Smi Steel, Inc.

274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SMI Steel, Inc. and United Steelworkers of America Case 10-CA-21239 30 September 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 12 January 1987 Administrative Law Judge Robert A. Gritta 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,' and i The Respondent has excepted to some of the judge's credibility find- ings 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 The Respondent has excepted to the judge's conclusion that employee Preston Riedlinger's prior felony convictions, introduced by the Re- spondent to impeach Riedlinger 's credibility, were "too remote" to affect his current veracity At the hearing, Riedlinger testified as to the convic- tions and as to his subsequent parole and pardon by the State of Alabama and he was asked to bring copies of parole and pardon documents relat- ing to these convictions No further requests were made for these docu- ments at the hearing In its brief to the judge, the Respondent attacked Riedlinger's credibility based on the convictions themselves and on Ried- linger's failure to present the documents supporting his testimony that he had received a parole and pardon In response , the General Counsel filed a motion, to the judge, with a supporting affidavit and exhibits , to reopen the record for admission into evidence of Riedlinger 's parole and rehabili- tation documents, which indicate that the State of Alabama issued Ried- linger a "Certificate of Restoration of Civil and Political Rightr" on 14 April 1982 In an affidavit attached to the motion , Riedlinger stated that he had brought the documents to the hearing the next day but that no one asked him for them The motion was served on the Respondent and was unopposed The judge did not rule on the posthearing motion or dis- cuss it in his decision Although the General Counsel has not excepted to the judge's failure to dispose of the motion, we think it appropriate to rule on it in light of the Respondent's exceptions to the judge's credibility rulings. Accordingly, the General Counsel's motion is granted and the af- fidavit and exhibits are received into the record Sec. 101 10(a) of the Board's Rules and Regulations states that "[t]he rules of evidence applicable in the district courts of the United States under the Rules of Civil Procedure adopted by the Supreme Court are, so far as practicable, controlling " Rule 609(c)(1) of the Federal Rules of Evidence states that evidence of prior convictions is inadmissible to attack credibility when the conviction has been the subject of a pardon, annulment , certifi- cate of rehabilitation, or other equivalent procedure based on a sub- stantial showing of rehabilation and the witness has not been con- victed of a subsequent crime The Respondent failed to introduce any evidence that Riedlinger had been convicted of a felony since the State restored his civil and political rights and Riedlinger testified without contradiction that he has not been charged with any felonies since the restoration of his rights Accordingly, we rule that evidence of the felony convictions subject to the 1982 resto- ration of rights is inadmissible to impeach Riedlinger's credibility The Respondent contends that the judge 's credibility resolution demon- strated a "prejudiced predisposition" against its arguments On a careful examination of the judge's decision and of the entire record , we are satis- fied that these contentions are without merit conclusions to the extent consistent with this Deci- sion and Order, to modify the remedy,2 and to adopt the recommended Order as modified. 1. The judge found that the Respondent 's general manager, Dolph Morrison, violated Section 8(a)(1) of the Act by threatening employees that the Re- spondent's "open-door policy" would no longer exist if the employees voted to unionize the plant.3 The Board has held that an employer does not vio- late the Act by informing employees that unioniza- tion will bring about "a change in the manner in which employer and employee deal with each other," Tri-Cast, Inc., 274 NLRB 377 (1985), or by statements informing employees of a "loss of access to management." Koons Ford of Annapolis, 282 NLRB 506 (1986). Assessing Morrison's statement in light of these cases , we conclude that his state- ment did not constitute an unlawful threat. Ac- cordingly, we dismiss this allegation of the com- plaint. 2. The judge at one point in his decision found that Works Manager Slay violated Section 8(a)(1) of the Act at a meeting on 20 September 1985 by threatening employees with discharge . We agree that Slay's remark that he had been informed that "some of his good employees are being intimidated and harassed by a few bad employees and this is going to stop today" violated Section 8(a)(1) of the Act. We conclude, however, that Slay's remark, as alleged in the complaint and as set forth in the judge's conclusions of law, constituted a threat of reprisal rather than a specific threat of discharge. 3. The Respondent has excepted to that part of the judge's recommended Order, which directs it to cease and desist from "prohibiting employees from leaving their work areas without permission contrary to past practices." The Respondent con- tends that this language does not take into account the "practicalities of safety in a dangerous work- place." The judge found that the Respondent's im- plementation of its written rule requiring employ- ees to receive permission before leaving their work area was impermissibly motivated by its intent "to stifle communications about the Union among its 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after I January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C. § 6621 Interest on amounts accrued prior to l January 1987 (the effective date of the 1986 amendment to 26 U S.C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 8 The judge's decision misquotes the text of Morrison's speech as it ap- pears in the record Morrison stated that You would not be permitted to take advantage of an opportunity to come all the way to my front office and sit down and talk to me, because you would be prevented from doing that under the contract that you would be [sic] a participating member with the Union You would be locked into the acts and the decisions of an executive com- mittee of a Union 286 NLRB No. 26 SMI STEEL employees." We agree with the Respondent that the judge's recommended Order, as written, might restrict future lawfully motivated changes in the Respondent's practices regarding permission to leave the work area. Accordingly, and in light of his fording, we will modify the judge's recommend- ed Order to require the Respondent to cease and desist from discriminatory enforcement of its rule regarding leaving the work area with the purpose of restricting employees in the exercise of their Section 7 rights.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, SMI Steel, Inc., Birmingham, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) Discriminatorily enforcing our rule regard- ing leaving the work area without permission in order to restrict employees in the exercise of their Section 7 rights." 2. Substitute the attached notice for that of the administrative law judge. 4 The judge found that the Respondent"s rule against unauthorized postings within the plant violated Sec 8(a)(1) of the Act This violation was neither alleged in the complaint nor fully litigated at the hearing Accordingly, we reverse the judge's finding. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten employees with reprisals for engaging in union activities. 275 WE WILL NOT maintain or enforce our present rule against distribution of literature on company property. WE WILL NOT discriminatorily enforce our rule regarding leaving the work area without permis- sion in order to restrict employees in the exercise of their Section 7 rights. WE WILL NOT issue written warnings to our em- ployees based on our no-solicitation rule for dis- criminatory reasons. WE WILL NOT discharge our employees for pre- textual and discriminatory reasons. 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 offer James Armstrong and Preston Riedlinger immediate and full reinstatement to their former jobs from which they were discharged on 28 September 1985, 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 ben- efits resulting from their discharge, less any net in- terim earnings, plus interest. WE WILL notify James Armstrong and Preston Riedlinger that we have removed from our files any reference to their warnings and discharges and that the discharges and warnings will not be used against them in any way. SMI STEEL, INC. A. Leslie Unger, Esq., for the General Counsel. Frank Manitzas, Esq., J. Joe Harris, Esq., and Leslie Selig Byrd, Esq., of San Antonio, Texas, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. This case was tried before me on 6 and 7 February and 4 March 1986 in Birmingham, Alabama, based on a charge filed by United Steelworkers of America (the Union) on 30 September 1985 and a complaint issued by the Re- gional Director for Region 10 of the National Labor Re- lations Board on 14 November 1985 . 1 The complaint al- leged that SMI Steel, Inc. (Respondent) violated Section 8(a)(1) and (3) of the Act by interrogating, threatening, and making promises to its employees , and by discrimin- atorily disciplining and discharging employees . Respond- ent's timely answer denied the commission of any unfair labor practices. All parties hereto were afforded full opportunity to be heard, to examine and cross -examine witnesses, to intro- i All dates are in 1985 unless otherwise specified 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD duce evidence, and to argue orally. Briefs were submit- ted by General Counsel and Respondent on 12 May 1985. Both briefs were considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor on the witness stand, and on substantive, reliable evidence considered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that SMI Steel, Inc. is an Alabama corporation engaged in the manufacture of steel products in Birmingham, Ala- bama. Jurisdiction is not in issue. SMI Steel, Inc., in the past 12 months, in the course and conduct of its business operations, shipped products from its Birmingham facili- ty valued in excess of $50,000 directly to points located outside the State of Alabama. I conclude and find that SMI Steel, Inc. is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BUSINESS OF RESPONDENT SMI Steel, Inc. is a mini-steel mill that utilizes scrap steel as its raw material. The scrap steel is melted and cast into intermediate structural angles, channels, rounds, and flats. Production began 8 March 1984 and has con- tinued to the present. Approximately 400 employees comprise the work force at SMI. The admitted supervi- sory hierarchy consists of. Dolph Morrison, general man- ager; Gerald Slay, works manager; David Lundy, melt shop superintendent; Danny Eaddy, melter; Sam Allen, casting foreman; John Michael Holcomb, personnel di- rector; Phil Seidenberger, assistant works manager; and William Johnson, maintenance superintendent. III. THE ALLEGED UNFAIR LABOR PRACTICES The alleged violations emanate from events beginning with the Union's organizational drive in September 1985. Pertinent testimony of witnesses is recounted below. David F. Lundy testified he is melt shop superintend- ent. The melt shop is composed of the furnace area and the casting area. The melt shop has regular weekly crew meetings of each of its four crews. Additionally, a crew selects two representatives to attend the monthly works manager's meeting . One representative from the furnace area, the other from the casting area. The chosen repre- sentatives for any given month come from only one of the four crews and the selection alternates between the four crews. Prior to the monthly meeting a notice is posted containing the names of each department's chosen representative. Lundy was present in Slay's office 20 September when Armstrong and Riedlinger were brought in. Following a crew meeting that morning Lundy took both to Slay's office. Riedlinger asked that the meetings be held sepa- rately so Armstrong went in first. Seidenberger and Mike Holcombe were also present. Slay told Armstrong he had numerous complaints of Armstrong's union solicita- tion and in some cases to the extent of harassment of em- ployees. Slay told Armstrong that employees had the right to carry on union activities at certain times and cer- tain places, but not in work areas during worktime. Slay warned Armstrong that any repetition of the union activ- ity would mean further discipline up to and including discharge. Slay asked Armstrong if he understood and if he had anything to say. Armstrong replied that he under- stood the situation and left the office. Riedlinger was then summoned to Slay's office. Slay told Riedlinger that employees had complained about his union solicitations during worktime. Slay advised Ried- linger that he could engage in union activity during non- work time in nonworking areas of the plant specifically mentioning the lunchroom. He further advised Reid- linger that any continuation of such activities would result in further discipline to the point of discharge. Slay handed a written directive to Riedlinger, which con- tained what Slay had said. Riedlinger read it, initialed it, and handed it back to Slay. Slay did not ask if any other employees were involved in the union activity. Reid- linger wanted to discuss several personnel matters so Slay closed the meeting on union activities and said he would now hear the personnel complaints. After Slay ex- plained the rules involved in the personnel complaints, Riedlinger said he understood the rules. Riedlinger added that he had been involved in union activities up to that point, but from then on he would no longer involve himself in union activities. Rather he would work strong- er to see that the Union did not come into SMI. Slay told Riedlinger that if no more problems occurred in the next 6 months he would give the directive to Riedlinger to tear up. During September Lundy on several occasions told the crews that they were not to leave their work areas without permission of their supervisor. This was the first explanation of the rule to the employees. On 26 September a plantwide meeting was held in the lunchroom chaired by Gerald Slay. Following the plantwide meeting Phil Seidenberger told Lundy that in view of the disgruntlement on the day crew an addition- al representative should be selected from their ranks to attend the works manager's meeting. Lundy called a spe- cial crew meeting. Danny Eaddy's furnace crew and Sam Allen's casting crew were in attendance. Lundy opened the meeting with the announcement that since there were problems with the two crews an additional representative would be selected to attend the works manager's meeting. Preston Riedlinger was nominated and selected by the employees. Shortly thereafter, Per- sonnel Director Mike Holcombe and Assistant Works Manager Phil Seidenberger came into the meeting. Lundy informed them of the additional selection of a representative to the works manager's meeting and Sei- denberger said the established format should not be changed. If anyone on the crew wanted something spe- cial brought up at the works manager's meeting, the SMI STEEL 277 elected representatives, Mark Tanner or Joe Kimberly, could handle it On 28 September early in the shift, Dan Eaddy the melter, reported to Lundy that Riedlinger had worn a union shirt that day and told Eaddy he was the union representative intent on organizing the plant. In addition, Eaddy reported that Riedlinger had brought a briefcase to work that day. During the morning the transfer car had broken down, necessitating putting a furnace heat on hold. Without the transfer car the ladle could not be transported from the furnace to the casting tower and if the ladle could not be moved, the furnace could not be emptied. After the transfer car was repaired and the furnace tapped, work returned to normal. At this time Eaddy reported to Lundy that Ken Crawford had asked if union buttons were the same as literature because Riedlinger and Arm- strong had exchanged union buttons in the control room that morning. Lundy found Crawford in the lunchroom and informed him that Eaddy had reported the earlier conversation with him. Lundy asked Crawford what had happened. Crawford said that during the delay of the heat that morning while he and Riedlinger were in the control room Armstrong came in. Riedlinger took a handful of union buttons from his briefcase and gave them to Armstrong telling him to pass them out to em- ployees. Riedlinger said he and another employee were to meet in the parking lot after work to pass out union literature. Riedlinger then handed some newspaper mate- rial to Crawford, saying he could read it tonight at home. Crawford did not take the material telling Ried- linger that he already had such material. Armstrong left the control room at this time. Later Lundy went to the control room and explained to Riedlinger and Crawford that they could not keep personal belongings in the con- trol room. Lundy told Riedlinger to remove his briefcase and told Crawford to remove his lunch pail. Lundy met with Eaddy to attempt to pinpoint the time that Armstrong would have been in the control room. Eaddy told Lundy that during the time the transfer car was broken down he had gone to check on the repair. When the repair was finished, Eacldy returned to the fur- nace area and saw Armstrong leaving the furnace area. Lundy and Eaddy determined that Armstrong had been in the control room while the transfer car was being re- paired. The furnace was tapped as usual after the transfer car was repaired and the steel was transported to the casting tower with no additional delays. Lundy deter- mined, however, that Armstrong should not have left the ladle area while the transfer car was being repaired be- cause of the potential for a second delay and the danger- ous condition a second delay could have caused. Lundy reported his findings to Seidenberger who in turn suggested they both talk to Slay. After receiving the report from Lundy, Slay called the company attorneys. Slay and Lundy explained to the attorney the critical nature of the furnace delay and what could have hap- pened. The question of a written statement came up and when the attorneys were told there was none it was de- cided that a written statement from Crawford was needed Lundy called Crawford to the office to give his statement to a secretary. After giving his statement he returned to work while the secretary typed the statement in final form. Crawford was recalled to the office, read his statement, signed it, and then returned to work. Lundy went to the furnace area and informed Eaddy that he was taking Riedlinger to the front office. Lundy summoned Riedlinger and they both went to Slay's office. Slay, Seidenberger, Holcombe, Lundy, and Ried- linger were present. Slay told Riedlinger that he was being discharged for union solicitation during worktime in the work area of the plant and it was evidenced by a written statement. Slay told Riedlinger to remove all of his belongings from the plant, including his case, and not to set foot on company property again. Lundy then es- corted Riedlinger from the plant property. The melt shop is composed of the ladle area, the fur- nace area, and the casting tower. Ladles are made ready in the ladle area and transported to the furnace area by an overhead crane. Once a furnace is tapped and the ladle is full of molten steel, the crane moves it to a trans- fer car on rails. The transfer car moves it to the position so the casting tower crane can lift it to the top of the tower After the ladle is emptied it is lowered to a second transfer car, which moves it to a position where the original crane can transport it back to the ladle area for cleaning, checking, and make ready for another load of steel from the furnace. When a furnace heat is proper, a loud whistle blows signaling the ladleman to transport the ready ladle to the furnace. Once the furnace is ready to be tapped, any holding period is difficult and can be dangerous. If held too long for any reason the molten steel could melt through the side of the furnace. Such a melt through would not only damage the furnace but also surrounding machinery and could be dangerous to personnel. In the past, two such melt throughs have oc- curred but only minimal damage and no personal injuries occurred. Albeit employees were determined to be at fault they were not discharged. Douglas E. Ratliff testified he has been employed as a maintenance mechanic for a year and a half. On Septem- ber 18 Ratliff attended a morning all-plant meeting in the break area. Morrison, general manager, and Slay, works manager, spoke at the meeting. Slay told the employees that SMI's predecessor, Connors, was put out of business by the Union. Slay said unions are bad and put people out of jobs. He added that if a person keeps aggravating employees to sign a union card or keeps harassing em- ployees about signing a union card he wanted to be the first to know because he "would fire his ass." Slay showed the assembled employees a blue union card that he had received. He told the employees that both the Company and employees have certain rights under the law. However, Ratliff could not recall what rights were specified nor could he recall any discussions of the Com- pany's no-solicitation and no-distribution rule. Ratliff did receive an employee handbook when he was hired but he did not read it, although he attended one meeting wherein the handbook was explained. The day following the meeting Ratliff's crew of five maintenance men were told by leadman Humphrey that they were not to use the new breakroom anymore for breaks or lunch. Previously the employees used the new 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD breakroom or the maintenance office whenever they had time to eat or drink. The new breakroom is distinguished from the breakroom on the furnace floor. Frequently the crew had to eat while they worked because a particular repair had to be made in the least amount of time. On occasion the maintenance crew did take a morning break the same time as the day-shift employees when working days. Preston Riedlinger testified he was employed from February to September 1985 in the melt shop. He was supervised by Danny Eaddy, the melter, and Melt Shop Superintendent David Lundy. Riedlinger was first involved with the union campaign on 14 September. He signed a card and was given 100 union cards and some literature to distribute while off the job. Riedlinger visited several employees at home and signed up three employees. The next workday, 16 September, Riedlinger was asked on night shift by sever- al employees if he had any union cards. He told them he would speak to them at a later date. The following day at 7:30 a.m. a company meeting was held in the canteen at the plant. All employees in the plant attended. Dolph Morrison, president of SMI, spoke at the meeting. He said he could not understand why the employees felt like they needed a union. He opined that only the bad em- ployees wanted a union and the good employees did not want a union. The bad employees were only 5 percent of the work force. Morrison said the Steelworkers were a striking union and put people out of work. He felt a union was not needed at SMI and if a union did come in the Company's open-door policy would be abolished. The next day a second meeting of all employees was held at the same time and place. Gerry Slay spoke to the employees and held up a union card for all to see. Slay read the card aloud and speculated on the amounts of initiation fees and monthly dues. Slay remarked that he had been told by some of his good employees that they were approached on the job and he stated he would "fire anybody's ass" for union activity on company premises. Slay also stated that unions broke companies and he had the right by Federal law to replace strikers with perma- nent employees. Slay suggested to the employees if they had any doubts ask some of the old Connor's workers who preceeded SMI. Slay stated several times that the good employees numbered 95 percent and the bad em- ployees (5 percent) were the ones passing out union cards. The following day when Riedlinger came to work he asked Eaddy for permission to use the phone to call his mother in the hospital. Eaddy gave him permission. Eaddy told Riedlinger that a melter's meeting was held that morning with management, and lawyers present and SMI would never negotiate a contract with a union. He said as of today no one is allowed to leave the mezzanine floor without permission. Eaddy added that he would quit before working under a union, but now he is proud to be a member of the SMI family because they will never have a union. Friday morning of this same week a safety meeting was scheduled for the furnace crew and the casting crew. Normally Lundy would have presided, but this meeting was started by Gerry Slay and Phil Sei- denberger. Slay looked directly at Riedlinger and Arm- strong when he stated that a couple of employees had been harassing and soliciting his good employees on the job. He promised each employee that as of that day he would stop this couple of bad employees from harassing and soliciting employees on the job. Lundy then held the safety meeting as planned. After the meeting Lundy stopped Riedlinger and Armstrong before they left and said, "We need to go to the front office and straighten up a few things." When the three got to the front office, Slay called Armstrong inside. Riedlinger waited outside about 10-15 minutes . When Armstrong came out, Slay called Riedlinger inside the office. Slay said he had re- ports from other employees that Riedlinger had harassed and solicited them. He picked up a paper from his desk, handed it to Riedlinger, and said this is a reprimand for harassment and solicitation of other employees. Ried- linger started to say he had not harassed or solicited anyone but Slay cut him off saying, "I don't give a damn what your opinion is; we're not here to discuss your be- liefs and thoughts. I am here to reprimand you for har- assment and solicitation and if I hear anymore, I'll fire your ass." Riedlinger realized that his job was in jeop- ardy so he told Slay and Lundy that he had made a mis- take trying to bring the Union into SMI. Riedlinger ex- plained that the union came into the picture because of a complaint made against him wherein he was denied the right to speak up for himself. Slay said this is a different subject so he closed the meeting on the reprimand and then said he would listen. Riedlinger told Slay that em- ployees felt they would be terminated if they used the open-door policy. Slay told the supervisors present that he would fire them if they gave employees any trouble for using the open-door policy. Slay said employees had the right to come to his office. Slay then asked Ried- linger who was involved in the Union. Riedlinger said he could not betray his friends. Slay replied that it would benefit both employees and the Company to have a meeting to discuss the problems . Slay told Riedlinger that if the union activity died down within 30 days, he could come to the office and get the reprimand and throw it in the trash. Monday, 23 September, as Riedlinger got off shift at 7 p.m. he saw Slay in the parking lot. He told Slay that several employees were desirous of having a meeting with management. Slay responded that Dolph Morrison was out of town and he also wanted Owner Selig in on the meeting. Slay said he would call all employees to- gether the morning of 26 September. The meeting was held as scheduled. Approximately 300 employees attended. Morrison told the employees that he was proud and felt the people involved in the union campaign had come to their senses. He said a few diehards would still attempt to pass union cards, but the employees could simply tell them to go away. Slay then spoke. He told the group that several of his bad employ- ees had come to their senses. The bad employees had come to his office and he felt the problem had been worked out. Slay informed the employees that the open- door policy was for the employees and if any manager abused the employees' use of the open-door policy he would fire the manager. Slay reminded the employees of SMISTEEL the monthly works manager' s meeting and that repre- sentatives are selected from each department to attend. He then asked if any employees had anything to say. Riedlinger stood up, but Slay could not hear him and told him to come to the front. Slay handed the mike to Riedlinger who said "People, apparently we've got a few yellow-bellies working at SMI steel that won't stand up to management and tell management what they want. Apparently, I've got to tell them for you." Riedlinger said to Slay, "Is this all right with you?" Slay grabbed the mike and told the employee audience that, "this will be handled in a private session." The meeting ended and the melt shop employees gathered in the furnace break- room. Lundy asked "who" the people were that wanted to go to the management meeting . The employees select- ed Riedlinger. At this point Seidenberger and Holcombe came into the breakroom. Lundy told them Riedlinger had been selected. Seidenberger stated that the rules would not be changed, i.e., the employees selected in the prior meeting would represent the melt shop and the casting department. That same afternoon Riedlinger spoke to the melt shop representative, Mark Tanner. Tanner reported that man- agement said the employees were overpaid; the insurance policy would not be upgraded; there would be no per- sonal absence ; and the unauthorized absence rule would remain the same. Saturday, 28 September, Riedlinger arrived at the plant at 6:20 a.m. While dressing in the bathhouse he told several people he was a United Steelworkers organizer. At the time approximately 15 employees were in the bathhouse and Riedlinger stated that this occasion was the first time he spoke openly to employees about the Union. Riedlinger put on a United Steelworkers T-shirt and a United Steelworkers button to wear while working and carried his briefcase to the canteen. He got a drink and told the employees in the canteen if anyone wanted union cards or literature he would talk to them later. It was 6:40 a.m. and he was scheduled to start work at 7 a.m. Riedlinger did not pass out any union cards or liter- ature at that time. He went to the melt shop and spoke to Danny Eaddy, melter on the crew. Riedlinger told Eaddy he was a volunteer organizer for the United Steelworkers in the presence of employees Chris Wil- liams, Don Perrine, Ken Crawford, and Paul Brazell. Riedlinger also told Eaddy to be careful what he said be- cause it could be incriminating evidence against him. Riedlinger did not pass out any cards in the melt shop nor did he distribute any literature. He took his lunch and briefcase to the control room and put them out of the way. Riedlinger began work at 7 a.m. Shortly after the shift started Seidenberger, Eaddy, Lundy, and Cast- ing Forman Sam Allen had a meeting in the melters office, which lasted about 45 minutes. Riedlinger had been working on the furnace and Crawford came out to relieve him allowing Riedlinger to go to the control room to cool down. Eaddy was in the control room when Riedlinger came in. Eaddy said, "Man, you put me in a hell of a spot this morning." Riedlinger asked, "Whatcha mean Danny?" Eaddy said, "You know what I mean. Announcing what you did before all the other employees." Riedlinger replied that he only did what he 279 had to do but he was still friends with Eaddy. Eaddy said, "As a friend be careful. You know it's dangerous." A short time later Riedlinger was in the control room again with Ken Crawford. Lundy came in and said "as of today all personal belongings will be kept in the breakroom not in the control room." Riedlinger took his gear to the breakroom and returned to the control room. The furnace was caught up so he and Crawford decided to have a soft drink. Riedlinger called Eaddy on the intercom telling him he and Crawford were going to have a soft drink. Eaddy said, "Okay." Riedlinger left the control room for the canteen followed by Lundy. Riedlinger first tried to call the Union but was unable to make a connection with anyone he could talk to. Lundy was sitting at a table drinking a soft drink and talking to several employees at the table. Riedlinger got two drinks and left the canteen. Lundy followed. When Riedlinger got to the control room and handed the drink to Craw- ford Lundy came in and told Crawford there would be no drinking in the control room. Riedlinger told Lundy he was going to lunch and left for the breakroom. Ried- linger ate and went back to his work station. Lundy and Eaddy went into the breakroom and talked for several minutes then went to the melters office next door. They were joined shortly by Seidenberger and Allen and Crawford left the control room and went to the break room for lunch. Paul Bazell , crane operator, was in the breakroom when Crawford went in. A few minutes later Lundy went into the breakroom. Crawford lunched for 40-45 minutes and came back into the control room. As he began to work Riedlinger said, "Ken, I guess I was apparently the center of attention." Crawford replied, "Yes, Dave Lundy had asked me if you had tried to sign me up with a union card." Riedlinger asked, "What did you tell him." Crawford responded, "I told Dave Lundy that you had never tried to sign me up with a union card and you had never harasssed me." Crawford added that Lundy had asked if Riedlinger tried in any way to get him to sign a union card or tried to convince him of union activities. Riedlinger said to Crawford, "Bullshit, you know I have never ever spoke the word union to you." Crawford replied, "Preston listen, Dave Lundy is trying to fire you." About 15-20 minutes later Lundy wanted Crawford downstairs for another meeting. Eaddy called Riedlmger to have him fill in for Crawford watching a furnace and told Riedlinger to tell Crawford to go downstairs to see Lundy. Crawford was gone about 45 minutes and when he returned Riedlinger was working the furnace outside the control room. When Crawford relieved Riedlinger he was asked by Riedlinger, "I guess I was really the at- tention this time." Crawford said, "Yes, Dave Lundy asked me to sign a statement against you for passing union literature." While Riedlmger was outside the fur- nace Armstrong came up. Riedlinger told him to be careful what he said or did because Lundy was trying to get Crawford to sign some statements against union sym- pathizers. Crawford then walked up to the two. Arm- strong asked Crawford, "Are you going to sign damn statements against us people." Crawford said he did not know what was going to happen, "but we'll talk after 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work." Riedlinger went to the control room and Arm- strong followed. While in the control room the two dis- cussed getting a Volkswagen engine for Armstrong, then Armstrong went back to his duties. A little while later Lundy called Crawford downstairs again. Approximately 30 minutes passed before Crawford returned. When he came in the control room, Riedlinger asked, "Well, what happened?" Crawford said, "Preston, I'm sorry. I didn't have no other choice. It was either your job or mine." Riedlinger started to say something to Crawford as Eaddy walked into the control room. Eaddy told Ried- linger to put sand in the ladle and get ready to tap the furnace. It was approximately 1:30 p.m. Riedlinger went to the ladle and filled it with sand. After finishing the ladle he went back to the furnace and was met by Lundy, who told him to get his personal belongings and come to the front office. Riedlinger asked if he was to be fired and Lundy said he did not know. As the two walked to the office they met Armstrong coming out of the warehouse. Armstrong said something to Lundy but Riedlinger did not hear it. Riedlinger told Lundy while they talked he would put his things in his locker. Lundy said, "No, take everything with you to the office." Mor- rison, Slay, Seidenberger, and Holcombe were in the office waiting when Lundy and Riedlinger got there. Slay had a paper on his desk, looked at Riedlinger and said, "Preston, I've got a witness that signed a statement saying that you passed union literature, passed a union button, on company premises." Slay went on, "I'm ter- minating you for passing union literature on company premises after previous warning." Riedlinger did not say anything. Slay told Lundy to escort Riedlinger off the company premises. Riedlinger was escorted from the company property with all his personal belongings. Ried- linger drove down the street a short distance and walked back to the front of the plant. He met Armstrong on the sidewalk and learned that he too had been terminated. They had a few union cards and were going to talk to employees as the shift ended. As the employees began coming out Crawford came up to Riedlinger and Arm- strong. He told Armstrong he was sorry for what hap- pened but he had no other choice. Crawford added that he wished there was something he could do to change it but there was not. Riedlinger recalled that Ken Crawford sold little league candy to employees during working time in the control rooms of both A and B furnace and in the break- room. Riedlinger was not positive but he believed that Eaddy purchased candy from Crawford. Additionally, Roosevelt Avery solicited chances on a football pool several weeks during the season. Riedlinger saw Avery with the pool board in the casting tower office and the furnace control rooms during working hours. Riedlinger also recalled that Dave Lundy, during an employee safety meeting, took up a collection for an old time em- ployee, John Klepper, who had suffered a heart attack. Only after the campaign started did employees in the melt shop need to have permission to leave the area. Danny Eaddy never told Riedlinger that he could not talk to other employees while working, but the Company was skittish about employees talking to each other. The OSHA regulations on lead dust disallowed eating, drink- ing, and smoking on the melt shop floor and designated the furnace breakroom as the area for eating, drinking, and smoking. Riedlinger received and understood the employees handbook containing the company policy on solicitations and distributions. He also knew that monthly works manager's meetings were held but he never took part in the selection process of the employee representa- tive to attend the meetings. Riedlinger knew that Mark Tanner was selected for the September meeting, but he did not vote for him. Riedlinger stated that he did not engage in organizing activities in the plant especially he did not solicit signa- tures of employees on union cards inside the plant. He did listen to anyone when union was mentioned but he did not attempt to change any man's mind in the plant. If someone asked him for a union card or union literature he would tell them to see him in the parking lot at his car. Riedlinger denied giving a union card to employee Fred Snow at anytime, anywhere. Snow works a differ- ent shift from Riedlinger. Riedlinger could not recall whether a ladle car was broken his last day of work or whether James Arm- strong came into the control room while a heat was being held up that day. He did acknowledge that he was absent 27 September because his mother was to be oper- ated on for cancer and on 28 September he filed for ab- sence pay of 8-1/2 hours and pay for 6-1/2 hours was approved 30 September . Riedlinger admitted he had been convicted of grand larceny and 3rd degree arson in 1976, 1977, or 1978.2 Riedlinger has not been in trouble with the law since and testified that he was later pardoned by the State of Alabama where the convictions occurred. He was 18 years old at the time he committed the crimes. 3 James Armstrong testified he was employed at SMI as a ladleman from 18 February 1984 to 28 September 1985. Armstrong joined the union campaign after talking to the union representative and coworkers about the Union. He signed a union card on 10 September in the Omelet Shoppe in Gardendale. Armstrong did not distribute any union cards to employees, but he did on several occa- sions express his allegiance for the Union. He demon- strated openly his support for the Union on one occasion when he wore a union button on 28 September. Armstrong attended the 17 September meeting of em- ployees at 7 a.m. in the plant lunchroom. All employees were present and Morrison spoke to them. Morrison said the union campaign was started by a few bad apples, 5- percent losers among the employees . He stated that the Company had plans too for growth , but the 5-percent bad apples were trying to mess up the plans. Morrison told the employees not to sign a union card because SMI does not have any place for a union ; they do not want a union; they do not need a union . He said that a union 2 Counsels stipulated that Riedlinger was convicted of grand larceny in April 1978, second degree burglary in April 1979, grand larcency in April 1979, and third degree arson in April 1979. The sentence for each convinction was 7 years to run concurrently. 3 The General Counsel moved after trial closed to have Riedlinger's parole and pardon certificates admitted into evidence I granted the motion to receive the certificates as G C. Exh 11 into the record. SMI STEEL 281 does not always mean more , you could lose a lot too. Morrison added that the union had put Connor 's Steel out of business and SMI did not want to fall right back in their path. The following day at 7 a .m. in the same lunchroom all employees heard a speech from Gerry Slay . Slay held up a union card to show the employees and read the entire card. Slay told the employees they had the right to sign the card or not sign the card, but Armstrong did not re- member Slay saying that employees have the right to so- licit signatures on the cards . He stressed that there were four places to check off dues, then asked if anyone knew how much the dues were. Slay said the dues could be $50 or $1000 and it goes to Pittsburgh to buy big build- ings and the like. Slay told the employees that the United Steelworkers was a dying union and they needed the employees like the steel mills needed business. There were 50,000 steelworkers walking the streets in Pitts- burgh and all the Connor's employees are walking the streets because of the United Steelworkers . Slay repeated "that a union does not necessarily mean more; its all ne- gotiable and you could lose. If you're making $9.00 per hour you don't necessarily get $9 .50 per hour ; it all goes right back to negotiations." Slay said, "If somebody comes up to you and approaches you to sign a union card, and if they approach you again , they are harassing and intimidating you, and I 'll fire their ass. Let me know." The next day Armstrong was in the casting area and, Casting Foreman Sam Allen told him and several other employees that they have to stay in their work area. "If you want to leave your work area to go to the bathroom or lunchroom you have to ask permission of your imme- diate supervisor." For Armstrong that would be permis- sion from Allen or Danny Eaddy, although Eaddy never told Armstrong he needed permission to leave his work area. Armstrong testified that asking permission was a change from the existing work rules and that before, "as long as you did your work, you did not need permission to leave your work area." To do his job daily, Arm- strong has to be in the ladle area , warehouse, furnace area, ladle drying area, and take numbers to the casting area. Later when Lundy was in the ladle area he asked Lundy how the new permission rule applied to him. Lundy said , "Your work area is the melt shop. If you leave the melt shop to go to the lunchroom for instance, let Danny Eaddy know." On 20 September after shift, about 7 a.m., the entire department had a safety meeting . Usually Lundy and Eaddy led the meeting, but this time Slay and Seiden- berger were present . Slay did the talking . He said, "I've been told to watch what I say , so I'm going to watch what I say . It's gonna all be legal , but I want you to hear me well . I've been told that some of my good employees are being intimidated, harassed by a few bad employees and this is going to stop today." Slay added, "I'll fire your ass." As Slay spoke he looked at Armstrong and Riedlinger. After the meeting was over Lundy took Armstrong and Riedlinger to the front office. Slay, Seidenberger, Lundy, and Holcombe were in the office . Slay had Arm- strong sit and read him a paper . Slay read that Arm- strong was harassing and intimidating employees and so- liciting employees to sign union cards on the job. When Slay finished reading he said the paper was put in Arm- strong's file as a disciplinary action. Slay told Armstrong that he could solicit employees for the Union on his own time and during breaks. Slay asked Armstrong if he had anything to say . Armstrong stated that he had not been harassing or intimidating employees nor had he asked anyone to sign a union card . Armstrong admitted that he talked about the Union on the floor and added that ev- erybody has been talking about the Union all over the place . Armstrong left the meeting and went outside the gate to wait for Riedlinger. When Riedlinger came outside the gate he and Arm- strong went to a gas station down the road . Riedlinger informed Armstrong that Slay said there would be a company meeting with employees if the union stuff was dropped . Armstrong told Riedlinger that it did not look like they were going to do anything but get themselves fired. Armstrong then said he was going back to Slay and tell him that he was not getting involved with the Union. Armstrong went back into the plant and waited for Slay to return from a dental appointment. When Slay re- turned Armstrong met with Slay and Holcombe in the office . Armstrong repeated that he had not solicited any employees for the Union although he had favored the Union. Armstrong explained that he was misled and was going to drop the union activity . Slay told Armstrong of his rise through the ranks without a union and added, "If all this dies down , in 30 days or so, you come in then and we'll have a buddy-buddy conversation and I'll tear this discipline up and throw it in the trash can and ev- erything will be right back to normal ." Armstrong left the office and stopped all his union activity. He had heard that Clyde Selig was coming for the meeting with employees scheduled for 26 September. On Thursday , 26 September, the meeting was held in the big lunchroom at 7 a.m. Slay and Morrison led the meeting. Slay told the employees he was happy to an- nounce that all could put the union business behind them and get on with making steel . Slay also said that "a few diehards may still try to get you to sign a union card, but turn them away, and if they harass you, I'll fire their ass." He spoke of the Connor's Mill being put out of business by the Union and had a couple old Connor's employees stand and tell how the Union had been bad for them. Slay then asked for comments and Riedlinger stood up in the back but no one could hear so Slay of- fered the microphone to him . Riedlinger said a lot of people had called him at home about the Union and their grievances but it appeared none had the backbone to talk to Slay about their grievances . Riedlinger said he would have to do the talking for them. Riedlinger turned to Slay and asked if that was all right . Slay took the mike from Riedlinger and said such subjects are for the works manager's meetings. He said the works manager's meet- ing can be held as often as necessary , if there are prob- lems the meetings can be weekly. Problems can be worked out in the works manager's meetings. The meet- ing then ended and Armstrong went back to work. A 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD short time later Eaddy called Armstrong on the radio and told him a special meeting was being held on the furnace floor. All melt shop employees met in the break area. Lundy, Eaddy, Holcombe, and Allen were the su- pervisors present. Lundy said it was time to discuss the problems among the employees and someone suggested that the problems should be discussed in a larger meet- ing. Lundy announced that a vote would be taken to elect someone to attend the works manager's meeting and asked for nominations. Armstrong nominated Ried- linger and the group voted for Riedlinger. After the vote, Seidenberger came into the room and was in- formed of Riedlinger's election. Seidenberger then told the group that someone else was already selected and would represent the employees at the works manager's meeting. The following Saturday (28 September) Armstrong wore a union button into the plant for the first time at 6:30 a.m. He began work at 7 a.m. and as he passed Lundy in the furnace area he showed his union button to Lundy and asked if wearing the button was legal. Lundy replied, yes. That morning Armstrong talked to Ried- linger twice. Once while the transfer car was disabled and again later. The first time was in "A" furnace con- trol room. They talked in Crawford's presence less than 5 minutes about a Volkswagen motor. Riedlinger said he wanted to see Armstrong after work and asked when Armstrong was going to lunch. About 2 hours later Armstrong talked to Riedlinger on the mezzanine floor. Riedlinger told him that the Company had been taking Ken Crawford down and interrogating him all morning trying to get him to sign a statement about him and Riedlinger. Although Armstrong spoke to Riedlinger twice in the furnace area that day, he did not neglect his duties nor did the melt shop have to delay a heat tap be- cause of him. Armstrong saw Crawford coming back into the furnace area and asked him if he was being in- terrogated. Crawford said, "I can't talk about it." Arm- strong told him not to say his name about anything. Armstrong stated that he had never talked union to Crawford on the job. After lunch Armstrong saw Lundy taking Riedlinger out of the plant as he returned from the warehouse. About 2:30 p.m., Eaddy and Seidenberger summoned Armstrong to the front office. Slay, Holcombe, and Morrision were also present. Slay had another paper before him. Slay told Armstrong that he was being ter- minated for soliciting union and being out of his work area. He said Armstrong would be escorted off the com- pany property and the meeting ended. After the shift ended Armstrong and Riedlinger were across the street from the plant and Crawford came to them. Crawford told Armstrong and Riedlinger that he was sorry. Armstrong stated that throughout his employment at SMI the only union material he had inside the plant was the union button he wore the day he was discharged. He never distributed any union material in the plant and he never tried to get any employees to join the Union on companytime. Armstrong was not aware of any instance where management prohibited any employees from solic- iting other employees or prohibited employees from dis- tributing materials to other employees. Armstrong re- called that Roosevelt Avery sold candy in the work area of the plant and Dave Lundy solicited money for flowers from employees during safety meetings. Armstrong had received a copy of the employees handbook, which con- tains the only written work rules for the plant. Arm- strong recalled during orientation for new employees he was told the employees could not bring newspapers, magazines, radios, or TVs into the plant because they could distract the employees' attention to their job, which could be dangerous. Jane Byers testified that she is secretary and adminis- trative assistant to Dolph Morrison. On 11 September she tape recorded Morrison's speech to the employees and also shorthanded the speech. Following the speech, Byers transcribed her shorthand backed up by the tape. This provided two errors in the shorthand consisting of two single words. The completed transcription was given to Slay and the tape was reused. Willard Johnson testified that he is superintendent of maintenance composed of 88 employees. Crews rotate to cover the plant 7 days each week. The rotating crews have a 20-minute lunchbreak during their shift. Normal- ly each crew daily engages in preventive maintenance checks and are alerted by radio to any breakdowns or emergencies by order of priority: melt shop, rolling mill, and finish. If two breakdowns exist in a single depart- ment, the foreman decides which has the priority. Morn- ing and afternoon breaks are taken by the crews as the work allows. They may all break together or they may have to rotate the breaktime due to the workload. John- son did not impose, nor is he aware of any rule that pro- hibited maintenance employees from using the lunch- room in the plant for breaks during September. Willie Humphrey is a leadman and has no supervisory authority over the crew. He is simply a senior maintenance me- chanic knowledgeable about the plant machinery and maintenance work. Humphrey carries and works with tools as do the other maintenance employees. Any rec- ommendation by Humphrey about a maintenance em- ployee's performance would be weighed, but facts would be collected because SMI deals with counseling and de- velopment rather than the severity of discharge. Martha Alice Simmons testified she is manager of medical records at the Brookwood Medical Center. The records show that Lorne Riedlinger had surgery on 4 September relating to stomach cancer and received diag- nostic procedures on 30 August, 20 September, 2 and 3 October. On 27 September she received medication and had lab work done at the Center. Sam D. Allen testified he is casting foreman for SMI. He has an office on the fourth floor of the casting tower, which doubles as the lunch and breakroom for casting department employees. Allen stated that he has never seen Roosevelt (Snake) Avery selling candy during worktime. Allen denied that he ran a football pool or any other type of gambling operation in the casting office. Allen was not aware that anyone else ran a foot- ball pool in the casting office. Dolphus C. Morrison testiifed that he is general man- ager of SMI. There are several scheduled meetings of employees, weekly crew meetings in each department, a SMI STEEL 283 general safety meeting on a monthly basis attended by staff safety managers and employee representatives from each of the departments selected by the employees in the respective department. The actual selection process is left to the crew employees in each department. The weekly crew meetings began the first month of oper- ation. The works manager's meetings began 3 August 1984. Each month a notice was posted detailing the date for the meeting and the names of employees selected to attend as department representatives. The departments that utilize rotating crews select monthly representatives without regard for which shift the representative worked on. If the representative's shift worked evenings or nights, he came to the plant for the daytime meeting in addition to his scheduled shift. On 11 and 26 September Morrision spoke to employ- ees in general employee meetings scheduled for that pur- pose. The 11 September speech was given at 3 p.m. and was recorded for transcription. Morrison had the speech transcribed to enable Gerry Slay to give the same speech to employees on 12 September. Kenneth Crawford testified he is first helper on A fur- nace. As first helper most of his worktime is spent in the control room monitoring the furnace. On 28 September Crawford was holding the heat on the furnace because the transfer car was broken down. Three to four minutes after the delay started, Armstrong came into the control room and talked to Riedlinger about a Volkswagen engine. Riedlinger gave Armstrong some union buttons and told him to ask Leon Jackson and another employee to meet after work to hand out union literature outside the gate. Neither Riedlinger nor Armstrong made any at- tempt to talk Crawford into supporting the Union while in the control room. Both Riedlinger and Armstrong knew how Crawford felt about unions and their short- comings. Armstrong was in the control room and fur- nace area approximately 10 minutes. Crawford later re- ported the control room conversations to the melter, Eaddy, and Lundy, the melt shop superintendent. That same afternoon he was asked by Lundy to give manage- ment a written account of the control room conversa- tions between Riedlinger and Armstrong. Crawford stated that before giving the statement he was told that if for any reason he did not want to give a statement he did not have to. Crawford was told that same day to remove his lunch pail from the control room because of the possibility of contamination. Crawford knew that food was not sup- posed to be kept in the control room. He was also aware of the rule requiring employees to stay in their work area from his orientation as a new employee. The prac- tice in the department was always to let someone know where you are going if you leave. Prior to Lundy's ex- planation of the rule in an early September crew meet- ing, it had not been discussed in the weekly crew meet- ings. Dan Eaddy testified that he is melting supervisor for SMI. He supervises the furnace crew and the casting crew. On 28 September, around 9 a.m., he was ready to tap the heat on A furnace and blew the whistle for a ladle. Although Eaddy could not specify the exact time he guessed the whistle blew between 9:03 and 9:06 a.m. Casting Foreman Allen came over the PA system and said not to tap the heat because the ladle transfer car was down. Eaddy went to the A control room and told Crawford not to pick up the ladle. Eaddy then proceed- ed to hold the furnace until the transfer car was repaired. Holding the furnace is critical because besides possibly losing the steel, the furnace could be damaged with a melt through. The transfer car was down for 19 minutes. When the maintenance crew signaled that the transfer car was ready, Eaddy blew the whistle calling for a ladle. At this time Eaddy saw Armstrong and Riedlinger talking outside control room A. As Eaddy's and Arm- strong's eyes met, Armstrong started for the ladle area. The ladle was brought up and the heat was tapped with- out incident. Eaddy stated that the ladleman, Armstrong, should have remained in the ladle area while the furnace was on hold. Eaddy denied telling his crew that the Company would never sign a contract with the Union. He has talked to employees about the Union and said the Com- pany does not have to accept any contract proposed by the Union, in fact, the Company can propose its own contract with lesser wages and lesser benefits than al- ready exist. Eaddy had added that a union cannot force a company to accept a contract. Eaddy said he has talked to his crew several times about remaining in their work areas because he wants to know where his employees are for safety reasons. He was a stickler for knowing the em- ployees' whereabouts, and reminded them before the union activity started, and after it started. Eaddy's typi- cal reminder was: "There's no need for me to say it, but I'm going to say it again . I want to know where ya'll guys are at, at all times." Six months before there had been a burn through on furnace A resulting in damage to the hydraulics and loss of the steel. Eaddy did not fault any employees nor was anyone discharged. Roosevelt Avery testified that he is a strand operator in the melt shop. When hired Avery was told no radios, no newspapers, no soliciting, no raffle tickets, no selling candy or cookies. Avery has not sold candy or raffle tickets or football pools at SMI. He has participated in a football pool at a local bar. Avery attended an employee meeting in September conducted by Slay. Slay told the employees that soliciting for raffle tickets and things like that was not allowed. With regard to the Union, Slay said employees had a right to talk about the Union as long as it was not working time or was not on company property. Slay cited the lunch area and bathhouse as ex- amples of places where union solicitation could be con- ducted. Avery testified that Slay said, "Employees had the right to accept it or turn it down and if anybody har- assed us after we turned it down, then we had the right to come tell him and he could do something about it." Avery has brought a football pool board to the plant that was sold in the local bar on weekends. He brought the board to keep a check on the games and scores, which he had bet on. Fred Snow Jr. testified that sometime in September Riedlinger was outside the casting building and hollered to Snow asking him to come outside. It was about 3:05 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD p.m. and Snow was building molds at the end of his shift. Riedlinger asked Snow if he wanted a union card and Snow replied, yes. Riedlinger gave him one and he went back to work. Snow worked until 3:30 p.m. that day. John Michael Holcombe testified that he is director of personnel and was responsible for training and orienta- tion of new employees. As director of personnel he at- tended the employee meetings devoted to the union or- ganization. The first meeting was 11 September conduct- ed by Morrision. The second, third, and fourth meetings were conducted by Slay on 12 and 17 September with two meetings on 17 September. Holcombe was present at the 12 September meeting conducted by Slay and stated that Slay followed the same outline as Morrison did the day before. Slay did not make any reference to union cards. At both meetings on 17 September Slay began by holding up a union card and telling the employees to be sure and read the entire card. Slay then displayed the employee handbook and read the rule on solicitations and distributions and the rule on being out of your work area. Slay told the employees it was permissible to solicit for the Union on nonworking time, but it was not per- mitted during worktime. Slay said both employees had to be on nonworking time and gave examples of areas such as lunchroom, breakroom, showers, on the way to work, and after work. On 20 September Holcombe attended the counseling sessions for Armstrong and Riedlinger in Slay's office in the presence of Slay, Seidenberger, and Lundy. Slay had written up directives for both employees. When Arm- strong came in Slay told him that he had complaints from some of his coworkers that he had been bothering them, harassing them on the job, soliciting them during working time. Slay said he was not going to allow that to go on. Slay then read Armstrong the directive and re- minded him of when and where he could solicit. Holm- combe stated that Armstrong denied solicitations during worktime and the meeting ended. Armstrong did return for a second meeting with Slay that afternoon. Arm- strong told Slay that he thought the attendance policy was unfair and that he had not been treated fairly. He asked Slay to review his attendance record particularly the reasons for absences, which had not been allowed. Slay agreed to review Armstrong's attendance record and get back to him to discuss it. Slay did not ask Arm- strong any questions about the union activity of other employees nor did he offer to drop the directive if Arm- strong would drop the union activity. Slay did not speci- fy what kind of employee complaints or when they oc- curred to Armstrong during the session. Riedlinger came into Slay's office for his counseling in the presence of the same management people . Slay told Riedlinger that he had gotten some complaints that Ried- linger had been soliciting employees to the point of har- assment and the employees wanted him to stop it. Slay said he was not going to allow this type of solicitation during worktime. Slay read Riedlinger the directive, showed it to Riedlinger, and asked him to sign it Ried- linger initialed the directive but denied that he solicited during worktime. Riedlinger also said he wanted to talk about a few other things that were bothering him. Slay said this counseling session is strictly pertaining to your soliciting coworkers on the job. There can be a second session for other things but the first session has to be fin- ished. Slay did not tell Riedlinger what complaint had been made by employees or when they occurred. Hol- combe stated that the employees' complaints were voiced between 17 and 20 September. Slay opened the second session, and Riedlinger voiced two complaints dealing with his not being allowed to pick up his brother's paycheck and not being allowed to transfer to maintenance where his brother works. Slay explained both company policies to Riedlinger and the talk then changed to lighter subjects. Riedlinger said he wanted to do a good job and Slay acknowledged that he could. Slay told him to do an outstanding job for 6 months and the directive will be removed from his file. At some point in the session Riedlinger said he had been supportive of the Union but no longer wanted to support the Union. Riedlinger said he had not used the open- door policy but from then on he would. Riedlinger added that last night he had thrown a hundred odd cards in the furnace . Slay did not ask Riedlinger any question about other employees' union activities nor did he offer to drop the directive if Riedlinger dropped his union ac- tivities. A general employees' meeting was held 26 September by Slay. As the meeting was winding down Slay asked if anyone had anything to add. Riedlinger stood up and said, "If the rest of these yellow-bellies or spineless people won't talk, I'll tell you what's wrong." Riedlinger started to list grievances and complaints over the micro- phone, but Slay stopped him saying this meeting was not the proper place for such talk. Slay mentioned the works manager's meetings and the open-door policy as the proper forums. After the meeting ended Seidenberger came up to Hol- clombe and said, "Say, Mike you need to go with me. The melt shop is having a special crew meeting this morning. There was some things they wanted brought up at the works manager's meeting and you and I need to go over. We're going to take notes and get Mark Tanner in early and give him the notes so he'll be sure and bring them to the works manager's meeting today." As we walked in Lundy said they had selected a repre- sentative for the meeting. Seidenberger said, "No, we al- ready have a representative. You cannot select another one. That wouldn't be fair to Tanner since he has al- ready been selected. What you have to do is express your grievances and concerns here and we will make sure Tanner has the information before the works man- ager's meeting." Holcombe stated that he was not aware that the melt shop intended to select another representa- tive at that meeting. Holcombe could only recall one instance where a so- licitation took place during worktime and that involved Riedlinger's daughter who had surgery. Ken Crawford had taken up a collection and when he asked Holcombe to contribute Holcombe told him he could not collect on company property during worktime. In response to an employee inquiry Holcombe did deny an employee the SMI STEEL right to solicit sales of baseball tickets to pay for a local team's uniforms. Holcombe stated that Armstrong and Riedlinger were the only employees of SMI to be disciplined for violation of the solicitation-distribution rule. Holcombe added that Crawford was not disciplined for his transgression when collecting for Riedlinger's daughter because the two situ- ations were quite a bit different. It is different when sev- eral meetings have been held to explain the rule to em- ployees and then coworkers subsequently complained of an employee engaging in solicitations and stating they are tired of the solicitations and the Company needs to stop it. Crawford voluntarily came to Holcombe on his own. Gerald Slay testified he is vice president and works manager. He conducted meetings of employees about unionization on 12 and 17 September . Morrison conduct- ed a similar meeting 11 September and gave notes of the meeting to Slay. Slay used the notes as guidelines for his speech on 12 September. The speeches he gave on 17 September included discussion of a union card, the em- ployee handbook, and the rules against solicitations and employees being out of their work area. Slay read from the union card and the employee handbook. Slay ex- plained to the employees that although the Company had a rule against solicitations that employees did have the right to solicit for the Union during nonwork time in the nonwork areas such as the breakroom, the lunchroom, the locker room, and to and from work. Slay told the employees they had rights to participate in union activi- ties or not to participate in union activities. Slay ex- plained that if some employees' rights were violated the Company would take appropriate action to see that no further violations occurred. In the two counseling sessions of 20 September Slay opened each by showing Armstrong and Riedlinger a copy of the pre-prepared personnel action directives. In Armstrong's case he just sat there and shook his head and said very little or nothing. He kind of shrugged and shook his head. As Slay testified, "That was about the size of it." In Riedlinger's case after Slay read the direc- tive to him Riedlinger stated that he had been supporting the Union but the employees do not need a union any- more and the Company won't be hearing anymore of this from him. Riedlinger then told Slay that he had thrown 130 signed cards into the furnace last night adding we do not need a union out here , we just need to listen to what the people's got to say. Riedlinger wanted to discuss some of his complaints and gripes, but Slay told him that the counseling session on the solicitation had to be finished first. Slay then had Riedlinger sign the directive and closed the counseling session. The counseling session was followed by personal com- plaints of Riedlinger, which evolved into Riedlinger stat- ing he only wanted to be a good employee and make steel. Slay responded, "If you clean up your record you can come in here and I'll give you the directive for you to tear up." Riedlinger said, "I'll let you tear it up and they shook hands and Riedlinger left." Slay denied asking either Armstrong or Riedlinger about the union activities of other employees or offering 285 either of them that he would withdraw the directives if both dropped their union activities. Slay scheduled a general employee meeting for 7 a.m. 26 September to discuss the Union. After the meeting was over Slay asked if any employee had anything to say. Riedlinger came forward and started talking about "you yellow-bellied bunch of rascals won't stand up and talk about what you think is right," but before he could continue Slay retrieved the mircrophone and told Ried- linger that this meeting was not the place for such dis- cussion. After the meeting closed Slay told Seidenberger to keep the melt shop down so the employees could hold a special crew meeting about their gripes and complaints. Seidenberger relayed those instructions to Lundy who then proceeded to the melt shop. Further conversation between Slay and Seidenberger disclosed that Seiden- berger understood Slay to say that the melt shop could elect another representative to the works manager's meeting scheduled for 11 a .m. that day . Slay directed Seidenberger to stop any new selection and inform the melt shop employees to list the gripes and complaints for Tanner who was the previously selected employee repre- sentative. Two days later, on 28 September, about midmorning Seidenberger and Lundy reported to Slay that while the melt shop was holding a heat due to the breakdown of a ladle car, Armstrong had left the ladle area and gone to the furnace control room. While in the control room Riedlinger had opened his union briefcase and given Armstrong a handful of union buttons and asked him to pass them out and to tell the guys to be outside the gate after work to hand out literature. Slay questioned Lundy and Seidenberger in detail about the events and any wit- nesses to it. After Slay completed his investigation by questioning Lundy and Seidenberger and viewing the heat sheet for furnace A, he called the company attor- neys for advice. Armstrong and Riedlinger were termi- nated that day on the basis of the control room incident. Slay testified that Riedlinger admitted to soliciting em- ployees' signatures on union cards when he was con- fronted with the charges during the counseling session. Slay stated that SMI had a progessive discipline system, however, the progression is not in writing. Not- withstanding, the enumeration of discipline on the two personnel action directives issued on 20 September. Slay told each employee that further disciplinary action, to any degree, would follow any repetition of their action. Albeit, the employee handbook is silent on discipline for infractions of company policies stated in the handbook, employees are told that the violations of policies will lead to discipline. Phil Seidenberger testified he is assistant works manag- er. He did not attend any employee meetings the week of 11 September but he did attend the meeting conducted by Slay on 17 September. Slay at the meetings made ref- erence to the union cards and the employee handbook. On 20 September Seidenberger was present for the counseling sessions of Armstrong and Riedlinger. When Armstrong was brought in, Slay read the directive to him, which described a verbal warning for solicitation in 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the plant on company time. Armstrong did not make any comments. When Riedlinger was brought in Slay said, "We have a serious problem here and I want to issue you a written warning." Slay read the directive to Ried- linger in its entirety. Slay asked Riedlinger if he under- stood and would sign the directive. Riedlinger then signed the directive. Seidenberger explained the differ- ence in discipline for Armstrong and Riedlinger as "se- verity of the two situations." The reports on the two em- ployees varied in that some employees reported directly to Slay of Riedlinger's activities. After the counseling session was completed Riedlinger wanted to discuss sev- eral personal matters with Slay and did so. After hearing the complaints, Slay explained the policies to Riedlinger putting the complaints into context. Slay did not in either counseling session ask about the union activities of other employees or offer to drop either discipline if Armstrong or Riedlinger dropped their union activities. Seidenberger attended the 26 September employee meeting and when it concluded Slay told him to keep the furnaces down and tell Lundy to hold a meeting with the employees. Seidenberger understood Slay to direct that another employee representative for the melt shop be selected. Seidenberger so instructed Lundy who proceeded to do so. Later Seidenberger relayed to Slay the instruction that Lundy had received and Slay told him that is not what he had said. Slay then instructed Seidenberger to stop Lundy from selecting another rep- resentative and merely to record the complaints and gripes for use at the works manager's meeting that day. Seidenberger then went to Lundy and voided the selec- tion process and made a list of the employees' complaints and gripes. Seidenberger gave the list of employee com- plaints to Mark Tanner when he came in to attend the works manager's meeting. On 28 September Seidenberger went to the melt shop floor about 7 a.m. and reviewed the previous day's work in the melt shop foreman's office. He did not meet with Lundy, Eaddy, or Allen on that occasion. Later, about 10:30 a.m. Lundy reported to him that while the ladle transfer car was down and the furnace was on hold, Armstrong ventured to the furnace control room. In the control room Riedlinger passed union buttons and mate- rial from his briefcase. Both Lundy and Seidenberger re- ported the incident to Slay. Slay asked for information about the incident and Lundy showed him the heat sheets and told of employee Ken Crawford. Slay called Crawford to his office where he related the same story to Slay. A management discussion on the alternatives fol- lowed and it was decided to terminate both employees. Seidenberger recalled that in the past at least four times there have been melt throughs that damaged the furnace machinery, but investigations did not pinpoint re- sponsibility or blame. No employee was discharged for any of the incidents. Seidenberger draws a distinction be- tween the actual spills and the potential that existed from Armstrong being in the control room. The distinction rests on an error in judgment in the case of the prior melt throughs and neglect of responsibilities when Arm- strong was not in his position at a very critical time. Sei- denberger stated that Armstrong's neglect of duty on 28 September was the most serious he has experienced during his tenure at SMI . He opined that the neglect surely warranted discharge. A. Analysis and Conclusions Speeches-threats The General Counsel alleges that a mid-September speech to assembled employees by Respondent's presi- dent, Morrison, contained violative remarks. Employee witnesses credibly testified that Morrison stated that the "Open Door Policy" would be abolished if the Union were selected. The objective evidence in the record shows Morrison's specific remark to be, "employees would not be permitted to take advantatge of an oppor- tunity to come all the way to my front office, sit down and talk to me, because the Union would prevent that as a union member." Morrison's statement to employees as to the consequences of unionization and the effect such unionization would have on the "Open Door Policy" is contra to the statutory language of Section 9(a) and Re- spondent's admitted past practice. Notwithstanding, the frequency or infrequency of use, the statement clearly is a threat to withhold from employees an existing benefit should they elect to unionize and therefore violates Sec- tion 8(a)(1) of the Act. I hold that the General Counsel has thus supported her allegation in paragraph 8 of her complaint. In other mid-September speeches to employees by Works Manager Slay, the General Counsel finds addi- tional allegations of unlawful remarks . The record evi- dence shows that Slay, during mid-September spoke to assembled employees on three occasions. Each speech was precipitated by the organizational drive of employ- ees. The credible testimony of Ratliff and Armstrong re- called that Slay suggested to his good employees that if they were approached by a coworker to sign a union card they could refuse to sign and if they were aggravat- ed by being approached again to report the incident to management . Slay told the employees that repeated ef- forts of prounion employees to solicit signatures from previously solicited employees constituted harassment and intimidation, which the Company would not allow. Although the employee witnesses recalled that Slay said he would "fire the ass" of employees harassing or intimi- dating other employees by union solicitations, Slay testi- fied he told employees, "If some's [employees] rights were violated the Company would take appropriate action to see that their rights were not violated." Under either version it is abundantly clear that Slay would pro- tect employees from what he considered harassment. Slay's additional explanation of the Company's "no so- licitation rule" and employees' rights to engage in union activitiy or to refrain from such activities during non- work time in nonwork areas was ambivalent. Slay equat- ed employees' rights to refrain from union activities with the Company's policy and announced effort to protect employees from annoying requests for contributions, so- licitations, and bothersome literature. Slay was, thusly, substituting the Company's definition of employees' rights for that contained in Section 7 of the Act. SMI STEEL 287 Employees' rights to engage in union activities or to refrain therefrom are not subject lo modification or qual- ification by the employer . The rights exist by statute and are protected only by the Board . Only the Board deter- mines what constitutes a violation of those employees' rights. Here, Slay's definition of harassment in conjunc- tion with his encouragement of employees to report the harassment to him so the Company can take action, not only usurps the Board 's functions but it constitutes an unlawful interference with rights guaranteed to employ- ees under the Act and an unlawful threat to employees desiring to engage in union activities . Accordingly, I conclude and find that Slay's remarks to employees about union solicitation, harassment, and intimidation constitute threats and violate Section 8 (a)(1) of the Act as alleged in paragraph 9 of the complaint.4 The General Counsel's allegation in paragraph 10 of her complaint rests on a short conversation between Riedlinger and Eaddy in the melt shop office . Riedlinger after receiving permission from Eaddy to use the phone was informed of a melters meeting with management and the company lawyer, which had just concluded. The General Counsel argues that Riedlinger 's account of the conversation is more believable because Eaddy is a hard working melt shop boss and his version of the remarks would more likely emanate from a lawyer's mouth. As is often the case, here are two principals to a conversation giving their versions and neither can be totally discredit- ed. Both witnesses appeared to be making a genuine at- tempt to recall the events as they transpired . The two versions are aligned as far as the thrust of the remarks are concerned . Only the choice and placement of a few words separate the two versions . If the General Coun- sel's work related evaluation of Eaddy's speaking ability is valid as a test for credibility or recall , her witness Riedlinger would likewise suffer . As Riedlinger recalled, Eaddy had just returned from a melters meeting in which SMI lawyers had expressed the Company's legal position in terms of the organization drive in progress. It does not stretch the thread of credulity to accept Eaddy's version, particularly since his conversation with Riedlinger so closely followed the lawyer's remarks. I find it more plausible that Riedlinger , in testifying to the conversation, put his understanding of Eaddy 's remarks in his own words rather than recalling Eaddy 's exact words and find Eaddy's recall of the conversation to be the more credible version . If as the General Counsel sug- gests, Eaddy only parroted the lawyer 's words when tes- tifying, there is no reason to believe he could not have done so when conversing with Riedlinger. Accordingly, I conclude and find that General Counsel has not sup- ported her threat allegation in paragraph 10 of her com- plaint. 2. Safety meeting-disciplinary counseling-general employee meeting and department meeting of 26 September The events beginning with the melt shop safety meet- ing of 20 September and culminating with the melt shop special department meeting of 26 September are the 4 This violation is discussed further below foundation for complaint allegations in paragraphs 7, 11, 12, 13, 16, and 17 . These allegations will be considered together because of their factual interrelation and their short chronology. The regularly scheduled safety meeting of 20 Septem- ber usually headed by Lundy was this day presided over by Slay. Slay's only reason for attendance was the ongo- ing union organizing campaign . The uncontroverted and credited testimony of Armstrong and Riedlinger shows that Slay looked directly at them during the meeting and stated he had been told that some of his "good employ- ees are being intimidated and harassed by a few bad em- ployees and this is going to stop today ." Slay left and the meeting ended shortly thereafter . Immediately at the close of the meeting Lundy escorted Armstrong and Riedlinger to Slay's office where the entire plant man- agement awaited to counsel them . Armstrong and Ried- linger were separately confronted by Slay with a previ- ously prepared discipline. The Respondent's no-solicita- tion rule is presumptively valid because of its reference to worktime, but the enforcement of the rule is suspect because it is not shown that Armstrong or Riedlinger en- gaged in union solicitations during worktime. The single enforcement of this rule must be considered in conjunc- tion with the Company's prior explanation to employees of the effect of the rule and the previously found threat contained in the speech of 17 September . Slay charged both employees with violation of the Company 's no-so- licitation rule without disclosing the nature of his infor- mation or the identity of the reporting employees even though the reports were received between the day of the speech, 17 September, and this discipline of 20 Septem- ber. Albeit Armstrong and Riedlinger both denied union solicitations during worktime, Slay did not reopen or continue his investigation of the incidents , which up to that point only involved questions of Seidenberger and Lundy. Slay's testimony that both Armstrong and Ried- linger admitted the charged transgressions is confused and inaccurate but well within the scope of Slay's view of enforcement of the Company 's policy on union solici- tations and the attendent harassment and intimidation. Superintendent Lundy was not aware of any union so- licitations by Armstrong at all and only knew of union solicitations by Riedlinger during nonwork time. Em- ployees had only reported to Lundy that Riedlinger was soliciting them in the locker room during nonwork time. During the counseling Armstrong and Riedlinger did admit to engaging in union activities and immediately thereafter volunteered to cease their union activities par- tially out of fear for their jobs. Although Armstrong and Riedlinger testified that Slay asked them about other em- ployees involved in union activities in the plant, Slay, Lundy, Seidenberger, and Holcombe denied that Slay asked any questions about union activity . (Certainly Slay, prior to disciplining Armstrong and Riedlinger, never asked if they had violated the company policy by solicit- ing for the Union during worktime .) Even if Armstrong and Riedlinger were credited on the coercive interroga- tion exchange as alleged, their testimony creates a con- versational atmosphere permeated with volunteered in- formation making coercion ambiguous at best . It is undis- 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD puted that at one point in the counseling sessions, Slay told Armstrong and Riedlinger that the discipline would be withdrawn if and when both employees improved their performance. When the withdrawal would occur is not certain nor is the nature of the improved perform- ance that is required explained. The General Counsel argues that Slay meant to withdraw the disciplines if both employees ceased engaging in lawful union activi- ties but even if Armstrong and Riedlinger are fully cred- ited as to what transpired there remains an ambiguity; which union activity would effectuate a withdrawal of the discipline. That which was lawful and protected by the Act or that which would violate the company rule against solicitation during worktime. The General Coun- sel does not attack the Company's rule against solicita- tions, only its enforcement in this single incident involv- ing Armstrong and Riedlinger. It is clear that Slay after explaining to employees the company rule against solici- tations, threatened employees who would exhibit the brass to exercise their Section 7 rights. To implement the threat made to employees, he disciplined Armstrong and Riedlinger for union solicitations. However, a prior solic- itation by Crawford to raise money for a sick child went undisciplined by Holcomb. Thus, the first enforcement of the Company's no-solicitation rule was against known union adherents and was for union solicitations. I find it instructive that both reprimands included a concern for the harassment and intimidation of employees being so- licited by prounion employees and the Company's ex- pressed intolerance for such intimidation and harassment. Respondent was simply laying the basis for a discrimina- tory discharge. Albeit, Slay's enforcement of the rule is not supported by past practice nor is his treatment of Armstrong and Riedlinger within the realm of reasonableness, I cannot say for certain that Slay's offer to withdraw the disci- pline was conditioned on Armstrong and Riedlinger con- tinuing to do what they volunteered to do; i.e., cease en- gaging in union activities. Clearly, the company practice was to vitiate discipline after a period of no repetitive in- fractions, which gainsays Slay's offer as one isolated to this particular counseling. Notwithstanding that Arm- strong and Riedlinger were the first and only employees to be disciplined for violating the no-solicitation rule, the manner of discipline was what one could expect to be applied for rule infractions.5 A final outgrowth of the counseling session with Ried- linger was the special meeting with employees scheduled for 26 September. Armstrong testified that Riedlinger stated the meeting was conditioned on the cessation of union activities. Riedlinger testified however, that Slay suggested a meeting of employees to air problems extant among departments, particularly the melt shop. Slay stated that the meeting was simply a general employee meeting to discuss the union. The General Counsel con- tends that the meeting was designed to hear employee complaints as a quid pro quo for the employees stopping their union activity and abandoning the union. Here b I find it unnecessary to resolve the apparent discrepancy between Slay's and Seidenberger's explanations of the use of two different forms for the same discipline of Armstrong and Riedlinger again, the record evidence does show that because of the union activity among employees Slay would not have scheduled the meeting. But the evidence is not sufficient to find that the meeting was conditioned on Armstrong and Riedlinger giving up their support for the Union. The specific purpose of the meeting was to combat unrest and union sentiment among employees. Moreover, the substance of the meeting belies any suggestion of a condition since the meeting was devoted to repetitious pronouncements of past circumstances. The uncontro- verted record evidence shows that Morrison began the meeting by informing employees that the prounion em- ployees had come to their senses and Slay continued that theme, again adding his proscription against harassment by union sympathizers. Riedlinger's attempt during the meeting to address employees problems was summarily denied by Slay, although he did inform the employees that their problems more appropriately should be dis- cussed in the monthly works manager's meeting. At the close of the meeting Slay and Seidenberger engaged in a colloquy about employees problems and the upcoming works manager's meeting. Seidenberger in turn gave in- structions to Lundy. Admittedly, Lundy held a special meeting of his department to select an additional employ- ee representative to the works manager's meeting and Riedlinger was selected. The General Counsel frames two allegations based on Slay's remarks at the employee meeting of 26 September and Riedlinger's selection as the employee representative at the special department meeting: (1) that Slay, during the employee meeting of 26 September, promised employees participation in man- agement meetings if they refrained from engaging in union activity (her reference is to the works manager's meeting) and (2) that Riedlinger was denied service as an employee representative because of his support for the Union. With regard to the promise of employee participation in meetings of management, the works manager's meet- ing had been scheduled monthly with employee partici- pation since the plant became fully operational. The schedule and the employee participation decidedly pre- dates any union organizational activity. Additionally, the employee representatives have traditionally been selected by employees from each department on a rotating basis. The subject of the September works manager 's meeting was already scheduled and employee representatives pre- viously selected and posted when the general employees meeting of 26 September was held. The General Coun- sel's evidence of Slay's remarks at the general employee meeting is insufficient to overcome the testimony of all witnesses and the objective evidence that clearly estab- lishes the format for the monthly works manager's meet- ings without regard for the union activity of any em- ployees. Admittedly, Lundy held a special meeting of his department to select an additional representative (Ried- linger) to the works manager's meeting in September, but the General Counsel has failed to show that Riedlinger was denied the representative status due to his union ac- tivity. The more credible evidence clearly shows a mis- communication between Slay, Seidenberger, and Lundy. Further, at the time of the general employee meeting and SMI STEEL 289 the works manager's meeting in September, Riedlinger was in the voluntary cessation phase of his union activity and had not overtly or covertly re-engaged in union ac- tivity. Accordingly, I conclude and find the following: That Slay did not coercively interrogate Armstrong and Ried- linger during the safety meeting of 20 September and, therefore, the General Counsel has not supported her al- legation in paragraph 7 of the complaint; that Slay did threaten employees with discharge for engaging in union activities during the 20 September safety meeting in vio- lation of Section 8(a)(1) of the Act as alleged in para- graph 11 of the complaint; that Slay did discriminatorily discipline and issue reprimands to Armstrong and Ried- linger on 20 September as alleged in paragraph 16 of the complaint; that Slay did not condition his offer to with- draw the disciplinary reprimands to Armstrong and Riedlinger of 20 September on the employees promise to cease engaging in union activity as alleged in paragraph 12 of the complaint; that Slay did not, during the general employee meeting of 26 September , promise employees participation in management meetings if they abandoned their support for the Union as alleged in paragraph 13 of the complaint; that neither Slay, Seidenberger nor Lundy denied Riedlinger status as an additional employee repre- sentative to the September works manager 's meeting be- cause of his union activity contrary to the General Coun- sel's allegation in paragraph 17 of her complaint. B. Rule-Permission to Leave Work Area In paragraph 14 of the complaint, the General Counsel alleges that on 19 September Respondent changed its past practice by requiring employees to get permission of their foreman before leaving their work area. Although the employee handbook requires that employees get per- mission before leaving their work area, Armstrong credi- bly testified that before the union activity employees did not need permission to leave their work area. In the past, employees of the melt shop would alert their foreman or coworkers if they went to the lunchroom or breakroom, because employees usually took their breaks and ate lunch according to the progress or the furnace. The con- trolling element was the requirement of the furnace, not the clock on the wall. Employees did their assigned tasks and took relief when they had the time. Foreman Allen testified but did not refer to his remarks about the work area rule. Superintendent Lundy, who met weekly with the melt shop employees in crew meetings, admittedly in September explained the work areas rule to his employ- ees. Lundy had not broached the rule before with em- ployees and on this particular occasion his explanation was not precipitated by employees having been out of their work area. As Eaddy testified he only wanted to know where employees were at all times. There is no evidence to show that employees were not performing their job tasks because they were absent from their work areas nor is there evidence that the Company's past prac- tice, especially in the melt shop, was causing any produc- tion problems. There is evidence that evinces consider- able talk among employees about the Union, including union solicitation by some prounion employees. In the absence of any detailed reason for management to now enforce adherence to its handbook rule to the letter, I conclude and find that the only reason was to attempt to stifle communications about the Union among its em- ployees. Such a reason is impermissible and unduly re- stricts employees in the exercise of their Section 7 rights and violates Section 8(a)(1) and (3) of the Act. The Gen- eral Counsel has presented a prima facie case of discrimi- natory purpose, which stands unrebutted by Respondent. The General Counsel has thus sustained her allegation in paragraph 14 of her complaint.6 C. Written No-Distribution Rule Complaint paragraph 13A alleges that Respondent's written no-distribution rule contained in the employee handbook is facially invalid because it prohibits employ- ee distribution of union literature during nonwork time in nonwork areas of the plant. The rule reads: Neither employees nor visitors to our plant will be allowed to distribute literature or advertising of any type on company property at any time. There will be no posting of any leaflets, notices, posters, or other material in this plant, on a bulletin board, or elsewhere on company property, except as directed or approved by the works manager.' The rule on its face is invalid on two counts: (1) The proscription, "on company property at any time" is overly broad and denies employees access to nonwork areas during nonwork time. A no-distribution rule can extend to work areas of the plant, i.e., those portions of a plant where production tasks actually are performed, but cannot deny access to nonwork areas such as timeclock locations, break areas, locker room areas, lunchroom areas, restrooms, and much less can access be denied to parking lots and other areas outside the plant structure. (2) The requirement of approval by management for postings on company property is overly restrictive and denies employees free access to nonwork areas of the plant. Particularly in view of the absence of special cir- cumstances, which were neither argued or proved. Respondent contends that Slay orally promulgated a no-solicitation/no-distribution rule, which cured any in- validity because he detailed to employees that nonwork time and nonwork areas were free for employees to engage in union activity. The record evidence does con- tain an orally promulgated no-solicitation rule during general employee meetings, but is silent on the no-distri- bution rule except for Slay's reading of the written text of the reprimands to Armstrong and Riedlinger. Howev- er, the reading of the reprimands to Armstrong and Riedlinger during the counseling session on 20 Septem- 6 Although the record contains a reference to lunchrooms being off limits to maintenance personal during the organizing campaign and the General Counsel argues that it is a discnminatonly motivated change in work rules, the substance was not pleaded in this complaint and I will not include it in my determinations Likewise, the testimony of telephone availability in the lunchroom is neither pleaded in the complaint nor sub- stantial enough to support a violation if it were 7 The employee handbook includes no-solicitation and no-distribution rules in a single disjunctive paragraph. The text above simply excerpts the no-distribution portion 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ber are unavailing as rebuttal of the otherwise presump- tively invalid no-distribution rule It only reached two employees and was given after the fact of their discipline for a purported violation of the written rule. Moreover, at no time did Slay communicate to all employees that the written rule in the employee handbook was no longer the rule or the company policy. Rather, Slay rein- forced its continued existence by reading it verbatim from the handbook at the general employee meetings of 17 September and then orally advising employees of their rights on nonwork time in nonwork areas of the plant. Thus, the unlawful restraints on employees' exer- cise of their statutory rights remained viable as company policy. Such equivocation on the effects of a written rule upon the employees cannot qualify the facial invalidity of the rule. Although Respondent argues in brief that the promulgation of the handbook rule predates the applica- ble 10(b) date, the rule was extant when the union orga- nizing drive began and was first enforced against pro- union employees on 20 September. Therefore, the Gener- al Counsel's allegations are founded on events occurring well within the 10(b) period. I conclude and find that Respondent, by maintaining an unlawful no-distribution rule, has violated Section 8(a)(1) of the Act and I shall order an appropriate remedy. D. Discharges-Rule Against Personal Belongings in Control Room The General Counsel alleged 8(a)(3) violations in the discharges of Armstrong and Riedlinger. Respondent contends that both were discharged for cause. Cases of discriminatory discharges are decided under the causation test of Wright Line.8 For reasons stated below, I find that the General Counsel, based on all the record evidence, has presented a prima facie case of dis- crimination and Respondent has failed to offer substantial evidence to rebut the inference of wrongful motive es- tablished by the General Counsel. Respondent argues that Riedlinger's prior felony convictions, per se, make him untrustworthy, but I view the convictions as too remote for such a general application to Riedlinger's ve- racity. Several events of 28 September led to the discharges of Armstrong and Riedlinger. Only a week earlier both had denounced any further involvement with the Union during their discipline counseling. Yet the morning of 28 September both appeared for work wearing union insig- nia for the first time. Riedlinger also announced to super- vision that he was the union organizer and intended to organize the plant. He carried a brief case displaying a union logo and stored it openly in the furnace control room. The first heat that morning had to be put on hold due to the breakdown of the ladle transfer car. While mainte- nance repaired the car Armstrong came to the furnace area and talked with Riedlinger. Armstrong and Ried- linger both deny that any union buttons were exchanged or that Riedlinger attempted to give union literature to crew member Crawford. Crawford testified that Ried- linger did give a handful of buttons to Armstrong, but 8 Wright Line, 251 NLRB 1083 (1980) stated that neither Armstrong nor Riedlinger talked to him to support the Union, adding; "they knew where I stood regarding the union." Melting Foreman Eaddy saw Armstrong in the fur- nace area after the transfer car was repaired but before the furnace was to be tapped. The furnace was tapped, without incident, and the molten steel was sent to the caster on the repaired transfer car. Shortly thereafter, Superintendent Lundy told Riedlinger to remove his briefcase from the furnace control room and put it in his locker or the breakroom because personal belongings were not to be stored in the furnace control room. Lundy also reminded Crawford that foodstuffs were not to be stored or consumed in the control room because of OSHA regulations regarding lead contamination. Lundy then told Crawford to remove his lunchbox from the control room. Later that morning, Crawford gave a statement to management about Armstrong's presence in the furnace area and the exchange of union material between Ried- linger and Armstrong. Thereafter, Armstrong and Ried- linger were summoned to the office and discharged. Each was read a written termination form and escorted from the company property. Armstrong's termination form cites two reasons for his discharge: (1) leaving his work area without authority re- sulting in a blatant neglect of his duties; (2) engaging in solicitation and distribution during worktime despite prior counseling. Riedlinger's termination form cites two reasons for his discharge: (1) passing a handful of union buttons to Arm- strong with instruction to distribute them to other em- ployees and to meet outside the gate at 3 p.m. to distrib- ute union literature; (2) sought to distribute union litera- ture to Ken Crawford in the furnace control room. Ried- linger's actions were described as engaging in solicitation and distribution with other employees despite prior counseling. The fact that in both cases the "prior counseling" was limited to solicitations is only being noted as it may relate to Respondent's policy of progressive discipline or lack thereof and whether employees had any prior knowledge of the progression or its specifics. Contrary to the termination forms' reference to solici- tations on 28 September there is no evidence in the record of solicitations. The discharges therefore rest on distribution alone and the conduct constituting distribu- tion is disputed. It is clear that the disputed conduct of passing union badges at the work station during work- time is not work related. It is equally as clear that Re- spondent's discipline must be based on valid work rules, actual employee conduct, and free of unlawful motiva- tion. My prior ruling on the validity of the "distribution" portion of Respondent's dual purpose rule against solici- tations and distributions is partially controlling. As the distribution rule is invalid, Respondent cannot rely on it to discipline employees. However, the matter does not end there because the complaint of conduct is unprotect- ed. The act cannot condone employees' use of worktime for union activities under the guise of Section 7's statuto- ry protection. The Board has often declared that work- SMI STEEL 291 time is for work and employees act at their peril when prostituting that time, which is paid for performance. The record testimony of what transpired in the fur- nace control room raises more than just credibility be- tween the principals. Crawford's testimony of the con- versations and conduct in the control room does not in- clude an attempt by Riedlinger to offer him a union newspaper. Crawford's statement to management prior to the discharges includes a reference to Riedlinger's offer of a union newspaper. Likewise, Lundy's testimony of the events when Crawford was giving his statement to management makes reference to Riedlinger and the union newspaper. Lundy states that Crawford was hesitant to sign the statement, including Riedlinger's offer of the union newspaper without adding Crawford's response to Riedlinger. Lundy testified he encouraged Crawford to sign the statement because the omission was not impor- tant. Crawford, while testifying., was not questioned about the omission. A further complexity of the control room events is found in the uncontroverted testimony of Riedlinger and Armstrong about several conversations with Crawford that fateful day. In the early part of the shift after Lundy had spoken to Crawford outside the control room, Crawford entered the control room and told Riedlinger that "Lundy had asked if Riedlinger ever tried to get him to sign a union card and added that Lundy was trying to fire Riedlinger." Later Crawford told Riedlinger that "Lundy asked him to sign a state- ment against Riedlinger for passing union literature. Crawford then told Riedlinger that he didn't know what he would do." After giving the statement to management Crawford returned to the furnace area and told Ried- linger, "he was sorry but he didn't have a choice. It was your job or mine." When the shift was over Crawford left the plant and saw Riedlinger and Armstrong outside the plant. Crawford approached them and said, "he was sorry for what happened, but there was no other choice. He wished there was something he could do to change it, but he couldn't." Although Crawford testified, he was not asked about the conversations. Unquestionably Riedlinger had his briefcase, including union literature and insignias, in the control room on 28 September while the transfer car was down. Thus, he could have passed buttons to Armstrong in the control room and in the presence of Crawford. However, I am convinced otherwise. It was obvious to Riedlinger and Armstrong when they came on shift that wearing union insignia would target them again. Particularly in view of their turncoat status since the reprimands of 20 Septem- ber. Crawford's nonunion sentiments were known to Riedlinger and was admitted by Crawford. There is no evidence in the record to show that either Riedlinger or Armstrong, at any other time, engaged in union activities while working. Rather, the record shows clearly that Lundy only had knowledge of Riedlinger's union activi- ties taking place in the locker rooms. The record does not show any reports to management of active union card solicitations, particularly that of Snow. I do not credit witness Snow that Riedlinger solicited his signa- ture on a union card while Snow was working. His testi- mony was too curt and gave me the impression it was contrived. Snow could not recall when the event hap- pened and it did not appear that he consciously could recall such an event. Additionally, Respondent did not consider any employees card solicitation in making its determination to discharge Riedlinger . Riedlinger and all other furnace area employees knew from day one that newspapers, radios, or other outside novelties could not come into the plant for obvious reasons. Riedlinger espe- cially knew that such novelties could not be brought into the control room. I credit Riedlinger that his briefcase was in the control room only so he could keep an eye on it. It was not there to facilitate his union activity while working. His briefcase and the union insignia of both he and Armstrong did cause concern for management. A concern that could only be settled by discharges that day and thus making good its prior threat. Based on what I consider to be credible denials by Riedlinger and Arm- strong, the uncontroverted statements by Crawford to Riedlinger, my suspicions about Crawford's solicited role in the control room events, the dispatch with which management moved to again rely on only one version of guilt that questionably dictated discharge for the two leading union adherents, and management's demonstrated animus toward the Union and any employees supporting the Union, I conclude and find that the conduct for which Riedlinger and Armstrong were discharged did not occur other than in the mind of management as a pretext for the discharges. The pretextual nature of the discharges for distribution of union materials is further supported by the additional reason assigned for Arm- strong's discharge, i.e., being in the furnace area at a crit- ical time thereby blatantly neglecting his duties. Assuming, arguendo, any discipline for a simple trans- fer of several union buttons from one prounion adherent to another would not have exceeded the "warning and counseling stage" for the first infraction. Indeed, accord- ing to Respondent, the first transgression may only have warranted an oral warning since no conflict of interest existed between the two employees involved. Armstrong's absence from the ladle area and presence in the furnace area was described as unauthorized pursu- ant to the work rule requiring employees to get permis- sion of their supervisor before leaving their work area. My previous finding that the work rule was enforced contrary to the past practice applies to Armstrong's dis- charge. Respondent therefore cannot rely on the written rule in the employee handbook to discipline Armstrong. In addition, Armstrong's work area is the entire melt shop, Lundy stated that the melt shop was comprised of the furnace area and the casting area and Armstrong's duties included reporting ladle conditions in the melt shop. Eaddy defined the melt shop as consisting of scrap bay, furnace area, casting machines, QC department, and maintenance. Albeit, neither Lundy nor Eaddy specified the ladle area separately as a part of the melt shop it is clear from all the evidence that the ladle area is not apart from the melt shop. Both Lundy and Eaddy super- vise Armstrong and he is included in the melt shop crew meetings. It is equally as clear that with Armstrong's duties including the keeping and reporting of ladle records, he is required to work in other than the immedi- ate ladle area. Therefore, when Armstrong was in the 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD furnace area while the transfer car was down he was not out of his work area, and I so find. Respondent also contends that Armstrong's conduct (being in the furnace area when the transfer car was down) constituted a deliberate and serious neglect of duty. The record evidence and arguments in brief focus on the furnace holding situation and the critical need for Armstrong to supply a ladle. His ladle duties according to Lundy are: When the whistle sounds the furnace is close to tapping. Everybody is to get ready. Armstrong must be prepared to back away the pre-heater, inspect the ladle, and make sure the ladle is capable of holding molten steel so no melt through occurs in the ladle itself and send the ladle to the furnace. Several pages of testimony described a melt-through in a furnace and graphically explained how the process can occur while the furnace crew is keeping the furnace on hold. Erosion of the refractory material and a resultant melt-through is dangerous to employees and could cause millions of dollars in damages . The early stage of a melt- through is the boiling action. Eaddy described one such prior situation in his testimony: Q. Since you have been working at SMI, has there been an occasion where you saw this bubbling associated with the erosion process and immediately proceeded to tap the furnace into the ladle? A. Yes, it has. And, yes, I have. Q. When was that? A. About two months ago. It was on B-furnace. Luckily, I had Don Perrine, who is my step-up first helper working with me that night. My regular first helper, Chris Williams, was melting on another crew. And, luckily we were in just about the tap- ping stage. The ladle was back there behind the fur- nace. My third helper was putting sand in the ladle nozzle, and we was at 3000 to 3020 degrees, and we just got a temp and was walking around to tap the heat. And I looked in the furnace and I seen a big erosion, a big boiling action, on the left-hand jam, the left side, of the furnace. And I looked and I knew we was in trouble at that time because the erosion was pretty bad. And I grabbed ahold of my first helper, because I'm trying to teach him every- thing I can about steelmaking and he hadn't never seen something like this. I said, "You see that right there?" I said, "We're in trouble. We've got to tap this heat right now." I said, "We've got a refractory boil." I said, "If we fool around, that steel is gonna come through." And we proceeded right away to tap that heat out. We was lucky we was at the stage we could tap it out anyway. We tapped the heat out. We brought the furnace back after the tap to a level position; swung the roof off. My first helper got up on top of the furnace -Don Perrine-and looked at it. And he came running down and he says, "I want you to look at that hole." He said, "You were right." I went up there and looked, and there was a big hole about yea-big (indicating) in that boiling area, and it was almost all the way to the metal shell. I would say another minute or less and we would have lost steel through the side of the furnace if we hadn't tapped it out. Eaddy stated that once the molten steel contacts the steel wall of the furnace the melt-through is instantaneous. Seidenberger evaluated previous melt-throughs as errors in judgment. If the molten steel melts through the side of the furnace, that is an error in judgment. In re- sponse to the question of culpability, he stated "You know, we're all human. We're not perfect. And, No, I wouldn't terminate somebody for an error in judgment, similar to that." However, with regard to Armstrong's presence in the furnace area Seidenberger testified, "In the case of Mr. Armstrong, that's total neglect of his re- sponsibilities. Not being in his position at a very critical time. The most critical time there is in the melt shop and he's not there." It cannot be gainsaid that when a furnace is in trouble the crew would be expected to react to the problem. But in this record the precision and/or quickness required is not detailed to the point of substantial, nor is the lack thereof shown. Eaddy in describing the danger and po- tential liability still took the time to instruct his first helper on "boiling action." Eaddy likewise minimized the maintenance crew's use of the ladle crane by stating the crane could get from the transfer car to the ladle pre- heater in seconds, "all he would have to do was lower his main hoist and go." Casting Foreman Allen obvious- ly knew the transfer car was out of commission, but did not alert Eaddy until after the first whistle was blown. An apparent neglect that was not acknowledged, or an error in judgment that is excusable. Although there is abundant record evidence to show the status of the fur- nace at the described critical time, there is not one iota to evince the status of the ladle. The record evidence does show that the "get ready to tap" whistle had blown and later, at the appointed time, the ladle was sent to the furnace to tap the heat, without incident. A blatant neglect of duties and/or responsibilities nor- mally is based on one or more omissions . Here, none were shown nor argued. The whole sequence of events transpiring between Lundy, Seidenberger, and Slay in- volving the "heat sheet" and their determination when Armstrong could have been in the furnace area totally recognizes that he did in fact perform his duties. Other- wise, he could not have ventured to the furnace area. The furnace delay necessarily allowed some employees downtime not usually enjoyed. In addition, the investiga- tion as testified to by Slay, Lundy, and Seidenberger and founded on the holding action of the furnace and some- thing that did not occur during "hold" points to the con- clusion that the three were fishing for some vice by Armstrong to seize on as a basis for the discharge. No vice was shown, that could explain why Eaddy, who had seen Armstrong at the critical time in the furnace area, merely eyeballed Armstrong and went about his business of tapping the furnace. If Respondent's arguments and supporting evidence were completely accepted, an anomalous situation would exist. Had Armstrong not done his job, as required, and the furnace experienced a melt-through (or the ladle ex- perienced a melt-through), the cause of the disaster SMI STEEL 293 would have been labled an "error in judgment" and no one would have been discharged. Nothing is more pretextual than relying on mere spec- ulation to assess an employee's performance as a blatant neglect of duties requiring discharge. Based on the above and all the record evidence, I con- clude and find that Respondent discriminatorily dis- charged Armstrong and Riedlinger in violation of Sec- tion 8(a)(1) and (3) of the Act as alleged in paragraph of the complaint. I do not however conclude nor find that Lundy's re- moval of Riedlinger's briefcase from the control room was discriminatorily motivated. Notwithstanding, the union insignia and union contents, the briefcase falls within the categories of items not allowed in the furnace area since the plant became operational. The General Counsel has thus failed to sustain her allegation con- tained in paragraph 15 of her complaint. CONCLUSIONS OF LAW 1. By threatening employees with reprisals for engag- ing in union activity, Respondent has violated Section 8(a)(1) of the Act. 2. By maintaining and enforcing an unlawful rule against distribution of literature on company property, Respondent has violated Section 8(a)(1) of the Act. 3. By prohibiting employees from leaving their work area without permission and contrary to past practice, Respondent has violated Section 8(a)(1) and (3) of the Act. 4. By issuing written warnings to James Armstrong and Preston Riedlinger on 20 September, Respondent has discriminated against employees in violation of Section 8(a)(1) and (3) of the Act. 5. By discharging employees James Armstrong and Preston Riedlinger on 28 September, Respondent has dis- criminated against employees in violation of Section 8(a)(1) and (3) of the Act. 6. The General Counsel has failed to sustain her burden of proof for the allegations in paragraphs 7, 10, 12, 13, 15, and 17 of her complaint. 7. The aforementioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Having discriminatorily discharged employees James Armstrong and Preston Riedlinger, Respondent must offer them full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent positions, with backpay computed on a quarterly basis and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977),9 from 28 8 See generally Isis Plumbing Co , 138 NLRB 716 (1962) September 1985, the date of discharge, to the date of proper offer of reinstatement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edio ORDER The Respondent, SMI Steel, Inc., Birmingham, Ala- bama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with reprisals for engaging in union activity. (b) Maintaining and enforcing its present unlawful rule against distribution of literature on company property. (c) Prohibiting employees from leaving their work areas without permission, contrary to past practices and employees' rights under Section 7 of the Act. (d) Issuing written warnings to employees based on its no-solicitation rule for discriminatory reasons. (e) Discharging its employees for pretextual and dis- criminatory reasons. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer James Armstrong and Preston Riedlinger im- mediate and full reinstatement to the jobs from which they were discharged on 28 September 1985, or if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any earnings they lost, plus interest, as outlined in the remedy section of this decision. (b) Remove from its files any reference to the discrimi- natory warnings and discharges of 20 and 28 September of James Armstrong and Preston Riedlinger and notify them in writing that this has been done and that evi- dence of these unlawful warnings and discharges will not be used as a basis for future personnel action against them. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to effectuate the backpay provisions of this Order. (d) Post at its offices in Birmingham, Alabama, copies of the attached notice marked "Appendix."" Copies of to 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 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses " 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 " 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the notice on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately on 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.' 2 IT IS ALSO ORDERED that the complaint is dismissed in- sofar as it alleges violations of the Act not specifically found. 12 The General Counsel in her beef moved for the inclusion of a "visi- torial clause" in the remedial order. Under the circumstances of this case I do not believe such an order is warranted I therefore deny the motion of the General Counsel