Reeves Rubber, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reeves Rubber, Inc. and Communications Workers of America, Local 11511, AFL-CIO. Cases 21- CA-17635 and 21-CA-17947 DECISION AND ORDER On June 30, 1980, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order as modified herein. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Reeves Rubber, Inc., San Clemente, California, its 'In the absence of exceptions thereto, Chairman Fanning and Member Jenkins adopt, pro formna, the Administrative Law Judge's discussion of the no-solicitation rule. See their dissent in Essex International Inc., 211 NLRB 749 (1974). The Administrative Law Judge inadvertently stated that Respondent's personnel administrator, Joan Dobbie, received no answer to two of the telephone calls she made in an attempt to recall Thomas Jones. The record shows that Dobbie did receive answers but Jones was unknown at both numbers. 2 Respondent excepted to the portion of the Decision in which the Ad- ministrative Law Judge found that Respondent's attempt to recall Thomas Jones was not a valid recall effort and, therefore, not sufficient to toll the backpay liability period. We agree with the Administrative Law Judge's conclusion that the recall effort did not toll Respondent's liability. The one-time telephone calls, none of which reached Jones, were the total extent of Respondent's recall effort, and did not constitute bona fide offers. Other sources were available which, if utilized could have possibly provided information as to how to contact Jones. See, e.g., Marlene Industries Corporation, et al. 234 NLRB 285 (1978), where the Board held that one letter, which an employer knew did not reach the employee, did not constitute a bona fide offer of reinstatement. In that case, the Board noted that the employer could have consulted the tele- phone directory, the union, the employee's new employer, and other em- ployees. See also Gladwin Industries. Inc., 183 NLRB 280 (1970); Monroe Feed Store, 122 NLRB 1479 (1959). Likewise, in the instant case, Re- spondent had the name of one of its employees whom Jones had listed as a reference on his application. We also note that Respondent did not send a letter to Jones or even contact his Union in an effort to notify him. We do not hold that a bona fide offer necessitated Respondent's actual com- munication with Jones, see Jay Company, 103 NLRB 1645, 1647 (1953), enfd. 227 F.2d 416 (9th Cir. 1954), but rather that in order to toll its backpay liability Respondent must make a a good-faith recall effort calcu- lated to remedy the wrong which it initially committed by unlawfully laying off Jones. 3 The Administrative Law Judge included a broad cease-and-desist provision in his recommended Order. In Hickmott Foods. Inc., 242 NLRB 1357 (1979), the Board held that such an order is warranted only when a respondent is shown to have a proclivity to violate the Act, or has en- gaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights. We find this case does not fall into the above category. We therefore substi- tute a narrow cease-and-desist provision for the broad one in the recom- mended Order and conform the notice accordingly. 252 NLRB No. 26 officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph l(k): "(k) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT interrogate our employees concerning their union preference. WE WILL NOT threaten the job interest or tenure of our employees because they wear union badges, buttons, or insignia. We will not inform our employees that they have lost pay increases and other benefits which would have accrued to them if they had not selected the Union as their collective-bar- gaining representative. WE WILL NOT disparage the Union as an ef- fective collective-bargaining representative of our employees. WE WILL NOT inform our employees that they would be better off to forget the Union and vote it out. WE WILL NOT request employees to wear badges, insignia, and/or clothing bearing slo- gans against the Union. WE WILL NOT, through supervisory person- nel, engage in distribution of badges or insignia opposing the Union. WE WILL NOT, through supervisory person- nel, engage in the stenciling of clothing bear- ing the slogans opposing the Union or favor- ing ouster of the Union. WE WILL NOT give disparate or discrimina- tory application to our rule prohibiting solici- tation or distribution of literature in the plant on worktime by prohibiting said activities by employees favoring the Union while permit- ting solicitation and distribution of materials 134 REEVES RUBBER, INC. opposing the Union during worktime in the plant. WE WILL NOT place employees in a position of having to declare their union preference. WE WILL NOT issue a warning notice to Ta- filele Mauga, or any other employee, threaten- ing termination for engaging in solicitation in the work area of the plant on worktime, while permitting similar activities on the part of em- ployees opposed to the Union in the working area during the worktime. WE WII.L NOT effectuate the layoff of Thomas Jones, or any other employee, because of their support of, or activities on behalf of, the Union, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their right to join, assist, or support Communications Workers of Amer- ica, Local 11511, AFL-CIO, or any other labor organization; to engage in collective bar- gaining through representatives of their own choosing; to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection; or to refrain from such activities. WE WILL offer Thomas Jones immediate and full reinstatement to his former or substan- tially equivalent position of employment, with- out prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay which he may have suffered by reason of the discriminatory layoff, with interest. WE WILL rescind the disciplinary warning issued to Tafilele Mauga on February 8, 1979, and shall expunge from personnel and other records all references to said notice. Written notification of this action will be given to Tafi- lele Mauga. REEVES RUBBER, INC. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at San Diego, California, on January 28-30, 1980, pursuant to an order consolidating cases, consolidated amended complaint, and amended notice of hearing issued on August 24, 1979,' by the Re- gional Director of the National Labor Relations Board for Region 21. The consolidated complaint, as amended, is based on charges filed by Communications Workers of America, Local 11511, AFL-CIO, hereinafter called the Unless otherwise specified, all dates herein refer to the calendar year 1979. Union. The amended consolidated complaint alleges vio- lations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter called the Act. 2 The parties were provided full opportunity to ex- amine and cross-examine witnesses, introduce relevant evidence, present oral argument, and to file briefs. Coun- sel timely filed briefs. Upon the basis of the entire record, my observation of the witnesses, and the briefs of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all times material herein, Respondent Reeves Rubber, Inc., has heen a corporation organized under the laws of the State of California and operates a facility lo- cated in San Clemente, California. In the normal course of its business operations, Re- spondent annually sells and ships goods and products valued in excess of $50,000 directly from customers lo- cated outside the State of California. It is admitted, and I find, upon the basis of the forego- ing facts, that at all times material herein, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that at all times ma- terial herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues in this proceeding are: 1. Whether Respondent violated Section 8(a)(5) and (1) of the Act by: (a) Prohibiting employees from engaging in activities on behalf of the Union either in working or nonworking areas of the plant while concurrently permitting and/or assisting employees to engage in activities against the Union during working time in working areas. (b) Threatening employees with discharge or other re- prisals for engaging in union or other protected concert- ed activities. (c) Placing employees in the position of having to de- clare their union preference to representatives of Re- spondent. (d) Requiring employees to wear antiunion insignia on their clothing. (e) Encouraging employees to decertify the Union as the collective-bargaining representative. 2 Testimony pertaining to a strike which commenced on April 9, 1980, was offered but further litigation of the issue was precluded on represen- tations by counsel for the General Counsel that, in substance, the evi- dence was for the purpose of developing a complete record and was an- ticipatory in nature in that the employees had not sought to end their strike and return to work. The complaint does not allege an unfair labor practice strike 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Making statements to employees which indicated the futility of the collective-bargaining process. (g) Informing employees that wage increases and other benefits had been withheld because the employees had selected the Union as the collective-bargaining repre- sentative. 2. Whether Respondent violated Section 8(a)(3), (5), and (1) of the Act by: (a) Issuing an official disciplinary warning to employee Tafilele Mauga, because he had engaged in union or other protected concerted activities, and thereafter, fail- ing and refusing to rescind said warning. (b) Laying off Thomas Jones because he had engaged in union or other protected concerted activities, and thereafter failing and refusing to recall Jones. B. Pertinent Facts 1. Background facts Respondent is involved in the manufacturing of rubber products, including gasket materials which are used as sealing components for piping systems. Respondent oper- ates three plants where approximately 350 employees comprise the complement. At its San Clemente and Laguna Nigel locations in the State of California, ap- proximately 225 employees are employed, and the bal- ance of the complement is employed at a plant in Ala- bama. The production and maintenance employees at the Alabama plant are represented by the United Rubber Cork and Linoleum Workers of America. A collective- bargaining agreement covering these employees has been in effect at all relevant times. At relevant times William Krames has been vice presi- dent of Respondent's manufacturing operations with au- thority over the manufacturing operations of the San Clemente plant. Joan Dobbie has served at pertinent times as personnel administrator with responsibilities in the area of recruitment, layoff, recall, and discharge of personnel. Harold Gangloff has been Respondent's tool design engineer, and Ronald Doloquist has served as production engineer. Like Dobbie, they report directy to Krames. The supervisory status of these individuals is not in issue. Dolquist has supervisory responsibility over the mold operation, the two pressrooms and the related support departments where approximately 65 unit em- ployees are employed. Kenneth Jerue, Jim Deleo, and Rocky Aukoso are the line supervisors who directed the work of these employees. Four mold department em- ployees reported directly to Gangloff. Respondent operates three 8-hour shifts. The first shift commences at 8 a.m., the second shift starts at 4 p.m., and the third shift reports at 12 midnight. During each shift, the employees are accorded a lunch time and two break periods. Jerue supervises the operations of the em- ployees pertinent to this proceeding who were employed on the first shift, Deleo is a supervisor on the second shift, and Aukoso directs employees on the third shift.3 Dolquist's duty hours coincide essentially with the hours of the first shift, and he is seldom in the plant during the 3 The credited testimony of William Krames supports the foregoing findings, which are not in dispute. other shifts, although he could be contacted by tele- phone if the need arose. On August 4, 1978, in a secret-ballot election conduct- ed under the supervision of the Regional Director for Region 21, a majority of the approximately 150 produc- tion and maintanance employees at the San Clemente plant selected the Union as their representative for the purpose of collective bargaining, and on August 15, 1978, the Regional Director certified the Union as the exclusive collective-bargaining representative in the fol- lowing unit: All production and maintenance employees em- ployed by Respondent at its facility located in San Clemente, California; excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. Commencing in October 1978 and continuing through November 1979, representatives of Respondent and the Union engaged in numerous formal collective-bargaining sessions. 4 In the meantime, prior to the August 4 election, Krames and legal counsel for the Company had met with the managers and supervisors employed at the San Cle- mente plant. The initial meeting lasted approximately 4 hours, and dealt with conduct permissible on the part of supervision vis-a-vis employees during the course of an organizing campaign. Impermissible conduct was also de- lineated, and the supervisors were specifically instructed not to encourage or participate in any organizing effort, not to threaten employees with disciplinary action be- cause of their organizing activities, and not to force em- ployees to show their preferance with respect to a choice of a bargaining representative. During the course of the meeting, the Company's existing no-solicitation rule was discussed.5 The rule provides: 1. No employee is allowed to solicit another em- ployee or distribute literature to other employees or sell merchandise to other employees during either their work time or the work time of those employ- ees to whom the selling distributing or soliciting is directed. 2. Distributing of literature is prohibited at all times in work areas of the plant. Employees are instructed not to place literature or handbills in or on vehicles parked on Company premises. 3. Solicitations for any purpose by non-employees on Company property is strictly prohibited at all times. 4. Occasionally small groups of employees may wish to contribute to a joint gift for a co-worker such as for retirement, going-away, baby or bridal The pleadings and a stipulation of the parties establishes the forego- ing. I Prior to its promulgation, the details of the rule had been discussed with supervision, and in January 1978 a bulletin defining Respondent's policy controlling solicitations and distributions of literature on plant premises was posted. Later, in June 1978, another bulletin was published reiterating that policy. 136 REEVES RUBBER, INC. shower. This practice will be allowed only as long as it remains purely voluntary, occurs during breaks or lunch periods and happens only occasionally. Additionally, parties and luncheons for retirement, going-away, bridal or baby showers should be scheduled within normal breaks and lunch periods allotted. Parties which will extend beyond such a time limit should be scheduled after working hours. In late July, Krames met again with the managers and supervisors of the San Clemente operation, and the prog- ress of the union organizing effort was evaluated and dis- cussed. Respondent's counsel was present. The managers and supervisors were instructed that they should engage in no conduct which would jeopardize the Company's position in the election and cause the election to be set aside. The rules of proper conduct on the part of the su- pervision toward employees during the organizing cam- paign and the preelection period were reiterated and reenforced. On or about August 18, following the election in which the Union prevailed, Krames met again with the managers and supervisors of the plant, and, in essence, informed them that the Company intended to bargain in good faith with the Union and instructed them not to engage in conduct which would reflect adversely upon the Company. Krames admonished that he desired no threats, interrogation, or reprisals against employees who had openly declared their union preference and wanted no supervisory interference with the wearing of insignia or buttons partial to the Union. Krames also instructed the supervisors and managers not to engage in any an- tiunion campaign or to discourage the collective-bargain- ing process or project the inevitability of strikes. Dol- quist, Gangloff, Jerue, and Deleo attended this meeting.6 2. The alleged proscribed conduct a. Deleo speaks with employees In January, following a work-related conversation with his leadman, Gene McKee, Deleo asked McKee what he thought about the Union. McKee responded that he had not made up his mind and was otherwise noncommital. Nothing more was said on that occasion. Later, during the month of February, while McKee and Deleo were conversing together, the topic of con- tract negotiations was broached, and Deleo stated that in the negotiations the Union was conforming to the Com- pany's handbook and was not doing the employees "any good." Deleo asserted that the employees might as well forget about the Union and would be "a lot better off" if on "July 5" they voted the Union out. In March and April Deleo engaged James Aderholt and Daniel Acosta in conversation concerning the Union. In general, Deleo conveyed his opposition to the Union and spoke negatively concerning the need of the employees for union representation. Neither Aderholt nor Acosta declared their preference to Deleo. On one specific occasion in mid-March, Deleo told Aderholt that 6 The foregoing is based on the credited testimony of William Krames, which is supported by credited testimony of Ronald Dolquist. Kenneth Jerue, Earl Gangloff, and Deleo the employees would not get the pay raise in October, which would normally have been granted, because they had selected the Union. Deleo went on to state that the supervisors had received their raise as well as a credit union benefit which had not been given the employees because they had selected the Union. In February, approximately 2 weeks after having been initially employed by Respondent, Thomas Jones began wearing union buttons declaring his support for the Union. On ebruary 20 Deleo called Jones into the office and asked him how long he had been working there. Jones responded that he had been employed ap- proximately 2 weeks. Deleo commented, "two weeks and already you want to join a union .. . ." Deleo then asked Jones if he knew anything about the Union, and when Jones answered in the negative Deleo stated that the employees were represented by the Communications Workers of America and asserted, in substance, that the Union could not represent the employees of Reeves be- cause it was not familiar with the operation of rubber plants. Deleo further stated that the employees had not been "very smart" because they had voted in favor of a union in August and had thereby lost a profit-sharing plan which they normally would have obtained. He stated that a strike might occur and that if Jones joined the union he could not cross the "strike line" without re- ceiving a fine. Deleo told Jones he had "better think about wearing that [union] button." Soon thereafter, Jones took his break in the cafeteria and observed Deleo and other supervisors talking together looking in his di- rection and laughing. He could not hear what was being said. Later the same day, Deleo approached Jones and said, "don't let the conversation we had over there in- timidate you. If you think the union is right wear the button if not, don't wear it." Deleo then went to the stenciling machine and experimented with some procom- pany stenciling designs. Aderholt was transferred in March from his truckdriv- ing assignment to a machine operator's job. On the first day of his job as an operator, Aderholt was wearing a union button. Deleo observed this and told Aderholt that if he wanted to "make it" and "have a career" with the Company he should get rid of his union button. Aderholt removed the button. However, after the passage of sev- eral workdays, Aderholt began wearing the button again and Deleo approached him and asked him for the button. Aderholt gave it to him. Deleo soon returned with the button on which he had superimposed the Company's logo. Deleo told Aderholt to wear the button, and Ader- holt did so. b. The union insignia incidents By February, the wearing of procompany badges and insignia by employees in the plant became somewhat commonplace. Buttons containing the slogan "Together We Grow" or "Vote No" made their appearance. Simi- larly, T-shirts and garments bearing the stenciled slogan "No Way CWA" also came into prominence. Also in the months of spring and early summer, some circulation was given to slogans imprinted on pieces of flashing (un- marketable, excess rubber material from the mold proc- 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ess) bearing an inscription "Reeves Rubber, C.W.A. sucks!" or "July '5' dump the C.W.A." both slogans bore the simulated signature "Ben & God." In February, Beverly Herman, a packer on the first shift and wife of a supervisor employed by the Compa- ny, distributed approximatley 25 "Together We Grow" buttons and approximately 10 "Vote No" buttons to other employees. She was assisted by another rank-and- file employee in distributing buttons. Herman distributed some of the buttons on worktime approximately 10 min- utes prior to the morning break. In March, Deleo handed Danny Acosta a union button which had been modified by superimposing the Company's logo on the face of the button. He also pinned a button of this description on Aderholt's work hat on this occasion. At approximately this time Deleo also presented a button bearing a compa- ny logo to Simeta. In late March, Acosta also observed Deleo give "Together We Grow" buttons to employees he identified as Richie and Santana. Herman distributed some of the buttons during working hours, and Deleo presented all of his during worktime. 7 In February, McKee observed Henry Cantu, a mainte- nance man, and Jim Deleo preparing a stencil. This was being done shortly before breaktime on the second shift. Then, after the 6 p.m. break, McKee observed Cantu and Deleo at the packers' table stencilling smocks worn by the female employees with the slogan "Stay With The Best Stay With Reeves Rubber." On February 20, Jones observed Deleo stencil a woman's shirt with the slogan "I'm For Reeves Rubber." The stenciling was accomplished at approximately 8 p.m. during the course of the second shift. Approximately a month later, in seeking to speak with Deleo on a work related matter, Aderholt observed Deleo stenciling a T-shirt with the slogan "I'm For Reeves No Way C.W.A." Aderholt observed Deleo sten- cil three or four T-shirts with this slogan and this tran- spired at approximately I 11 p.m. during the course of the second shift.8 In February, Deleo approached Noela Simeta as she was working and asked her if she wanted her T-shirt stenciled. It was "almost" breaktime. Simeta answered in the affirmative and made the garment available to Deleo. He returned with the T-shirt in approximately 5 minutes and the T-shirt had been stencilled with the slogan "I'm For Reeves Rubber No Way C.W.A," A figure of a but- terfly had also been stenciled on the T-shirt. Simeta had made no request that her T-shirt be stenciled. Deleo stenciled other garments worn by employees at work. Beverly Herman and Nancy Matot, a rank-and-file em- ployee, stenciled "No Way C.W.A," and "Stay With The Best Stay With Reeves Rubber" slogans on 15 or 20 7 The record establishes that "Together We Grow" and buttons were distributed at a company picnic held in the aftermath of a 1972 labor dis- pute, and Beverly Herman testified that she obtained the buttons which she distributed from a left-over supply found in an office on company premises used by her husband in pursuit of his normal supervisory duties. Herman testified that she frequently ate her lunch at her husband's desk and extracted these buttons without his permission or knowledge. No buttons of the type here involved were utilized by Respondent in connec- tion with the 1978 organizing campaign. 8 Aderholt interpolated the slogan slightly, but I find this no basis for rejecting his testimony. garments worn by employees during the course of the work. Herman prepared the stencil for the first of the two slogans, and the stencils were kept in a cabinet in the work area of the plant near Kenneth Jerue's office. On February 21, Roberts observed Herman and Matot stenciling clothing with the latter of the two above-men- tioned slogans. Their stenciling activities continued after the 8 a.m. starting time of the first shift and continued intermittently in the vicinity of Jerue's office. The activi- ties were punctuated by levity and animation, and Jerue was in his office. Several items of clothing were stenciled at which point Roberts went into Jerue's office and told Jerue that Herman and Matot were not supposed to be carrying on stenciling activities on company time, assert- ing that employees favoring the Union were not allowed "to do union things on company time." Roberts added that if Jerue did not put a stop to this stenciling activity she, Roberts, was going "to report him to the union." Jerue responded, "I don't give a damn, go ahead. " Rob- erts left Jerue's office. Soon thereafter, Jerue spoke to Matot and told her that no stenciling of this type could be done during working hours. Jerue did not speak to Herman. In the normal ourse of carrying out their work respon- sibilities, rank-and-file employees frequently and routine- ly used the stenciling materials and equipment available and situated in the work area of the plant. c. The flashing material On March 28 a coworker brought Roberts some pieces of flashing material on which slogans in opposition to the Union had been imprinted over the appellation "Ben & God." The following morning, Roberts was in the plant when Earl Gangloff, Ben Matot's supervisor, passed by. Roberts showed him some pieces of flashing bearing the inscriptions and asked Gangloff if he was aware of their existence. Later in the day, Gangloff issued a written warning to Matot containing the statement: "Employee was warned about stamping anything in molds about C.W.A. Disciplinary action will he taken if this happens again." d. The prohibition against solicitations Prior to January 1978, Krames had been made aware of the practice of many employees soliciting fellow em- ployees for contributions to several causes and offering for sale miscellaneous items and merchandise. He re- ceived complaints from other employees and, as found, promulgated and posted the rule governing this type of conduct which remained in effect at all times pertinent herein. After January 1978, solicitations and activities falling within the intendment of paragraph 4 of this rule were permitted. On the third shift in January, collections for participation in a Superbowl pool were made during worktime, and in February on the same shit during work time, contributions were solicited and collected on behalf of an employee who was returning to Hawaii. The shift supervisor was in the lunchroom when the first collec- tion was made but was in the work area of the plant on the second occasion. No warnings were issued. Howev- er, on April 26 a written warning was issued to Nancy 138 REEVES RUBBER, INC. Matot for selling eggs to employees on worktime. The warning noted that the conduct could not "be tolerated" and that any further occurrences would "result in addi- tional disciplinary action." In the meantime, during the month of March, Roberts was wearing a button identifying her as a union ste- ward.9 Jerue approached her and asked her how she could be a union steward when her contract was in effect. Roberts made no reply, and Jerue walked in the direction of the main office. He later approached Roberts again and stated that she could not pass out union litera- ture or union cards during working hours. On the night of February 5, Tafilele Mauga, an em- ployee who worked on the third shift, entered the plant approximately 10 minutes prior to the 12 midnight start of the third shift. Upon entering the plant, Mauga walked through the lunchroom and exited the door near the trimming department. Mauga's intention in entering the trimming department was to present a union mem- bership card to Noela Simeta, a rank-and-file employee on the second shift. However, the bell signaling the ter- mination of the second shift and the start of the third shift had not yet rung and the second shift employees were lining up to clock out. At this juncture, Deleo ob- served Mauga and told him that he must wait until 12 o'clock before he entered the work area of the plant. Ac- cordingly, Mauga stood next to Deleo, and as Simeta passed by him after clocking out, he presented her with a union-membership card. The bell indicating the start of the third shift had rung at the time Mauga presented the authorization card to Simeta. Deleo admonished Mauga that he should not be handing out cards on his worktime. Mauga had been free to enter the lunchroom or walk in the work area on previous occasions. e. The disciplinary warning-Mauga On the morning of February 8, Dolquist received a note from Deleo with respect to Mauga suggesting that Dolquist speak with Aukoso concerning Mauga. Dol- quist spoke with Aukoso who stated that he had spoken with Deleo concerning Mauga's activity in distributing union-membership cards at the end of the second shift and the start of the third shift. Aukoso also informed Dolquist that he had received unsubstantiated reports from rank-and-file employees to the effect that Mauga had engaged in the distribution of literature on work time on previous occasions. Aukoso and Dolquist decid- ed that a written warning should issue based on a viola- tion of work rule 16 which proscribes any "(F)ailure to start work promptly at start of shift, or end of lunch period or rest period." Aukoso prepared a written warn- ing dated February 8 containing the following entry: On numerous occasions during the past few days you have been observed distributing union related material to other employees during working hours. You were verbally warned about this by a supervi- sor on 2-7-79. Any further incidents of this nature could result in your termination. Roberts had received no official designation from the Union, but she had served in a defacto capacity as a contact and conduit for employees. Later in the day, when Mauga entered the lunchroom at the beginning of his first break, Aukoso presented this warning notice to Mauga together with another warning slip and an excused absence document. Aukoso asked Mauga to sign these documents, and Mauga signed the excused absences document bt refused to sign the two warning slips. The following day, Aukoso again ap- proached Mauga and asked him to sign the February 8 warning notice and another warning slip. A discussion ensued at which time Aukoso told Mauga to "watch" out because the Company had learned that he was "giving out cards." Mauga responded that before he'd sign the warning slips he desired union representation. Aukoso did not respond and walked away. Dolquist testified, in substance, that rule 16 had been consistently enforced at all times since its adoption, and the warning notice of February 8 had issued because of Mauga's failure to be at his work station when the bell starting the third shift sounded. Dolquist also testified that the first sentence of the warning notice of February 8 was based on information conveyed to Deleo by em- ployees. f. The layoff of Jones Thomas Jones was employed by Respondent from February 6 to February 23 when he was laid off. Jones worked on the second shift in the trimming department under the supervision of Deleo, who initially hired Jones. Jones had learned of an employment opportunity at Respondent's plant through a friend, Charles Powell, an employee of Respondent, and after several contacts was interviewed by Deleo who offered him employment. Early in the course of his employment Jones signed a union-authorization card and, as found above, during the second week of his employment began wearing a union button in the plant during duty hours. As found, Deleo spoke to Jones concerning this on or about February 20. On February 23, soon after the second shift com- menced at 4 p.m., Deleo informed McKee that Jones was being laid off. He stated that "the people in the office" had instructed him to lay Jones off because there was not enough work. McKee, who was Jones' leadman, answered that the help was needed and Jones' layoff would result in him performing "three jobs." Jones' duties involved the operation of a large machine used by trimming excess rubber from products and supplying those products to inspection employees. In the perform- ance of his duties, Jones assisted McKee, the leadman in the trim department. Sometime later, Deleo approached Jones and told him that it had become necessary to lay him off. Deleo explained that there was insufficient work for Jones, and Jones inquired if his lay off related to his involvement with the Union. Deleo responded that the Union had nothing to do with the decision, and Jones would be recalled as soon as there was sufficient work. In informing Jones of his impending layoff, Deleo showed Jones the area where pending trim work was normally stored. Jones inquired if there were another po- sition in the extrusion department or on the press line in which he could work. Deleo responded that there were no jobs available in his department. However, Deleo 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transferred Jones to another job in order to provide him with employment during the balance of the shift. At the conclusion of the shift, Jones' layoff became effective. Jones did not return to work in Respondent's employ. From February 23 until approximately April 1, McKee worked alone in the trimming department. Approximate- ly I week after his layoff, Jones contacted Joan Dobbie, Respondent's personnel administrator, by telephone and inquired if there were any job openings. He was told that there were none. Jones did not again attempt to contact Respondent. Respondent's layoff and recall procedures are defined in its employee handbook. In pertinent part, the hand- book provides: When it is necessary to reduce the working force in a department, probationary employees in the depart- ment will be laid off first; thereafter, employees will be laid off in the reverse order of their department seniority. Laid-off employees shall be returned to work in accordance with their seniority. Seniority shall not be applied to the end that the Company is unable to maintain an efficient working force. When additional employees are necessary in any depart- ment, and no employees having departmental se- niority in such department are on layoff the Compa- ny will recall laid-off employees from other depart- ments. These employees will be recalled in the order of their plantwide length of service to fill va- cancies before hiring any new employees, provided that such laid-off employees meet the job require- ments and are capable of doing the work satisfacto- rily, as determined by the Company. Individual layoffs within a department are decided upon by departmental management and supervision. Dolquist reached the decision to effectuate a layoff in "the job classification" occupied by Jones on February 23, and conveyed this instruction to Deleo. In effectuating the layoff of Jones, Dobbie followed normal layoff proce- dures. In late March, a need for an employee in Jones' former position recurred. Deleo instructed Dobbie to recall Jones. On March 30, Dobbie placed telephone calls to the three telephone numbers listed in Jones' em- ployment application as telephone numbers at which he could be contacted. One number was no longer in serv- ice, and she received no answer to calls placed at the other two numhers. Dobbie's only attempts at contacting Jones telephonically were made on March 30. She did not dispatch any written recall notice to Jones, nor did she endeavor to effectuate notice to Jones through Charles Powell, a pressman in Respondent's employ who was listed as a reference on Jones' employment applica- tion. Dobbie did not personally know that Powell had referred Jones to the Company at the time of his initial employment. Deleo did not recall that Powell had re- ferred Jones. Dobbie testified that no written recall notice was sent to Jones because he was a probationary employee and under established routine consistently fol- lowed no written notice of recall is given probationary employees. Deleo denies that Jones' union activity played any role in his termination, and Dolquist denies any knowledge that Jones had been active in behalf of the Union. Simi- larly, Krames and Dobbie deny any knowledge of Jones' union activity or any union-related considerations with respect to his layoff or the failure of the Company to ac- complish his recall. Deleo, Dolquist, and Dobbie testified that a slowdown in work in late February mandated layoffs on the second shift under Deleo's direction. Neither Jones nor McKee could detect any dearth of work for Jones to perform. No documentary evidence was introduced in support of the testimony that other layoffs were effectuated. Deleo testified that vacancies did arise on the pressline during March but that none existed or arose in the extrusion de- partment between February 23 and late March when he instructed Dobbie to recall Jones. Prior to February 23, Respondent had employed pressline personnel who had no previous pressline experience. However, the openings which had arisen on the pressline in March were created by the "short term" layoff of the incumbents and no con- sideration was given to recalling Jones to those jobs. Credibility Resolutions The testimony of record, and specifically that of Wil- liam Krames, Ronald Dolquist, Kenneth Jerue, Earl Gangloff, and James Deleo, establishes the existence, at all times subsequent to January 1978, of a rule limiting solicitations and distribution of literature in working areas of the plant during the worktime of employees. Documentary evidence of record supports this testimo- ny. While the record evidence establishes that collections for floral offerings and football and baseball pools were from time to time undertaken, I reject the testimony of Freida Roberts and John Williams insofar as it may be interpreted as exemplifying a permissive policy on the part of supervision in tolerating substantial work time in- terruptions for these purposes. I also reject the testimony of Roberts to the effect that Nancy Matot sold cookies on work time with the knowledge and acquiescence of Jerue, and this rejection is based upon the credited testi- mony of Matot and Jerue. However, I credit the testimo- ny of John Williams with respect to collections undertak- en in connection with the Superbowl, and the knowledge attributable to supervision with respect thereto. Additionally, the record testimony of William Krames, as supported by credible testimony of other witnesses called by Respondent, establishes the dissemination by Krames of instructions to management and supervisory personnel relating to conduct appropriate on the part of company representatives in communicating and dealing with employees concerning the question of representa- tion by a labor organization, and the right of employees freely to select their bargaining representative. I find, primarily upon the basis of Krames' testimony, as sup- ported by documents of record, that management and su- pervisory personnel received specific instructions to remain neutral and to engage in no threatening or coer- cive conduct. I specifically credit Krames' denial that he did not speak to Aderholt in the vicinity of the Banbury mixer and did not comment to Aderholt concerning the 140 REEVES RUBBER. INC wearing of a union badge, as testified by Acosta. On the other hand, I find that, despite these instructions, on the first shift, consistent with the credited testimony of Rob- erts and contrary to Jerue's denial, Jerue tolerated some duty time stenciling of antiunion clothing and intervened to put a stop to it only after Roberts complained to Jerue about the activities of Herman. Herman's testimony, which finds support in that of Nancy Matot, establishes that the stenciling of clothing was done in the plant and proximate in time to the beginning of the first shift. However, I reject the testimony of Herman and Matot to the effect that they were circumspect in continuing their stenciling activities to other than worktime. Rather, I find, based on the testimony of Roberts, that stencilling was carried on during duty hours. Moreover, I credit Roberts, Vera Yslava, and Gertrude Estrada in finding that "Together We Grow" buttons were distributed during worktime by Herman. Further, I find, upon the credited testimony of Gene McKee, James Aderholt, Daniel Acosta, Noela Simeta, Thomas Jones, and Tafi- lele Mauga, and contrary to the testimony of James Deleo, that Deleo openly expressed his opposition to the Union and that he engaged in overt conduct for the pur- pose of limiting the particiption of employees in an effort to counter an emerging, if subliminal, effort to decertify the Union. '° In crediting the testimony of above-named employee witnesses called by counsel for the General Counsel with respect to the wearing of badges and the stenciling activities which were carried out in the plant on the second shift supervised by Deleo, I have carefully scrutinized their testimony and have weighed that testi- mony against denials and explanations proffered by Deleo, and the testimonial representations of Helen Nielo. Nielo's testimony to the effect that Simeta sten- ciled her own T-shirt is rejected and Simeta's testimony in this general vein is specifically credited. Moreover, in rejecting the testimony of Deleo which is counter to the findings above made with respect, (1) to conversations which he had with employees, (2) the stenciling activities carried on during the second shift, and (3) the display and wearing of badges both in support of and in opposi- tion to the Union, I act upon a conviction that Deleo lib- erally rationalized his own conduct and entered denials to involvement in specific events which run counter to the weight of the credited testimony of record, and the evidence generally. Moreover, Deleo's testimony with respect to these matters appeared generally rationalized, temporized, and evasive. Specifically, I reject Deleo's testimony suggesting that his stenciling activities were severely limited and undertaken during nonworking hours and only at the request of two specific employees. Moreover, I reject his testimony to the effect that he was aware of no stenciling activities on worktime and had not participated in the preparation of stencils or slogans in opposition to the Union. Further, I do not credit Deleo's testimony to the effect that in speaking with Jones on February 20, he merely inquired if, as a new 10 The testimony of Daniel Acosta elicited on rebuttal to the effect that Deleo told him that the Union was no good, and it would take 7 to 13 months to get the Union out through a vote is credited, but evaluated merely as corroborative of evidence adduced by the General Counsel in his case in chief. employee, Jones "knew much about the Union." I credit Jones in finding that Deleo's comments were not limited to this inquiry but were more extensive, as found above. The findings with respect to the limitation imposed by Deleo upon Mauga's efforts to approach Simeta on the night of February 8, and the related findings with re- spect to the issuance of the disiplinary warning to Mauga, are based upon Mauga's credited testimony eval- uated in light of the testimony of Ronald Dolquist and documentary evidence of record. I specifically reject Deleo's testimony that when he spoke to Mauga about wearing a union badge, he did so at a desk in the work area and not in his office. A composite of the testimony of Jones and Deleo forms the basis for the findings relating to the layoff of Jones. Deleo's testimony with respect to the sequence of events on the day Jones was laid off has been credited over that of Jones in those instances where variances exist. However, I credit Jones in finding that when in- formed of the impending layoff he specifically inquired concerning openings in the extrusion department or on the pressline and was told by Deleo that no openings ex- isted and that to fill pressline jobs, prior experience was necessary. On the other hand, I credit the testimony of Deleo to the effect that no pressline jobs were open when Jones was laid off and openings occurred only later, during the month of March. Conclusions I find that at all times pertinent Respondent gave effect to a rule which precluded solicitation and distribu- tion of literature in the plant during work time. I find also that in the aftermath of the August 4 election, at which the Union was selected as the majority representa- tive of Respondent's employees, William Krames, Re- spondent's vice president of manufacturing operations, met with supervisory personnel, including Jerue and Deleo, and instructed them to do nothing that would in- terfere with employee rights or serve to undermine the Union. The record suggests that, for the most part, su- pervision, including Jerue, complied with these instruc- tions. However, Deleo was not as compliant. For what- ever reason, whether because of his own predilections, or because of the relatively free reign which appears to have been his on the second shift which operated in the late afternoon and evening hours until midnight, Deleo became enmeshed in the competition between Union ad- vocates and employees favoring defeasance of the Union, and he took an active role in endeavoring verbally to dissuade prounion employees from their allegiance to the union cause, and in stenciling antiunion/procompany slo- gans on clothing. Moreover, he participated directly in the distribution of procompany badges in the plant during worktime, and gave quiet passage, as it were, to employees distributing those badges, while at the same time, discouraging, both directly and indirectly, the wearing of badges and buttons favoring the union cause. For his part, Jerue, who supervised the first shift which operated from 8 a.m. to 4 p.m., saw fit for a period of time in February to close his eyes to the stenciling activi- ties of Herman and her close associates. By virtue of this 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct on the part of Deleo and Jerue in the respects below detailed, Respondent must be held to have violat- ed Section 8(a)(l) of the Act. Specifically, I find that in asking McKee in January what he thought about the Union; by deprecating the Union in his conversation with McKee in February, and doing so in context of his assertion that the employees would be better off to forget the Union and "vote [it] out"; by speaking negatively in March or April to Ader- holt and Acosta concerning the need of employees for a union, and declaring, as he spoke, that employees had lost a pay raise and benefits which would have accrued to them had they not selected the Union; by making a similar representation to Jones on February 20; and by admonishing Jones and Aderholt on February 20 and in March, respectively, against wearing prounion buttons, in a context implying a threat to their job interests and tenure, Deleo engaged in interrogation and/or threats calculated to coerce employees in the exercise of their Section 7 rights, in violation of Section 8(a)(l) of the Act. Similarly, by virtue of his participation in the cam- paign of employees to achieve eventual decertification of the Union at the conclusion of the certification year, Deleo perpetrated serious violations of Section 8(a)(1) of the Act, for which Respondent must be held legally ac- countable. Thus, in addition to countenancing in-plant stenciling activities utilizing company materials and equipment in circumstances readily discernible to rank- and-file employees on the second shift (itself an overt manifestation of hostility to the Union and its advocates), Deleo actively participated in the stenciling activities and in the distribtution of procompany badges, thus clearly conveying to employees an antiunion proclivity suscepti- ble of ready interpretation on their part as mirroring the official policy of management. Moreover, by placing em- ployees in the position of having to declare their union preferences by their willingness either to wear or refrain from wearing procompany badges or stenciling slogans, Deleo engaged in additional conduct violative of Section 8(a)(l) of the Act. Moreover, in the face of the activities of Deleo and the acquiescence of Jerue (to the extent above found) in permitting protagonists of the Union's decertification to carry out their stenciling activities on worktime, and to permit the distribution of procompany badges in the work areas of the plant during working hours, while rig- idly enforcing its existing no-solicitation rule so as to prohibit Mauga from entering the work area of the plant during his own free time coinciding with the 10-minute interval preceding the commencement of Mauga's shift, Deleo gave disparate application to the no-solicitation rule. This had the effect of precluding Mauga from en- gaging in activities in support of the Union of the variety that would have resulted from fulfillment of his intended purpose to present a union membership card to Simeta. Assuming, as I specifically do, the validity of the limita- tion imposed by the rule upon solicitations during either the worktime of the soliciting employee or the worktime of employees being solicited, the rule was breached by the discriminatory manner in which it was enforced. See, Star-Brite Industries, Inc., 127 NLRB 1008, 1010 (1960); Capitol Records, Inc., 233 NLRB 1041, 1045-46 (1977); see also Harvey's Wagon Wheel, Inc., d/b/a Harvey's Resort Hotel & Harvey's Inn, 236 NLRB 1670, 1676 (19 78 ).I" Further, in agreement with the General Counsel, while I conclude that Mauga was in technical breach of the no- solicitation rule in the brief interlude after the beginning of his shift when he handed Simeta a union membership card, I find that Respondent violated Section 8(a)(3) of the Act by virtue of issuing a warning notice to Mauga threatening termination in the event of a recurrence of his activity. I base this finding, in part, upon the evi- dence above delineated establishing Respondent's hospi- table tolerance of duty time activities by procompany proponents, evidence of a character and quality suggest- ing an antiunion purpose and motivation. Moreover, the presence of a discriminatory motive in the issuance of this notice is discernible also from the disciplinary action threatened. The threat of termination contained in the notice issued Mauga as a result of his solicitation effort is singular in character when contrasted to the less strin- gent wording of notices issued to Ben Matot and to Nancy Matot for not conforming to the limitations of the no-solicitation rule. Indeed, there is much in the record to suggest that the warning notices issued to Ben and Nancy Matot were mere window dressing, for they were issued after the filing of the charge pertinent to the Mauga incident. Respondent marshaled no documentary evidence sufficient to establish that in threatening termi- nation for a recurrence of worktime solicitation Re- spondent was acting neither atypically nor disparately. Cf. Dale's Electronics, Inc., 137 NLRB 1212, 1219 (1962).'2 Nor did Respondent adduce proof to establish that the attributions contained in the warning notice to Mauga relating to the "numerous occasions during the past few days" in which he had been "observed distribut- ing union-related material to other employees during working hours" were grounded in truth. Mauga denies this type of involvement, and, manifestly, the entry was based on hearsay information and not the personal obser- vation of Deleo or of Dolquist, who authorized the issu- ance of the notice. Thus, in my view, this element of the notice serves more to suggest a discriminatory motive ' Contrary to the General Counsel, I find neither the literal provisions of the rule applying to solicitations on the part of employees nor Deleo's application of that rule to Mauga's activities on February 5 warrants an interpretation of the rule as prohibiting solicitation in working areas at all times and not just during nonworking times. Cf. Champagne Color, Inc., 234 NLRB 82 (1978). In my view of the record, contrary to the conten- tion of the General Counsel, Simeta was still on the clock when Deleo intervened. Cf. East Bay Newspapers, Inc., d/b/a Contra Costa Times, 225 NLRB 1148 (1976). 1 reach this determination on the merits of the issue assessed in light of the evidence adduced at the hearing before me. 12 I predicate no violation of the Act, either in context with the disci- plinary notice issued Mauga nor with respect to the application of the no- solicitation rule, generally, upon the willingness of Respondent, under controlled circumstances, to permit collection of money for floral offer- ings or football and baseball pools. See Serv-Air, Inc. v. N.L.R.B., 395 F.2d 557 (10 Cir. 1968), cert. denied 393 U.S. 840; Atkins Pickle Company. Inc., 181 NLRB 935 (1970). Cf. Emerson Electric Co., US. Electrical Motors Division, 187 NLRB 294, 300 (1970). In any event, reliance upon evidence of these relatively infrequent and testimonially ill-defined occur- rences is unnecessary to a determination of the instant issue. 142 REEVES RUBBER, INC. than to establish the existence of a sound basis for issuing a notice threatening discipline. Finally, I conclude and find that the General Counsel established by the preponderence of the credible evi- dence that the layoff of Thomas Jones resulted from his support of the Union and not for economic reasons, as contended by Respondent. Initially, I conclude that the General Counsel established a prima facie showing that the layoff was discriminatorily motivated. Jones worked on the second shift under the direction of Deleo. Jones was called by Deleo to his office and questioned con- cerning his wearing of a union badge 3 days before his layoff. On this occasion, Deleo admonished Jones in a manner suggesting that Jones should be wary of display- ing the badge in the future. That Deleo subsequently re- canted from this admonition in no manner dilutes the in- ference that emerges from this interlude. Thus, it is ap- parent that Deleo believed the wearing of the union badge by Jones, a relatively new employee, was suffi- ciently noteworthy as to warrant a face-to-face discus- sion of the matter in the privacy of his own office. During the meeting, I conclude and find that Deleo took steps to dissuade Jones, and no doubt exists that Deleo catalogued in his own mind the fact of Jones' apparent affinity for the Union. Within 3 days the decision was reached to accomplish Jones' layoff. I conclude and find that this was done in circumstances in which there was no readily visible or discernible dearth of work available in Jones' job category for Jones to perform. These con- siderations, establishing Jones' undisguished declaration of his union affinity, Deleo's knowledge of this fact, the timing of Jones' layoff in relation to Deleo's conversa- tion with him concerning the wearing of the union badge, and Deleo's own involvement in the layoff proc- ess, establishes the constituent elements of a violation of Section 8(a)(3) of the Act. However, to meet the Gener- al Counsel's evidence Respondent offered testimony from Dolquist that he dictated the layoff in Jones' job category solely for economic reasons and did so without knowledge of Jones' affinity to the union. Significantly, no documentary evidence was adduced establishing any downturn in available work in Jones' job category and neither McKee, with whom Jones worked, nor Jones, himself, could discern any dearth of work at the time of the layoff. Moreover, the only inferences to be drawn from the testimony of Dolquist who assertedly made the decision to accomplish the layoff, provide any basis for Respondent's contention that layoffs elsewhere in the op- eration were accomplished contemporaneously with the layoff of Jones. Thus, having advanced an economic de- fense in explanation of a layoff accomplished in the sus- picious circumstances here extant, it was incumbent upon Respondent in order to support his defense to proffer more than oral testimony. None was offered. According- ly, in my view, Respondent failed to adduce convincing evidence that economic considerations necessitated Jones' layoff. Nor is Dolquist's denial of knowledge of Jones' union affinity convincing. Clearly, Deleo, who supervised the second shift on which Jones worked, had input into Dol- quist's decision to effectuate the layoff in Jones' job cate- gory. Normal procedure dictated supervisory involve- ment, and the second shift was not one over which Dol- quist, by his own admission, maintained direct, firsthand oversight. His reliance upon Deleo in reaching his deci- sion with respect to the layoff is thus inferable. Illegal motivation in terminations arising from union activities is seldom confessed, but must be inferred, and the reason- able inference to be drawn in the instant circumstance is that Deleo initiated and effectively participated in the de- cision to accomplish Jones' layoff. It is clear from the evidence of record that a campaign was in progress in the plant to marshal employee support for an effort to oust the Union at the end of the certification year. Jones had shown that he was not in league with this effort. Deleo, on the other hand, had actively supported the ouster campaign and had assiduously advanced the cause of employees opposing the Union. It is unlikely that, in the circumstances, Deleo would have kept his own coun- sel with respect to Jones' support of the Union. I find that he did not. This finding of a violation is not altered, in my view, by evidence suggesting that Respondent attempted to recall Jones in late March. Initially, it must be recog- nized that, in effectuating Jones' layoff, Respondent had effectively implemented Deleo's veiled threat to Jones conveyed during their conversation 3 days prior to the layoff, with the foreseeable consequence of chilling Jones' enthusiasm in supporting the Union. In addition, it must be recognized also that the recall effort, such as it was, transpired after charges had been filed alleging vio- lations of the Act arising from the warning notice issued Mauga, and thus, when consideration was given to Jones' status, Respondent knew that the investigatory processes of the Board had been initiated. Moreover, the effort undertaken to notify Jones was so ritualistic as to suggest the absence of perseverance and good faith. The testimony of Joan Dobbie to the effect that written notice of recall is never dispatched to probationary em- ployees was not convincing, and emerged from an effort on Dobbie's part to extract herself from a testimonial contradiction and dilemma and to carve out an exception to the literal terminology of the work rules which allude to written notice of recall for employees, without distinc- tion as to whether or not they are probationary. In short, I reject Dobbie's testimony that because Jones was a probationary employee no written notice was dispatched to him. I do find, however, that Respondent grudgingly undertook to recall Jones as a tactical device in the face of a viable, pending unfair labor practice charge, was sat- isfied when its minimal, pro forma efforts were unsuc- cessful in accomplishing personal contact, memorialized this effort in writing against potential subsequent devel- opments and refrained from dispatcaing notice of recall to Jones because it welcomed the fortuity of Dobbie's in- ability to make telephonic contact with Jones. Sincere effort at recall, in the circumstances, would appear to have encompassed, at the minimum, as an initial alterna- tive to the dispatch of a written notice, delivery through long-term employee Charles Powell of an oral message to Jones soliciting his return to work. It must he noted, in this regard, that Jones had listed Charles Powell as a reference on the application form which Dobbie alleged- 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly consulted in locating the telephone numbers used in her asserted effort to make telephonic contact with Jones. Respondent failed to take this initiative through Powell which was open to it, while abstaining also from dispatching written notice. I find this conduct on the part of Respondent supportive of the conclusion, which I reach, that Respondent entertained discriminatory motive in effectuating the layoff of Jones. I conclude therefore that the layoff of Jones violated Section 8(a)(1) and (3) of the Act. The final question to be resolved in this case is wheth- er Respondent's conduct, as found above, which tran- spired in the plant and away from the bargaining table at a time when agents of Respondent and the Union were engaged in collective bargaining for an initial collective- bargaining agreement, was also violative of Section 8(a)(5) of the Act. I find, in agreement with Respondent that neither the Board's decision in Berbiglia, Inc., 233 NLRB 1476 (1977), nor its supplemental decision in Safeway Trails, Inc., 233 NLRB 1078 (1977), warrants the conclusion that the conduct of Respondent's agents away from the bargaining table manifested an absence of good faith in carrying out its bargaining table obligations, as required by Section 8(d) of the Act. I conclude upon the facts before me that an extension of the rationale articu- lated by the Board in the Berbiglia and Safeway cases to govern the instant case would constitute a distortion of the intendment of the Board as articulated in those cases. It is clear, of course, that an employer's statements and conduct away from the bargaining table may be utilized to explain otherwise ambiguous conduct at the bargain- ing table. Baldwin County Electric Membership Corpora- tion, 145 NLRB 1316, 1318 (1964). Moreover, if while negotiations are in progress an employer undertakes ac- tivities with respect to its employees away from the bar- gaining table which are directed toward undermining the bargaining representative of those employees, bad faith and an 8(a)(6) violation is established even though overt evidence of that bad faith does not appear at the bargain- ing table itself. See N.L.R.B. v. General Electric Compa- ny, 418 F.2d 736, 756 (2d Cir. 1969); United Transporta- tion Union, Local 169 v. N.L.R.B., 546 F.2d 1038, 1041 (D.C. Cir. 1976). However, not all conduct of a serious nature calculated to erode union support among the em- ployees in the bargaining unit is sufficient to evidence bargaining table bad faith, when bad faith is not other- wise manifested by and through the bargaining table tac- tics of the employer. See, Baldwin County Electric Mem- bership Corporation, supra; cf., Safeway Trails, Inc., supra. In my view, a fair reading of General Electric and United Transportation, as well as Berbiglia and Safeway suggests that a finding of bargaining table bad faith becomes clearly appropriate upon a record establishing contempo- raneous away-from-the-bargaining table conduct on the part of an employer which is calculated or tends directly to subvert or frontally assult the bona fide of the bar- gaining process itself. Thus, conduct outside the confer- ence room orchestrated at the management level through participation of upper level managing agents tending to drive a wedge between the unit employees and the desig- nated bargaining agent of the Union, so as to undermine and to subvert the authority of the bargaining representa- tive, has been found sufficiently egregious to support a bad-faith finding, without regard to whether or not bad faith had been shown at the bargaining table. See Safeway Trails, Inc., supra. Moreover, statements circulat- ed by management personnel away from the bargaining table but while bargaining efforts are in progress, con- veying to employees the employer's intention not to reach an agreement through the process of bargaining negotiations, have been viewed as supporting a finding of bad faith, when these statements transpire in conjunc- tion with numerous other unlawful attempts to under- mine the Union. See Berbiglia, Inc.. supra. In my view, the instant case falls outside the parameter of both Safeway and Berbiglia. At the outset, from an analytical point of view, there is no evidence in the record before me from which it may be concluded that Respondent failed to meet and bargain with the Union at all times. No allegations of bargaining table misdeeds violative of the Act are before me. Thus, viewing the 8(a)(5) allegations of this case in the light most favorable to the General Counsel, bad faith on the part of Respondent in fulfilling its obligation under Section 8(d) of the Act emerges, if at all, from the tolerance displayed by Deleo and Jerue in permitting worktime stencilling and badge distribution activities on the part of employees who did not favor the Union; from Deleo's comments tending to disparage the effectiveness of the Union as a bargaining representative; and, finally, from other Section 8(a)(1) and (3) conduct which tended to dissuade employees from support of the Union. How- ever, in this connection, there is present in the record no proof that the efforts on the part of employees to accom- plish the decertification of the Union at the end of the certification year were other than grassroots and sponta- neously undertaken. Manifestly, the General Counsel un- dertook no proof that the effort was management fos- tered. Similarly, there is no evidence of a substantial nature supporting the conclusion that the statements and deeds on the part of Deleo and Jerue, all of which took place from the bargaining table, were undertaken with the knowledge, complicity, or acquiescence of Respond- ent's upper level management; and there is countervail- ing evidence that Krames, Dolquist, and Gangloff did not condone this conduct and that it was contrary to instructions specifically disseminated. Neither is there support for a conclusion that from a distance, so to speak, management orchestrated the statements or mis- deeds of Deleo and Jerue, here found to be violative of the Act. Further, there is present here no coordinated campaign directed against or disparaging of the Union's negotiators. Deleo's comments negating the potency of the Union as a bargaining force, while in and of them- selves violative of Section 8(a)(l) of the Act, must be viewed as the expression of a line supervisor having no collective-bargaining responsibility. Absent also from the General Counsel's proof is any evidence of an effort on the part of management agents to effectively drive a wedge between the unit employees and the bargaining agents of the Union conducting bargaining-table negotia- tions. Management and supervision-Krames, Dolquist, Gangloff-may have been permissibly tolerant and indul- 144 REEVES RUBBER, INC. gent of the employees' perceived free speech rights to proffer their preferences for and against the Union through the wearing of insignia and clothing, but man- agement is not shown by this record otherwise to have fostered or been accountable for any subversion of the bargaining process or initiative towards the decertifica- tion of the Union. For the reasons stated, and the total circumstances of this case, I find no basis for imputing bad faith to Respondent in carrying out its bargaining obligation as imposed by Section 8(d) of the Act. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Reeves Rubber, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, Local 11511, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union preferences; by disparaging the need of employees for union representation and urging employees to vote the Union out, all in context of statements asserting that em- ployees had forfeited pay increases and benefits which would have accrued to them had they not selected the Union; by articulating threats that wearing prounion badges would jeopardize their job interests and tenure; by giving disparate application to a rule prohibiting so- licitation and distribution of literature in the plant during worktime so as to impose limitations upon activities upon employees who supported the Union, while permitting employees to engage in activities against the Union during worktime and in work areas in the plant; by solic- iting employees to wear clothing bearing slogans oppos- ing the Union and implicitly favoring decertification of the Union; by requiring employees to wear antiunion in- signia; by placing employees in the position of having to declare their union preferences; and by warning and laying off employees because they had engaged in pro- tected concerted activity and/or supported the Union, Respondent engaged in conduct in violation of Section 8(a)(1) of the Act. 4. By issuing a warning notice to Tafilele Mauga threatening termination for engaging in solicitation and activities on behalf of the Union during the worktime, while tolerating worktime activities on part of the em- ployees opposed to the Union and/or issuing warning notices defining a lesser quantum of discipline for similar activities on the part of employees opposed to the Union, Respondent engaged in conduct in violation of Section 8(a)(3) and (1) of the Act. 5. By laying off Thomas Jones because of his activities on behalf of the Union, Respondent engaged in conduct in violation of Section 8(a)(3) of the Act. 6. Respondent did not engage in conduct in violation of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 8. Respondent engaged in no other conduct violative of the Act. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found, in the circumstances described above, that Respondent discriminated against Tafilele Mauga, in violation of Section 8(a)(3) of the Act, I shall order Re- spondent to rescind the disciplinary warning issued to Tafilele Mauga on February 8, 1979, and to expunge from its personnel and other records all reference to said warning, and so notify Mauga, in writing. Having found that Respondent discriminated against Thomas Jones by laying him off on February 23, 1979, because he had engaged in activities on behalf of the Union, and having further found that Respondent failed to make a good faith effort to recall Jones, I shall order Respondent to offer Thomas Jones immediate and full re- instatement to his former position of employment, or to a substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges to which he may have been entitled. I shall also recom- mend that Respondent make Thomas Jones whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be comput- ed in the manner prescribed in F. W Woolworth Compa- ny, 90 NLRB 289 (1950), together with interest thereon in accordance with the policy of the Board, set forth in Florida Steel Corporation, 231 NLRB 651 (1977).'3 Having found that Respondent has maintained a rule prohibiting solicitation and distribution of literature in the plant during worktime, and having further found that Respondent applied this rule to prohibit employees from engaging in activities on behalf of the Union in the plant during worktime while permitting employees who op- posed the Union to do so, I shall specifically order Re- spondent to cease and desist from enforcing said rule in a manner which conduces to, accomplishes, or effectuates this unlawful distinction. Because the violations of the Act herein found to have been perpetrated by Respondent go the the heart of the Act, a broad cease-and-desist order shall be recommend- ed. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 14 The Respondent, Reeves Rubber, Inc., San Clemente, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: t' See, generally. Isis Plumbing d Jleaoing Co., 138 NLRB 716 (1962) 14 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Laying off or otherwise discriminating against em- ployees because of their interest in, or activity on behalf of, Communications Workers of America, Local 11511, AFL-CIO, or any other labor organization. (b) Issuing warning notices to employees because, on behalf of the Union or any other labor organization, they have engaged in solicitation in the work areas of the plant during worktime, while permitting employees who opposed the Union to engage in activities in opposition to the Union in the plant during worktime. (c) Threatening the job interest and tenure of employ- ees because they wear union insignia. (d) Interrogating employees concerning their union ac- tivities or preferences. (e) Soliciting employees to wear clothing bearing an- tiunion slogans. (f) Requiring employees to wear antiunion insignia. (g) Placing employees in the position of having to dis- close or declare their union preference. (h) Disparaging the Union in conversations with the employees and encouraging them to vote the Union out. (i) Disparaging the effectiveness of the Union as a col- lective-bargaining representative. (j) Informing employees that wage increases and other benefits which normally would have accrued to them had been withheld because they had selected the Union as their collective-bargaining representative. (k) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in self-organization, to bargain collectively through representatives of their own choosing, to act to- gether for collective bargaining in mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Post at its San Clemente, California, plant facility copies of the attached notices marked "Appendix."' lb In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Copies of said notice on, forms provided by the Regional Director for Region 21, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (h) Offer Thomas Jones immediate and full reinstate- ment to his former position of employment or, if that po- sition is no longer available, to a substantially equivalent position of employment, without prejudice to his senior- ity or other rights and privileges and make him whole for any loss of wages he may have suffered by reason of discrimination against him, in accordance with the rec- ommendation set forth in the section of this Decision en- titled, "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the term of this recommended Order. (d) Rescind the disciplinary warnings given to Tafilele Mauga on February 8, 1979, expunge from all personnel and other records all references to said warning, and notify Tafilele Mauga, in writing, that said action has been taken. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. Order of the National .abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National l.abor Relations Board." 146