Cooper Tire And Rubber Co.

.:- . 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cooper Tire and Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC. Cases 26-CA-12639 and 26-CA-12711 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 31, 1989, Administrative Law Judge George F McInerny issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions, a supporting brief, and an answering bnef 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, findmgs, 1 and 'The Respondent has excepted to some of the Judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Judge's decision contains several minor errors Contrary to the judge's statement, at least two employees had received warnings for ex- cessive breaks Also, the record indicates that It was Joel Bailey, not Ricky Marshall, who wanted to take up a collection for Marshall's sister Further, It was Michael Hankins, not Michael Hawkins, who had a con- versation with Gary Jones concerning "some union cards and stuff," and Hankins did testify at the hearing These errors do not affect the validity of the judge's findings The correct citation of Storer Communications of Jefferson County, is 287 NLRB 890 (1987) 2 In finding that the Respondent violated Sec 8(aX1) of the Act through its supervisors' questioning of more than 150 employees concern- ing employee Mitzi Rye's union solicitations and solicitations engaged in by any other employees, Chairman Stephens does not rely on Johnnie's Poultry Co, 146 NLRB 770 (1964), or Bill Scott Oldsmobile, 282 NLRB 1073 (1987) Rather, he finds that the questioning, under all the circum- stances, would tend to coerce employees from exercising Sec 7 rights The employees were first told that Mitzi Rye had been suspended for violating the Respondent's "no solicitation/no distribution" policy and then were asked whether she had solicited them "during work time and in a work area" and whether they knew of "any other employees who have violated the [Respondent's] `no solicitation/no distribution policy They were also invited to speak with supervisors if they ever thought someone might be violating the policy We have adopted the judge's finding that the Respondent's policy as applied was unlawful in part be- cause the Respondent's overbroad definition of working areas effectively barred union solicitation at times and in areas where the Act requires that such discussions be permitted Thus, an employee interrogated in the massive round of questioning launched in the wake of Rye's suspension could reasonably believe that even union activities that cannot lawfully be prohibited under the Act might be reported to management by fellow employees and lead to serious disciplinary measures Member Devaney agrees with the judge and his colleagues that the Respondent violated Sec 8(a)(3) and (1) by applying its no-solicitation rule in a discriminatory manner in the discharge of employee Rye and the suspension of employee Pickenng and, therefore, finds It unnecessary to pass on the Judge's additional finding that the Respondent also violated Sec 8(a)(3) and (1) by discharging Rye and suspending Pickering based on the Respondent's mvand no-solicitation rule conclusions2 and to adopt the recommended Order as modified and set out in full below 3 ORDER The National Labor Relations Board orders that the Respondent, Cooper Tire and Rubber Compa- ny, Tupelo, Mississippi, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Maintaining and enforcing an unlawfully broad no-solicitation rule or disparately enforcing any such rule (b) Suspending, discharging, or otherwise disci- plining its employees for alleged violations of that no-solicitation rule (c) Creating the impression that its employees' union activities are under surveillance (d) Threatening its employees with reprisals be- cause of their union activities (e) Interrogating its employees about their own or others' union activities without first having given these employees proper safeguards against retaliation or discrimination (f) In any like or related manner interfenng with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Rescind its unlawfully broad no-solicitation rule (b) Make Rocky Pickering whole for any loss of earnings and other benefits resulting from his sus- pension, in the manner set forth in the remedy sec- tion of the judge's decision (c) Remove from its records any references to the suspension of Rocky Pickering on February 21, 1988, and notify him in writing that this has been done and that evidence of this suspension will not be used as a basis for future personnel actions against him (d) Offer Mitzi Rye immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or any other rights or privileges previously enjoyed and make her whole for any loss of earnings and other benefits resulting from her discharge, in the manner set forth in the remedy section of the judge's decision 'We find merit in the General Counsel's exceptions to the Judge's fail- ure to provide a full expunction remedy in his recommended Order Ac- cordingly, we shall order the Respondent to remove from its records any reference to Mitzi Rye's discharge and to Rocky Pickenng's suspension and to notify them in writing that this has been done and that evidence of the unlawful discharge and suspension will not be used as a basis for future personnel actions against them We have further modified the rec- ommended Order and notice to conform to the violations found 299 NLRB No 145 COOPER TIRE & RUBBER CO 943 (e) Remove from its records any references to the discharge of Mitzi Rye on June 29, 1988, and notify her in writing that this has been done and that evidence of this discharge will be not used as a basis for future actions against her (f) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (g) Post at its facility in Tupelo, Mississippi, copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Re- gional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NancE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT maintain and enforce an unlawful- ly broad no-solicitation rule or disparately enforce any such rule WE WILL NOT suspend, discharge, or otherwise discipline our employees for alleged violations of that no-solicitation rule WE WILL NOT create the impression that our em- ployees' union activities are under surveillance WE WILL NOT threaten our employees with re- prisals because they engage in union activities WE WILL NOT interrogate our employees about their own or others' union activities without first giving them proper safeguards against retaliation or discrimination WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act . WE WILL rescind our unlawfully broad no-solici- tation rule WE WILL make Rocky Pickering whole for any loss of earnings and other benefits resulting from his suspension, with interest WE WILL remove from our records any refer- ences to the suspension of Rocky Pickering on February 21, 1988, and notify him in writing that this has been done and that evidence of this suspen- sion will not be used as a basis for future personnel actions against him WE WILL offer Mitzi Rye immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other nghts or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, with in- terest WE WILL remove from our records any refer- ences to the discharge of Mitzi Rye on June 29, 1988, and notify her in writing that this has been done and that evidence of this suspension and dis- charge will not be used as a basis for future person- nel actions against her COOPER TIRE AND RUBBER COMPANY John Goree, Esq , for the General Counsel Nancy Noah, Esq and Michael McMenamin, Esq (Walter, Haverfield, Beuscher itt Chockley), of Cleveland, Ohio, and Gregory E Meyers, Esq , of Findlay, Ohio, for Re- spondent Cooper George Barrett, Esq , of Nashville, Tennessee, for the Charging Party DECISION GEORGE F MCINERNY, Administrative Law Judge Based on charges filed on May 25, 1988, m Case 26-CA- 12639, and on July 11, 1988, in Case 26-CA-12711, by Umted Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, CLC (the Union), the Regional Di- 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rector for Region 26 of the National Labor Relations Board (the Regional Director and the Board) issued an order on August 8, 1988, consolidating these two cases, together with a consolidated complaint and notice of hearing The consolidated complaint alleges that Cooper Tire and Rubber Company (the Company or Respond- ent) had violated and continues to violate the National Labor Relations Act (the Act) The Company filed a timely answer in which it denied committing any unfair labor practices Thereafter, the matter came on to be heard before me in Tupelo, Mississippi, on November 14 through 18, 1988, and January 17, 18, and 19, 1989, at which hearing all parties were represented by counsel, and had the op- portumty to present testimony and documentary evi- dence, to examine and cross-examine witnesses, to present motions and argument, and to argue orally Fol- lowing the close of the hearing the Company and the General Counsel submitted briefs, which have been care- fully considered Based on the entire record, including my observation of the witnesses, and their demeanor, I make the follow- ing FINDINGS OF FACT I JURISDICTION Cooper Tire and Rubber Company is a Delaware cor- poration having its headquarters in Findlay, Ohio, with manufacturing facilities located in several places in the United States and Mexico including a plant for the man- ufacture of steel belted radial tires in Tupelo, Mississippi, the facility we are concerned with here The Company purchased during the 12 months just prior to the issuance of the complaint goods and materi- als valued at more than $50,000, which were received at its Tupelo plant directly from points outside the State of Mississippi The complaint alleged, the answer admitted, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleged, the answer admitted, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Tupelo Plant For some years a company called Pennsylvania Tire had operated a tire plant in Tupelo, Mississippi That plant closed in 1979, and early in 1984, the plant was purchased by Cooper Tire Cooper immediately began remodeling the facility, removing or replacing all of the equipment in the plant, and enlarging its area from 600,000 to over 1 million square feet As of the date this hearing opened, there were 685 employees at the plant At the very beginning of Cooper's occupancy of the Tupelo facility, a management team was sent in to study all aspects of the proposed operations The team was headed by Plant Manager Jim Datmermiller, Production Manager (later plant manager, after Dannemiller's depar- ture) Bruce Smith, Gene Arnold, plant engineer, Bob Higgins, industrial engineer, Larry Bane, comptroller, and Charles P "Chuck" Taylor, employee relations man- ager The members of the group began by asking ques- tions about tire manufacturing from every conceivable angle They visited and studied other plants, those owned by Cooper as well as other American, French, and Japanese companies The object of all this was, in the words of Bruce Smith, to "make this new operation as productive and competitive as possible" Chuck Taylor stated that the Company "wanted a world-class plant that would be the best anywhere, with the best at- tainable productivity, quality, and with a team of people who would work together to meet these goals" Without going into detail on the manufacturing proc- ess instituted at Tupelo, suffice it to say that it was deter- mined by the advisory group named above that the oper- ation would be continuous, 24 hours a day, 7 days a week, with employees assigned to four groups, A, B, C, and D, with rotating shifts requiring each group to work 7 days in the day shift 7 a m to 3 pm , I then they would be off for 2 days Then they would work 7 days on the afternoon shift from 3 until 11 p m, then off another 2 days Each group would then work 7 nights on the 11 p m to 7 a m shift, and finally, they would have 3 days off before beginning the round again In each 4-week (28 days) period, each employee would work 21 days and would be off on 7 days Within their shifts, employees are granted a paid 20- minute lunchbreak The evidence here showed that, while some jobs, those in material preparation and finish- ing, were continuous operations and employees leaving their work stations needed to make sure their duties were covered, others, as in the two stages of tire assembly, could and did take their breaks together, m large num- bers In addition to the lunchbreak, employees also were allowed to take breaks to visit restrooms, get a drink of water at fountains set up around the plant, and to smoke in areas set aside for that purpose There is no indication in this record either that employees abused their privi- leges to take restroom breaks or breaks to smoke, and no evidence that it was necessary for management to moni- tor or discourage excessive use of the restrooms or smoking area Further, there is no evidence here that employees were inhibited from conversing with each other while going to and from regular lunchbreaks, informal rest- rocm or smoking breaks, or while in the smoking or water fountain areas Nor was there any evidence that employees could not discuss among themselves, at changes of shifts, or even while working, the kinds of things which fellow workers will tend to discuss, the weather, sports, the news of the day, social doings, ro- mance, or shop and office rumors 2 Some employees, ap- 1 These times are given for the tire assembly function Employees as- signed to matenal preparation reported and left one-half hour earlier, fm- ishmg and shipping employees one-half hour later 2 Even, perhaps, hexes and spells, Wall Street Journal, February 24, 1989 COOPER TIRE & RUBBER CO 945 parently concerned about their ability to keep up with production quotas, 3 ate their lunch at their machine or work station Others made it a point to arrive 10 minutes or so early to sharpen and preheat tools, check their ma- chine and the area around them, take measurements of the supplies on hand to determine the sizes of tires to be made 4 While these employees were eating lunch, or ar- riving early, they engaged in conversations with cowork- ers at their machines One employee, Dean Johnson, found that coming in early gave him a faster start He indicated that he stopped work early in compensation for his early start, but also to give the next shift employee on his machine time to prepare to come on line without any break ni production In its organization of the Tupelo plant, the Company set up several levels of supervision The lowest level, leaders, were basically working forepersons whose pri- mary responsibility was to watch over and report on those on their crews within the group, but with the duty to pitch in and work where they found It necessary, or to relieve rank-and-file people when they were on formal or informal breaks At the time this hearing opened, there were 55 leaders among the 685 member work force Above the leaders were 14 foremen, 12 department managers and staff members who are considered supervi- sors and 6 or 7 other supervisors in technical or engi- neering departments The Company maintains its corporate headquarters and a tire plant in Findlay, Ohio, a tire plant m Texar- kana, Arkansas, inner tube plants in Clarksdale, Mississip- pi, and Piedras Negras, Mexico, and industrial products plants m Eldorado, Arkansas, Auburn, Indiana and Bowling Green, Ohio I might note at this point that both Chuck Taylor and Plant Manager Bruce Smith have had considerable employee relations expenence6 the Company's other plants, all of which are unionized B The No-Solicitation Rule 1 The rule itself Plant Manager Bruce Smith testified that during their study of efficiency and productivity dunng 1984, the management team sent to Tupelo by the Company looked at employee relations policies which would be desirable from the Company's point of view Smith stated that the group concluded that in other plants where solicitation was permitted, the constant activities of people selling Avon products, Girl Scout cookies, candy bars for churches or schools, and tickets for lotter- ies or benefits resulted in disruption and loss of produc- tivity Moreover, the fact that Cooper was going to set up a continuous, three-shift, 24-hour, 7-day operation, meant that only a portion of people would be going on 3 The record shows that production quotas were very important goals for employees Records were kept to assure continuing attainment of re- quired production levels 4 Tlus, again, applies only to the tire building, or assembly, functions in the plant 5 Taylor's expenence is both in industrial relations and industrial engi- fleeting, Smith was almost exclusively Involved in industrial and labor re- lations before he came to Tupelo their break at any one time Those employees would be walking through work areas where others were continu- ing to work, thus tending to disrupt the production proc- ess For these reasons, it was decided to adopt a no-solici- tation rule prohibiting solicitations by employees by dis- tribution of printed matter or solicitation on behalf of any group or organization not only during working time, but in any working area at any time The entire rule, as contained in an employee handbook given to all employ- ee reads as follows Each year many requests are received from orgam- zations and individuals seeking permission to distrib- ute literature and solicit or collect contributions for various causes Many of these requests are made in support or worthwhile causes that are commenda- ble, however, if all such requests were granted, it would severely damage efficiency of our operation Therefore, it is necessary to limit such solicitations and distributions by the following rules Solicitations seeking contributions, payments, funds, and other solicitations or distributions of lit- erature are not permitted on Cooper property at any time by outside groups or organizations or any person not employed at Cooper No Cooper employee should be permitted to dis- tribute any printed matter or solicit on behalf of any group or organization during working time or in any working area , Solicitations or distributions of printed matter by Cooper employees will be permitted only during non-working time in non-working areas Smith emphasized in his testimony the Company's in- tention not to eliminate solicitation, but to control it, so that production was not adversely affected He noted that the policy does not specifically prohibit solicitation by an employee on behalf of a fellow employee for flow- ers, gifts, or funerals, for a fellow employee if his house burns down, or her mother died, or for Christmas pre- sents These kinds of things do cause disruption on the shop floor because someone has got to be making the so- licitation, and others are receiving and considering the solicitation, thus interrupting the production process Smith seemed to be of two minds on this point, saying, on the one hand, that this sort of thing builds moral and team spirit, brings employees closer together and has a positive effect in the plant which could outweigh the negative impact of work disruption 6 Then, on the other hand, Smith concluded that despite these spiritual re- wards, the rule does prohibit solicitation by employees on behalf of fellow employees on worktime or in work areas Taylor's testimony was in substantial agreement with Smith's, although Taylor did not go into as much detail Both Taylor and Smith were in agreement, and the Com- pany makes the argument, that it had an obligation to 6 Smith did not agree when I asked him whether the presence of a union might bnng employees closer together 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD inform people of the areas where they could, or could not, solicit Both Taylor and Smith agreed in their testi- mony that the entire plant was considered a work area with the exception of the lunch (or break) room and the locker rooms 7 For the convenience of those, like myself, who are or will be faced with making a determination on the reason- ableness, or lawfulness, of the no-solicitation rule, the Company has thoughtfully provided a diagram of the plant, showing the several manufacturing areas, location of major machinery, and other parts of the facility On this diagram, the main area of the plant is indicated as being 430 feet along the north side, and 520 feet deep 8 On the east side of the building is a large employee park- ing lot, which gives access to the main entrance Just mside the entrance are two locker rooms, one of which is approximately 45 by 150 feet, and the other 45 by 135 feet There is no question that these rooms are consid- ered nonwork areas Beyond the locker rooms, one enters the main produc- tion area The first area encountered is the curing and finishing area, where tires are subjected to heat and pres- sure to combine the several elements used in their con- struction This area is about 240 by 500 feet and contains over 100 machines used in the curing process After curing, the tires are trimmed, inspected, balanced, sorted, and sent to the warehouse for shipping Continuing west through the plant, the next produc- tion areas are the first-and second-stage tire building fa- cilities These two areas combined measure about 360 by 300 feet There are, indicated on the diagram, 36 first- stage tire building machines and 13 second-stage ma- chmes To the south and west of the tire building area are the mixing, or material preparation, areas where the materi- als used in production are received and/or manufactured for use in the assembly and curing operations The mixing areas are about 90 by 420 feet and 135 by 540 feet 9 Along the north wall of the plant are the offices of the plant manager and other administrative and office serv- ices, the breakroom (about 20 by 70 feet), restrooms, and the "kit" locker room referred to earlier Also along the north wall is the smoking area for the tire assembly area There is a water fountain in the smoking area Other fountains are scattered throughout the plant Continuing to use the scale provided on the Compa- ny's diagram of the plant, I estimate that the machines in the first-stage tire building area are about 10 feet from each other in rows of six Each row is between 30 and 45 feet from the next row There are six parallel rows, the nearest row to the north side of the plant being about 7 7 Smith did not specify, but Taylor stated that a small locker room adjacent to the first-stage tire assembly area was a work area This room, known as a "kit" locker room, used only for storage of handbags and tools, is not used for changing clothes as are the main locker rooms These measurements are noted on the diagram Additional measure- ments given here were estimated by me based on the use of a ruler and the scale given on the diagram 9 There are other areas beyond the mixing area such as a new tire building section, which was not yet in operation as of the date of this heanng, and some maintenance rooms, which are not Important to our inquiry here 45 feet from the kit locker room, the water fountain, and the smoking areas The distance from the farthest first- stage machine to the breakroom, using a normal walking route around the machine area, would be about 600 feet, and to the water fountain, about 320 feet In the second-stage tire building area, three machines are in a line only a few feet from the north wall of the building, the nearest one being about 60 feet from the water fountain and smoking area, and about the same dis- tance from the nearest row of first-stage machines In the second-stage area there is a row of 10 machines at right angles to the first 3 machines, moving away from the north wall Between these machines and the rows of first-stage machines is an area used for placement of tires moving from first to second stage There is about 300 feet between the farthest second-stage machine and the breakroom The nearest curing machines to the second-stage ma- chines are about 80 feet away The nearest row of curing machines is about 60 or 70 feet from the area of the of- fices and breakroom The furthest is about 480 feet to the breakroom The curing department smoking area is somewhat closer by almost 200 feet from the farthest ma- chines I have made these rough measurements and spent this amount of time listing those measurements here in order to show that in the working areas, particularly the first- stage area, where most of the events in this case took place, there is considerable open space between ma- chines, between rows of machines, and between the ma- chines and break areas, either the smoking areas or the breakroom The Company's position on solicitation in nonworking areas is based on the premise that in this continuous operation, people going to and from lunch or to restrooms or smoking areas will necessarily pass by machines in operation Thus, to permit solicitation even by employees who are not working, but merely passing through, can result in interruptions to the production process In addition to the physical characteristics of the work- ing floor of this plant, I note that, while certain depart- ments, material preparation and curing, do require em- ployees to be relieved before they may leave their work area because of continuous operations 10 In the first- stage tire building area where there is more handwork involved, the entire group of about 30 employees has its lunchbreak at the same time Some employees do eat lunch at their machines, or in the kit locker room close by, and at least one employee, who was having trouble building his daily quota of tires, continued working right through the lunchbreak With those exceptions, all of the first-stage machines are idle for the 20-minute break period, but employers are not permitted under the no-so- licitation rule to solicit or distribute printed matter in that work area, or on their way to or from the break- room Employees going to or from the breakroom or to '° The cunng or vulcanizing area, however, is almost completely auto- mated, requiring only one production employee and two leaders to moni- tor some 68 machines The record shows that the production employee may be relieved for lunchbreaks or visits to the restrooms or the smoking areas by merely requesting such relief COOPER TIRE & RUBBER CO 947 the restrooms, the designated smoking areas, or water fountains, or while in these last three areas, are prohibit- ed from distnbutmg or soliciting, even when they en- counter employees from other areas who may or may not be working In the circumstances noted here, taken from the undis- puted testimony of Mitzi Rye, Chuck Taylor, and Bruce Smith, it seems to me that the Company has failed to demonstrate any substantial business or economic justifi- cation" for extending its rule from working areas to nonworking areas physically separated from the work areas, and used by employees on their nonworking time as their way to the breakroom, smoking area, restrooms, water fountains, or in and out of the plant Therefore, I find that the rule as promulgated prohibits solicitations during nonwork periods in areas which have not been shown by Respondent to be, and which cannot be considered working areas Therefore, I find that the rule is invalid and a violation of Section 8(a)(1) of the Act Our Way, Inc. 268 NLRB 394 (1983), cf Albertsons, Inc , 289 NLRB 177 (1988), Ohtnite Mfg Go, 290 NLRB 1036 (1988) Accord Robinson Furniture, 286 NLRB 1076 (1987) 2 Enforcement of the no-solicitation rule Before turning to the allegations in the complaint deal- ing with the discipline meted out by the Company to Rocky Z Pickering and Mitzi Rye, I think it would be appropriate to examine the Company's interpretation of and application of its no-solicitation rule in two respects The first would be its interpretation and enforcement of the rule itself, and second, its attitude toward employees it viewed as having violated the rule 3 Interpretation and enforcement of the rule There are, literally, hundreds of pages of testimony in this record dealing with this question The General Counsel has maintained throughout that the Company's enforcement of the rule was unfair, and in violation of labor laws, because employees were allowed to solicit for and to sell all kinds of goods and services, raffle tick- ets, Girl Scout cookies, various catalog items such as Avon, Christmas decorations, and home mtenor items, collections for people who had suffered misfortunes, pyr- amid type schemes, holiday parties and many other causes of various kinds The Respondent brought in testimony indicating that maybe some of these activities had taken place, but that Respondent's position throughout the period covered here, about mid-1987 to mid-1988, it had consistently told people about the rule, what employees could or could not do, and that its supervisors and agents consist- ently and continuously warned employees who were ob- served violating the rule to stop under pain of discipli- nary action The parties stipulated to the fact that the Company of- ficially sponsored an annual dnve for the United Way, "The mere assertions by Taylor and Smith that they studied the solic- itation problem from a productivity point of view and then decided to promulgate this rule, does not present any objective data on which I can base a decision that this action was economically justified and that certain supervisors and employees had solicited employees on worktime in work areas, as follows Joel Bailey, a process technician, solicited in 1985, 1986, and 1987 for a birthday fund in the labo- ratory Steve Ferguson, a leader in tire assembly, had so- licited for a Company Christmas party and had con- doned solicitation for flowers for an employee in the hospital George Greshan, a leader in tire assembly had handed out rules for a company sponsored fishing trip, and had permitted employees to read a compa- ny newsletter on company time Hal Hicks, a foreman, had solicited money to buy flowers for Terry Jarzen, a department manager, in December 1987 and had conducted 2 or 3 other so- licitations for flowers per year Bruce Norwood, a leader, observed employees soliciting for Christmas presents for other leaders in December 1986 James Roberts, a leader, solicited for Christmas presents for shift foreman Sonny Shelton in Decem- ber 1986, and Roberts had knowledge that employ- ees were also soliciting for Shelton's present Kelly Timmans (a supervisor ?) had knowledge that employees solicited for Christmas presents for leaders in December 1987 In addition to these stipulated diversions from the no- solicitation rule, testimony presented by the General Counsel shows a number of additional instances where employees, sometimes under the eyes of leaders or higher level supervisors, engaged in solicitations for a variety of profit-making and charitable causes This testimony was countered by a number of wit- nesses presented by Respondent (as well as responses from the General Counsel's witnesses on cross-examina- tion) showing a fairly consistent recognition by supervi- sors of the rules and reminders to employees to desist from solicitations On the highest level at the Tupelo plant, there is no question that Chuck Taylor followed a uniform policy against any form of solicitation by any employees or su- pervisors 12 When one works down, there are instances of supervisory people soliciting participation in a pyra- mid-type scheme called the "airplane game," or selling candy, or turning a blind eye to other solicitations, but there is no evidence that the rule was disregarded, or overlooked on any widespread or general basis While lower lever supervisors were not so orthodox as Taylor in their mterpretations of the rule They did tend to en- force it with some regularity as to union activity, antiun- ion activity, or all the other from of solicitation men- 12 Even the executive secretary to the plant manager was told that posting notices of a function sponsored by a Tupelo professional women's group could not be done on company property As a result of this admo- nition the executive secretary expressed her interpretation of the rule as not permitting any sort of solicitation "in our plant" I am aware of the incident involving Mark Stewart and Rocky Pickering, but I consider that to be isolated and connected solely with Pickenng's situation which will be discussed below 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD honed above, as testified to by a number of employees and supervisors in this proceeding If there are any problems in my finding that the rule was not enforced equitably and fairly, they anse from the confusion which existed at even the highest levels in the plant over the distinction between "inside" and "out- side" solicitation, and, perhaps more significantly for em- ployees, the question of which areas are or were "non- working" areas, where solicitation was allowed In regard to the first, I have already noted the confu- sion which Plant Manager Bruce Smith expressed in drawing a distinction between inside solicitation by one employee for another whose house has burned down, or whose mother has died Smith's view was that activities of this sort tended to draw people together in a kind of (nonunion) solidarity, which, in turn, would generate a' positive attitude in the plant which could outweigh the negative (disruptive) effect of the solicitation But despite these benefits, Smith admitted that the rule prohibits inside as well as outside solicitation This distinction between outside and inside solicitation also came up in the course of testimony of Shift Fore- man Lawrence Dangerfield In commenting on a series of incidents mvolvmg an employee named Kevin Beelcs, who was involved m the fall of 1988 in selling sorghum molasses in the plant, Dangerfield himself inquired about the molasses and agreed to buy some while he himself was working and m a working area When asked wheth- er it had occurred to him that Beeks' sale of molasses might be a violation of the Company's no-solicitation Dangerfield replied that he did not because "it was not an outside organization It was family" The second problem I sensed in connection with the no-solicitation rule was the definition of the "working areas" where solicitation was prohibited As I have noted above, Bruce Smith, former production manager and subsequently plant manager felt that the locker rooms, mcludmg the "kit" locker room near the first- stage tire buildmg area, were areas where solicitation was allowed Taylor, on the other hand, maintained that the small locker room was a working area In reviewing the testimony there are several sugges- tions that management's policy was to keep all solicita- tion out of the entire plant Taylor did state that solicita- tion was banned in any working area to several employ- ees Andy Love, Wayne Chilcutt, or Cathy Barnett In other instances the impression received by employees seemed to be that solicitation was barred in the whole plant For example, Dan Arnold was warned against so- licitation on worktune and in unspecified work areas in October 1987, Edith Easley, the executive secretary to the plant manager, testified that it not only was her inter- pretation that there was no solicitation in the plant during working hours, but that posters she had asked to be posted could not be posted anywhere in the plant Despite Respondent's position that employees should be aware of what they could do and what they could not do and where they could or could not solicit, it seems to me that employees, even high-level employees like Edith Easley, and her boss, Bruce Smith, were confused about the scope of the rule," and inevitably, lower level em- ployees, would be similarly confused to a point where they might hesitate to engage in legitimate solicitation in areas or at times where such solicitation was not barred by the rule Taking all of these facts into consideration, I cannot Infer or find that the interpretation and enforcement of the rule shows by a preponderance of the evidence that the rule was so interpreted or enforced as to show dis- parate treatment toward the nghts of employees under Section 7 of the Act The confusion as to the inside or outside solicitations was real, but there is no evidence that some outside solicitations were favored over union solicitation Similarly, the confusion on where one could solicit would seem to operate against any form of solici- tation, not merely solicitation on behalf of a union 14 4 Disciplinary actions for rule violations a Company procedures The no-solicitation rule is contained in an employees' handbook which is distributed to all employees on their first day of employment Supplementing this and the Company's other stated or implied rules of conduct for employees, Chuck Taylor prepared a memorandum on March 19, 1985, addressed to "All managers, foreman & supervisors" outlining the Company's intentions in the handling of discipline prob- lems Stating the Company's desire to implement a "Posi- tive Discipline" program, Taylor outlined the philosophy and application of discipline in several paragraphs which are quoted herein full because of their bearing on the dis- ciplinary situations involved in this case The concept of Positive Discipline is actually a process designed to prevent problems The focus is on solving performance problems, encouraging good performance, and using this as a management development tool Rather than punish for poor per- formance, the emphasis is on praise and encourage- ment for good performance Under this system, discipline is administered by the immediate supervisor of an individual People over the supervisor are there to give advice and help with the decision process Also, the Employee Relations Department is available to assist The meetmgs with employees and admimstenng of disci- pline is done by the immediate supervisor As such, we must make sure that all our supervisors know how to counsel people and to get positive conse- quences out of every incident Our managers will seldom work with the process people but will spend more time with supervision in giving guidance on solving performance problems 13 Even though Smith testified that, in his opinion, the Company was obligated to tell people where they could solicit, the record does not in- dicate that any specific directions were given to all employees either by posting or word of mouth '4 If I was convinced by the evidence that the confusion about these two aspects of the interpretation of the rule was deliberately sown, I might come to a different conclusion on this aspect of the case I really do not think that state of the evidence warrants such a conclusion COOPER TIRE & RUBBER CO 949 Employees who develop performance problems are to be dealt with in a positive manner There should not be threats Instead, a meeting is held to determine the cause of the problem and what can be done by working together to avoid future prob- lems There will be three basic steps in our discipline procedure Step I Oral Reminder—This is a friendly con- versation acknowledging the problem and secur- ing agreement to improve This should take place in private, in an office where both the employee and supervisor try to determine the cause of the problem and what each can do to improve the situation No official record of this meeting is placed in the employee's personnel file at this time Instead, the supervisor keeps a follow-up sheet to record when oral reminders occurred and what the problem was Step II Written Reminder—Again, a private conversation is held with the employee This time, however, a written record is put in the em- ployee's file mcludmg the fact that the problem had been discussed earlier, what had been said and what the employee had committed to This meeting should also be held in a positive manner Again, a set plan is developed to correct the problem situation The plan is included in the letter to the employee Step III Final Discussion—This is the final step of the program Its purpose is to give the em- ployee an opportunity to think about the future and to determine how the problem will be solved The employee must come out of this meetmg with a firm commitment and plant to solve the problem If the employee is unwilling to commit or will not agree to the problem, then discharge is the only alternative Discharge also becomes necessary if the individual fails to live up to the agreed upon commitments Like Step H, Step III is totally documented Each step of the program allows for an employee to "clear his record" with continued good perform- ance (a) Oral reminders are in effect for three (3) months If a problem occurs, is corrected, and does not happen again for three months then hap- pens later, you again start at the first step (b) Written reminders stay in effect for six (6) months (c) Final discussions are in effect for one (1) year Violations of company policy are broken down in three ways minor, major and maximum (a) Minor violations start at Step I of the pro- gram These don't involve honesty, safety or wilful violations Examples would be unintention- al quality problems, early absenteeism problems, misunderstanding policies or things of this nature (b) Major violations start at Step II or in some cases Step III These are a threat to the employee or other employees Wilful misconduct, dishones- ty, deliberate acts would fall in this area Maximum violations would result in immediate discharge These threaten the continuance of the company or the lives and well being of other em- ployees Appended to this memorandum was a list of work rules" with markings showing whether violations of that rule were of minor, major or maximum seriousness Among the rules is one noting Solicitation and/or distribution of literature during work hours or in work areas This rule is denoted "minimum" After setting out this procedure, Taylor went on to say in his March 19, 1985 memorandum the following Remember, the whole program is a guide We have no "set punishment" Every case of alleged misconduct is to be investigated thoroughly The corrective action to be taken depends on the case, the circumstances surrounding those conditions and the involved individual's past record Our goal is to correct problems, not to pumsh people because they occur Only after a fair evaluation, along with dis- cussions with foremen, managers, and the Employee Relations Department, should a decision be made as to the proper course of action Also, there may still be a need for a penalty lay- off even though it is not a part of the system This could occur in the case of an apparent maximum violation where you need time to investigate For example, an abusive employee who refuses a direc- tive and fails to respond to counseling may need to be sent home immediately with time needed to com- pletely analyze the problem and determine if there is a solution or if discharge is the only alternative The attachment to the March 19 memorandum also contained language qualifying the list of rules You should always remember that these are ex- amples and not a complete list of poor behavior Violations of any of these rules or acting in any manner that is not conducive to a good working cli- mate can lead to disciplinary action, up to and includ- ing discharge [Emphasis added ] This language is certainly not clear, and indeed, it tends to blur the fairly straightforward exposition of a progressive disciplinary procedure and a list of rules and the relative seriousness of transgressions What is clear is that Taylor was reserving to management" the right to 15 There is no indication in the record that this list was distnbuted to employees generally Taylor testified only that the list was prepared for use in training sessions for leaders and supervisors 1 testimony was consistent with the language of the excep- tions to the progressive disciplinary procedure and the relative severity of the rules 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD determine, subjectively, on a case-by-case basis, what dis- cipline would be imposed on which employee for what violation Looking at the application of the disciplinary proce- dure as outlined here to the parameters of this case" there were several instances reported by witnesses both for the General Counsel and the Respondent Barbara J Garner was plant engineering secretary She testified that she had circulated a memorandum to department managers around March 1988 soliciting do- nations for a gift for Gene Arnold, the plant engineer, who was leaving The memorandum was composed, typed, and distributed on working time and in the engi- neenng office, a working area 12 According to Garner she distributed to eight different department managers without comment before it reached Chuck Taylor Taylor told Garner that she was violating the no-solicita- tion rule, and that it should not happen any more or in Taylor's words, she could lose her job Dan Arnold, a quality engineer, related that he became interested in local politics after moving to Tupelo in 1985, and in October 1987, while at work, he asked Paul Smith, and some other managers to his home to meet a candidate for the Mississippi State Senate Arnold then asked Taylor who replied that this could be construed as solicitation and that the Company "has a no-solicitation rule" Andy Love, an employee who did not testify here, was apparently campaigning for (or against) the Union in the fall of 1987 Taylor heard of this and testified that he told Love that he had a right to campaign, but to keep it out of areas of the plant where he should not be cam- paigning Gary Jones, an employee in the tire building depart- ment," was given a warning in October 1987, according to testimony of Chuck Taylor, for violating the no-solici- tation rule Jones himself, testifying 2 days after Taylor's testimony, was not asked about such warning, or any so- licitation which led up to the warning Taylor, admitted- ly, did not participate in the incident Kathy Swann, another employee who did not testify, was also warned, according to Taylor, because of unveri- fied reports that she was soliciting A number of other employees testified that they were warned about sundry violations of the no-solicitation rule Joel Bailey, a process technician was selling Girl Scout cookies together with a secretary named Faye Mackey Taylor told Mackey that this was against the no-solicitation rule and that it could not be done any more In February 1988, an employee named Ricky Marshall wanted to take up a collection for his sister, who needed a liver transplant Marshall called Taylor, who expressed IT I limited testimony in the case solely to incidents involving the no- solicitation rule Both the General Counsel and Respondent objected to this at various tunes, based on their own pnonties, but I shall stand at this point on my original ruling " Considering the definitions of working area given by Taylor and Bruce Smith, and the configuration of the office area shown on the Com- pany's diagram It is apparent that no solicitation of any kind could take place in that area 12 Jones was killed in an accident sometime after he had testified in this proceeding on November 16, 1988 sympathy, but told Marshall that such a collection would be against the no-solicitation rule Alicia McRaney, a first-stage tire builder, was taking orders during August or September 1987 for Christmas decorations from a catalog She was told by her supervi- sor, Spike Rice, that this violated the no-solicitation rule Cathy Barnett, a quality engineering technician, wanted to collect for a March of Dimes walkathon Taylor told her not to do it because it was against the no-solicitation policy Philip Walls, a test wheel technician, started a football pool, and had solicited money from people around the plant on working time His supervisor, Jim Gearhardt, told him that it was against the rule In all of the mstances20 brought out in the record here, employees, or in some cases supervisors, were ad- monished informally that what they were doing or what they had done was in violation of the Company's no-so- licitation policy There were, so far as can be ascertained in the record, no formal meetings, no elaborate discus- sion of the rule, its interpretation by the Company, and its application to the employees' activities, and no final warnings that any further violation would result in dis- charge 21 In one instance about which we received a lot of testi- mony, an employee named Steve Jacobs brought some homemade peanut brittle into the plant and was selling it at his machine He sold the candy to several employees, and offered to sell some to Production Manager Terry Jarzen Jarzen declined, and advised Jacobs that he was violating the no-solicitation policy Jacobs said he did not sell any more candy after that, but he must have been either selling or delivenng peanut brittle, because a half-hour after Jarzen told Jacobs to stop, Jarzen re- turned to his own office and saw that his secretary had a box of peanut brittle on her desk Jarzen asked where she got it and she said she bought it from Steve Jacobs Jarzen then called Supervisor Rick Burns and told him to get out to Jacobs' machine to warn him and put a stop to the candy sale during worktime in a work area Burns went out and took the bag containing the peanut brittle into the office until Jacobs could retrieve it after his shift ended These instances show consistency with the no-solicita- tion rule, and also consistency with the Company's as- serted grading of violations of this rule as "minor" and punishing uutial violations by informal warnings The Jacobs case goes a little further, showing that even in an instance where a high level supervisor believed that his order to stop selling candy had been ignored, he consid- ered only a warning as appropriate discipline for a con- tmumg violation of the rule 22 20 So far as I can determine, all of the alleged violations brought out by the parties here occurred on workftme and in work areas 21 The closest to this ultimate warning Barbara Garner, as noted above Garner herself interpreted Taylor's warning as threatening her with discharge if she persisted in violating the rule 22 A similar situation occurred in the fall of 1988, when Kevin Beeks was selling homemade molasses to employees and supervisors alike, with some discretion, but no limitations, and no warnings, because "it was family" I note that Seeks did not solicit Chuck Taylor to buy any of this ambrosial essence COOPER TIRE & RUBBER CO 951 Turning, then, after consideration of these examples of the Company's implementation of its disciplinary policy on those who violated its no-solicitation rule, to consider the cases of the two employees whose alleged violations of the rule led to more severe punishments and to allega- tions in the complaint herein of discriminatory and un- lawful treatment, I would like to consider first the case of Mitzi Rye b Application of the rule to Mitzi Rye Mitzi Jane Rye was employed at Cooper Tire in Tupelo from February 10, 1986, to June 29, 1988 Her job was that of a first-stage tire builder since May 18, 1987 In September 1987, Rye and other employees were dissatisfied about working conditions and wanted to "or- ganize" In October, Rye started going to meetings of the Union, the United Rubber Workers, and she became an in-plant organizer for the Union On October 21, she signed an authorization card for the Union Before this, in September 1987 33 Rye testified that her foreman, Sherman "Sonny" Shelton called her in to his office several times alone, and asked him why she and other employees were upset She explained that employ- ees had tried to get changes in working conditions, but nothing seemed to change She told him that the only way the employees had to go was to organize He re- plied that they did not need a third party On October 23 Shelton came to Rye's machine and told her that she had a meeting with Department Manag- er Paul Smith and Chuck Taylor in Smith's office She went to the office and met with Smith and Taylor The latter did all the talking He told Rye that "they" had been "having meetings" and that her name had "kept coming up" and that he wanted to inform her what Coo- per's policy was He told her she could not solicit during worktime in work areas Taylor did tell her people had made statements that she was soliciting on company time, but she replied that "he had been lied to" He told her he was sorry for the misunderstanding, that she had a good work record and good quality, and urged her to keep up the good work Rye specifically denied that she had been warned that if she violated the no-solicitation she could lose her job Taylor stated that he explained the policy in detail, pomtmg out that solicitation was allowed only "in the cafeteria or the parking lot," and that, in fact, she could lose her job if she violated the rule Taylor's testimony in this last respect, was corroborated by Paul Smith I believe that Taylor probably was more accurate in his memory of the warning given to Rye at this October meeting Certainly the fact of such a warning is the os- tensible basis for Rye's later suspension and discharge But he may not have been so clear in his formulation of the warning to Rye as he was in his own mind as to what he was about I also note, even though this Octo- 23 Chuck Taylor testified that he was aware of unspecified union orga- nizers in Tupelo as early as 1985, but he said he knew of a lot of union talk going around by October 1987 See Taylor's account of his conversa- tion with employee Mark Stewart in connection with Rocky Pickenng's case ber meeting a warning is not alleged in the complaint as a violation of the Act and I do not find a violation here, that this method of conveying to an employee the nature of the rule and the consequences of its transgression is unique in the experience of others accused of violating the rule up to that time, and menacing in the sense that it involved summoning Rye away from her work to the de- partment manager's office, there to be faced with the plant director of industrial relations, in a setting which must have been far from comfortable, and very different from the informal reminders given others who may have sold Girl Scout cookies, or invited coworkers to political meetings In view of these circumstances, I find that the Compa- ny showed a different focus, method of operation, and a more intense concern over violations of the no-solicita- tion rule in cases of union solicitation than it did for other violations of the rule Thus, there seems to be dis- parate enforcement of the rule 24 After this meeting Mitzi Rye continued working with- out incident until June 27, 1988 25 Then Terry Jarzen, who had replaced Paul Smith as manager of the tire as- sembly department, testified that he had reports that Rye had violated the rule by soliciting on worktime and in work areas On June 27, Rye was ordered to go to Chuck Taylor's office to meet with Jarzen and Tony Miller, a personnel assistant Jarzen told her that employ- ees had complained to the Company that she was solicit- ing on company time and on company property She denied that she had solicited on company time She asked who were the employees who had complained about her and Jarzen replied that he could not tell her anything at that time She was suspended and sent home At the time of this interview and suspension the Com- pany had received one complaint, from an employee named Dean Johnson, that about a week before, Mitzi Rye had asked him about union meetings When he said he had not thought about it, she took a union card and placed it in his toolbox Later, Johnson testified, a super- visor named, Ricky Swords, said that he heard that Johnson had been given a card and asked him if Rye had given it to him When Johnson said she had, Swords asked if it was on company time Johnson responded, "Yes, I guess It was at my machine" Swords then said, "It would have been on company time" Swords then asked if Johnson would be willing to talk to Jarzen about it, and Johnson agreed 26 After this conversation Johnson signed a typewritten statement prepared by the Company in which he stated that he was "approached at my machine by Mitzi Rye She placed an authorization card in my tool box and left 24 Taylor testified that no warning went Into Rye's file as result of the October 23 meeting 25 Respondent introduced production figures showing that Rye's pro- duction even down after October 1987, and also testimony from her su- pervisor, Sonny Shelton, that he had warned her against leaving her as- signment work area on several occasions I view this as an attempt to provide post hoc justification for its later actions, since production fig- ures and leaving her work area did not enter in to the Company's reasons for Rye's discharge 26 Swords testified in this proceeding but was not asked about this con- versation 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it for me to decide if I wanted to sign it My machine is #14, tire assembly machine When she approached me I was on work time and in my normal work area She interfered with my production by talking to me on behalf of the umon " In his testimony in this case, Johnson stated that he was not on working time during this incident Apparent- ly the Company allows a practice by employees, as de- scribed by Johnson, of coming in 15 minutes or so early to prepare their tools so that when they do begin work- ing they will be able to begin production immediately Johnson pointed out that while he starts before his as- signed starting time, he stops work before quitting time in order to "let the next builder get his tools hot I get out of his way and he begins his machine checks and stuff like that" Johnson's work station, machine #14, was also Mitzi Rye's work station, and on the day in question, she ap- parently had stopped working, even though she was still on the clock, and Johnson, who was preparing his tools and taking measurements before his starting time, was not on the clock 27 So, as of June 27, when Jarzen called Rye into Tay- lor's office, he had only the company produced state- ment signed by Johnson on which to base his actions 28 Jarzen told Rye that he had allegations that she had vio- lated the no-solicitation policy during worktime and that he was going to suspend her until the Company could in- vestigate the allegations completely Neither in the meet- ing, nor in his postmeetmg memorandum to the file, did Jarzen mention that he asked Rye for her side of the story Taylor was made aware of the suspension, and he began an investigation of the allegations in a memoran- dum dated June 27 and addressed to several supervisors The tone of the investigation was set in the first para- graph of a statement and a list of questions which each supervisor was to ask employees under his supervision As you are probably aware, Mitzi Rye has been sus- pended for violaitmg Coopers "no-solicitation" policy Apparently, she has solicited for any or dis- tributed materials for an outside organization on 27 It seems to me, from reviewing Johnson's testimony about his con- versation with Swords, that he was trying to say that to Swords, but the latter overruled any hesitancy in Johnson's replies to his questions The typed statement, prepared by the Company elaborates even further by as- cribing intentions to Rye that Interfered with Johnson Johnson was not in favor of the Union He described hnnself as "offended" that Rye put a card in his tool box, and said that he picked It up, looked at it, then threw It away I also note that Rye apparently did not cause Johnson to stop his prework preparation He testified that he did It on his own 28 I note that in his testimony, Johnson said that the incident between Rye and himself occurred about a week before her supension The state- ment he signed described the incident as taking place between June 2 and 8 The statement was not signed until June 24 In Ins memo outlnung his presentation to the peer review panel (see discussion, below) Paul Smith, citing Jarzen's records, stated that "around June 24 of 1988 "—Johnson approached his foreman and told him that "—Rye had approached him about the Union" Johnson volunteered to and did sign a statement about the incident Jarzen apparently did not talk to Johnson about the state- ment, and there is no evidence that there was any discussion between Jarzen and Taylor or other officials I find It hard to believe that there were no discussions between Jarzen and other officials before the suspen- sion, but I have no evidence to support these feelings work time and in work areas Since she had previ- ously been warned concerning this, it seems clear that she willfully and intentionally violated this policy 29 Having pronounced Rye guilty as charged, the memo- randum went on to say In order to insure that she is being treated fairly, Cooper is making a full investigation into this before any final decision is made concerning her future employment As such I need to ask you a couple of questions The purposes of these questions is to find out the degree to which Mitzi violated our no-solicitation policy, not to find out if you agreed or disagreed with what she may have been solicit- ing you about After this introduction, the supervisors were to ask a series of questions, starting with an inquiry as to whether the individual employee was aware of the "no-solicita- tion" policy If he was not, then the supervisor was to point out that the policy was contained in the employee handbook, and the employee should read it and refresh his memory A short summary was included in the memorandum for the supervisors to use In addition, the following questions were to be asked Has Mitzi ever asked you, during work time and in a work area, to sign an authorization card or attend meetings for any orgamzation9 to contribute money on behalf of any organization? Are you aware of any cases where she has handed out printed materials during work time in the work area Are you aware of any other employees who have violated the "no solicitation/no distribution" policy and concluded If you ever have any questions concerning whether or not an activity is in violation of this policy, simply ask me or your employee relations representative The supervisors named in this memorandum moved about the plant and asked numbers of employees the pre- scribed questions The effect of this, and as legality will be discussed below in section III,D,6, of this decision, but for our purposes here I will just note that by June 29, 2 days after the memorandum was dated, Rye was called in from her suspension to a meeting at the plant She testified that when she got to the plant she met with Miller, Jarzen, and Taylor Taylor did all the talk- ing, beginning by telling Rye that they had investigated the allegations against her and asking her whether she had solicited on company time and property She admit- ted that she had solicited on the property, but never on company time Taylor then told her that they had five 29 It seems clear to me, on the basis of this paragraph, that the question of Rye's quilt or Innocence had already been decided, and that the "In- vestigation" to be conducted was merely to gather additional documenta- tion to be used in a show tnal in some form or other COOPER TIRE & RUBBER CO 953 employees statements stating that she had solicited on company time 30 He then told her that they felt that the Company did not trust her anymore and they were going to have to dismiss her for "gross insubordination" for so- liciting Rye asked if she could see the statements against her, but Taylor replied "no, not at this time "31 Testifying about this meeting, Taylor stated that the investigation revealed that Rye had committed numerous violations in work areas and on the worktime of herself and others He then said that at the June 29 meeting he went in "with what I think is an open mind, but decided m the meeting that she sat there and lied to me" Taylor felt that Rye was evasive because she would not admit that she had solicited on working time She was not being straightforward and honest with him 32 Rye failed to demonstrate true contrition or a firm purpose of am- mendment leading Taylor to conclude that she would continue to violate the policy and disrupt production,33 that he could come up with no positive solution, no way to solve the problem," "so the only alternative was to recommend discharge" Rye was notified of this deci- sion, and she left At this point the Company's decision had been made by Taylor As he testified, he had the authority to rec- ommend discharge to the plant manager, and ordinarily, as in this case, it was followed The Company has main- tained thoughout that Rye was discharged not only for repeated violations of the no-solicitation rule, but for gross msubordmation for violating a direct order not to violate the rule The General Counsel contends that, not only is the rule invalid, but that the discharge of Rye based on that rule was discriminatory As noted above, I agree with the contention that this rule is invalid I have also found that the enforcement of the rule against union solicitation, vis-a-vis other kinds of solicitation, was dis- parate and uneven Looking, then, at Rye's discharge, I find that such action by the Company, based on an invalid rule, violates Section 8(a)(1) and (3) of the Act, Harolds Club, 267 NLRB 1167 (1983), enfd 758 F 2d 1320 (9th Cir 1985), Stoddard-Quirk Mfg Co, 138 NLRB 615 (1962), Albert- sons, Inc , 289 NLRB 177 (1988) But even if this rule were valid insofar as it may have prohibited solicitation on worktime, any analysis of the facts on which Rye's discharge was based would show 3° I cannot tell whether Taylor was referring to written or oral state- ments Of the 'five written statements submitted in evidence here, one Johnson's, was dated June 24, two others, Kenny Dowdy's and Randy Spencer's, were dated June 28, and the final two, David McVay's and Terry Jones', were not dated until July 1 31 There is no substantial dispute betwen Rye's version of this meeting, and notes transcribed by Miller and Introduced in evidence here 32 Taylor was companng her testimony not only with the available written statements, but with "numerous other statements from people who wished not to have their names used" I cannot rely on such ephem- eral and unsubstantiated opinions to base findings here, and furthermore, Taylor's claim that he went into the June 29 meeting with an open mind is at variance with his June 27 memorandum to the supervisors This latter fact leaves me with serious doubt as to Taylor's objectivity and credibility in regard to any critical areas in this case 33 There is no evidence in this case that Rye's activities ever disrupted production 34 There is no evidence that Taylor made any proposal or tried in any way to come up with any kind of solution, including following the steps of the Company's stated progressive discipline procedure that the Company jumped to conclusions which were unwarranted by these facts, thereby supporting the infer- ence that the discharge was a pretext to retaliate against Rye for her union activity, and to warn others lest they suffer the same fate Taking the situation from the begmmng, it is clear from the undemed testimony of Dean Johnson that the question of whether Mitzi gave him a card on worktime is somewhat equivocal He was not on worktime That is clear But she was, in his words, finished working and standing aside to allow him to carry out his preparation for beginning work Johnson's testimony also reveals that the Company was wrong in its conclusion that he had voluntarily approached company supervisors to complain about Rye's solicitations In fact Supervisor Swords ap- proached him, and by putting words m his mouth, turned what might have been an innocuous exchange between Johnson and Rye into a violation of the rule The Com- pany then jumped again in its preparation of the written statement for Johnson to sign, putting more words mto Rye's mouth then Johnson had reported to Swords or, under oath, to us at this hearing At this point, Jarzen took over He had only Johnson's statement" when he went into the June 27 meeting with Rye, and so far as the record reveals, he did no independent investigation He never contacted Johnson to find out the truth, falsity, or exaggeration contained in Johnson's statement Taylor took the next jump, when he issued his memo- randum of June 27, announcing Rye's quilt and soliciting his supervisors to talk to all "their people" and tell them about Rye's situation, as well as ask for more mforma- tion In spite of Taylor's protestations of open-mmded- ness it is clear that he was convmced of Rye's quilt, still—as of June 27—based only on the Johnson state- ment By June 29, Taylor had two other statements, from Dowdy and Spencer, but there is no evidence that at that time Taylor conducted even the must superficial investigation to determine the truth or falsity or exag- geration of these statements, or Johnson's statement Rye's fate was sealed, as this brief recital shows, as soon as Swords got Johnson to say that Rye had placed the card in his toolbox From these facts I think the in- ference can be made that the Company had determined to make an example out of Rye I find, therefore, that Rye had not violated the rule, that the Company did not investigate the alleged violation of the rule before sus- pending and then discharging her, that if the Company had investigated Johnson's statement they would have found it to be exaggerated and inaccurate, m fact not produced by Johnson but by some company functionary, and finally, that the punishment for alleged insubordina- tion was unwarranted in view of Rye's credible testimo- ny that she had never been warned on October 23, 1987, that she would be discharged if she violated the rule again 36 In determining to make an example out of Rye, I would find, if it were necessary to this decision, that the Company violated Section 8(a)(1) and (3) of the Act 36 I disregard any intimations of vague, unsubstantiated complaints from unidentified sources 36 Even if she had been so warned, there is no evidence here that anyone ever gave her a direct order not to violate the rule 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In arriving at my findings and conclusions concerning the discharge of Mitzi Rye, I have not considered the composition, the convening, the functioning, or the deci- sion of the peer review panel Briefly, the Company has a procedure whereby, after discipline has been adminis- tered, an aggrieved employee may request a review before a panel, or committee, composed of two members of management and three rank-and-file employees (peers) In this' case Rye requested and was granted such a review A panel was appointed, they held a hearing, and subsequently voted unanimously to affirm the Com- pany's decision to discharge Rye I have not considered this aspect of the case in my de- cision because I consider the whole peer review process as extraneous to the company decisions which are the subject matters of the complaint here My decision is based on the complaint and on the evidence adduced by the parties dealing with the allegations in the complaint If I fmd, as I have here, that the Company's actions are violative of provisions of the Act, as alleged in the com- plaint, the actions of the peer review panel can have no effect on that, although if the panel had reversed the company action and ordered Rye reinstated, or whatever their order might be, that would go to the question of the remedy recommended here The panel, which, after all, is a creature of the Company and has no legal or contractual basis or function, did not reverse the Compa- ny's decision, so the panel's actions are immaterial to the issues in this case c Application of the rule to Rocky Pickering Rocky F Pickering had been employed by Pennsylva- ma Tire, the unionized company which had occupied the buildings which were purchased by Cooper, and re- opened for the manufacture of tires in December 1984 After leaving Pennsylvania in 1978, Pickering worked as a self-employed carpenter, building houses Pickering is a member of a masonic lodge in Verona, Mississippi, just south of Tupelo There he became friendly with Mark Stewart, a second-stage tire builder at Cooper since September or October 1985 In the course of their conversations Stewart showed Pickering some paychecks he received from Cooper Tire Stewart said the money was good and he enjoyed working at Cooper Pickering was impressed, and asked Stewart if he would do what he could to get Pickering hired at the Company Stewart agreed, and he then spoke to Chuck Taylor, as well as Candy Taylor37 and Jesse Meeks, in the personnel department Pickering then filed an appli- cation and was hired in July 1987 His job was servicing tire builders He drove a vehicle called a "tugger," a standup electric machine used to haul materials to tire builders as needed In the course of his job he was pnn- cipally assigned to the tire assembly departments, but he had to leave those departments from time to time in order to get materials After he began work at Cooper, Pickering became in- volved with the Union He signed an authorization card on October 21, 1987, talked to people about the Union in 37 The record does not reveal Candy Taylor's relationship, if any, to Chuck Taylor the breakroom or the parking lot, and he was a member of the in-plant organizing committee Indeed, after he had been employed by the Company for about 3 weeks, Pickering refused an offer by his supervisor, Jimmy Greene, to become a tire builder Pickering told Greene that he did not want to do that at the time because "we're not union yet" Stewart found out from some other employees that Pickering was supporting the Union He was, in his own words, "shocked, surprised and angry" He felt that Cooper was a good company, that they did not need a union, and that Pickering had abused his, Stewart's, good offices to get into the Company and then push for the Union More importantly, perhaps, Stewart was also con- cerned that his recommendation of Pickering would pre- vent his moving up in the Company In early or mid-November 1987, Stewart stopped Pick- ering to talk 38 Pickering had finished work and was on his way out of the plant Stewart was still at his work station They exchanged some information about the Ma- sonic lodge and then Stewart asked what it was he had heard about Pickenng pushing for the Union Pickering replied that he was, and began giving Stewart the rea- sons why he thought it was "essential that Cooper Tire be represented by the Union" They talked about insur- ance, job security, and other topics Both Pickering and Stewart agreed that they talked for 45 minutes or so, and that their conversation was observed by Second-Stage Supervisor Mike Taylor 39 On one Important issue there is a difference between the testimony of the two participants in the meeting Pickering said that dunng the meeting he asked Stewart if he would get in trouble for talking with him for so long Stewart replied that he was not going to get into trouble because "they know what I'm doing" Stewart denied that Pickering said anything to him about getting in trouble for talking to him for so long, and he denied that anyone from the Company had told him that he should go and talk to Pickering To clarify this credibility question it is necessary to set out two sequels to the conversation between Pickering and Stewart First, Stewart testified that after he had talked to Pickering he told his supervisor, Mike Taylor, his foreman, Lawrence Dangerfield, and then went to the personnel office and told Chuck Taylor Stewart had made a list of the subjects he had discussed with Picker- ing and went over the list with these three individuals In going over the list with Chuck Taylor, Stewart asked him what he could do for the Company without break- ing any rules or getting in trouble Taylor replied that he could not tell him what he could do, that he could not ask him to do anything for the Company, but Stewart could talk to Pickering, express his opinions, and tell Pickering that he was going to "get in trouble eventually 36 Stewart testified about this, but placed the date as sometime in 1986 later changing this to 1987 His memory on dates and time was poor On most details of the meeting the testimony of Pickering and Stewart is in agreement 39 There is no indication in the record that this Taylor has any connec- tion to Chuck Taylor COOPER TIRE & RUBBER CO 955 if he keeps soliciting the union on company time "40 Taylor went on to explain the Company's position on each of the points which Pickering had brought up In his testimony on the meeting with Stewart, Taylor stated that Stewart came to his office to talk about "sev- eral things," that he had heard from "numerous people" that things were being said as to what employees "would do or wouldn't do or didn't do" Stewart expressed his antiunion sentiments but Taylor, as in Stewart's report of this meeting, told him the Company could not tell him he could do this or that, but he could express his opin- ions and his ideas, and make sure that his friend Picker- ing understood the no-solicitation policy "and that he did not do anything to violate that in his work to try to get a union " Taylor specifically denied that he was aware that Stewart had talked to Pickering for 45 minutes on company time before he came to Taylor's office, or that he had talked to Pickering for any length of time while on company tune Second, I note Pickenng's testimony during a conver- sation with Taylor on February 23, 1988, between the time of his suspension early in the morning of February 21, and a formal meeting with Taylor and other compa- ny officials on February 24 Dunng this talk Pickering explained what he had done, and Taylor asked him "Well, didn't Mark Stewart talk to you?"—"We sent him to talk to you about your union activities" When Picker- ing admitted that he had talked with Stewart for "45 minutes one night in the aisle," Taylor asked "didn't he warn you that you were going to get in trouble about your union activities?" Looking at this situation, I find that Stewart was gen- erally a credible witness, although I do not credit his denial that someone from management, probably Chuck Taylor, requested, or at least sanctioned, the conversa- tion with Pickering in November The Company certainly must have been aware of Pickermg's umon activities by that time Pickering made no secret of his sympathies He had spoken to Green about a uruon in the plant He was on the in-plant orga- nizing committee" and had been tallung union in the breakroom and the parking lot Stewart made it clear that he was embarrassed about Pickermg's activity, viewing this conduct as a betrayal of the effort Stewart had made to get him a job If Stewart was concerned about his job because of his connection with Pickering, he would certainly be concerned about conducting a 45-minute conversation with this union sup- porter, while he, himself, was on the clock, and under the observation of his supervisor 43 I just cannot believe that this employee, Stewart, a loyal and ambitious indi- vidual, would have put himself in the position of carry- mg on this conversation with Pickering unless it was, if not requested, at least approved by the Company I, 45 In November, when this conversation took place, there is no indica- tion in this record that Pickering had talked to anyone about the Union on company time except for the incident with Stewart and the pnor short statement to Supervisor Jimmy Green 41 Including Rocky Pickering 42 Although there is no evidence that the Union had sent a list or orga- nizing committee members to the Company, as is frequently done 43 A supervisor, moreover, who made no effort to halt the conversa- tion, or suggest that Stewart got hack to work therefore, credit Pickenng's testimony that Stewart said to him during the conversation that he was not worried because "they" knew about it Chuck Taylor's testimony on this subject is rather fragmentary Early in the hearing, while being examined by the General Counsel under Rule 611(c), Taylor re- membered a conversation with Stewart in October 1987 Taylor did not recall that Stewart told him that he had contacted Pickering, but Taylor did say that Stewart asked him what he could do about the fact that Picker- ing was encouraging umon membership Stewart did not say that he had talked to Pickering, but asked what he should do Taylor never did say what he told Stewart in this conversation, but from the date of the conversation and the difference between Taylor's descnption of this conversation, and the conversation which both Stewart and Taylor agreed took place after Stewart's talk with Pickering, it is fair to say that there were two conversa- tions between Taylor and Stewart The first sometime in October, and the second, after the 45-minute conversa- tion between Stewart and Pickering Neither Stewart nor Pickering indicated that during their November conver- sation Stewart warned Pickering to watch out for his union activities Stewart testified that in his meeting with Chuck Taylor after that November conversation, Taylor told him he should warn Pickering about violating com- pany rules Stewart further testified that after that he had a second, short, meeting with Pickering in which he did warn him about soliciting I think the inference is warranted, and I find, that there was a first meeting in October between Taylor and Stewart during which Taylor authorized or instructed Stewart to talk to Pickering, and to find out what his problems were Following this meeting, Stewart saw Taylor again, and went over Pickenng's gnevances 44 at which time Taylor did tell Stewart to warn Pickering against violating the rule Stewart testified that, indeed, he did warn Pickering after this second meeting with Taylor On February 21 Pickering was suspended for passing out literature on working time and in a working area There is little dispute about the facts of this incident Pickering was working the midnight shift, and about 11 30 p m on the night of February 20 he stopped his tugger in an aisle to talk to another tugger operator, Jerry Riddle, in order to tell him to get some materials to supply the tire builders During this conversation Pickering asked Riddle if he had seen a newspaper clip- ping from a Texarkana, Arkansas newspaper about em- ployees of Cooper there receiving a cost-of-living pay in- crease " Pickering reached into his pocket and pulled out a copy of the clipping Just at that time Supervisor Jimmy Greene came up Pickering showed the clipping to Greene and asked if he had seen it Greene replied 44 Tlus is consistent with Stewart's testimony I find Taylor's denial that Stewart told him that he had met with Pickering to be disingenuous and untrue, further errodmg Taylor's credibility 45 This clipping had been reproduced as part of the Union's organizing effort at Tupelo There were, apparently, many copies around the plant, in the restrooms, the breakroom, and other places 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he had, and walked on Pickering then gave the clipping to Riddle, and went back to work Greene reported the incident to Foreman Spike Rice Rice in turn reported to Head Shift Foreman Jim Fitzer- ald At 2 55 a m (by this time it was February 21), Pick- ering was called to Fitzgerald's office He was asked if he had handed the clipping to Riddle on company time He said that he had, and Fitzgerald said he had no alter- native then to send him home, and when, or if, he came back, it would have to be through Chuck Taylor's office Greene was assigned to escort Pickering out of the building On the way, according to Pickering, he asked Greene how long they had "been looking to get me for something" Greene replied "about three months" Then Greene asked Pickering why he thought Cooper needed a union Pickering replied that instances like the present one and other things showed the need for a union On Monday morning Pickering called Taylor Later Taylor called him back and said they had decided to leave the matter "up to the lawyers" I have already de- scribed the meetmg between Pickering and Taylor on Tuesday, February 23 Then on February 24 there was a formal meeting At this meeting the Company was repre- sented by Plant Manager Dannemiller, Jarzen, Candy Taylor, and Chuck Taylor There was some conversation between members of this group and Pickering about the Texarkana cost-of-living adjustment, profit sharing at Tupelo, complaints by individual employees, a disavowal of employee contractual status required to be signed by employees to avoid "at-well" [sic] employment-type liti- gation and other matters Chuck Taylor then told Picker- ing he could return to work that Saturday on the 3 to 11 a m shift, and that he could count the time off as a sus- pension Since I have found the Company's no-solicitation rule to be invalid 46 fmd that its enforcement against Picker- ing in this instance is unlawful Accordingly, I find that the Company has violated Section 8(a)(1) and (3) by sus- pending Pickering for 3 days in February 1988 Albert- sons, Inc , supra But, as in Rye's situation, if the rule may be consid- ered valid as to solicitations on working time, I, never- theless, would find Pickering's suspension to be discrimi- natory and violative of Section 8(a)(1) and (3) As I have found, the Company knew or should have known of Pickermg's union activity because of his conversation with his supervisor, Jimmy Greene, in the late summer of 1987, or at the latest, when Mark Stewart reported on Pickermg's activities to Chuck Taylor in October 1987 I have found, further, that Taylor, or someone in manage- ment, sent Stewart to find out what Pickermg's griev- ances were Stewart did so find out in the 45-minute con- versation with Pickering in November Stewart then re- ported these findmgs back to Taylor, who, in turn, told Stewart to warn Pickering against violations of the no- solicitation rule Stewart did that too Then, in February 1988, Pickering was caught distrib- uting literature, the Texarkana newspaper clipping, on company time in a work area Instead of a warning, or an admonition to stop, as all other examples cited in this 46 See sec III,B, above case show, Pickering was called into Jim Fitzgerald's office and summarily sent home 47 Not only was he sent home, but he was escorted out of the plant by Supervi- sor Greene, during the course of which Greene admitted that they, the Company, had been trying to "get" Pick- ering for something for 3 months, back to the time of the Pickering—Stewart conversation in Stewart's work area All of this leads me, inescapably, to the conclusion first that the Company was lying in wait for Pickermg to break a rule, based on his advocacy of the Union, and second that this suspension, in view of all the other evi- dence as to discipline for violations of the no-solicitation rule up to that time, show that discipline was applied m a discriminatory manner In the absence of any reason offered by the Company why the disciplme was so ap- plied, I find that the reason was Pickenng's union activi- ty These are the reasons which would impel a finding of violations of Section 8(a)(1) and (3) in Pickenng's sus- pension D Additional Allegations of Unfair Labor Practices" 1 Jimmy Greene The General Counsel alleges that Greene's admission to Pickering while escorting him out of the plant on the mormng of February 21, 1988, that the Company was waiting to "get" Pickering is an independent violation of Section 8(a)(1) I agree I credit Pickering, who I found to be a candid and credible witness, and I do not credit Greene's denial that he made the statement, and I find that Greene's statement violated Section 8(a)(1) of the Act CA TV, 279 NLRB 1081 (1986) 2 Candy Taylor Candy Taylor was described in the complaint as office and traffic manager, and by several witnesses in this case as assistant personnel manager Whatever her title or po- sition, the independent evidence shows, and I find that she was a supervisor and agent of the Respondent during all times material here Gary Jones testified that he had a conversation with Candy Taylor during the last part of 1987, or the first part of 1988 At that time Taylor came up to Jones' ma- chine while he was working and said that rumors were going around about the Union, and that his name kept coining up Jones expressed surprise, and Taylor said yes, and that she wanted to talk to him and tell him that he had better know what he could do and could not do, and to be careful because—could look bad on his record Taylor did not testify in this proceedmg I find that 47 I can understand Fitzgerald s problem in getting any advice as to how to proceed at 3 a m Sunday but his actions were ratified by the Company, and the suspension was allowed to stand 48 All of the allegations in this complaint arise out of and are connect- ed with an organizing campaign being conducted from about October 1987 to December 1, 1988 The parties stipulated that a petition was filed by the Union on October 13, 1988, and an election was held by Region 26 on November 29 and 30, and December 1, 1988 Respondent's argu- ment that I should dismiss these Independent 8(a)(1) allegations is without ment, Redd I Inc , 290 NLRB 115 (1988), Dam Electrical Constructors, 291 NLRB 115 (1988) COOPER TIRE & RUBBER CO 957 Jones' statements were candid and truthful and I credit his testimony However, he was an avowed union sup- porter and a member of the in-plant organizing commit- tee Therefore, I feel that Taylor's identification of him as being a union supporter would come within conduct permitted Respondent under Rossmore House, 269 NLRB 1176 (1984) Her implied threat of unspecified retaliation if he continue his union activities, however, went beyond Rossmore, and constitutes a violation of Section 8(a)(1) of the Act, Purolator Products, 270 NLRB 694 (1984), CA TV, supra 3 Michael Hawkins Jones also testified that a week or so before his con- versation with Candy Taylor he was working and he was approached by a supervisor from another area named Mike Hawkins Hawkins asked Jones how the umon meetings were gomg Jones said that he did not know Hawkins then asked Jones for "some umon cards and stuff" Jones replied that he could not talk to Haw- kins about the union or "anything" because it was against the law while he was working Hawkins did not testify I find that m this situation these questions to an open and active adherent of the Union are not violative of the Act 42 Rossmore House, supra 4 Chuck Taylor (a) February 23, 1988 I do not believe that the con- versation between Taylor and Rocky Pickering on Feb- ruary 23 created the impresssion of surveillance of Pick- enng's or others' union activities, nor was there any so- licitation of employees to solicit other employees to abandon the umon 55 So far as I can determine from this record Taylor never solicited Pickering as a missionary from the Company to other employees I do not find any threats by Taylor at this meeting (b) February 24, 1988 At this meeting there was con- siderable discussion about cost of living, other benefits, and at-will employment clauses However, I cannot find that Taylor, or any of the other supervisors who attend- ed this meeting with Pickering actually solicited griev- ances nor is there any indication that the Company of- fered to discuss or to remedy these grievances 5 Lawrence Dangerfield, Sonny Shelton, and Spike Rice The parties stipulated that "between the time of Ms Rye's suspension and her discharge," during the course 49 Rossmore House, supra 5° If that ever occurred at the Company, it happened m a meeting be- tween Taylor and Mark Stewart which I have Inferred and found took place sometime in October That incident is not alleged in the complaint as a violation of law of the Company's investigation that—Dangerfield, Rice and Shelton read to a number of employees five para- graphs that are contained in General Counsel's Exhibit 8 51 These inquiries, made to more than 150 employees in- dividually by these supervisors were not accompanied by any assurances that they need not answer, and no retalia- tion would be taken against them I find in these circum- stances that these interrogations of employees violated Section 8(a)(1) of the Act Johnnie's Poultry Go, 146 NLRB 770 (1964), Bill Scott Oldsmobile, 282 NLRB 1073 (1987) THE REMEDY Having found that the Respondent violated Section 8(a)(1) and (3) of the Act, I shall recormnend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act I shall recommend that Respondent pay to Rocky Pickering an amount equal to the wages he lost because of the discrimination against him together with interest thereon, and any reference to his suspension shall be ex- punged from Respondent's files I shall also order that Mitzi Rye be immediately offered reinstatement to her former position, and if that job no longer exists, to a sub- stantially equivalent position, together with all rights and seniority, and that she be made whole for wages lost as a result of the discrimination against her with interest thereon to be computed in the manner described F W Woolworth Go, 90 NLRB 289 (1950), New Hori- zons for the Retarded, 283 NLRB 1173 (1987) 52 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) and (3) of the Act by suspending Rocky Pickering 4 Respondent violated Section 8(a)(1) and (3) of the Act by discharging Mitzi Rye 5 Respondent violated Section 8(a)(1) of the Act by maintaining an unlawful no-solicitation rule, by threaten- ing its employees, giving them the impression that their legitimate activities were under surviellance, and by in- terrogating them without proper safeguards 6 The unfair labor practices set forth above are unfair labor practices within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ] Si See sec III,(C),(2),(b), above, for the five paragraphs cited here 52 See generally Isis Plumbing Co. 138 NLRB 716 (1962)