Pizza Crust Co. Of Pennsylvania, Inc.

490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pizza Crust Company of Pennsylvania, Inc. and United Food and Commercial Workers, Local 72, AFL-CIO-CLC. Cases 4-CA-14658, 4- CA-14658-2 4-CA-14658-5, 4-CA-14658-6, 4-CA-14658-7, 4-CA-14745-2, 4-CA-14745- 3, 4-CA-14745-5, and 4-RC-15757 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 6 December 1985 Administrative Law Judge David L. Evans issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs, and they each filed briefs in opposition to the cross-exceptions. The Charging Party filed a brief in opposition to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. Chairman Dotson and Member Johansen agree to adopt the judge's dismissal of the allegations that the discharges of employees Ward and Burton vio- lated Section 8(a)(3); Member Stephens' dissent on that issue is set out in his separate opinion below. Members Johansen and Stephens agree to adopt the judge's findings that the Respondent violated Section 8(a)(1) through the prohibition of union so- licitation by certain off-duty employees' and the interrogation of employee Kevin White;2 the 1 Members Johansen and Stephens conclude that the judge correctly applied Tn-County Medical Center, 222 NLRB 1089 (1976), in finding that the Respondent violated Sec 8(aX I) of the Act by refusing to permit em- ployees Kevin White and Joseph Kilhullen to distribute union literature in the Respondent's parking lot to employees who were either getting off the first shift or entering the building to work on the second shift The mere fact that White and Kilhullen were then on leave as a result of em- ployment-related injuries does not deprive them of employee status, and, contrary to the implications of the dissent, Tn-County does not distin- guish among off-duty employees about their reasons for being off duty As for the Chairman's assertion that the Respondent's unlawful prohibi- tion of union leafletting in the parking lot extended to five individuals, three of whom were not employees, we find it significant that only White and Kilhullen actually attempted to engage in distributing union literature there and that violation is found only as to them Because one of the Re- spondent's managers expressly forbade White and Kilhullen to do so and because the Respondent has shown no business justification for prohibit- ing this type of organizing activity by employees in nonwork areas on nonwork time, the Respondent violated Sec 8(a)(1) under the rule of Tn- County 2 Members Johansen and Stephens agree with the judge that the evi- dence establishes that Sam Falbo Jr, the Respondent's chief executive of- ficer, made comments concerning union activities to employee White that effectively pressured White to barter any knowledge he had of union ac- tivities in return for favorable action on his request to be excused from overtime that day so he could attend a class Thus, according to White's credited testimony, Falbo initially responded to White's request by stat- Chairman's dissent on those issues is set out below. The adoption of the judge's findings and recom- mendations in all other respects is unanimous. ORDER The National Labor Relations Board adopts the recommended Order of the administrative la'w judge and orders that the Respondent, Pizza Crust Company of Pennsylvania, Inc., Scranton, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting in part. I would not find that the Respondent violated Section 8(a)(1) or engaged in objectionable conduct on 14 and 18 December 1984 when its officials pro- hibited five individuals from engaging in prounion leafletting in the Respondent's parking lot. None of the five was an active employee: one was a busi- ness agent, two were lawfully discharged former employees, and two were on workmen's compensa- tion leave. Under these circumstances the appropri- ate test of the Respondent's conduct is not in Tri- County Medical Center, 222 NLRB 1089 (1976),' cited by the judge, but in Fairmont Hotel, 282 NLRB 139 (1986). There has been no showing that the Respondent should have granted access under the Fairmont test. Moreover, the Respondent clear- ly permitted leafletting by those individuals at the entrances to its parking lot and there is no allega- tion or evidence of interference with active em- ployees' prounion activities on the Respondent's premises prior to the election. In the absence of any argument before the Board that conduct other than that discussed above constituted objectionable election interference, I would certify the results of the election. In addition, I would reverse the judge's finding that the Respondent's assistant general manager, Sam Falbo Jr., interrogated employee Kevin White in violation of Section 8(a)(1). Under the circum- stances, Falbo's two comments about not knowing who was involved in the union campaign were too brief, general, and ambiguous to be objectively ing "It's like this I am stuck between a rock and a hard place because we have a union campaign going on here ." White further testified that Falbo next said he did not know who was "involved ," and then "stopped and just looked at me." When White did not comment on the reference to union activity , but simply repeated his request regarding overtime, Falbo then pointed out that he had fired two employees, that "charges" had been filed against him, and that he would not be able to do anything for White because he did not "know who was involved in the cam- paign " Falbo's heavy-handed suggestions concerning his need to know who was "involved" with the Union were at least as coercive, under the circumstances, as direct questions would have been 1 For reasons fully set forth in my dissenting opinion in Orange Memo- rial Hospital Corp, 285 NLRB 1099 ( 1987), I would, in any event, over- rule Tn-County and return to the Board rule in GTE Lenkurt, Inc, 204 NLRB 921 (1973) 286 NLRB No. 45 PIZZA CRUST CO. characterized as an inquiry into union activities rather than mere rhetoric. Indeed, Falbo neither re- quested nor received from White any response to these comments. MEMBER STEPHENS, dissenting in part. The judge concluded that there was insufficient evidence to establish that the Respondent knew of its employees' union activities until 16 October 1984,1 when it received notice that its discharge of employee Edward Ward was alleged to have been based on union activities. Accordingly, citing an absence of proof of knowledge or animus, the judge dismissed the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act when it discharged employee Ward on 9 Octo- ber and employee Jeffrey Burton on '10 October. Contrary to the judge, I find that the circumstan- tial evidence in this case warrants the inference that the Respondent knew of its employees' union activities, including those of union campaigners Ward and Burton, prior to their discharges. I would find that their discharges were attributable to those activities rather than to the reasons prof- fered by the Respondent-reasons that the judge himself found to be "incredible." The evidence presents the following chronology of events: (1) on 26 September employees Ward and Kevin White begin the union organizing drive; (2) from 27 September through 2 October employ- ees Ward and White solicit support from employ- ees and hand out union literature in the Respond- ent's parking lot and lunchroorn;2 (3) on 2 October the Union holds the first organizing meeting, with from 10 to 13 employees attending, and a second meeting is scheduled for 9 October; (4) on 3 Octo- ber employee Jerri Robinson, the girlfriend of one of the Respondent's supervisors, signs a union au- thorization card; (5) on 8 October employee Burton solicits support from the second-shift em- ployees in the Respondent's parking lot; (6) on 9 October employee Ward, who had worked for the Respondent for 7 years, is discharged for allegedly making too many production errors; and (7) on 10 October employee Burton, on his first day back on the job after soliciting the second-shift employees, is discharged for allegedly excessive absenteeism. Thus, the Respondent discharged two of the three employee organizers3 shortly after they had i All dates are in 1984 unless stated otherwise 2 A total of approximately 20 to 30 employees were solicited to sup- port the Union This number amounts to approximately one-third of the approximately 75-member unit of production maintenance employees 2 The judge found that the third employee, Kevin White, was later suspended for conduct that occurred while he was soliciting a union card, but the suspension did not violate the Act because the conduct in question was unprotected 491 actively engaged in distributing union authorization cards, and it proffered reasons for the discharge that the judge, with ample warrant in the record, found "incredible." Although, as the judge found, the organizers had been told by the Union's busi- ness agent to try to keep their campaign activities secret, and the organizers tried to do so, the fact remains that they carried out some of those activi- ties on the Respondent's premises, and the effort had necessarily become known to at least one-third of the approximately 75-employee production and maintenance work force, including the girlfriend of one of the Respondent's supervisors. This evidence forms a pattern too obvious to be explained by co- incidence and, in my view, it clearly invites the in- ference that the Respondent knew of Ward's and Burton's union campaigning and discharged them in order to nip the campaign in the bud. To be sure, the evidence is circumstantial, but it is settled that we are permitted to draw conclusions regard- ing motive and knowledge from circumstantial evi- dence. D & D Distribution Co. v. NLRB, 801 F.2d 636 (3d Cir. 1986); NLRB v. Airport Limousine Service, 468 F.2d 292, 295 (2d Cir. 1972). Accordingly, I would reverse the judge and find that the General Counsel made out a prima facie case of discrimination concerning the discharges of Ward and Burton. Furthermore, because the judge properly discredited the nondiscriminatory grounds that the Respondent asserted as the bases for the discharges, I would find that the Respondent did not establish that the discharges would have oc- curred even in absence of the employees' union ac- tivities. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. mem. 705 F.2d 799 (6th Cir. 1982). Margaret McGovern, Esq., for the General Counsel. Robert Ujberg, Esq. and Jill Miller, Esq. (Rosenberg & Ujberg), of Scranton, Pennsylvania, for the Respondent Employer. Steven Menn, Esq. (Haurigan, Kluger & Spohrer, Associ- ates), of Wilkes-Barre, Pennsylvania, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This matter was tried before me on seven different dates be- tween 18 March and 4 April 1985 in Scranton, Pennsyl- vania. The General Counsel alleges that Pizza Crust Company of Pennsylvania, Incorporated (Respondent or the Employer) has committed certain violations of the National Labor Relations Act (the Act). The allegations are based on eight charges filed by United Food and Commercial Workers Local 72, AFL-CIO-CLC (the 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union).I The General Counsel issued four consolidated complaints (the complaint) on the basis of these charges; they are dated 30 November 1984, 6 and 19 February, and 4 March 1985. The complaint alleges that before and after a 21 December 19842 Board-conducted representa- tion election,3 Respondent committed various violations of Section 8(a)(1) and (3) of the Act. Respondent's an- swers to the complaint admit jurisdiction and the status of certain individuals as supervisors under the Act, but deny the commission of any unfair labor practices. On 22 February 1985 the Regional Director issued a "Report on Objections to Election and Notice of Hearing" that states that the Regional Director found necessary a hear- ing on certain union oblections4 to alleged employer mis- conduct affecting the results of the election. On 4 March 1985 the Regional Director issued an "Order Further Consolidating Cases and Scheduling Consolidated Hear- ing." This order consolidated the case of the unfair labor practice allegations with the case raised by the objec- tions, and the matters were thus set for hearing. On the entire record,5 my observation of the demean- or of the witnesses, and after careful consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Pennsylvania corporation engaged in the manufacture and wholesale distribution of pizza crusts at a facility located in Carbondale, Pennsylvania. During the year preceding issuance of the complaint Re- spondent, in the course and conduct of its business oper- ations, sold and shipped products valued in excess of $50,000 directly to purchasers located at points outside the Commonwealth of Pennsylvania . Therefore, Re- spondent is, and has been at all times material, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Plant Operations Respondent produces pizza shells for bulk distribution to institutions such as schools and concessions in amuse- ment parks. Sam Falbo Sr. is the owner of the business, but the chief executive officer is Sam Falbo Jr. (or Sam ' The numbers of the charges and their dates of filing , all in 1984 and January 1985, are as follows' Case 4-CA-14658, 15 October, Case 4-CA- 14658-2, 18 October, Case 4-CA-14658-5, 9 November, Case 4-CA- 14658-6, 9 November, Case 4-CA-14658-7, 26 November, Case 4-CA- 14745-2, 24 December, Case 4-CA-14745-3, 24 December, Case 4-CA- 14745-5, 2 January 2 All dates are in 1984 unless otherwise specified 2 This election was conducted pursuant to a petition filed by the Union on 22 October ° The remainder of the objections had been withdrawn by the Union S The General Counsel filed an extensive unopposed motion to correct the record The motion is granted Additional corrections are made infra Jr. as he is called at the plant). David Falbo, brother to Sam Falbo Jr., is the plant manager; he is directly in charge of production. Tony Morgantini is the general foreman of the plant. Various foremen report to David Falbo and Morgantinl. These include: Sar Billotta, pack- ing; Butch Tusco, shipping and receiving; Bobby Cor- ring, second-shift production; and Ken Booth, second- shift sanitation. Respondent employs about 75 production and maintenance employees.6 Respondent always oper- ates a day shift that starts at 7 a.m. and usually continues until 3:30 p.m. Periodically, the day shift works compul- sory overtime for 2 hours or more per day and often works half days on Saturdays. Also, day-shift employees are sometimes required to work as much as 4 hours over- time. This extended shift is referred to by the personnel as the "second shift" or "night shift." Also Respondent periodically employs another shift of employees, also called a "night shift." It is comprised of both full-time and part-time employees. These employees report at 3:30 p.m. and perform production until 7:30 p.m. At that time the night shift full-time employees begin sanitation work and the part-time employees are released. When such a shift is employed, no day-shift production employees work overtime, unless a night-shift employee fails to report to work. Respondent's plant has two production lines. Dough is prepared for both production lines by a mixing machine. The dough is divided into dough balls by a "divider" machine? that turns out dough balls based on the weight and size of the shells to be produced (e.g., 12-inch, 14- inch, and 16-inch diameters, Sicilian or regular thick- ness). The dough balls are "proofed" for a short period to allow the dough to rise and then placed in pans. These pans are about 26 inches square and contain four cavities so that multiple shells can be produced in each pan. The shells are first formed by a press that shapes the dough into the general shape of the pans' cavities. The shells are proofed a second time and then moved by conveyor to the work station of the "panning ladies" who manually adjust the dough as necessary to more closely conform the dough to the shape of the pans' cav- ities. The pans are then placed on conveyors that lead to two oven lines. The "ovenman" or "loader" flips every other pan upside down onto an alternate, face-up pan so that the shells are baked together, face to face, in double units. Respondent's "number one oven" is operated by two loaders; its number two oven is operated by one. The work area is much tighter for the number one oven; that is, the loader on the number two oven has more space in which to work so that he will rarely push pans together as they are loaded into the oven. As the shells come out of the ovens, "depanners" on each line turn the shells out of the pans and drop them onto conveyer belts that are leaving the ovens going to a "cooling line," and the depanners place the empty pans on a return conveyer 8 There were 73 unchallenged ballots cast in the 21 December election, and 5 ballots were challenged Presumably two of the challenged ballots were those of Jeffery Burton and Edward Ward, both of whom are found to have been lawfully discharged here 7 There is a divider at Respondent's plant Accordingly, Tr 232, L 20, is corrected to change "No" to "one " PIZZA CRUST CO. 493 belt that takes the pans back to the divider area. At the start of the cooling lines , "splitters" separate the face-to- face pairs of shells into individual pizza shells. The shells cool on conveyors for the respective production lines until they reach the packing area where they are inspect- ed. There are several hazards to the product in the proc- ess. Shells get soiled (by being dropped), torn, improper- ly panned, burned (when the assembly line does not de- liver enough product to absorb the heat generated by the oven), and "pushed." Pushing occurs when the oven loaders hit a pair of pans already loaded on the belt to the oven with a following pair. This has the effect of moving the top pan of the first pair in its groove with the pan under it. The grooves of the front pans make an impression on the fresh dough and "when it comes out it will be disfigured, and you'll see a brown mark on it from the pan actually hitting it."8 Shells that are damaged during the process are sorted out into waste boxes in the packing and inspection area. Waste shells are thrown out if soiled ; they are recycled into fresh dough , and new shells, if they are damaged in other ways, such as pushing.9 Good shells are packed into boxes of various sizes in the packing area; then they are transferred to delivery trucks for shipment to cus- tomers. B. Initial Organizational Meetings In late September Ralph Carlacci, a business agent of the Union, contacted employee Edward Ward and stated that he was interested in organizing Respondent's em- ployees. On 26 September Carlacci met with Ward and employee Kevin White at a Carbondale restaurant. White and Ward signed union authorization cards at that time. Carlacci gave the employees authorization cards and other literature to distribute to fellow employees Carlacci told White and Ward to keep their efforts secret and solicit only employees whom they thought would keep the organizational effort a secret also. That week White and Ward passed out the literature and asked other employees to attend a meeting on 2 October. At the 2 October meeting 10 to 13 employees attended. Car- lacci again distributed authorization cards and other liter- ature and again told the employees attending to keep the matter a secret for the time being and to solicit only em- ployees whom they could trust to keep the organization- al effort a secret. One of the employees attending this meeting was alleged discriminatee Jeffery Burton. After the meetings of 26 September and 2 October, Burton, White, and Ward distributed literature and asked other employees to attend the union meetings that were sched- uled, including one meeting scheduled for 9 October. All three employees testified that they followed Carlacci's instructions and kept the matter secret , telling only em- ployees whom they thought could be trusted to keep the matter of the organizational drive a secret. 8 Testimony of Foreman Sar Billotta, Ti 1380 8 Testimony of Sam Falbo Jr, Tr 59 Apparently , although no witness testified to this specific point, the ovens heat the dough only enough to form the shells, and they are not baked into "crusts " despite Respond- ent's corporate name, otherwise, obviously, this recycling process would not be possible Ward was discharged on 9 October; Burton was dis- charged on 10 October. At issue in this case is Respond- ent's knowledge of Ward's and Burton's participation in union activity before those discharges, as the General Counsel contends that these two employees were dis- charged in violation of Section 8(a)(3). There is no contention that Respondent had direct knowledge of Ward's activities. Burton testified that on 8 October, around 7 :30 p.m., he drove to the Respondent's parking lot with his girlfriend to distribute union litera- ture to employees who were getting off at that hour and inform them of the 9 October meeting . Burton further testified that as he and his girlfriend sat in his car, Second-Shift Foreman Bobby Corrigan came out of the building. Corrigan's girlfriend, Jerri Robinson, who is also a production employee , drove Corrigan's pickup truck into the lot, and Corrigan got in to drive . Corrigan drove his truck next to Burton 's automobile and, at that point, Corrigan could see union cards and literature in Burton's possession. Then, according to Burton , Corri- gan drove away without saying anything . Corrigan denied any such incident . Burton's pretrial affidavit states in the plainest of terms that he had no idea how Re- spondent could have found out about his union activities before his discharge and, specifically , the affidavit does not mention the alleged parking lot incident with Corri- gan. Burton's girlfriend , who lives in the area , was not called to support Burton's testimony, nor was any other employee . Burton knew at the time he gave his affidavit that one of Respondent 's defenses to his 8(a)(3) charge was that it did not know of his union activities. Certain- ly, if this incident had happened Burton would have mentioned it in his affidavit and would not have included the categorical statement that he did not know how Re- spondent could have known of his union activities before his 10 October discharge . Finally, I found Corrigan cred- ible in his denial, and I conclude that this alleged 8 Octo- ber incident in the parking lot did not happen. C. Discharges of Ward and Burton The General Counsel contends that Respondent dis- charged Ward and Burton because of their activities; Re- spondent denies this and contends that it did not know of any union activities of either employee at the time of the discharges; further, Respondent contends that Ward was discharged for poor production, Burton was discharged for excess absenteeism. Ward, who was employed by Respondent for 7 years at the time of his discharge, had worked all jobs in the plant except mixing. As noted above , he was one of the first two employees to meet with Union Representative Carlacci and he further distributed 15 to 20 pamphlets for Respondent and about 20 authorization cards. As in- structed by Carlacci he told people he could trust about the meetings of 2 and 9 October in an effort to get them to attend . Ward testified that he conducted this activity in the lunchroom and parking lot, but knew of no super- visor who would have observed him doing so. On 9 October, the date of the discharge and the date of the second union meeting, Ward began work at 6 a.m. He came in an hour before the other employees because 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he had the additional responsibility of setting up the presses. He worked on a press from 7 to 8 a.m., and at 8 a.m. he was transferred to loader on the number two oven. 10 Ward testified that 20 minutes after his lunch period, about 12:50 p.m., Packing and Inspecting Supervisor Bil- lotta approached him and told him that he was damaging too many shells. Ward testified that he made no response but began leaving more space between the pans as he fed them into the number two oven. Ward further testified that a few minutes later Billotta approached him again and told him he was not putting the pans together right and this caused a burning on the edges of the shells. Ward responded that Billotta should watch the way he was putting the pans together and asked if it was not the right way to do the job; Billotta replied that it was. Ward testified that no one else spoke to him about his production that day until 15 minutes before quitting time. At that point Corrigan told Ward that David Falbo wanted to see him in the office. In the office, when Ward got there, were David Falbo, Sam Falbo Jr., and Corrigan. What happened in the office is not in dispute. David Falbo first stated that too many shells had gotten burned during the day. Ward responded that there had not been enough shells coming down the production line to absorb the heat generated by the oven, so there was an excess amount of heat put on the shells that did come through. Falbo responded that this was a good explana- tion but stated that during the day there had been too many "pushed" shells. Ward replied that he knew he had damaged two shells in that manner but that was all. Falbo then stated that Ward had previously been repri- manded for talking to the girls and for putting pans onto the press with one hand. i i Falbo concluded, "We can't have anymore of this; we're going to have to let you go." Ward replied, "all right," and then got up and walked out. Although in no way abandoning its defense that it had no knowledge of Ward's union activity before his dis- charge, Respondent produced evidence in support of its claim that Ward was fired for poor production. Supervi- sor Billotta testified that, as was his usual custom, he ob- served the shells being produced during the day as they left the ovens. Billotta testified that during a normal day 30 to 40 pushed shells are produced at the number one oven and about 10 to 20 pushed shells are produced at the number two oven. Billotta testified that on 9 October he first noticed an excessive number of pushed shells from the number two oven about 10 to 20 minutes before the lunchbreak. He testified that he took three or four of the pushed shells to Ward and told him that he was pushing too many shells. (Pushing shells, or pushing pans, results in disfigured shells, as previously noted.) Ward made no reply to Billotta at this time. Billotta tes- tified that about a half hour after lunch he again took pushed shells to Ward and told him he was not putting the pans together correctly, thus causing burned edges. Again Ward made no reply. Billotta testified that after the second admonition to Ward he saw David Falbo on the production floor and told him that too many shells were being pushed by Ward. According to Billotta, Falbo replied, "Let's see what happens." Billotta further testified that before the afternoon break period he again brought shells to Ward and stated that too many pans were being pushed. At that point Ward told Billotta that he was loading the oven in the correct manner; and Bil- lotta acknowledged in his testimony that at that point Ward was feeding the oven correctly. Billotta testified that after this third amonition, and after seeing more bad production from Ward, he again saw David Falbo. He told Falbo that Ward was an experienced employee and was either daydreaming or destroying the shells deliber- ately. Falbo did not reply. Billotta testified that at the end of the day he counted out the shells from the number two oven and found that 280 had been damaged by pushing the pans together. He reported this to Falbo who said he would take care of it. Billotta testified that he had not heard about the union activity at the time of Ward's discharge. On cross-examination, Billotta testified that 70 to 75 pushed shells in a shift would have been an excessive amount for any experienced operator on the number two oven. David Falbo's testimony was essen- tially consistent with Billotta's. Falbo added that he went to the packing inspection area about 2:45 to 3 p.m., or about a half hour before the end of the shift, and counted out 250 pushed shells that had come from Ward's oven. When, on cross-examination, Falbo was asked why he let Ward continue working if the employees had produced that many pushed shells, he replied, "Well, with 45 min- utes left at that point, wait and see what happens. If it continues for the rest of the day, that is about it." On 9 October, the day of Ward's discharge, Burton did not go to work; he testified that on that day he had a sore throat. Burton did go to the union meeting that night. On 10 October, when he reported to work, he was told by Morgantini that Respondent could not use him anymore because he had missed too much time. Burton replied, "Fine," and left. Burton missed 11 days of work in 1984. On 21 Febru- ary he received a written12 warning notice for missing the first 4 of those days. i 3 Burton missed no days in March or April but did miss one in May, two in June, one in July, one in August, one in September, and that one absence on 9 October. As evidence of discriminatory treatment, the General Counsel produced the records of several employees who had records equal to, or worse than, that of Burton: Cathy Boshman missed 13 days in 1984 as of 9 October; Clarence Davis missed 9 days as of 1 November; Jean Castle missed 14 days in 3 months after being hired on 12 March.14 Barbara Carsman 11 This transfer was routine, it is not alleged to have been a maneuver to "set up" Ward for the discharge 11 This latter warning occurred in mid-1984. Ward acknowledged that he had had several prior warnings on various topics and that on this oc- casion David Falbo had told him that the next time he operated a press with one hand he would be "out the door " 12 The written warning states only "Too many days missed " Re- spondent's warning notice forms have boxes for "1st Notice" and "2nd Notice " (See the warning notice of White reproduced, infra) Neither of these boxes was checked Is These were 16 and 17 January and 13 and 20 February 14 Castle was discharged on 16 July but immediately reinstated on her request, she was discharged again on 31 July for another absence PIZZA CRUST CO. 495 missed 30 days in 1984 by 9 October. Valerie Soltus missed 12 days; Laurie Sekalsky missed 20 days; William Bush missed 11 days; and Wendy Miller missed 13 days in 1984. Roger Van Taslsel was hired by Respondent on 19 September and missed 16 days by the end of January 1985. None of these employees, except Castle, was disci- plined for these absences. The "bad production" defense to the discharge of Ward and the "absenteeism" defense to the discharge of Burton are incredible. Ward was one of the two initial employee-organizers and helped set up the first two meetings after he and White met with Carlacci on 25 September. Then on 9 October, the day of the second meeting which they planned, Ward was kept on the number two oven even after it produced a phenomenal amount i s of bad" s prod- uct. One would think that, if an employer's agents really believed that the employee was at fault, the employee would have been taken off the job and not allowed to finish the day. Burton's discharge presents even more than a dramatic picture of "unfairness." Respondent's brief makes not the slightest attempt to explain why so many other employ- ees were allowed so many more absences without disci- pline. Under the law, however, Respondent is not called on to explain these seeming inequities unless the General Counsel has presented a prima facie case that the dis- charges were motivated by unlawful intent to discrimi- nate against the employees because of their actual or sus- pected union activities; that is, the General Counsel must show unlawful, antiunion animus. This is something the General Counsel has not done. Even if the General Counsel shows such animus, she must also show that Re- spondent knew of the union activities of the discharged employees, Burton and Ward. This is something the General Counsel has not done either. The General Counsel argues that knowledge of the union activities of Ward and Burton should be inferred from the fact that Respondent's operation, is a relatively small one. This argument stems from the "small plant" theory that was first articulated in Weise Plow Welding Co., 123 NLRB 616 (1959). That case held that in a small plant knowledge of the identity of union activists could be inferred when the activity was of an open and obvi- ous nature and likely to be detected. However, except when such activities as interrogations and surveillance have been conducted,'' employer knowledge of individ- ual employee activity has never been imputed in any case involving operations as large as Respondent's, which has a 75-employee complement, and the activity is less than open and obvious. Here the employees were categorically instructed by Carlacci to keep their activi- ties a secret and to contact only those employees whom 16 Billotta testified that no more than 10 to 20 pushed shells should be produced in a shift, Burton, according to Respondent, was allowed to produce 250 to 280 pushed shells on a shift that he did not even start until 8 a in., an hour later than the usual shift start on the ovens , because he worked the press until that hour. 16 Just how "bad" this production was is problematical As previously noted, Sam Falbo Jr. testified that "pushed " shells are recycled. 17 This was the primary consideration in Nissm Foods (USA) Co., 272 NLRB 371 (1984), cited in the General Counsel's brief they could trust to keep the secret. Such an instruction would greatly diminish, if not completely extinguish, the chance that an employer would find out about union ac- tivity until the union involved chose to make that activi- ty known. That is, Carlacci's instructions, and the em- ployees' following of that instruction, logically preclude the invocation of the "small plant" theory as the Board has held before. See Consolidated Freightways Corp., 276 NLRB 477 (1985); and K & B Mounting, 248 NLRB 570 (1980). Therefore, because of this failure of proof of knowledge of the union activity in which Burton and Ward engaged, as well as a failure of proof of unlawful animus, I shall recommend that the complaint concerning their discharges be dismissed. D. The Wage Increase On 19 October the production and maintenance em- ployees received a wage increase of 20 cents per hour on their weekly paychecks issued that date. The complaint alleges that the Respondent implemented this wage in- crease "in order to discourage its employees from sup- porting the Union," in violation of Section 8(a)(1) and (3). Respondent defends the allegation on the ground that implementation of the wage increase was decided on before it had any knowledge of any union activities by any employees. Sam Falbo Jr. testified, without contradiction, that Re- spondent had previously implemented blanket wage in- creases on the following dates: 24 December 1980, 9 September 1981, 23 July 1982, and 3 June 1983. Falbo testified that he and his father first discussed the possibil- ity of a 1984 wage increase in June. At that time it was decided that business was not good enough to grant a wage increase. In August they discussed the matter again and decided that business was still not good enough. Around 17 September they discussed the matter for the third time and decided that a wage increase could be given in mid-October. On Friday, 12 October, Sam Falbo Jr. told the clerical employees that the next checks that covered the week ending that date should include a 20-cent-per-hour wage increase for all employees. On Monday, 15 October, the payroll information was called to a computerized payroll service for computation and printing of the checks that were received by the employ- ees on Friday, 19 October. Employee Jesse Carey testified that when he was hired he was told by Sam Falbo Jr. that employees would get two raises per year, one in January and one in July. Falbo acknowledged that he may have told Carey this in 1980, but Falbo further testified that since that year Re- spondent has given wage increases only once per year, usually in the second half of the year. The dates of previ- ous increases recited above bear Falbo out on this point. The General Counsel does not contend that the amount of the 1984 wage increase was unduly large so as to raise the suspicion that it was instituted for purposes other than an expected annual increase in hourly com- pensation. Nor does the General Counsel contend that the raise should have been given during the first half of the year or, conversely, that the raise should not have been given during the second half of 1984. The General 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel merely recites several cases for the well-estab- lished principle that when a grant of benefits is imple- mented during a union campaign, the burden is on the employer to show that the grant was not in response to that campaign. An action, however, cannot be in response to a phe- nomenon of which the actor is ignorant. In the cases cited by the General Counsel, the employers knew that union campaigns were in progress. Here, Respondent contends it was ignorant of the union campaign until it received (on 16 October) notice that Ward was claiming that he was fired for his union activities. Falbo testified that on 12 October he told his office staff that there was to be a raise on the next checks-those distributed 19 October for the week of 8 through 12 October. There was no attempt by the General Counsel to impeach this testimony; nor was there any attempt to impeach the tes- timony of Falbo that the payroll service was notified on 15 October to include the raises on the checks distribut- ed on 19 October. The original charge in this case was filed on 15 October and served on Respondent on 16 Oc- tober. There is no evidence that Respondent knew of the campaign before 16 October and, therefore, no basis for the conclusion that the grant was "in response to" that campaign.18 Accordingly, I shall recommend that this allegation of the complaint be dismissed. E. Water Fountain and Restroom Privileges The complaint alleges: On or about October 9, 1984, Respondent instituted a policy of providing drink and bathroom privileges to its employees immediately upon the employees' request. The complaint further alleges that by the institution of this policy Respondent has discriminated in regard to the terms and conditions of employment of its employees thereby discouraging membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act. The date of 9 October is apparently alleged as the date of the discriminatory conduct because that is the date Respondent decided to fire both Ward and Burton. Sev- eral employees testified about Respondent 's practice in regard to allowing employees to go to the bathroom and to get a drink of water, both before and after that date. Ward testified that before his discharge he and other employees would be required to wait 20 minutes to an hour after a request before Morgantini or Corrigan would supply them with relief so that they could go to the restroom or get a drink of water. Burton gave similar testimony adding that he once had to wait 1-1/2 hours before Morgantini sent someone to relieve him on a pro- duction line so that he could go to the restroom. Em- ployees Carey and White also testified to being required to wait for long periods of time before getting relief to 18 Fortifying my conclusion in this regard are the testimonies of Kd- hullen and Carey that on 10 October, even before the office employees were told about the raise by Falbo, Morgantim told them that there would be a raise on their checks to be received on 19 October As noted in my discussion of the discharge of Burton on 10 October, there is no evidence that Respondent knew of the union campaign on that date go to the bathroom or get a drink of water before the discharge of Ward and Burton. Carey and White further testified that after the discharges relief came a lot quicker after requests to the foremen. None of these four employees could be specific about any dates of such ex- tended refusals, or such quick grants, of permission to leave the production lines. Employees Brady and Linady, however, who were usually used by Respondent to spell the employees on the production lines, testified that there was no change in Respondent's procedure in granting relief to employees; employees were relieved as soon as possible, depending on the workload and the employees available. Supervisor Corrigan further testified that he received no instruction to change his policy regarding bathroom breaks after the discharges of Burton and Ward and, in fact, he made no such changes. Morgantini did not testify. The testimonies of'Ward, Burton, Carey, and White were not specific, as one might expect of testimony about such daily, undramatic occurrences in the work- place. Even if credited, I would not find their testimony sufficient to conclude that Respondent changed its prac- tice regarding allowing employees to go to the restroom and get a drink of water. Moreover, I found Lynady, Brady, and Corrigan to have been credible in their testi- mony that no change in fact took place during the union campaign. What is, or seems to be, a long time to get relief is necessarily a function of the sensibilities of the individual needing relief. This subjective factor, and the lack of showing that Respondent took any extraordinary measures to relieve the employees after it had knowledge of the union activity, lead me to conclude that the Gen- eral Counsel has not proved this allegation of the com- plaint. Accordingly, I shall recommend dismissal of this alle- gation of the complaint. F. Overtime Notice Practices The complaint alleges that about 9 October Respond- ent instituted a policy of providing 2 days' advance notice of overtime work to its employees. The General Counsel called several employees to testi- fy on this issue. Ward testified that during the year before his discharge he worked a great deal of overtime. On direct examination Ward first testified that: During the week [when] they needed somebody at night, they would come around and ask you and maybe a half hour before night shift would start but on Saturday, roughly around on noontime on [Friday] the notice would be put up on the board that there was work on Saturday. Immediately after that, however, Ward testified that the practice was that each morning Morgantini would post a notice to employees that either I or 2 hours was to be worked overtime that day. On cross-examination, con- sistent with this latter testimony, Ward testified that Jan- uary through July 1984 the employees regularly worked 10 hours a day, except that some employees were al- lowed to "rotate" and get one-half day off per week. Employee Carey testified that before mid-October em- PIZZA CRUST CO 497 ployees were told when they came to work at 7 a.m. whether they would be working "maybe a little bit later than that" each day, and if they were to work on Satur- day "they'd let us know Friday, usually by noon." Carey testified that since mid-October 1984 he had worked overtime twice and both times he was notified on a Wednesday that he was to be working overtime the fol- lowing Monday and Tuesday. On cross-examination Carey acknowledged that between January and April there was so much overtime that "we just accepted it that we would be" working overtime each clay. Employee White testified that after September "there was a couple of weeks where we had-to work overtime on Monday and Tuesday nights." For these Mondays and Tuesdays a notice was posted the preceding Wednesday or Thursday. Respondent called employees Boshman, Linady, and Hollenback who testified that there was essentially no change around the time the union movement started in Respondent's practices regarding posting of notices that overtime was to be worked. Although the employee witnesses called by Respond- ent were not particularly impressive, and although it is most curious that Respondent called no supervisors to testify about the change (or lack of change) in the notice-posting practices, I do not believe the General Counsel's testimony has made a prima facie case that there was a change designed to interfere with the rights of the employees under the Act. Between January and April, when business was better, the employees "just accepted it" (as Carey put it) that they would be working overtime each day. They were notified of how much overtime they were to work, either 1 or 2 hours, when they arrived at work each day. I credited the General Counsel's witnesses that after mid- October, Respondent began notifying them as early as Wednesday when they would have to work the follow- ing Mondays or Tuesdays. However, this change, to the extent it is a change, appears to have been more of a function of an undisputed decline in business than any union activity (known or unknown) of employees. With less overtime each week, the situation moved from one where the employees could expect to work overtime each day to one where there would be only 2 days per week of overtime to be worked. I1 is the purest specula- tion that Respondent began announcing the limited over- time a few days ahead of time because of the union ac- tivities (knowledge of which is still unproved at this point). It is just as plausible that because overtime had become less needed Respondent had an opportunity to give longer notices and did so. In summary, I am not persuaded that Respondent insti- tuted any change in its overtime notice practices that were intended to, or would have had the effect of, inter- fering with employees rights in violation of Section 8(a)(1) and (3) as alleged in the complaint. Accordingly, I shall recommend dismissal of this allegation of the complaint. On or about October 29, 1984, in order to dis- courage employees from supporting the Union, Re- spondent: (a) granted a $5.00 meal allowance to em- ployees who worked overtime; and, (b) granted a paid one half hour break period to employees who worked overtime. In its answer to this allegation Respondent replies that the practices referred to were established before the union activity began. When Respondent does not staff a second shift, day- shift employees are, as mentioned above, sometimes re- quired to work as late as 7:30 p.m. This additional 4-hour period is called the "second shift" by employees. Em- ployee Jeffery Burton testified that during his 7-year tenure of employment Respondent never granted the em- ployees any paid mealtime or any money for food when they worked the second shift. Dischargee Ward testified to the same effect. It is undisputed that for several years dockworkers, who regularly work the second shift, have received the $5 meal allowance and a paid meal break. Employee White testified that during October produc- tion employees Stanley Dubas and Clarence Davis told him that while they were working the second-shift pro- duction areas in October they received a $5 meal allow- ance and a half-hour paid meal break 19 White further testified that after he returned to work from a suspension in January 1985, discussed infra, he also received a paid half-hour lunch break and $5 in cash for food from Su- pervisor Corrigan when he worked the second shift. Dubas testified on behalf of Respondent that he re- ceived the meal allowance and half-hour paid meal period when working the second shift for the first time in September. He acknowledged on cross-examination that other employees were surprised to hear that he had received these allowances. Corrigan was called by Re- spondent and also testified that it was in September that Dubas asked for the paid lunch break and $5 meal allow- ance (which dockworkers had always received), and he gave it to Dubas. On the cross-examination Corrigan in- sisted that the first time Respondent gave the $5 meal al- lowance and paid lunch break on the second shift was before Ward and Burton were discharged. Sam Falbo Jr. testified that the first he had personal knowledge of a grant of these benefits to second-shift employees was when one of the charges was filed here. After receipt of the charge he spoke to his father, Sam Falbo Sr., who told him that he had been providing money for second-shift employees for quite some time. Sam Falbo Jr. testified that "we have not worked night shift from January until September, so there was no in- stance for 9 months where anybody would have worked double production shifts." The General Counsel has made no attempt to rebut the testimony of Falbo, Corrigan, and Dubas that the $5 meal allowance was instituted, or reinstituted, in Septem- ber 1984. Therefore this action occurred before the initi- ation of the organizational attempt and cannot be held to be the product of that attempt. G. Overtime Allowances 19 Respondent did not object to this hearsay testimony and does not The complaint, paragraph 6, alleges that: dispute the substance thereof 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, I shall recommend that this allegation of the complaint be dismissed. H. Interrogation of White and Change in his Working Conditions The General Counsel alleges that on 29 October Re- spondent, by Sam Falbo Jr., interrogated production em- ployee Kevin White concerning his union activities and those of other employees. The complaint further alleges that Respondent, in violation of Section 8(a)(3), on the same date, changed the working conditions of White by refusing White permission to be excused from overtime so that he could attend night school. White testified that in September he enrolled in a para- legal course; its classes were to meet on each Monday night for 8 weeks beginning 10 September and conclud- ing 29 October. White testified in the week before 10 September he asked the head foreman, Tony Morgantini, "if it would be all right that if we were working over- time on Mondays, if I could go at 3:30, after 8 hours." According to White, Morgantini said that he would check with David Falbo on the matter. When 10 Sep- tember came, White asked to leave at 3:30 p.m., although others were working overtime, and Morgantini said, "Okay." White further testified that on 17 September he was excused from working overtime by Morgantini, and that there "might" have been one other Monday in the period from 10 September through 20 October that he was excused from overtime by Morgantini. White testi- fied that he did not ask to be excused from overtime each Monday between 10 September and 29 October; he cut classes at least twice to work overtime. Apparently on the three or four remaining Mondays during the 10 September through 22 October period, no overtime was scheduled. Morgantini did not testify. White testified that on 29 October a notice was posted that overtime would be worked that evening.20 At 10 a.m. he approached Morgantini and "reminded him that I have a class at night, because I have a test." Morgan- tini replied that he would have to check with David Falbo. White testified that about 10:30 he was relieved by an- other employee who told him that he was wanted in the office. In the office he met with both Sam Falbo Jr. and David Falbo. According to White, Sam Falbo Jr. stated, "I understand you have a problem tonight with going to school and leaving early." At this White replied he had a test that night and would "really appreciate it" if he could leave early so that he would have time to shower, eat dinner, and drive to Scranton where the classes were held. According to White: Sam Falbo, Jr., said that, "its like this." He goes, "I am stuck between a rock and a hard place because we have a union campaign going on here." And he said that he didn't know who was involved. And he stopped and just looked at me. 80 This is undisputed , it is also in conflict with the employee testimony described in sec III, F, above, that after Ward and Burton were dis- charged, Respondent always gave the employees 3 days' notice that over- time was to be worked White testified to this. He repeated that he would like to leave in time to shower, eat, and look over his notes. White testified that Falbo responded that Respondent had fired two employees, and charges had been filed against him, and because of that "he was talking to his people and he would not be able to do anything for me because he didn't know who was involving in the cam- paign." White testified that after Falbo said this, Falbo "hesitated," saying nothing. White testified that he re- sponded only that "Well, I would really like to leave." At that Sam Falbo Jr. asked David Falbo how late the shift was working; David Falbo replied 4:30 p.m. Sam Falbo Jr. then turned to White and stated: "Well, that's the best I can do. You will have to stay until 4:30 and then we'll let you go." According to White's testimony there was no refer- ence by Sam Falbo Jr., or himself, to any prior agree- ment with Morgantini regarding White's desire to be re- leased at 3:30 p.m. on the eight Mondays between 10 September and 29 October. Sam Falbo Jr. testified: Well, as I said, I told him that I was concerned with the situation inasmuch as there was an organiz- ing attempt going on . I had no knowledge of who exactly was involved and before I got myself into any further situations for giving anyone preferential treatment I wanted to examine what I was doing. He then asked me, "Do you consider letting me out early to be preferential treatment?" And I said to him, "No, but then I wouldn't be the one raising the complaint. .. ." He said, "Well, I have a test to- night at 6 o'clock." I turned to my brother and I said, "What time are you working until?" and he said, "Five-thirty." I said, "Can you get him out for four-thirty"? and, he said, "Yes, I think so." I turned back to Mr. White and I said, "Four-thirty is the best I can do," and he said "Fine," and he left. Falbo flatly denied saying more than once that he did not know who was involved in the union activity. David Falbo testified but was not questioned about this conversation even though something he said, the hour at which the employees were scheduled to be re- leased, was disputed between Sam Falbo Jr. and Kevin White. To the extent they differ, I credit White over Sam Falbo Jr. In addition to having a less credible demeanor on this point, Falbo's recitation of the exchange simply makes no sense. His reference to "further situations for giving anyone preferential treatment" is simply inexplica- ble; he had been charged at that point with discriminat- ing against two employees (Burton and Ward), but he was not charged with giving preferential treatment to anyone. There was no other reason for pointing out that he had "no knowledge of who exactly was involved" other than an attempt to sound out White. White was therefore placed in a position of being forced to barter his knowledge, or suspected knowledge, of union adher- ents for the privilege of being excused from overtime that day. The questioning of an employee in this manner PIZZA CRUST CO. 499 constitutes an interrogation and is, therefore, a violation of Section 8(a)(1) of the Act, as I so find and conclude. I do not believe, however, that making White work 1 hour after his regular shift on 29 October was a violation of Section 8(a)(3) of the Act. The General Counsel con- tends that a term of employment was established because Morgantini agreed in the week preceding 10 September that, for 8 weeks, White would be excused from over- time. Morgantini did not testify, but White's testimony falls short of establishing that Morgantini granted White an 8-week, unqualified exemption from overtime. Mor- gantini said he would "check" with David Falbo, and he never told White that Falbo had agreed to the request for a standing excuse from overtime during the period from 10 September through 29 October. Further evidence that there was no "automatic" agree- ment that White would be excused is that at least twice, according to his own testimony, White cut classes and worked the overtime. It is doubtful that 'White did this just to help Respondent get out more production; it is only logical to conclude that he did it because he had been told by Morgantini, or some other supervisor, that he was needed. That is, any excuse from overtime was to be made on an ad hoc basis, depending on the needs of production. This is what happened on 29 October;21 there was no change in White's terms or conditions of employment, and no violation of Section 8(a)(3), as I find and conclude.22 Accordingly, I shall recommend that this allegation of the complaint be dismissed. 1. Warning Notice to White On the following day, Tuesday, 30 October, White was assigned to load the number two oven. Around 11 a.m. he complained to Supervisor Bobby Corrigan that his back was hurting. Corrigan told White, "go see a doctor" and walked away. At 12:15, during the lunch- break, White saw Morgantini in the lunchroom. White asked Morgantini for help on the oven because his back was hurting. Morgantini replied that if White could not do the job Respondent could not use him. Later in the lunch period Morgantini approached White and said that there was no one in the office and "they would get ahold of me when somebody Was in," according to White. At the end of the lunch period White returned to his work station. When he reached that point he could see from the progress of the shells on the production lines that he had 3 or 4 minutes before any pans reached him for loading into the oven. White testified that he sat down because "my back was sore" and waited for the 21 There is no basis for suggesting that White was required to work until 4 30 p in on 29 October because of his union , actual, or suspected activities, or his refusal to submit to the interrogation by Sam Falbo Jr rather than because of a need to have him remain to help out in produc- tion; that is, the General Counsel, by introducing no evidence on the point, tacitly concedes that White was needed for pioduction after 3 30 p.m. on 29 October. 22 Another persuasive factor is that at no time (lid White tell Sam Falbo Jr that he had , or thought he had , a standing excuse from over- time to attend classes If White had been under the impression that he had such an agreement, he assuredly would have mentioned it to Falbo production to come to him.23 White testified , without contradiction, that as he was sitting next to the wall Morgantini saw him and said nothing . White further tes- tified that David Falbo then came into the area and saw him sitting down. Falbo yelled at Morgantini who imme- diately approached White and asked, "What's your prob- lem?" Morgantini then stated "get up ." White did so and resumed work when the pans on the conveyor belt reached his work station. White continued working on the number two oven by himself until 2:30, at which point he was switched to the number one oven. About 3 :30 p.m., quitting time , White was approached by Morgantini who handed White a warning notice. There was no conversation between Morgantini and White at that point. The warning notice states, in perti- nent part, as follows: EMPLOYEE WARNING NOTICE Kevin White 10/30/84 1st and Final Notice Nature of Violation-Disobedience Sitting down on the job, during production time. First and Final warning , will be terminated on next occurance [sic]. /s/Tony Morgantini Signature of Foreman or Supervisor /s/David Falbo Official Signature That evening White went to a hospital where he was diagnosed by a physician as having a strained back. He returned to the plant the next day and gave David Falbo a letter from the physician that explained White's condi- tion. Falbo took the letter into the office area, and White went to the lunchroom to wait. Shortly, Falbo came out of the office and stated that White should go home. White did so. The next day, when White returned to work, Morgantini told him not to punch in because David Falbo wanted to see him in the office. White went to the office where Falbo told him to go to the company physician that afternoon, which White did. The company physician also told White that his back was strained and that he should see an orthopedic physician. The compa- ny doctor wrote out a letter to that effect, and White took the letter back to David Falbo. David Falbo took the notice into the office of Sam Falbo Jr. while White waited. Sam Falbo called White into the office and com- mented that White had worked the number two oven many times, including overtime, "and you never had any problems." White replied that his back had been getting progressively worse during the day of 30 October. Sam Falbo stated that White would thereafter be on work- men's compensation leave and should pick out an ortho- 23 White testified that oven-loaders sit on the floor dung spaces in production to escape some of the heat of the oven . There was no cor- roboration of White on this point, and there was no testimony from White that any supervisor ever saw him sit on the floor before the events of 30 October. 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pedic physician and have the doctor send the bill to the Company. According to White: And that was the end of that conversation. And as I got up to leave, I mentioned to Dave, I says, "Dave, is it okay if I asked you about the warning slip I got?" And he said, he said, "Go ahead." He goes, "What do you want to know?" And I ask, "Well, why did I get it and why was it `First and Final' notice." And he said that I was creating a safety hazard, that I had my feet in the aisle and that the skids come up that way And I said, "Well, the skids don't come up that far They go into the dock area about 20 feet before they get there." And he didn't say anything. And I said, and I said, "If it was a safety hazard," I said, "why was this 'obedi- ence' marked"? And then there was no answer, so I just left at that point. White, who had worked for Respondent for 3-1/2 years, had never received any warnings, written or verbal, before 30 October. On cross-examination White insisted that, while he was sitting against the wall in the area of the number two oven, his legs were tucked in at all times; they were never out in the aisle. He further denied ever having seen hand or pallet jacks going down the aisle through the area of the number two oven. White acknowledged that he said nothing to Morgantini when Morgantini asked, "What's your problem?" White explained that he thought there was no point in telling Morgantini more than he already had. Employee Tom Brady was in charge of starting the ovens each morning and thereafter conducting mainte- nance on them. Brady had been employed by Respond- ent for 10 years at the time of his testimony. Brady testi- fied on behalf of Respondent that he saw White sitting in the aisle on the day in question. Brady described the aisle as 150 feet long on one side of the building, but he was not asked how wide the aisle was. Brady testified that White was not against the wall but was in the aisle with his back toward the shipping area as he faced the front of the building where the panning area is located. Brady also testified that White was not sitting with his feet up under him but rather with them straight out in front of him. Brady testified that he had never seen an employee sit in the aisleway before, and he added that it would be dangerous for anyone to do so as racks carrying pans are pushed up and down that hall, and it is possible that a pan could fall off. When he was asked if he was sur- prised to see White sitting as he was Brady replied, "Yes."24 When asked why he was surprised to see White there Brady responded, "If I was going to sit I would not sit where anybody could see me or in an aisleway." Respondent also called Walter Linady, an employee of 7 years' experience with Respondent. Linady operated the divider, and he is used by Respondent to relieve other employees at various times. Linady has worked all jobs in the plant at one time or another during his tenure. Linady was asked on direct examination: 24 The record, Tr 1126, LL 16 and 17, is accordingly corrected Q. What is the practice, if you can tell me, as far as people sitting in the aisle during production time? A. You are not allowed to do that. Q. How would you know that? A. Common sense. Racks go up and down that aisle. All the jobs are standing positions. Linady did not testify that he saw White sitting in the aisle on the day in question. (He also did not say that there was a rule against sitting down anywhere in the production area.) David Falbo testified that at sometime between 10:30 a.m. and noon on 30 October he observed White, as he described it: It was off to the side of his station near a wall. He was in between a couple of racks and I saw him sit down in between the racks and his legs were stick- ing out into the aisleway . . . 18 inches, 2 feet. David Falbo testified that he instructed Morgantini. "To go down and have Kevin get up. Sitting down in a pro- duction area was not allowed at any time." Falbo testi- fied that he had never seen anyone sitting in the produc- tion area with their feet in the aisle and that the reason for the warning was: First of all, he saw me standing there and I saw him standing there, and he just went over and sat right down in front of me, knowing that the rule was that there was no sitting down. His feet were out into the aisle which for his own safety shouldn't have been because there are racks and carts that get pushed up and down the aisle constantly during the day that could have hit him and they're high enough that people would not have seen his legs in the aisleway if they were push- ing it from behind. David Falbo further testified that it was on his instruc- tion that Morgantini gave White the warning notice re- produced above. As noted above, White testified that on returning from the physician's office on 31 October, he asked David Falbo why he had been given a warning notice that was marked "First and Final" and why "Disobedience" was marked. David Falbo did not deny that White asked these questions; nor did Falbo deny that he made no re- sponse to White On cross-examination David Falbo ac- knowledged that by the time he saw White sitting down in the aisle, he had been told by Morgantini that White had complained of a sore back. Falbo further acknowl- edged that while White was sitting down, no production was passing White's work station unattended. When asked why he had not had Kevin White called to the office for presentation of the written warning notice (Re- spondent's usual practice), and why he did not have Morgantini ask White to sign the notice, Falbo replied: I felt as if there shouldn't had been, you know, a real federal case made out of it. There was a warn- ing slip that had to been seen by Mr. White but, like I said, I was busy at the time setting up production. PIZZA CRUST CO When pressed on the matter and asked again if it was not standard procedure to give the employees Written warn- ing notices in the office, in the presence of two manage- ment representatives, Falbo replied, "Well, we had an exception this time." When asked if the information from Morgantini (that White had been complaining of a sore back) did not cause him to reconsider issuing a warning to White, Falbo replied- "I had nothing concrete to go on that he did have a back problem." When asked why, in view of the prior testimony about the safety problem and possible harm to Kevin White, he did not check the box marked "Safety" Falbo replied, "I should have, why I didn't know." On redirect examination Falbo changed his testimony to state that at the time he saw White sitting down he had not heard that White had been complaining about a sore back. I do not believe this: but whichever is correct, it is clear from Falbo's testimony that, by the time he composed that warning notice reproduced above, he had heard from Morgantini that White had made such com- plaints. According to the uncontested25 testimony of White, Morgantini saw White sitting on the floor but said noth- ing about it until David Falbo ordered him to do so. The probabilities are that if White had been sitting in viola- tion of a plant rule, or was sitting in an unsafe position, Morgantini would have said something to White without waiting to be ordered to do so by David Falbo. Al- though this is only a logical probability, it is an absolute certainty that if White had been doing anything unsafe, David Falbo would have checked the "Safety" box on the warning notice. This Falbo did not do. For this reason I discredit the testimony of Falbo and Brady that White was sitting in a position likely to imperil himself to anyone else. I further discredit Falbo's testimony that there was a disciplinary rule against employees sitting at anytime in the production area. If there had been such a rule, again, Morgantmi would probably have said some- thing to White without being ordered to do so by Falbo. But more importantly, production employees Brady and Linady, who were clearly disposed to help Respondent any way they could by their testimonies, made no men- tion of any such rule. Of course, any employer would discipline any employ- ee who was assigned to work on a production line if the employee let production go by his work station un- touched, whether this was because the employee was sit- ting down or because the employee was engaged in some other type of neglect of duty. The handwritten portion of the notice, in its reference to "during production time," indicates that this is what Falbo vas charging White with However, it is clear that White was not let- ting production go by his work station without doing his job because there was no production coming down the conveyor while he was seated. Therefore, a warning about "production time" would not, and cannot, with- stand scrutiny. Apparently Falbo realized this between the time he drafted the warning notice and the time he told White that it was actually for a safety violation. This is a classic shift in defenses, and it is clear that nei- 25 Morgantmi did not testify 501 ther production interference nor safety was a reason for the warning.26 The complaint alleges that Respondent's real reason for the warning notice was the union activity of White. As noted, the substance of the notice is plainly spurious. Moreover, for White's nonoffense'27 David Falbo de- clared that White would be discharged for recurrence three times: "First and Final" is written in twice and, re- dundantly, Falbo added, "will be terminated on next oc- currence." These three "finality" warnings for a first of- fense (in 3-1/2 years) indicate an extreme hostility toward White, or toward some activity White had en- gaged in; they assuredly were not based on a professed desire to preserve safety or even production.28 However, the invalidity of the warning notice, and the hostility that it reflects, do not prove that it was issued because of known, suspected union activities of White. The fact that White was unlawfully interrogated by Sam Falbo Jr. the day before issuance of the spurious warning notice raises a suspicion that David Falbo's hostility was based on suspected union activity of White. Also, it could be argued that the notice was issued in retribution against White because he did not respond to the interro- gation. However, as in the cases of Ward's and Burton's discharges, speculation is all this exercise would be. Although Respondent knew of the organizational effort by 30 October, the employees, including White, were still making an effort to keep the identities of the employees involved a secret. There simply is no evi- dence that Respondent knew that White was one of the two employees involved from the beginning of the orga- nization effort; indeed, there is no evidence that Re- spondent knew that White was involved at all. The inter- rogation does not provide this required element of proof. White was apparently interrogated because he needed a favor, to wit, being excused from work earlier than other employees. For all that appears from this record, Sam Falbo Jr. would have sought the same information from any employee who came to him needing such a favor. When the interrogation of White was completed, Sam Falbo knew no more about the union activity than he did before. In summary, although it is clear that Respondent was "out to get" White for some reason, there is insufficient evidence to conclude that the reason was known or sus- pected union activities of White. Accordingly, I shall recommend dismissal of the allegation that the 30 Octo- ber warning notice to White was issued in violation of Section 8(a)(3) and (1). J. Statements to Carey The complaint, paragraph 7, alleges: 26 There was no "disobedience" involved As I have found above there was no general rule against sitting down in the production area, and White got up when Morgantmi told him to do so 27 At least, as Falbo testified, it was no "federal case " 28 There is, assuming that White had done something wrong regarding either safety or production, "overreaction to a violation of a rule or ac- cepted standard may itself be an indication of pretext " Sea-Land Service, 240 NLRB 1146, 1147 (1979) 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On or about November 2, 1984 Respondent, acting through Sam Falbo, Jr., in the plant office : (a) in- formed an employee that the employee was being reassigned to his former position of employment be- cause of the union activities of Respondent's em- ployees, and (b) created an impression that the Union activities of Respondent's employees were under surveillance by informing the employee that Respondent was aware of the Union activities of its employees and the identity of those employees who engaged in union activities. The employee involved in this allegation is Jesse Carey. Carey has worked almost all jobs in the plant during a 4-1/2-year tenure. One of the jobs with which Carey has experienced difficulty is the operation of the divider, the machine that produces dough balls. A great deal of oil is used in this process, and Carey is allergic to that oil as he found out in 1982. In the summer of that year Carey saw a dermatologist who sent a note to the Company to the effect that Carey was, in fact, allergic to the oil. After that date, Carey was assigned to work the divider only when "they were on the spot," according to Carey. These sporadic assignments would last for a few days or up to a week, depending on production needs . On 30 Oc- tober, when Carey was working the day shift on the press, he was instructed to go to the office with Foreman Corrigan. In the office he met Sam Falbo Jr. and David Falbo. Sam Falbo told Carey that a lot of employees were failing to show up to work on the second shift and Respondent wanted him to begin working 1 to 9 p.m. Falbo wanted Carey to work the press until 3 :30 p.m., then he would be switched to the divider . Carey made no objection to this proposed transfer. On 31 October Carey reported to his new shift, but he worked the entire day on the press and was not exposed to the oil on the divider. On 1 November Carey did work 4 hours on the divider and his hands broke out in a rash. On 2 November , before the scheduled time for Carey to began working on the divider , Carey com- plained to Morgantini that the oil at the divider was causing a rash. Morgantini indicated to Carey that he would report the matter to the front office . Within 15 minutes Carey was called to the office where he met with Sam Falbo Jr., David Falbo, and Morgantini. According to Carey's testimony on direct examination: I entered the room with Tony, and David and Sammy were there. And Sammy said, "I understand we have a problem with the divider," after he had offered me a seat. And he said that-he was getting out a piece of paper and pencil, and he said that they had union-there's a union campaign going on; they had charges filed against them , and he didn't want to get screwed any further , and that he was going to take care of this, he was going to ask me some questions about my rash. Q. What else was said? What happened next? A. Well, he said that he didn't want to get into any further trouble with the union. He said that-he asked me why three days prior, when they put me on the job, that I didn't say anything about it then? Q. And did you respond? A. No. He continued to talk.... He said about the union campaign going on, the charges; and he said that all of a sudden now , people are getting sick and injured . . . . And I tried to cut in and say, well, I'm not trying to screw you . But just before that he-well, I cut in and said , I'm not going to try-I said, I'm not tryng to screw you. And he cut me off . . . and said, "don't bull-shit me." He said , "we're breaking ground here," some- thing very similar to that, and that "we know what's going on any who's behind it." And then during the conversation , he also said that-he just kept going, and I really didn't get to say anything until I cut in that time , and he cut me off. He also said that no union was going to bring them down, to me. And I just sat there. I didn't know what to say . I didn't know if he wanted me to say anything or not. At the end of the meeting Carey went back to operating the press. On the following Monday he returned to his prior job of working the press on the day shift, and Carey has not been reassigned to work the divider. According to Sam Falbo Jr.: He then started to tell me about his rash and I said wait a minute . I said I want to get a pencil and paper and I want to take some of the stuff down. I said I've already had two unfair labor practice charges filed, I have two outstanding workmen's comp. claims and before I wind up with my ass in a sling, I want to know what's going on. Right now I'm not going to do anything without my attorney. He started to say something else to men and I said look Jesse, I know what's going on with you, don't try to bullshit me and I won't try to bullshit you. At that time I believed that he was there to precipi- tate an incident, because two days prior he had made no mention of any of this to me. He said to me, well, you can ask Antoinette Bianco about my rash. I said, Jesse, I'm not questioning you about your rash, but why didn't you tell me two days ago? And he didn't answer me. Carey had given the dermatologist's 1982 note to a former supervisor who, it is clear from this record, failed to put it in Carey's personnel file. There is no evidence that the Falbos knew of the rash caused by the divider when Carey was reassigned to it on 30 October. Even in Carey's account, there is not evidence that Falbo told Carey that he was being reassigned to the job of press operator because of the union activities of other employees; therefore, I shall recommend that paragraph 7, subparagraph (a), be dismissed. The essential difference between Carey's account of the conversation and Falbo's is whether, as Carey testi- fied, Falbo stated, "we know what's going on and who's behind it," or whether Falbo stated, as he testified, "I PIZZA CRUST CO. 503 know what's going on with you." Falbo impressed me favorably in his testimony as he candidly admitted that he knew, or suspected, Carey's union allegiance. Falbo was further impressive in his testimony that he thought that he was being set up. This was not an illogical con- clusion because Carey made no protest about his being assigned to the divider when the assignment was made on 30 October. Even taking Carey's account in its most favorable light, however, the most that can be made of Falbo's statement is that he believed that "all of sudden people are getting sick and injured" and "we know what's going on and who's behind it." At most this is an allegation that employees were feigning sickness and injury that, of course, is not protected activity. There- fore, even taking Carey's account as true, I would not find a violation of Section 8(a)(1) on the basis of Falbo's remarks. Accordingly, I shall recommend that paragraph 7(b) of the complaint also be dismissed. K. Threats to Bayly The complaint alleges that on 7 November Respond- ent, by Sam Falbo Jr., threatened its employees with un- specified reprisals because of their union activities and sympathies. The General Counsel called employee Charles Bayly in support of this allegation. Bayly testi- fied that on 7 November he was depanning on the pro- duction lines. He was asked on direct examination if there were any problems with production that day and he replied, "the pan return kept shutting down." The General Counsel did not ask Bayly why the pan return kept shutting down. Bayly testified that at the end of the day he went toward the area of the cafeteria where the timeclock is located. As he approached the cafeteria , he could here Sam Falbo Jr. "in the cafeteria talking about union sabo- tage and how he wasn't going to tolerate it anymore." As Bayly stepped through the door of the cafeteria Falbo ordered him to go to the office immediately. When they reached the office , Falbo and Supervisor Joe Tusco were present. According to Bayly: A. He stated, "I'd like to get something straight with you, and I want you to understand it. I'm not going to tolerate [any] more union sabotage. Too many people have cocky attitudes here, and it's about time we did something about it." Then he went on about telling me about Butch, or Joe Tusko, how he's a foreman, a superior, and I should respect him. Then he said, "If there's any belts messed with any way , I'm coming after you, per- sonally." And that was it, basically. Q. Is there anything else you recall from that conversation, any other reference to the union? A. Yes. They didn't care how many people they had to get rid of; how many people they had to get rid of and how many people he had to take with me-take with him, he'd take this whole plant down, win or lose. On cross-examination Bayly acknowledged that during the day he had been stacking pans on the conveyor belts higher than he should have been and that sometimes pans being stacked too high causes breakdowns in pro- duction. Bayly further acknowledged that at one point, when the pans jammed up the conveyor belt, Tusko walked by him and stated, "keep it up" in a sardonical fashion. Sam Falbo Jr. testified that about 3 p.m. that day he was approached by Tusko who reported that he had at- tempted to reprimand Bayly for causing a jam on the pan return. Tusko complained that Bayly had laughed at him "and made more or less a joke out of it." Falbo tes- tified that he went to the cafeteria twice at the end of the shift to find Bayly. On his first trip to the cafeteria he stated to the persons who were there that "I don't know what's going on here, but I'm going to put a stop to it right now." He did not find Bayly on that trip to the cafeteria but did find him on a second attempt a few minutes later. Further, according to Falbo I said to him, I want to see you in my office right now. At that point in time I turned around and Butch Tusko had apparently come into the cafeteria from the loading area and I said I want you with me. We then went into the office. And, I said to Bayly at that time, I said, I don't know what you think this man's function is, but when he tells you something, you'd better pay attention. He's not here to be laughed at. When he tells you something it's dust like any other foreman in the plant telling you something, whether he's your direct supervisor or not. [I also said] that regardless of what was going on here, until I heard different, I was running this plant and not any union and that any further sabo- tage or fooling around with equipment, I would come looking directly for him. When asked why he made such a statement Falbo re- plied: In the plant at that time there was a lot of ruckus-people giving each other fist salutes, people walking into the plant with arms around each other, three and four of them. I found this be- havior to be peculiar at the least, so I assumed that it had something to do with the Union or do we have a large gay community in our employ? To the extent that their testimonies differ, I credit Falbo over Bayly. Bayly was an unimpressive witness and clearly made an attempt to set the scene as though noth- ing had happened before being chastised by Falbo. Bayly was most incredible in this attempt. However, even ac- cepting Bayly's account, there is no evidence that Falbo was threatening to do anything to any employees be- cause of their protected union activities. Accordingly, I shall recommend that this allegation of the complaint be dismissed. L. Interference with Distributions The complaint alleges that on 14 and 18 December David Falbo, Sam Falbo Jr., and/or Sam Falbo Sr. pro- hibited employees from distributing union literature out- 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD side Respondent's plant. The complaint further alleges that on 14 December David Falbo informed employees that Respondent would call the police because the em- ployees were distributing union literature outside the plant. About 3 p.m. on 14 December, Business Representa- tive Carlacci and discharged employees Burton and Ward drove in Carlacci's car to the parking lot of a building about a block from Respondent's property. White and Kilhullen, who were then on workmen's com- pensation leave, drove in another car to Respondent's parking lot. The purpose of the five men was to distrib- ute union leaflets to employees who were getting off the first shift and reporting to the second. What occurred is not in substantial dispute, except for an exchange be- tween White and Sam Falbo Sr. David Falbo testified that he saw White and Kilhullen standing in the parking lot. He asked what they were doing there and White replied that they were going to pass out "some stuff." According to David Falbo: I said, well, Kevin, you're not here to see me about your compensation claim, about your injury, you're not here to go to work, so basically you don't have really any business to be on the property. I said, if you want to go to the entrance and hand out what- ever you're handing out, that's fine with me, but don't do it on the property. David Falbo further testified that he told Kilhullen to move his automobile off the property, and Kilhullen complied. David Falbo went into the building. Kilhullen and White left the parking lot in Kilhullen's car and joined Carlacci, Ward, and Burton who had parked across the road. The five men, with leaflets, then began to walk toward Respondent's parking lot. When they got to the border of Respondent's property, Sam Falbo Jr. addressed Carlacci. Falbo stated that he did not want Burton or Ward to step on the premises and did not want any leafleting done by anyone on Respond- ent's property. Carlacci replied that White and Kilhullen were still employees of Respondent and had a right to be on Respondent's property. According to Falbo's own testimony he responded: I said, well, Ralph, as far as I'm concerned, they're on workmen's compensation; they have no business here about the compensation claims; they're not here to go to work; and they have no company business to conduct. So, as far as I'm concerned, if you want to distribute your leaflets at the entrances, I won't stop you, but I don't want anybody on the premises. Carlacci agreed that the men would stand just off the premises and hand out union leaflets. Sam Falbo Jr. then left and the five men stayed at the entrances to the park- ing lot where they handed out literature to those em- ployees who were entering and leaving. On 18 December Carlacci, Burton, Killhullen, Ward, and White returned to the premises for purpose of lea- fleting. Burton testified that when he went to one of the entranceways to the parking lot, Sam Falbo Sr. met him as Falbo drove into the parking lot. Falbo rolled down his automobile window and said, "you're not going to be handing these leaflets out on my property. Don't be ob- structing traffic and blocking my entranceways." 29 Kil- hullen testified, without contradiction, that he was also given these instructions by David Falbo and Sam Falbo Jr. on 18 December when he stood at an entrance pass- ing out union leaflets. White testified that while he was leafleting on 14 De- cember Sam Falbo Sr. and David Falbo came out of the plant. According to White, Sam Falbo Sr. said this was his plant and that it was his property and that I didn't have a right to be there and that I had better not attempt to stop any cars or block traffic. White testified that he responded that he would not be blocking traffic and that he had the right to do what he was doing. Further, according to White Well, he [Sam Falbo Sr.] said something like "We'll see." But Dave got really mad and started yelling to me that, he goes, "You've got rights." He goes, "Well, we have got rights, too." And he says, "That's it, I'm calling the cops." White continued leafleting and there is no evidence that the police were called. Although Sam Falbo Sr. did not testify, David Falbo and employee Ray Swanson, who was also in the area, testified that they heard White tell Sam Falbo "go fuck yourself," and immediately after that was when David Falbo said, "That's it, I'm calling the cops." I credit David Falbo and Swanson over White. According to White, David Falbo first said that Respondent had rights and immediately stated that he was "calling the cops." I do not believe it happened this way; I believe that David Falbo said nothing about calling the police until he and his father were cursed by White. That is, it is more logi- cal that David Falbo made this statement in response to being cursed; it is not logical that he just added the remark to a statement that Respondent had its rights also. Additionally, I found David Falbo and Swanson to have a more credible demeanor on this point. Because White, and any other employees within hear- ing distance, assuredly knew that David Falbo had made the "cops" remark because his father had been cursed, and not because White had also said he had his statutory rights, there could be no element of coercion present. Accordingly, I shall recommend dismissal of the allega- tion that Respondent threatened to call the police be- cause the employees were engaged in protected union activity. However, the evidence that on 14 and 18 December employees were forbidden by the Falbo's to be on Re- spondent's parking lot to distribute literature to employ- ees is another matter.30 In GTE Lenkurt, Inc., 204 29 Sam Falbo Sr did not testify 30 Clearly Respondent had a right to bar nonemployees Carlacci, Ward, and Burton from soliciting on the property, even if the parking lot had otherwise been open to the public, which , presumably, it was not See Central Hardware Co v NLRB, 407 U S 539 (1972) PIZZA CRUST CO. 505 NLRB 921 (1973), a majority of the Board concluded that when an employer's no-cross rule denies all off-duty employees access to the premises for any purpose, and is not discriminatorily applied against employees engaged in union activities, the rule is presumptively valid absent a showing by the union that no adequate alternative means of communication is available to it. However, the current law is clearly stated in Tri-County Medical Center, 222 NLRB 1089 (1979): The holding of GTE Lenkurt must be narrowly construed to prevent undue interference with the rights of employees under Section 7 of the Act freely to communciate their interest in union activi- ty to those who work on different shifts. In Bulova Watch Company, Inc., 208 NLRB 798 (1974), we held, distinguishing Lenkurt, that the employer vio- lated Section 8(a)(1) of the Act by restricting em- ployees access to outside areas of the plant shortly before their working shift. In that case, as here, it did not appear from the record that the employer had published or disseminated to its employees any no-access rule concerning off-duty employees. We conclude, in order to effectuate the policies of the Act, that such a rule is valid only if it ( 1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly dissemi- nated to all employees; and (3) applies to off-duty employees seeking access to the plant for any pur- pose and not just to those employees engaging in union activity. Finally, except where justified by business reasons, a rule which denies off-duty em- ployees entry to parking lots, gates, and other out- side nonworking areas will be found invalid. [Foot- note omitted.] Respondent advances no business justification for its in- struction. Therefore, it is clear that by prohibiting off- duty employees White and Kilhullen from entering its parking lot on 14 and 18 December, Respondent inter- fered with Section 7 employee rights and thereby violat- ed Section 8(a)(1) of the Act, as I so find and con- clude.31 M. Suspension of White 1. Facts On 14 December, at a time when employee Kevin White was still on workmen's compensation leave, Sam Falbo Jr. addressed a letter to White stating: It has come to my attention that you have made certain allegations against me and/or our Company, specifically regarding our business practices. More specifically, I have been informed that you have ac- cused us of having fixed the company's books and records. Your allegations that our Company's records have been "fixed" are totally false. Apparently you have made such statements in the course of your organizing efforts on behalf of the United Food and Commercial Workers. The letter continues that Respondent recognizes that em- ployees have rights to engage in organizational activities, but it further states that they have no right to make such false allegations. The letter states that because of the "improper conduct specified above" that at such time as White is able to return from his workmen's compensation leave, he would be suspended immediately for a period of 3 workdays. The letter concludes that if White wished to discuss the matter with Falbo before the implementa- tion of the suspension he could call to make an appoint- ment. The suspension was effectuated on 26, 27, and 28 De- cember. The complaint alleges that the 3-day suspension w. -s imposed in violation of White's rights under Section 8(a)(1) and (3) of the Act. Respondent's answer states that White was suspended "solely because of the impro- priety and scandalousness of remarks and accusations he made in the presence of others concerning the conduct of Respondent's business, and concerning the Falbo family, in that he falsely accused the Falbos and their company of highly improper and clearly unlawful activi- ties in the course of operating Respondent's business."$2 The General Counsel replies that no such remarks were made, but, assuming that White said the things of which he is accused, the remarks were made in the course of activity generally protected by the Act and were not so extreme as to remove White's conduct from the sphere of protection afforded by the Act. Production employee Cathy Boshman testified that on 13 December, about 8 p.m., employee Kevin White, dis- charged employee Jeffery Burton, and Union Represent- ative John Ryan came to her home for the purpose of asking her to sign a union authorization card. Boshman testified that "they" said that if she did not sign a card she would not have a job within 90 days. According to Boshman, White did most of the talking. During the so- licitation, White said that you wouldn't have to worry about [Re- spondent] shutting down because they were going to pull their books and that he knows of instances where they had fixed their books and that they could get away with it because they had two sets, because of their money, the power and the pull, like [the] Mafia. 31 Respondent argues that the Union waived the employees' rights to distribute literature in the parking lot. This argument is premised on the fact that each time the employees, and Carlacci, were told that they were not allowed to step on Respondent's property, they replied that they had no intentions of doing so This hardly constitutes a conscious waiver of statutory rights. At most, the employees and their representatives were responding that they would comply with the Falbos' directives, here found unlawful Boshman testified that she told the men that she was not interested in signing the union card and she asked them to leave and not return to her home again. 98 Respondent does not deny knowledge of White's union activities at this point, White had appeared with the union representatives at the pree- lection conference on 14 November 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Boshman further testified that after the men left she decided to call David Falbo. When she reached Falbo I told him what promises that they made and I told him what they said about the books and what they said about the 90 days if you didn't sign it and about them fixing the books and the power and the pull like [the] Mafia. Boshman further testified that David Falbo asked her to repeat what White had said about "fixing of the books," and she did so. Boshman testified that she reported to work the next day at her normal starting time, 7 a.m. She met with David Falbo who asked her "if I would repeat about the books and what they said about the Mafia, and I said I would, and I did." David Falbo then asked Boshman if she would repeat what she had said to the company lawyer; Boshman agreed to do so. David Falbo testified that in the 13 December tele- phone conversation with Boshman: She says, well, there are a couple of things I want to tell you and I said go ahead. I don't remember everything she told me but one thing that she was really concerned about was she was told that if she didn't sign the Union card that within 90 days she would lose her job and she was talking very fast and she went into that Kevin White said that he knew of instances that we fixed our books and that we were associated with the Mafia. Falbo further testified that he asked Boshman to repeat what she had said two or three times. After that he called the attorney and then his brother, Sam Jr., on the telephone. Further, according to David Falbo, the next morning Boshman met with him and Sam Falbo Jr. Ac- cording to David Falbo: I said, Cathy, let's go over it one more time, exactly what was said last night, and she proceeded to tell me the same things she had told me the night before, that she was told about losing her job if she didn't sign the card after 90 days and that Kevin White knew of instances that we fixed our books, and that we were associated with the Mafia. Sam Falbo Jr. described the sequence of events in his direct testimony as follows: Q. And would you give us the background of that happened there? A. On the evening of December the 13th, very late, some time after eleven o'clock, I got a tele- phone call from my brother. He had said to me that he had gotten a call from Cathy Boshman and that she had related an incident that happened to her at her house regarding a visit paid to her by Kevin White and some other people about the Union. And he said to me that Kevin White was out claiming that we fix our books, that we keep two sets of records, that in essence we do things that are illegal and are able to buy our way out of them because of our position in the community and our position in business. And I said to him at that point in time, be- cause to be perfectly honest, I was really irritated at being bothered at eleven-thirty at night because I was sick of this nonsense, I was tired. I said to him, look, I can't deal with it right now . Tomorrow morning I'll get up and I'll call [the company lawyer] and I'll have a discussion with him . I said, what he says I'll do. So, the next morning I came in, and David had already contacted you [the com- pany lawyer]. I subsequently had a conversation with you and told you that I had spoken with my father and he wanted some action taken. We couldn't let this thing go unanswered. Q. Did you subsequently have confirmed through Ms. Boshman the statement she told you Mr. White made? A. Yes. Q. Was that the next day? A. No, it was some time after that. Falbo acknowledged on cross-examination that David Falbo had not told him about the alleged "Mafia" remark by White that had been reported to him by Bosh- man on the night of 13 December. Sam Falbo Jr. further testified that on the morning of 26 December White came to his office to discuss the sus- pension. He testified that White denied having said "those things." Falbo replied that he had no reason to believe that an employee would fabricate "those thing out of thin air." Falbo said that he was not satisfied with White's denial and the suspension was imposed for 3 days as the letter had indicated. To rebut the testimony of Boshman, the General Counsel called White and Ryan. White denied that any- thing was said about "the Mafia" when he, Ryan, and Burton visited Boshman's home; he further testified that it was Boshman who, at one point in the conversation, said that the Falbos had two sets of books. Ryan denied that anything was said about the company books or that anyone at the meeting made a reference to the Mafia. White testified that Boshman stated that there were two sets of Falbo books; Ryan testified that there were no statements made about the company books in the meeting of 13 December. Moreover, Burton, who testi- fied at length on other matters, was not asked about the events at Boshman's house, thus warranting the inference that, if asked, his testimony would have been unfavorable to the General Counsel on this point. These conflicts in the General Counsel 's case and a more favorable demeanor of Boshman on the point lead me to credit Boshman, which I do. It is, however, to be noted that Boshman did not testify that White said that the Falbo's were "affiliated with" the Mafia, which is what David Falbo testified that Boshman told him. She testified on direct and cross-examination that White had said that the Falbo's had "pull like the Mafia." Assuming that "pull" equates with political and economic influ- ence, it is still not an allegation that the "pull" came from the same source, criminality. Nor is there any basis to conclude that the "Mafia" remark, in whatever form it was transmitted to David Falbo, had anything to do with the suspension. It is not PIZZA CRUST CO 507 mentioned in the letter of suspension; Sam Falbo Jr. did not testify that the "Mafia" remark had anything to do with the suspension; and it is clear that Sam Falbo Jr. did not even know of the remark when the suspension letter was drafted.33 2. Conclusions on White's suspension The solicitation at Boshman's kitchen table was, of course, protected union activity. The Act gives employ- ees great latitude of expression when engaging in such protected activity, but it is clear that a solicitation can lose its protection if its contents transgress certain bound- aries. Generally, Section 7 protects all speech that is a part of otherwise protected conduct. As the Board stated in Dreis & Krump Mfg., 221 NLRB 309, 315 (1975): [O]ffensive, vulgar, defamatory or opprobrious re- marks uttered during the course of protected activi- ties will not remove activities from the Act's pro- tection unless they are so flagrant, violent, or ex- treme as to render the individual unfit for further service. This is, indeed, a large umbrella of protection; so large, in fact, that some genuinely, tasteless, revulsive, and oth- erwise indefensible remarks have been held protected by the Board and courts because the remarks were made in the course of protected activities. But the protection is not limitless. The authorities have recognized that certain speech, even in the context of protected concerted activity, cannot be held to be pro- tected. The phraseology that has been used to describe what it takes for defamatory remarks to lose the protec- tion of the Act has been couched to terms of. "malice or deliberate intention to falsify";34 "deliberately and mali- ciously false";35 "fraught with malice";36 "malicious op- position to the exercise by Respondent of a right";37 "malicious or bad faith intent";38 and "deliberately or maliciously false."39 The common thread of these cases is that the statutory protection is lost when defamatory statements are made out of malice, or they are made in reckless disregard for the truth. As succinctly stated by Justice Clark in Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 63 (1966), "[T]he most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth." This standard was reaffirmed in Letter Carriers v. Alston, 418 U.S. 264, 283 (1974). Although Letter Carriers and Linn were libel actions, the principles applied by the sa David Falbo testified that on the morning of 14 December, Bosh- man repeated the "Mafia" and "books" remarks to himself and Sam Falbo Jr Boshman, however, testified to no such meeting, and Sam Falbo Jr testified that it was "some time after" 14 December that he met with Boshman to get her account of the 13 December visit to her home by White, Burton, and Ryan Therefore, I discredit David Falbo on this point 34 Westinghouse Electric Corp., 77 NLRB 1058, 1060 (1948). ss American Shuffleboard Co, 92 NLRB 1172, 1274 (1951) ss Hicks Ponder Co, 168 NLRB 806, 815 (1967) 91 Ibid 38 Lepton Mfg Co, 203 NLRB 309, 311 (1973) se Jacobs Transfer, 201 NLRB 210, 218 (1973) Court came from the National Labor Relations Act, and what the Court immunized from the reach of libel ac- tions was speech protected by Section 7 of the Act. The issue thus becomes: Was White's statement re- garding two sets of books, or fixed books, "a deliberate or reckless untruth"? White denied making the remark altogether. He did not claim that he, in fact, knew of cases of illegal book- keeping practices. He did not claim that he was passing along hearsay from a person who is in a position to know about Respondent's bookkeeping practices .40 He did not even claim to be passing along a rumor he had heard elsewhere. He appears to have made up the allega- tion "on the spot." This is "reckless untruth," or "reck- less disregard for the truth," in its purest form. This reckless disregard for the truth transcends any action, such as name calling. A charge of book-fixing is, unquestionably, defamatory. It conjures up scenarios of embezzlement, tax evasion, fraud, perjury, and, general- ly, criminality. The General Counsel cites only two cases in which al- legations of criminality were held not to have removed a protected course of conduct from the statute's protec- tion. In Ben Pekin Corp., 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (7th Cit. 1971), an employee made an alle- gation that his employer had bribed a union official and this had resulted in a smaller salary for himself. In that case the Board found that the employee was "acting in good faith" at all times and was suffering under a "genu- ine mistake of fact." In Cement Transport, 200 NLRB 841 (1972), an employee made a similar allegation. The Board found that the remark did not transcend the statu- tory protection because there was, in fact, evidence of such a bribe having been made.4 i Therefore, there is no authoritative support for the General Counsel' s argument that White's remarks, which Respondent maintained fixed books, or two sets of books, is within the protec- tion of the Act. Finally, the General Counsel argues that a different standard should be applied in this case where the em- ployees were engaging in the discussion among them- selves and a union representative. The General Counsel argues "a private discussion on these matters is unques- tionably protected, concerted activity." I agree that the discussion was protected concerted activity; however, I do not agree that it was a "private discussion." There were two nonemployees at Boshman's kitchen table: Union Representative Ryan and former employee Burton. Therefore, assuming there is a different standard for "private" conversation, this conversation took on the character of public communication in which unprotected defamation can be achieved.42 Accordingly, I conclude that White's remarks about two sets of books, or "fixed" books, were unprotected. Because those remarks were the sole basis of his suspen- 40 That is, he was not "giving currency to false information " Cf American Shuffleboard Co, supra 41 See the discussion of the administrative law judge specifically adopted by the Board majority in its fn 2 42 See, for example , Electrical Workers IBEW Local 1229 v NLRB, 346 US 464 (1953) 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion, I further find and conclude that, by implementation of the suspension, Respondent did not violate Section 8(a)(1) or (3) of the Act. Accordingly, I shall recom- mend dismissal of this allegation of the complaint. N. The Objections The results of the 21 December election were 30 votes for the Union, 43 against, and 5 challenged ballots. On 31 December the Union timely filed objections to con- duct affecting the results of the election . Certain of those objections are covered by allegations of the complaint disposed of above. Those found to have occurred before the filing of the petition on 22 October, or found not to have occurred at all, are as follows : the granting of a $5 meal allowance to employees who worked overtime and granting such employees a paid one-half hour meal break; the alleged 2 November conduct of Sam Falbo Jr., to wit, informing employee Carey that he was being assigned to his former position of employment because of the union activities of Respondent's employees and creat- ing in Carey the impression that the union activities of employees were under surveillance; the alleged 7 No- vember conduct of Sam Falbo Jr., to wit, threatening employee Bayly with discharge and unspecified reprisals; the alleged 29 October conduct of Sam Falbo Jr ., to wit, changing working conditions of employee Kevin White; and the alleged 14 December conduct of David Falbo, to wit, telling employees that Respondent would call the police because they were engaging in protected union activities. The Petitioner further objects to the 14 December notice to White that he would be suspended on his re- turning from workmen's compensation leave. As I have found that Respondent did not act unlawfully in impos- ing the suspension itself, it must necessarily be concluded that notice of suspension may not constitute either a vio- lation of the Act or objectionable conduct affecting the results of the election. The Petitioner further objects to the 14 and 18 De- cember conduct of Respondent by Sam Falbo Sr., and Sam Falbo Jr., and David Falbo in which they banned employees from distributing union literature outside Re- spondent's plant. As I have found above, and by the con- duct of the Falbo's in excluding off-duty employees White and Kilhullen from Respondent's parking lot, Re- spondent violated Section 8(a)(1) of the Act. As well as the cases cited above, the Board had consistently held that such imposition of unlawful no-distribution rules constitutes conduct likely to affect the results of a Board- conducted election . See Panavision, Inc., 264 NLRB 1284 (1982); A. W. Schlesinger Geriatric Center, 263 NLRB 1337 (1982); Intercommunity Hospital, 255 NLRB 468 (1981). Accordingly , I shall recommend that this objection to the election be sustained. A further objection filed by the Petitioner is: [T]he employer also had present throughout the day foremen observing the election and further employ- ees continued to remain in the election area giving the election a carnival atmosphere instead of the at- mosphere of a serious Union election. The election was scheduled for 3 : 15 to 4 : 15 p.m. The union observer was Kevin White ; the company observer was office employee Kathleen Torch . There is an agree- ment among the witnesses that on the day of the election the weather was particularly bad, including cold, rain, sleet, and snow . The election was conducted in the em- ployee lunchroom that has an open doorway leading into the production area and a passageway leading to the office area. White testified that when the polls were opened about 20 or 30 employees began a line from the table at which the Board agent and observer sat, and the line stretched back to the production area . According to White, after some employees voted they sat at tables in the cafeteria and stayed in the area, talking to each other ; some who had voted talked to some who had not. Further, according to White, "a little after 4" Supervi- sor Bobby Corrigan entered the voting area and: He came from the management entrance and there was a little Christmas tree on the table where we were sitting. And he came over by that, and I told the women from the Labor Relations Board that this man was a supervisor, and I didn't think he was supposed to be in there . And she told him that he would have to leave . And he sarcastically said, "yes, ma'am." and walked down-walked out . . . in toward the plant, directly parallel to the line and made a couple [of] comments or jokes to a couple of people because they started laughing. White estimated that Corrigan was in the voting area about 2 or 2-1/2 minutes and at that time there were people in the area who had not voted. Employee Joe Kilhullen testified that he was in the voting area, or in the adjacent restroom , for the entire hour of the voting. At this time there were 40 to 45 people in the area; at one point there were 20 to 30 people standing in line waiting to vote and the remainder were seated at the lunchroom tables. Kilhullen stated that he talked to any of the employees with whom he happened to come in contact, and it appeared that other employees were doing the same . Kilhullen further testi- fied that at one point Corrigan came into the voting area and stood next to the table at which the observers and the Board agent were sitting. Kilhullen testified that Cor- rigan "stood there for a few minutes looking around, and then one of the observers-that would be Kevin White- told the women that he was a foreman and she asked him to leave." Kilhullen was not close enough to hear if Corrigan made any verbal response , but he did see Corri- gan nod to the Board agent and turn and walk away. On cross-examination Kilhullen acknowledged that he did not see or hear Corrigan talking to any employees. Company observer Torch testified that all employees had voted by 4 p.m. After voting, employees stood in the hallway that went to the office, and only three em- ployees sat down at tables in the lunchroom These em- ployees were asked by the Board agent to leave the cafe- teria. Torch testified that it was after 4 : 15 p.m., after the ballot had been taped and signed by observers , and after the Board agent said "the polls are closed ," that Corri- PIZZA CRUST CO 509 gan entered the voting area. According to 'Torch: "And both Kevin and I called it to the attention of the Board agent, and [she] asked him to leave, and he left." Torch testified that Corrigan left without stating anything in reply to the Board agent. Torch testified that Corrigan "might" have spoken to some employees who were wait- ing in the hallway for the tally of ballots. Torch estimat- ed Corrigan's time in the voting area as 30 to 45 seconds. According to Corrigan he entered the lunchroom "right about quarter after 4:00." Corrigan explained that he went to the area to get work gloves for the night shift. Corrigan testified that as he entered the area he passed by a line of employees. One of the employees, Barbara Kossman (who did not testify), asked him to look at some pictures she had with her. Before Kossman could get the pictures out of her purse, the Board agent tapped Corrigan on the shoulder and asked if he was a foreman. When he replied "yes," the Board agent asked him to leave the area, and he did so. Although there is some conflict as to just where Corri- gan was when the Board agent addressed him, as well as what time he entered the polling area,43 there is actually no conflict on the point most critical: He did not speak to any employee.44 Therefore, at most, this is a situation of a supervisor entering the polling area, staying for any- where from 30 seconds to 2-1/2 minutes, and saying nothing that could constitute electioneering. In Milchem, Inc., 170 NLRB 362 (1968), the Board established a rule prohibiting conduct that would constitute electioneering "without inquiring into the nature of the conversations" involved. Here, however, there were no conversations and nothing that could be said to constitute, electioneer- ing. This appears to be a de minimis violation of the Mil- chem rule, if any violation at all .45 Accordingly, I shall recommend that this portion of the objection be over- ruled. Moreover, there is no reason to conclude that there was a "carnival atmosphere" surrounding the conduct of the election. Although it would have been better had there been a place for the employees to go while they waited for the tally of ballots, it is apparent from this record that there was no other place for them except in the hallways adjacent to the voting area and sitting at the tables in the lunchroom. There is no evidence that any employee engaged in electioneering at this time and no reason to believe that their presence would have interfered with the concentration required for employees to cast their ballots conscientiously. In sum, there is no evidence that this conduct affected the results of the election. Accordingly, I shall recommend that this objec- tion to the conduct of the election be overruled. Finally, there is the objection that relates to the 29 Oc- tober interrogation of White by Sam Falbo Jr. Although an interrogation is, in fact, an unfair labor practice, it does not, of itself, constitute conduct that would logical- ly have an effect on the election. It was not one in a series of systematic interrogations of employees; in fact, no other employee was interrogated. There is no evi- dence that any employees, except for White, knew about the interrogation before the election took place, and it could not logically be said that the interrogation had an effect on the vote of White, who was the principal em- ployee organizer for the Union. Accordingly, I shall recommend that this objection to conduct affecting the results of the election be dis- missed.46 Recommendations I find and conclude that the 14 and 18 December con- duct of Respondent, to wit, prohibiting off-duty employ- ees from distributing union literature in its parking lot, supports an objection to conduct affecting the results of the election filed in Case 4-RC-15757 as the conduct to which the Petitioner objects is of a character that would have a substantial impact on the employees' freedom of choice and would prevent a free and fair election. It is therefore recommended that the election be set aside and a new election held when the Regional Director deems that the circumstances permit a free choice of bargaining representatives. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce among the States. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and from in any like or related manner interfering with its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and on the entire record, I make the following 43 Totally incredible was Torch's testimony that the Board agent asked Corrigan to leave the area only after she announced that the polls were closed and the ballot box had been taped 44 White conjectured that Corrigan must have said something to em- ployees as he left because they laughed as he passed, but this falls short of probative evidence that he spoke to any employee who had not voted 45 See Mead Corp, 189 NLRB 190 (1971) Not inconsistent is Volt Technical Corp, 176 NLRB 832 (1969), which is cited by the Petitioner In Volt, a supervisor, who had been found lo have committed several preelection violations of Sec 8(a)(1), stayed in the voting line area for the full hour that the election was conducted and electioneered by handshak- ing, backslapping , and conversations CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers, Local 72, AFL-CIO-CLC is a labor organization within the mean- ing of Section 2(5) of the Act. 46 See Caron International, 246 NLRB 1120 (1979), Coca-Cola Bottling Co, 232 NLRB 717 (1977) 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. By the following acts and conduct, Respondent has violated Section 8(a)(1) of the Act: (a) Interrogating an employee regarding the union membership, activities, and desires of himself and other employees. (b) Prohibiting off-duty employees from using its park- ing lot for solicitations or distributions relating to matters involving the exercise by employees of their rights under Section 7 of the Act. 4. Respondent has not otherwise violated the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed47 ORDER The Respondent, Pizza Crust Company of Pennsylva- nia, Inc., Scranton, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Interrogating employees regarding union member- ship in, or activities on behalf of, United Food and Com- mercial Workers, Local 72, AFL-CIO-CLC or any other labor organization. (b) Prohibiting off-duty employees from using its park- ing lots for solicitation or distributions relating to matters 47 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 involving the exercise by employees of their rights under Section 7 of the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Carbondale, Pennsylvania facility copies of the attached notice marked "Appendix."48 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the election con- ducted on 21 December in Case 4-RC-15757 be set aside. A new election shall be held at such time as the Regional Director decides that the circumstances permit the free choice of a bargaining representative. 48 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."