employees regarding their union activities and sentiments, and the union activity and sentiment 'of other employees, threatening employees with discharge for discussing the Union, promulgating an overly broad and discriminatory rule prohibiting employ- ees from soliciting employee support for the Union, ex- pressly and impliedly threatening employees with eco- nomic reprisals, including plant closure, if the Union suc- ceeded in organizing Respondent's employees. The com- plaint, further alleges the Respondent violated Section 8(a)(1) by implying that Respondent's employees' sup- port for the Union would be futile, creating the impres- sion of surveillance of its employees' union activity, promising and later granting a benefit to employees to cause them to abandon the Union, and to refrain from se- lecting it as their exclusive collective-bargaining repre- sentative, suggesting that election of the Union as the employees' bargaining representative would cause Re- spondent to lose an important customer, by threatening its employees with the imposition of stricter plant rules if the employees selected the Union as their collective-bar- gaining representative, threatening an employee with more limited future - employment opportunities because he supported the Union, and by threatening to discontin- ue the practice of permitting employees to present their problems or concerns to management if the employees selected the Union as their collective-bargaining repre- sentative. Respondent, by its timely answers, denied commission of the alleged unfair labor practices. These cases were tried before me at Sturgis, Michigan, on 16, 17, and 18 October 1984. At the hearing, after the General Counsel had rested, I granted Respondent's motion to dismiss, for lack of proof, the allegations that it had violated Section 8(a)(1) of the Act by threatening an employee with more limited future employment op- portunities, and by threatening to discontinue its policy of permitting employees to present their problems or concerns to management. I now reaffirm my order dis- missing those allegations. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following LEONARD M. WAGMAN, Administrative Law Judge. On a charge filed by the Union, District Lodge 117, International Association of Machinists and Aerospace ' All dates are from September 1983 until May 1984, unless otherwise indicated 278 NLRB No. 26 ROOD INDUSTRIES 161 FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Respondent, a ' Michigan corporation, maintains its office and place of business at Sturgis, Michigan, where it manufactures,, sells, and distributes steel tubing for automobile exhaust systems. Respondent, in the course and conduct of its business, annually manufactures, sells, and distributes products valued in excess of $100,000, of which products valued in excess of $50,000 are shipped from Respondent's Sturgis, Michigan plant directly to points outside the State of Michigan. The Respondent admitted the foregoing data. I find that at all times mate- rial, Respondent was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The consolidated complaint alleged, Respondent ad- mitted, and I fmd that the Union, District Lodge 117, International Association of Machinists and Aerospace Workers, AFL-CIO, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union's effort to organize Respondent's approxi- mately 80 plant employees began in late October 1983. On 7 November the Union filed a petition seeking a Board-held election to obtain certification as the exclu- sive collective-bargaining representative of Respondent's plant employees. The Respondent received a copy of the Union's petition on 15 November. Thereafter, on 16 De- cember, the Regional Director conducted an election in the unit sought by the Union. Following the election, the Regional Director impounded the ballots and has not yet determined the results of the election. The General Counsel has attempted to show that Respondent, in op- posing the Union's organizing campaign violated Section 8(a)(1) of the Acta by interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights3 to assist the Union's campaign, and to choose the Union as their collective-bargaining representative. B. Alleged Interference, Restraint, and Coercion 1. Interrogation a. The facts On 20 October Respondent's night foreman, Richard Halderman, approached second-shift employee Larry Bassage, who had been in Respondent's employ since 4 2 Sec. 8(a)(1) of the Act provides: Sec. 8. (a) It shall be an unfair labor practice for an employer- (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, a Sec 7 of the Act provides in pertinent part. Sec. 7. Employees shall have the right to self-organization, to form, ,loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection . . April 1981 in the plant and asked him if he knew "who was talking union." Bassage replied: "No, I don't."4 This ended the conversation. It was Bassage who first contacted the Union about organizing. Respondent's plant in early October. Thereaf- ter, Bassage did most of the organizing for the Union on the second shift. He distributed union authorization cards, notified employees about union meetings, and col- lected signed authorization cards. He also wore a union button at the, plant from 24 or 25 October through De- cember. From 19 November through 21 November, Respond- ent's president, Del Rood, conducted one-on-one inter- views with employees in his office at Respondent's plant. In his testimony, Rood admitted that he held these meet- ings because he was "surprised that an organization at- tempt was underway." In Rood's view, this development meant "somehow that our communication was not very good." In Rood's opinion, the employees "felt strongly about something and weren't saying so...." He con- cluded "that it was high time that [he] got better ac- quainted. One of the employees whom Rood summoned to his office was Larry Bassage, who wore a union button throughout the interview. Although Rood had on occa- sion conversed with Larry Bassage on the plant floor, this was the first time Rood had called Bassage to his office. Rood first asked Bassage "how things were going out in the shop." He also remarked, "I see you're wear- ing a union pin and then asked Bassage how the organiz- ing campaign was going. Larry Bassage replied: "Okay." The conversation then shifted to Bassage's remodeling of his home.5 4 Supervisor Richard Halderman flatly denied ever asking Larry Bas- sage "who was talking union," or words to that effect However, Haider- man, who had clearly received word that employees Larry Bassage, David Huber, and Chester Casner Jr were soliciting employee support for the Union, did not deny conversing with Bassage, who worked on his shift. Halderman also demonstrated his eagerness to supply Respondent's president Del Rood with the names of union supporters, by giving the names of Bassage, Huber, and Casner to the president on the same day he heard about them It thus seems likely that Halderman would have sought to identify additional union supporters. These factors, together With my impression that on cross-examination Halderman's demeanor suggested a reluctance to provide his best recollection, caused use to doubt the reliability of Halderman's flat denial I noted this tendency par- ticularly when counsel questioned Halderman about his sources of infor- mation regarding the identity of the leading union supporters,' and about Del Rood's meetings with employees. This doubt, together with my im- pression that of the two, Larry Bassage was the more candid witness, persuaded me to credit Bassage's testimony that his best recollection was that Halderman asked him to identify "who was talking union." 5 President Rood denied making any reference to Bassage's union pin. However, on cross-examination , he seemed less self-assured when he an- swered. "Not that I recall no." Rood's testimony corroborated the re- mainder of Larry Bassage's account of their conversation However, Rood gave his recollection of how the conversation began in a tentative manner and could not specifically recall whether Bassage was wearing a union pin, button, or badge. However, I have found from Bassage's credited testimony that he wore a union button from late October through December I also find from Bassage's testimony that he wore a union button during his meeting with Rood It thus appears likely that Rood saw Bassage's union button and made the remark attributed to him by Bassage, whose forthright manner persuaded me that he was providing his best recollection of Rood's re- marks 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Analysis and conclusions In Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), the Board set forth the factors it considers in de- termining whether an employer's interrogation of em- ployees regarding union activity and sympathies violates Section 8(a)(1) of the Act, as follows: Experience convinces us that there are myriad situa- tions in which interrogations may arise. Our duty is to determine in each case whether, under the dic- tates of Sec. 8(a)(1), such interrogations violate the Act. Some factors which may be considered in ana- lyzing alleged interrogations are: (1) the back- ground; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation. Applying the Board's policy expressed in Rossmore, I find that Richard Halderman's attempt to learn the iden- tity of employees who were "talking union" carried with it the suggestion that Respondent had some punishment in mind for them. Thus, notwithstanding that a first level supervisor was asking the question in the familiar sur- roundings of the work place, the information sought was likely to instill fear of reprisal in the listener, I find there- fore, that this interrogation was coercive and violated Section 8(a)(1) of the Act. Frank Black Mechanical Serv- ices, 271 NLRB 1302, 1315 (1984). I also find that Rood's questions of Bassage in Novem- ber was coercive. At the time of this interrogation, Bas- sage after 2-1/2 years' employment by Respondent found himself, for the first time, alone, in President Rood's office. In light of these circumstances, and the coercive interrogation which Bassage had recently experienced in an encounter with Supervisor Halderman, I find that by Rood's asking Bassage how the Union's organizing drive was going, Respondent coerced its employees in viola- tion of Section 8(a)(1) of the Act. 2. Threats On 24 October Night Superintendent Larry D. Monroe approached employee Larry Bassage at the plant and said: "Hey, you do not want your job here." When Bassage sought an explanation of that remark, Monroe replied: "Because you have been talking union." When Bassage denied having talked union, Monroe grinned and walked away., Monroe's remarks strongly suggest that Bassage's ad- vocacy of the Union's cause among his fellow employees was inconsistent with continued employment at Re- spondent's plant. That suggestion was likely to interfere with, restrain, and coerce Bassage and his fellow em- ployees in the exercise of their rights to support a labor organization in its effort to become their collective-bar- gaining representative. Accordingly, I find that by Mon- roe's warning, Respondent violated Section 8(a)(1) of the Act. F W.I.L. Lundy Bros. Restaurant, 248 NLRB 415, 429 (1980); D.R.C Inc., 233 NLRB 1409, 1414 (1977). President Del Rood made antiunion speeches to sepa- rate groups of his employees at the plant on 2, 14, and 15 December. Rood used a single speech outline for all three speeches and referred to charts showing, among other things that Respondent suffered losses of $23,971 in 1980, $123,054 in 1981, $198,935 in 1982, and, for the first 9 months of 1983, $28,362. He showed that Re- spondent's losses for the 3 years ending 30 September, totaled $374,321.- Rood also reviewed charts reflecting the wage increases which the Respondent had previously granted. However, before he showed the Respondent' s losses, and the prior wage increases, Rood expressed strong op- position to the Union. He warned the assembled employ- ees that "it's a serious matter"; that they would not see Respondent "posting any cartoons" or "any funny things about how to vote. We won't measure equipment to sug- gest we're going to move it. We won't bring in trucks with Alabama license plates." Rood told his listeners that he did not bluff, promise, or scare, and then warned "that if trucks ever do back in, its gone because I won't be bluffing." Later in his speech, Rood explained that he had located Respondent's plant in Sturgis, Michigan be- cause "the talents is [sic] here. That's where the work force is." Rood asserted that most of his friends and ties were in Illinois. He also mentioned that during the previ- ous year, he had received an offer to purchase his home.' Granted that President Rood's remarks contained a prediction of plant closure, his words ran afoul of Sec- tion 8(a)(1) of the Act. For, his prediction was not "care- fully phrased on the basis of objective fact to convey [his] belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unioniza- tion." NLRB., v. Gissel Packing Co., 395 U.S. 575, 618 (1969). Instead, I find that Rood 's language strongly sug- gested that he had already decided to remove the ma- chinery from the plant and possibly move to Illinois, if the Union's organizing effort succeeded. Rood's presentation of figures showing the 'Respond- ent's operating losses for 3 successive fiscal years, cou- pled with his warning, was likely to make the point among the listening employees. The point was that finan- cial difficulty had not yet dampened his determination to operate the plant at Sturgis, Michigan, but that a union victory in the pending election would cause Del Rood to close that plant. I find, therefore, that Rood's remarks, quoted above, constituted a threat of retaliation at his hands, if a majority of Respondent's plant employees voted for union representation. By that threat, Respond- ent violated Section 8(a)(1) of the Act. NLRB v. Gissel Packing Co., supra, 395 U.S. at 618. During his speech, Rood referred to Respondent's cus- tomers, including Midas, Maremont, and Car-X. He stated that Respondent's customers "were anxious for us to get back to normal." Rood mentioned that "things were going to be back to normal and [he] would call 6 I based my findings regarding the incident of 24 October on Bas- 7 I based my findings of fact on the testimony of Del Rood and sage's testimony Charles W Huber ROOD INDUSTRIES 163 them promptly and let them know.8 He also declared that if the employees voted against the Union, "It would be a message to Midas, Maremont, etcetera, that you're behind me. That we want their business." I also credited Rood's denial that he told the employees that any cus- tomer would be lost if the employees voted for union representation. Contrary to the General Counsel, I find that Rood's remarks about customers did not carry the suggestion of plant closure. Instead, I find that Rood's remarks raised the spectre of customer dissatisfaction with interruptions in the stream of production and increased costs as possi- ble effects of the Union's organizing campaign. Absent was any threat, express or implied, that Respondent would layoff employees or otherwise impose any eco- nomic burden on its plant employees because of a_loss of -customers. I find that Section 8(c) of the Act protected these remarks. -Daniel Construction Co., 264 NLRB-569 , 570 (1982). See also Tri-Cas4 Inc.,, 274 NLRB 377, 378 (1985). I shall, therefore, recommend dismissal of the al- legation that these remarks violated-Section 8(aXl) of the Act. On an occasion in December, Superintendent Larry Monroe told prounion employee Chester Casner Jr.9 "I know that Del Rood would close the shop if [the Union] comes in." I find that an employee hearing this remark was likely to conclude that Monroe as a second level su- pervisor was an authoritative source conveying Rood's expressed intent. I find, therefore, that Monroe's remark was a coercive threat of economic reprisal if the employ- ees voted for the Union in the pending election. Accord- ingly, I further find that by Monroe's threat, Respondent impaired its' employees' freedom to select a collective- bargaining representative and thereby violated Section 8(a)(1) of the Act. I find, from employee Charles W. Huber' s testimony, that on 15 December he approached his supervisor, Bob Brown, and announced: If Del [Rood] is going to shut the plant down, then I'm gong to vote no because I don't want to lose my job. Brown responded: "If I were Del Rood, I'd shut the plant down because its not big enough for a union." I find that Supervisor Brown's remarks, as quoted above, were an expression of his personal attitude toward the Union. An employee hearing this remark would readily discern that Brown was not speaking for Del Rood or the Respondent,- but ` only for himself. I find, therefore, s I based my findings regarding Rood's references to customers on his testimony. The General Counsel's witnesses' testimonies were sketchy and came across as tentative. In contrast, Rood seemed certain of his de- tailed recollection, which he gave in a forthright manner. B I based my findings regarding Monroe's remarks to Casner on the latter's testimony. Monroe, after testifying that he could not recall having done so, flatly denied ever discussing plant closing with employee Casner or any employee. However, Monroe's testimony showed that he dis- cussed the- Union and union activity with employee Casner in December 1983. Thus, it appears that-Monroe had opportunity to raise the-topic of plant closing with ,Canner on that occasion. Further, of the two, Casner impressed me as the more straight forward .witness on this alleged inci- dent For these reasons, I have credited Casner's testimony rather than Monroe's. that Brown's remark was not a threat and was protected by Section 8(c) of the Act. Accordingly, his remark did not, violate Section 8(a)(1) of the Act and I shall recom- mend dismissal of the allegation that it violated that sec- tion of the Act. In December, Superintendent Larry Monroe spoke to employee George Amburgey, who was seated, waiting for parts, near the plant's spray booth. Monroe re- marked, in substance, that if the employees had a union bargaining representative they would not be allowed to sit 'down. Monroe also told Amburgey that a union could force the Respondent to discharge employees who "missed three days in a row."' o Monroe's warnings to Amburgey contained two im- plied threats. The first was that if the Union's organizing campaign succeeded, Respondent, would adopt a more stringent policy requiring employees to stand while working. ' The second threat was more subtle. Monroe announced that a union would oblige Respondent to dis- charge employees- who were absent from work for 3 consecutive days. At the time Monroe made this asser- tion, 'Respondent had a more' liberal policy toward em- ployee absences. There was no showing that Monroe supported his prediction by exhibiting a union contract or any -other evidence that the Union or any other labor organization insisted on the discharge of employees who were absent from -work 3 consecutive days. Thus, the thrust of Monroe's warning was that, if the employees selected the Union as their collective-bargaining repre- sentative, Respondent' would impose a harsher policy on employee absences and discharge those who were absent for, 3 consecutive days. , - I find that Larry Monroe's warnings of harsher poli- cies if the -employees voted for the Union as their collec- tive-bargaining representative restrained and coerced em- ployees in the exercise of their rights to support and vote for the Union. Accordingly, I find that Respondent, by Monroe's warnings, violated Section 8(a)(1) of the Act. Atlas Microfilming, 267 NLRB 682, 686 (1983), enfd. 753 F.'2d 313 (3d Cir. 1985). 3. Warnings of futility In a speech,'to employees of the first shift, on the morning of 26 October, in the plant's breakroom, Presi- dent Del Rood asserted that he had heard that someone was passing out union cards and then he launched into some antiunion remarks. In the course of his speech, Rood told the employees that the union' s organizing drive was underway and that he would not "run an or- ganized shop." t i 10 I based my findings regarding Monroe's remarks to Amburgey on the latter's testimony. Monroe testified that he frequently scolded Ambur- gey for sitting down on the job, and that he "probably"' scolded lum in late December Monroe denied warning Amburgey about a tightening of Respondent's policy toward sitting down and absences if the Union won the election However, of the two, Amburgey impressed, me as being more certain and convincing in demeanor while testifying about the al- leged warnings 11 I based my findings on Del Rood's testimony As Rood seemed more certain of his remarks, I have credited his version where it differed from that offered in Charles W. Huber's testimony 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When examined in context, Del Rood's statement that he would not run an organized shop amounted to an un- lawful warning that if the employees selected the Union as their collective-bargaining representative, Rood would not recognize it as such. The import of Rood's message to his employees was that it would be futile for them to join or support the Union. I fmd that by Rood's state- ment, Respondent restrained employees and interfered with their Section 7 right to support the Union' s organiz- ing drive and thereby violated Section 8(a)(1) of the Act. Antonio's Restaurant, 246 NLRB 833 (1979); Kenworth Trucks of Philadelphia, 229 NLRB 815, 818 (1977). On 28 October Night Superintendent Larry D. Monroe encountered employee Larry Bassage, who was on his way to a break period, and asked him why he was not wearing a large union pin. Bassage'replied in sub- stance that he did not have a big pin. Monroe told Bas- sage that the size of the pin did not matter because he, Monroe, was going to benefit from it and Bassage would not. I find that Monroe's statement carried the message that with union representation, Bassage and his fellow employees would end up no better off than they would have been without union representation. Thus did Monroe inform Bassage that it was futile to support the Union's organizing campaign. I find therefore that Mon- roe's advice to Bassage violated Section 8(a)(1) of the Act. EL L duPont Co., 263 NLRB 159, 165 (1982), enfd. 744 F.2d 537 (6th Cir. 1984). 4. The impression of surveillance At his meeting with the day-shift employees and su- pervisors early on the morning of 26 October, President Del Rood revealed that he knew of union activity among his employees. Specifically, Rood announced that: "I had heard there was solicitation being made for card signers and that an organization attempt was underway." Among those present at the meeting was employee Dave Huber, a union activist, who had already participated in the inception of the Union's campaign by arranging two meetings for its representative, Wayne Eifler, with em- ployees held on 24 October. It also appears that Huber had told employees about the meetings. Later, on the morning of 26 October, Rood ap- proached Huber in the plant and asked if he, Huber, "had any problems." Huber replied that he had none. Rood then said that he heard that Huber "was a card carrier." Huber responded: "I had stories told about me before." Huber broke off the conversation to get a ciga- rette. 12 In South Shore Hospital, 229 NLRB 363 (1977), the Board declared: In determining whether a respondent created an impression of surveillance, the test applied by the Board is whether employees would reasonably assume from the statement in question that their union 12 I based my findings of fact regarding Rood's conversation of 26 Oc- tober with Dave Huber on the latter's version. Some of Rood's responses to counsel's questions regarding this conversation seemed evasive . In par- ticular, Rood was evasive when questioned about whether he called Huber "a card carrier " In contrast, Huber was a conscientious witness on this incident, who provided straightforward answers. Therefore where his testimony differed from Rood's on this topic, I have credited Huber. activities have been placed under surveillance. Schre- menti Bros., 179 NLRB 853 (1969). Here, I find it unlikely that Rood's remarks created the impression that Dave Huber's union activities were under surveillance. Granted, Rood's remarks reflected a strong suspicion that Huber was a union activist. Howev- er, Huber's credited testimony showed that by 26 Octo- ber he had assumed a leading role in arranging meetings between, employees and the Union's representative, Eifler. I fmd from Huber's testimony that he had also spread word of these meetings among the employees at the plant. The first meeting took place on 24 October, 2 days before Rood approached him about his "problems." Thus, the evidence showed that by 26 October, Rood might have received word of Dave Huber's union activi- ty from information volunteered by employees or super- visors, without resort to surveillance of Huber's activity. In sum, I find that Rood's remarks to Dave Huber were not likely to cause him or any other employee to believe that Respondent had placed his union "activities under surveillance. I shall therefore recommend dismissal of the allegation that those remarks violated Section 8(a)(1) of the Act. During the week of 12 December, but prior to the election on 16 December, Night Superintendent Monroe came to employee Casner at the plant and began asking him about union meetings. Casner, a prounion employee, attended a union meeting on 24 October and thereafter attended such meetings in November and December. He also helped to notify other employees of these meetings. Monroe asked Casner how the union meetings were going at the latter's home. Casner replied that there were none. Monroe rejoined: "Well, there's a lot of cars at your house. I know you've been having union meetings at your house." Casner,retorted: "You know better than that."13 Applying the Board's test, I find that Monroe's remarks left little doubt that Monroe or someone acting for Respondent had been watching Casner's home to keep track of his union activity. That Casner and Monroe had a social relationship of 3 years' duration in which they had occasionally gone out drinking together at nearby bars and engaged in friendly conversation did not reduce the coercive effect of Monroe's questions. From Casner's testimony I find that Monroe did not punctuate his remarks with levity or evidence of friend- ship. I also find, therefore, that Monroe's remarks were likely to give Casner the impression that his union activi- ty was under surveillance by Respondent. Accordingly, I further fmd that Monroe's remarks were coercive and that they-violated Section 8(a)(1) of the Act. 13, I based my findings of fact regarding Monroe's remark to Casner on the latter's testimony Monroe's testimony and his demeanor caused me to doubt the reliability of his version. When Respondent's counsel asked Monroe if his version was a complete account, Monroe gave this quali- fied response: "Basically, that's about what it amounted to, yes." Later, Monroe answered "Yes," when Respondent's counsel asked if his version was a complete account, "to the best of your recollection." I also noted that Monroe seemed uncertain as he related his version and answered counsel's questions In contrast , Casper appeared more certain of his version, as he testified without qualifying Ins answers. ROOD INDUSTRIES 165 5. The no-solicitation rule Prior to 25 October, Respondent did not have a plant rule, written or oral, regarding solicitation. On that date, during the second shift, employee Peter Wolgamood complained to Superintendent Larry Monroe about em- ployee Larry Bassage . Peter Wolgamood reported that Bassage had- talked to Peter's brother Jim about signing a card; that an argument had erupted in which "Larry cussed [Jim] out." Peter threatened to take action against Bassage unless Monroe intervened. A few minutes later, Monroe found Bassage at work in the plant, and scolded him for bothering Jim Wolga- mood. Referring to Bassage's solicitation of Jim Wolga- mood, Monroe told Bassage: "You can't do that during working hours." Bassage. parked the lift truck he was driving and went to Foreman Joe. Lough's desk where he began a conversation with Lough and Superintendent Monroe about solicitation for the Union. In substance, Monroe told Bassage that he could talk about the Union to other employees during breaks. Bas- sage asked if he could be fired because of his solicitation of Peter Wolgamood. Monroe answered that he probably could for soliciting during working hours. On 27 October Superintendent Monroe provided fur- ther clarification in a written warning notice he issued to employee Bassage because of the solicitation of Jim Wol- gamood on 25 October. The remarks section of the warning contained the following: Soliciting on Company time and away from normal working areas without our permisson [sic]. I also find from Bassage's testimony, that during the Union's campaign, following his encounter with Superin- tendent Monroe, he and other employees solicited em- ployee support at the plant, during rest periods, or other break periods. Monroe admitted that the only written warning14 he had ever issued for solicitation on Respondent's property was the one he issued to Bassage. However, there was no showing that Monroe or any other of Respondent's supervisors had observed employee solicitation during working time or received a report, of employee solicita- tion which had occurred during working time at the 14 I based my findings of fact regarding Supenntendent'Monroe's re- marks to employee Bassage about Respondent's no-solicitation rule on Monroe's testimony. I have rejected employee Casner' s version in which he asserted that he heard Monroe prohibit "union talk on the premises, in the parking lot or anywhere in the factory." Bassage's admission, cor- roborated by Casper, that after 25 October, he and other prounion em- ployees freely engaged in union solicitation on Respondent's premises during breaks, cast serious doubt on the hkhhood that Monroe voiced the broad proscription which Casner reported in his testimony : I also noted that Casner did not remember any reference to Bassage's solicitation of ,employee Wolgamood. Bassage and Monroe testified that Monroe made reference to that incident in his remarks to Bassage I also rejected Bassage's testimony where it differed from Monroe's ac- count. Bassage's testimony on cross-examination was significantly incon- sistent with his testimony on direct examination regarding Monroe's ad- monition, delivered as Bassage sat on a forklift Further, unlike Monroe, who testified in a full and forthright manner, Bassage was uncertain about what was said to him on the evening of 25 October by Monroe and Foreman Joe Lough plant, other than the one Monroe received on 25 Octo- ber, regarding Bassage. In Our Way, 268 NLRB 394 (1983), the Board held that rules prohibiting employees from soliciting during "working time" are presumptively valid and that rules prohibiting employees from soliciting during "working hours" are presumptively invalid. However, in footnote 6 of Our Way, the Board citing Essex International,' 211 NLRB 749, 750 (1974), recognized that no violation would be found where an employer could: "show by ex- trinsic evidence that, in the context of a particular case, the "working hours' rule was communicated or applied in such a way as to convey an intent clearly to permit so- licitation during breaktime or other periods when em- ployees are not actively at work." The Board has also held that a rule prohibiting employee solicitation during "company time" does not violate Section 8(a)(1) of the Act Bluebonnet Express, 271 NLRB 433 fn. 3 (1984). In the instant case, Respondent's no-solicitation rule, as stated by Superintendent Monroe, did not violate Section 8(a)(1) of the Act. For, moments after he issued the fa- cially invalid proscription, Monroe made plain that Re- spondent would permit employee solicitation at-the plant during break periods Respondent also demonstrated its intent to limit its no-solicitation policy to working time by the reference to "company time," in the warning slip which it issued to Bassage on 27 October. Indeed, Bas- sage's testimony-, showed that following his discussion with Monroe on 25 October, and for the rest of the Union's organizing campaign, he and other employees freely engaged in solicitation for the Union during break periods. Finally, there was no showing that Respondent permitted employee solicitation during work time for purposes other than union organizing, such as sales or charitable causes. Accordingly, I shall 'recommend dis- missal of the allegations that Respondent's no-solicitation rule was overly broad and discriminatory. 6. The promise of a better attendance point system and its implementation 1 s Since 1981, Respondent has maintained a point system which penalizes employees by giving- points or half points for absence, tardiness,. or failure to complete a shift. Three points result in a verbal warning. Employees who accumulate 5, 7, or 10 points receive written warn- ings. When an employee, reaches 15 points, the Respond- ent discharges the offender. In the spring of 1982, employee dissatisfaction with the point system and other concerns caused Del Rood to, es- tablish an employee plant committee to study the system and other employee concerns. In August 1982 the com- mittee and Rood worked - toward some liberalization of the point system. Two months later, Rood agreed to remove all points from employee records and start each with zero points. In, April 1983 Rood convened a special employee com- mittee, primarily to consider, the point system. Rood agreed to give all employees one free day annually and to provide for leave when an employee's wife "was 15 I based my findings of fact in this section on Del Rood's testimony. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having a child." He also agreed to an occasional "earned day off." Respondent did not grant any further changes in the point system during the remainder of 1983-There were no committee meetings during the summer of 1983. In the fall of 1983, Rood changed the membership of the plant committee and met with it to discuss further changes in the point system to permit point reduction and the status of employees who fail to complete a shift due to illness. On 13, 14, and 15 December Rood held meetings with groups of his plant employees, at which he expressed an- tiunion sentiment, warned of plant closure if the Union succeeded in the coming election, and discussed matters of interest to the employees, including the attendance point system. Rood's remarks to employees at all three meetings admittedly "suggested" that Respondent was reviewing the point system and that Respondent "expect- ed to make changes" Rood also invited the employees to provide "input in the program." Suggestions were to be "simple to administer" and "the same for everybody." He did not expressly promise any specific change. At the meetings of 14 and 15 December, Rood's statements about changes were in response to employee questions about the point system. I find from Rood's testimony that on 31 March Re- spondent announced two changes to its point system, ef- fective 1 April. The first announced change was that any plant employee who had 2 straight months of perfect at- tendance, excepting vacation days, holidays, bereave- ment, and military leave, would earn an allowance day off. The second change was that Respondent would not penalize an employee, who was unable to finish his or her assigned shift because of illness or other good cause. Respondent's announcement of the two changes on 31 March and their implementation on 1 April occurred in the context of the Union's organizing campaign among Respondent's plant employees. For although the Region- al Director held a representation election among Re- spondent's employees on 16 December, he impounded the ballots cast in that election pending the outcome of the instant case. Thus, at the time Respondent announced and implemented the two changes to its point system, the Union's representation petition was still pending and there remained the possibility that the Regional Director might fmd it necessary to direct a second election among Respondent's employees. By thus"emphasiz[ing] to [its] employees that there is no necessity for a collective bargaining agent " (NLRB. v. Bailey Co., 180 F.2d 278, 279 (6th Cir. 1950), Respondent unlawfully interfered with their right of self-organiza- tion: In view of Respondent's hostility toward the Union, as shown by Rood's threat to close the plant if the Union won the election of 16 December, the timing of the an- nouncement of Rood's intent to change the point system, the announcement and implementation both of which benefited his employees, of the two changes, and Re- spondent's' failure to explain its action on the basis of le- gitimate_busiaess conditions, I find that Respondent was prompted by an unlawful purpose. Rood's remarks about changes on 13, 14, and 15 December, in the face of the representation election scheduled for 16 December, the announcement of the two improvements on 31 March and their implementation on 1 April, were designed to suggest to the Respondent's plant employees "that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if not obliged." NLRB. v. Exchange Parts Co., 375 U.S. 405, 409 (1964). _ The evidence strongly suggested that Rood was using the employees' concern about the point system to defeat the Union. Rood's announcement of his intent to change the point system and his request for employee sugges- tions occurred in the context of antiunion speeches given during the last 3 days before the representation election of 16 December among his plant' employees. These an- nouncements also came after a series of changes liberaliz- ing the point system. That circumstance, together with Rood's expressed interest in employee suggestions, was very likely to lead his listeners to infer that he was im- pliedly promising to further liberalize the point system and I so fmd. I also find that from the antiunion context the employees were likely to understand that Rood was holding out these promises as an inducement for them to reject the Union. Respondent contends that there has been no showing of unlawful intent on the ground that Rood's December announcements and the resulting April changes were all part of a process which predated the arrival of the Union in October. However, I find no merit in Respondent's contention. The Respondent's contention lacked evidentiary sup- port. There has been no showing that prior to the Union's campaign, Rood or any other member of Re- spondent's management had given any thought to a De- cember announcement of a plan for further liberalizing the point system. Further, there was no evidence that prior to the surfacing of the Union's campaign, Rood had given his employees any ground for expecting Re- spondent to agree to the two improvements announced on 31 March. In sum, Respondent has not rebutted the evidence which amply showed that its implied promise of im- provements in the point system and the implementation of that promise were motivated by an intent to interfere with its plant employees' freedom of choice in the pend- ing representation proceeding. I find therefore that by the implied promise of changes and by the carrying out of the promise, the Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent engaged in unfair labor practices affecting commerce within the' meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act, by: coercive- ly interrogating an employee regarding the union senti- ment and union activity of other employees; threatening an employee with discharge because he supported the Union; implying to its employees that their support for the Union's organizing effort was futile; creating the im- pression that it was keeping the union activity of Chester Casner Jr. under surveillance; threatening its employees with a rule prohibiting employees from sitting while working and with discharge after three absences if the ROOD INDUSTRIES 167 Union succeeds in organizing them ; threatening on two occasions, to close its plant if the Union succeeded in or- ganizing its employees; and by impliedly promising to liberalize its attendance point system and by thereafter carrying out its promise for the express purpose of dis- suading its employees from supporting the Union in a Board-held representation election. 2. Respondent has not otherwise violated the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- edt6 (a) Post at its plant in Sturgis , Michigan, copies of the attached notice marked "Appendix." 17 Copies of the notice on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) 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 complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found. ORDER The Respondent, Rood Industries, Inc., Sturgis, Michi- gan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees regarding the union sentiment and union activity of other employees. (b) Threatening employees with discharge or other re- prisals because they support District Lodge 117, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (c) Implying to its employees that their support for District Lodge 117's organizing effort, or for the orga- nizing effort of any other labor organization is futile. (d) Creating the impression that it was keeping the union activity of Chester Casner Jr. or of any other em- ployee under surveillance. (e) Threatening to close its plant or to otherwise retali- ate against its employees if District Lodge 117 or any other labor organization succeeds in organizing its em- ployees. (f) Impliedly promising to liberalize its attendance point system, or promising other benefits to employees, or implementing such promises for the express purpose of dissuading employees from supporting District Lodge 117 or any labor organization in a Board-held representa- tion election. (g) Threatening to impose on its employees stricter plant rules including a prohibition against sitting while working, and threatening to discharge employees after three absences, if they choose District Lodge 117 or any other labor organization as their exclusive collective bar- gaining representative. (h) In any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 16 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.45 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 11 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 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT coercively interrogate you regarding the union sentiment or union activity of other employees. WE WILL NOT threaten you with discharge or other reprisals because you support District Lodge 117 Inter- national Association of Machinists and Aerospace Worders, AFL-CIO or any other labor organization. WE WILL NOT imply to you that your support for Dis- trict Lodge 117's organizing efforts or for the organizing effort of any other labor organization is futile. WE WILL NOT create the impression that we are keep- ing your union activity under surveillance. WE WILL NOT threaten to close down our Sturgis, Michigan plant or otherwise retaliate against you if you select District Lodge 117 or any other labor organization as your collective-bargaining representative. WE WILL NOT impliedly promise to liberalize our at- tendance point system or promise other benefits to you or implement such promises for the express purpose of 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dissuading you from supporting District Lodge 117 or any other labor organization in a Board -held representa- tion election. WE WILL NOT threaten to impose upon you stricter plant rules, including a prohibition against sitting while working and a rule requiring that you be discharged any other labor organization as your exclusive collective- 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. after three absences, if you choose District Lodge 117 or ROOD INDUSTRIES, INC.