Omark-RCBS

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Omark-RCBS, a Division of Omark Industries and General Teamsters Local 137, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 20- CA- 14443 September 30, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PNEILO On May 8, 1980, Administrative Law Judge Joan Wieder issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in opposition to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1' and conclusions of the Administrative Law Judge and to adopt her recommended Order as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- ' The Administrative Law Judge found, inter alia, that Respondent violated Sec. 8(a)(1) of the Act by maintaining an overly broad no-solici- tation and distribution rule. Chairman Fanning and Member Jenkins agree with this finding for the reasons set forth ill their dissenting opinion in Essex Internatlronal, Inc., 211 NLRB 749, 752 (1974). Member Penello agrees that the no-solicitation rule is unlawful but does not rely on the Administrative Law Judge's citing of Kern' Bakeries, 227 NLRB 1329 (1977). in which he dissented. We do not agree, however, with the Administrative Law Judge's pro- posed Order with respect to this violation and, accordingly, we shall amend the Order and the appropriate paragraph of the notice to reflect the proper remedy. The Administrative Law Judge incorrectly provided that interest on backpay due be computed at 6 percent per annum "in the manner pre- scribed by the Board in Florida Steel Corporation, 231 NLRB 651 (1977)" In Florida Steel Corporation, the Board set forth the manner in which the rate of interest is to be determined. Accordingly, we shall amend the Ad- ministrative Law Judge's "Remedy" by adding a period after "(1950)" striking the words "and payment of 6 percent interest per annum," and substituting the word "Interest," and by placing 6"" after the citation to Florida Steel Corporation. In accordance with his dissent in Olympic Medi- cal Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein 2 In par. 2(f) of her recommended Order, the Administratie aw Judge incorrectly provided that Respondent be given 60 days within which to notify the Regional Director what steps it has taken to comply with the Order, whereas the correct time period is 20 days. Accordingly, we shall amend par. 2(f) to provide for a 20-day time period In addition, the Administrative Law Judge inadvertently failed to pro- vide in her notice for the expungement from McCall's personnel file of all references to his reprimands of February 28 and March I. 1979, and his discharge of March I, 1979 Accordingly, e shall amend the notice to employees to reflect this matter. 252 NLRB No. 89 lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Omark-RCBS, Division of Omark Industries, Oro- ville, California, its 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 (a): "(a) Maintaining and enforcing any rule or regu- lation prohibiting its employees from soliciting on behalf of any labor organization on Respondent's premises during nonworking time, or prohibiting the distribution of union literature in nonworking areas during nonworking time." 2. Substitute the following for paragraph 2(a): "(a) Rescind its rule prohibiting its employees while on its premises from soliciting on behalf of any labor organization during their nonworking time or distributing union literature in nonworking areas during nonworking time." 3. Substitute the following for paragraph 2(f): "(f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." 4. 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. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WFE WIL. NOT maintain or enforce any rule or regulation prohibiting our employees on our premises from soliciting on behalf of any labor organization during nonworking time or dis- 642 ()MARK-RCBS tributing union literature in nonworking areas during nonworking time. WE WI 1. NOT solicit employee grievances and offer to try to resolve some of the griev- ances during any union organizational cam- paign for purposes of discouraging union ac- tivities. WE, WIL NOT implement job benefits for the purpose of interfering with a union orga- nizing campaign. Wt Witl NOT discharge or otherwise dis- criminate against you for engaging in activities on behalf of General Teamsters Local 37, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. WE. Wtt.i. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. Wt: witl.. expunge from the personnel file of Henry McCall all references to his reprimands of February 28 and March 1, 1979, and his dis- charge of March 1, 1979. WE WILl rescind our rule prohibiting our employees while on our premises from solicit- ing on behalf of any labor organization during their nonworking time or distributing union lit- erature in nonworking areas during nonwork- ing time. WE WILL make whole Henry McCall for any losses he may have suffered as a result of our unlawful discrimination against him and We will offer him immediate reinstatement to his former job, dismissing, if necessary, anyone who may have been hired to perform the work which he had been performing prior to the time he was terminated on March 1, 1979, or, if such job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights previously en- joyed. All our employees are free to engage in concert- ed activities for the purposes of collective bargain- ing or other mutual aid or protection. Our employ- ees are also free to refrain from any or all such ac- tivities. OMARK-RCBS, A DIVISION OF OMARK INI)USTRIES DECISION STAII [SI-NI OF ' IHI CASI- JOAN VlllI!R, Administrative La's Judge: This case was heard before me at Oroville. California. on Septem- her 5, 6, and 7. 1979,1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Hoard for Region 20 on May 31, and which is based upon a charge filed by General Teamsters Local 137, In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, on March 9. The complaint, as amended pursuant to stipulated agreement, alleges that Omark-RCHS. In- corporated, a Division of Omark Industries, herein called Respondent or Company, has engaged in violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, herein called the Act. Issues Whether or not Respondent, during a union organizing campaign, committed various violations of Section 8(a)(1) of the Act by coercing, interfering with, and re- straining, including engaging in surveillance, creating the impression of surveillance, soliciting grievances from em- ployees, instituting a job bidding procedure, threatening to discharge employees, and promulgating and discrimin- atorily enforcing an unlawful no-solicitation and no-dis- tribution rule. Also, did Respondent violate Section 8(a)(3) of the Act by imposing upon Henry McCall more onerous working conditions, issuing to McCall a written reprimand, and by discharging McCall. All parties were given full opportunity to participate. to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were timely filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS or FACT I. RFSPONDENT'S USINESS Respondent admits that it is an Oregon corporation and, as here pertinent, is engaged in the manufacture and distribution of ammunition reloading equipment at its lo- cation in Oroville, California. It further admits that during the past year, in the course and conduct of its business, it has sold and shipped goods and materials valued in excess of $50,000 directly to customers outside the State of California. Accordingly, it admits and I find that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. I All Jdilt hereil refer o 197) unles, iothcrxis indicated 643 DECISIONS OF NATIONAL LABOR REIATIONS B()ARD II. 'I il IlABOR OR(iANIZATION INVOI V(I) Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. TIHI. AlI l. (il.) UNFIAIR I.ABOR PRACTICES A. Background Omark Industries2 acquired the Oroville facility in July 1976 from RCBS. It is undisputed that during No- vember 1978, several employees discussed the possibility of seeking union representation. Two of these employees, Carolyn Denny and McCall, both indicated that a major concern among employees actively advocating union representation was the lack of a job-bidding procedure. Jobbidding was one of the matters discussed during the organizing campaign and McCall stated that there was no potential of promotion unless an employee went out drinking with or was a good friend of one of the supervi- sors. Both Denny and McCall testified that prior to the commencement of the organizing campaign they both, individually and separately, discussed favoritism with Jerry Jenkins, the admitted supervisor of the assembly department. Denny claims that in June 1978, while employed in Respondent's assembly department 3 she complained to Jenkins about an incident she regarded as favoritism toward another employee. According to Denny, Jenkins denied that any favoritism was shown. Denny then said she told Jenkins, "Well, Jerry . . . well, when the union gets in here . . . the seniority . . . we will go by senior- ity list." According to Denny, Jenkins replied, "Well, . . . I don't want to have anymore talk in the shop about union." Jenkins denied having such a conversation with Denny. McCall stated that during November 1978, he dis- cussed job bidding with Jenkins, complaining about the favoritism McCall felt was being shown in selecting indi- viduals for promotion, and opining that seniority should "play a part in all aspects of employment." Jenkins re- plied, "that if I didn't like it the way it was there at RCBS' operations that I should go elsewhere. And he also told me that he felt I was making waves, and he had had enough." Jenkins denies having the conversation and making the statement attributed to him by McCall at any time. It is uncontroverted that in November 1978, Denny approached McCall and asked him if he would be will- ing to sign a union authorization card. McCall said he would. Denny then contacted the business manager of the Union4 who agreed to attend a meeting at Denny's house on December 7, 1978. This organizational meeting I Omark is comprised of six operating divisions and the Oroville facili- ty is a part of the Sporting Equipment Division which is headquartered in Lewiston Idaho. As mentioned in Respondent's brief, presently at only one of the Company's 18 locations are the employees represented by a union 3 Denny left Respondent's employ prior to the instant hearing Inas- much as the date of the incident was not within the allowable statutory period, this evidence was offered only as background anid corroborative testimony 4 Steve Ruckle. was attended by McCall and about 15 other employees. These employees complained about the use of favoritism in filling vacancies. Also during this meeting, McCall was solicited by others to serve as chairman of the in- plant organizing committee. About a week later, a second organizational meeting was held which was at- tended by McCall and about 34 other employees. Au- thorization cards were distributed and signed at this as well as at the first meeting. On December 14, 1978, the Union advised Respondents by letter that McCall had been designated the chairperson of the in-plant organiz- ing committee. A third organizing meeting was held in January. McCall, during the organizing campaign, handed out 40-50 authorization cards.6 B. Surveillance As Respondent points out in the brief: 7 "Once the Company was aware of the Union's interest, it took steps to inform employees that the Company did not wish to have a union in the Oroville plant." According to McCall, 3 or 4 days after his conversa- tion with Denny regarding his willingness to sign an au- thorization card, he was approached by Jenkins while he was working. Jenkins was said to have told McCall that there had been a rumor about a union drive and "that if I [McCall] saw any union cards or any petition circulat- ing that he'd appreciate that I bring this information to him immediately." McCall said he agreed to so inform Jenkins but never imparted any information about the or- ganizing campaign or other union activity to Jenkins or any other supervisor. Jenkins denies asking McCall to report to him on any union activity occurring at the plant. McCall also claims that on December 20, 1978, he re- ceived a reprimand based on the allegation that he was harassing an employee in an attempt to force her to sign a union card and that, during the disciplinary meeting, "Mr. Jenkins told me that if he saw me circulating any union cards that I would be terminated immediately." Jenkins denies making the threat. Respondent avers that the two statements allegedly made by Jenkins are so inconsistent as to require a con- clusion that McCall is not credible and Jenkins did not make the statements. It could be argued that Jenkins so- licited the information prior to learning of McCall's union sympathies and, only after McCall's sympathies became known, Jenkins threatened him. However, in this case, the parties stipulated that Respondent knew of McCall's union leanings as a matter of general knowl- edge since 1976.8 Jenkins was not shown to be excepted from this stipulation; therefore, it is deemed highly im- probable that he would have solicited McCall's assist- ance in engaging in surveillance. Accordingly, I credit Jenkins' claim that he did not solicit McCall's assistance I The letter was addressed to Wayne Wixom. Respondent's director of operations Respondent admits receiving the letter on or about December 16. 1978 i No petition for election was ever filed with the Board The Oroville facility has approximately 24() employees. ' Brief p 7 Fr. p. 27. 644 OMARK-RCBS in ascertaining the nature and extent of union activity at the plant.9 In view of the foregoing, it cannot be concluded that Respondent created the impression that it was engaging in surveillance of the employees' union activities or solic- ited employees to engage in surveillance of other em- ployees' union activities. Consequently, it is found that the charge in question has not been substantiated and should be dismissed. C. No-Solicitation, Vo-Distribution Rule and Threats of Discharge Respondent, in the latter part of November or the be- ginning of December 1978,10 distributed to the employ- ees a booklet called the "RCBS Employees Hand- book,"" The handbook defines the Company's solicita- tion policy as follows: There is to be no solicitation or distribution of lit- erature or materials of any kind by employees, either during working hours or during the working time of the employee who is doing the soliciting or the employee being solicited. As discussed above, on December 20, 1978, McCall re- ceived a reprimand for harassing an employee to force her to sign an authorization card. The alleged harassment was said to have occurred during working hours. Ac- cording to McCall, Jenkins refused to identify the person he had allegedly harassed and told him "that if he [Jen- kins] saw' me circulating any union cards that I would be terminated immediately." According to McCall, a few days after receiving this warning, in the presence of Joe Abiecunas and Fred Ca- saulong, he asked Jenkins if he could circulate authoriza- tion cards during breaktime. 2 Jenkins was said to have replied, "No, because the company paid us for our breaktime and the company wasn't going to pay us to circulate union cards." 9 Denny's claim in June 1978 that Jenkins said he did not want the union discused in the shop is not probative of the allegations of surveil- lance or threats as een if true, the incident occurred months prior to the commencement of any organizing activity Additionally, Denny's testi- mony is not credited. based on demeanor and the fact that her rendition of the discussion made references to the Union in a manner inferring that an organizational campaign had already commenced in June. The failure to clarify the inconsistencies in Denny's testimony cojoined with the lack of corroboration leads me, in these circumstances. to discredit her testi- mony. 0o About the same time as the union organizing campaign. I I The parties stipulated that the material contained in the handbook was in effect at Oroville from December I. 1978, to March 1i 1979. and that the handbook as distributed to all of the employees at the plant. There was n esidence regarding what the employees did with the book i.e. whether the, read the material 2 That McCall asked this question of Jenkins just a few days after he allegedly as threatened ilh immediate discharge if he circulated any union card indicates that if the threat was in fact made it was rendered within the context of ork rles contained in the employees' handbook that if solicitation was engaged in at improper times it could lead to dis- charge. To find otherwise ould render McCall's inquiry regarding ac- tivities during hreaktimr meaingless It is therefore concluded that this and the other alleged threats ere not shou'l to have been made The unsusltantiaied allegations (of McCall were, as here, replete with inherent inconsistencies and fail Io support a finding that threats of a nature viola- tie ofr Section 8(a)(1) of the Act were in fact made Therefore, it is con- cluded that this portion of the conmplaint should be dismissed. In January, McCall observed Alan Jernigan, who was employed in the shipping department, circulating an an- tiunion petition during working time as well"' as during lunch and other break periods. McCall stated that he called this apparent disparate treatment to Wixom's at- tention and Wixom replied that "he did not know any- thing about it." McCall also had a conversation with Jenkins concerning Jernigan's solications. According to McCall, Jenkins indicated that he knew about Jernigan's activity, but when asked why McCall could not act simi- larly Jenkins is said to have replied that he did not want to talk about it. Jenkins denies knowing that Jernigan was circulating a petition but did acknowledge hearing rumors. McCall's testimony regarding being prohibited from soliciting during breaktime is corroborated by Casaulong who overheard a conversation between Jenkins and McCall wherein McCall asked Jenkins why he was per- mitting Jernigan to circulate his petition on company time or on the premises when McCall could not circulate union cards or perform other union activities on compa- ny time. Casaulong believes Jenkins' reply was "that breaktime was company's [sic] time and lunchtime was your time." Respondent argues that it modified its no-so- licitation rule and no harm was done. Based on Jenkins' failure to specifically deny making this reply, his lack of clear recollection of when he received the Company's memorandum' 4 describing the no-solicitation rule as contained in the supervisor's handbook, S which Jenkins admits he only skimmed, his failure to recall when he re- ceived the handbook, his lack of clear recollection of these conversations, and his inherent probabilities and de- meanor, Jenkins' testimony regarding this incident is not credited. ' Accordingly, it is concluded that Jenkins did inform employees that they could not distribute authori- zation cards during breaktimes. That Jernigan circulated an antiunion petition during breaktimes could lead to an inference that there was dis- parate application of the solicitation rules to discourage union activity demonstrating animus and in contraven- 'a McCall is the only witness who observed Jernigan soliciting during working time and his testimony is not credited on this point Both Wil- kerson and Casaulong observed Jernigan soliciting during nonworking time. In fact, McCall admitted he signed Jernigan's petition at lunchtime ' It is dated February I, 1979. which is after the date of the alleged cons ersation Is The supervisor's handbook provides a different version of Respond- ent's solicitation policies than the employees' handbolok There was no evidence of record probative of the contention that the version of the rule contained in the supervisor's handbook was ever related to all the employees. The supervisor's handbook provides as follows: An in-plant organizer or prounion employee has a right to try to sign up or convince other employees during nonworking time That means that you can't stop an employee from engaging in such actisi- ties during coffee breaks. rest room isits, lunch breaks, clothes changing time, wash-up time. before and after shift time and during down time caused by machine failure 16 The crediting of only portions of McCall's and Jenkins' testimony is required under the circumstances of this case and does not require rejec- tion of their entire testimony. Carolina Canners. Inc., 213 NLRH 37 (1974) Accordingly, the discrediting of this portion does not require dis- counting all of Jenkins' testimony. "Nothing is more common than to be- hlee some and not all of what a witness says," dward5 Iranportion Companri 17 NLRB 34 11971). enfd. per curium 437 F 2d 502 Sth Cir. 1971) 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lion of Section 8(a)(1) of the Act. However, the evidence of record will not support such a conclusion. Jernigan had a different supervisor and it is uncontroverted that his supervisor allowed him to solicit before and after work, during lunch, and breaktimes. Permission for such activity was not shown to be contingent upon the nature of the petition or the purpose of the solicitation. 7 Based on the foregoing, it is found that Respondent's solicitation rule, as written in the employees' handbook clearly precludes solicitation during working hours and is thus prima facie invalid. Respondent argues that it has clearly shown that it communicated to employees or ap- plied the rule in a manner which clearly conveyed the fact that employees could solicit during breaktime. In the instant case, there was no indication that all the em- ployees, and particularly those under Jenkins' supervi- sion, were ever told or in any other manner informed that they could solicit during working hours when they were not actively at work. There was no evidence that any revisions to the employees' handbook version of the no-solicitation, no-distribution rule were posted or circu- lated, or that a meeting was conducted, or any other method of communication was employed to mitigate the impact of the provisions of the employees' handbook or Jenkins' statement to McCall. It is therefore concluded that both the employees' handbook and Jenkins' applica- tion of the company rules amount to an overly broad no- solicitation rule which prevented employees from solicit- ing on behalf of the Union during working hours in vio- lation of Section 8(a)(l) of the Act. See Essex Interna- tional, Inc., supra. Marriott Corporation (Children's Inn), 223 NLRB 978 (1976), and Kern's Bakeries, 227 NLRB 1329 (1977). D. Solicitation of Grievances and Changes in Working Conditions As previously indicated, Respondent, in its brief, states that when it became aware of the union organizing activ- ity "it took steps to inform the employees that the Com- pany did not wish to have a union in the Oroville plant."1 9 These steps, which the General Counsel con- tends were violative of Section 8(a)(1) of the Act, includ- ed two speeches by the Sporting Equipment Division President Jerry Pryor.2 ° The first speech was made shortly before Christmas during the employees' Christmas party.2 1 According to McCall, Pryor stated that the Company was aware of the union organizing campaign and; that the Company was cognizant of the numerous problems Respondent 7 Respondenl argues I hal i sa een handed i the application of the solicitalion rule as enemplified by the fact that Jeriigal was disciplined for returning to ork late because he ias soliciting signatures. This argu- ment is unpersuasive for the discipline was for being late, not for solicit- ing during working hours. There is itl evidence that lJernlgn Wa, ever disciplined fir soliciting during working hours, or at improper times, such as during the night-shift Houever, since kno ledge of Jcrnigan's inmproper acti ity was not sho, n. nol iinferences or concll usiolns will he drawn Ihererotrn Citing Evic. International. inc, 211 NRB 749 (1974) m Resp. br at p 7 Z, it is admitted that Pryor is a super isor Zl It is unconlttroverted that this wias the first timte IPryor spoke to he employees about the unioln rganiling campaign The Christmas party "as for all enlploccs. was experiencing that needed to be solved. Pryor "asked the employees not to sign any union cards, to give them [Respondent] an opportunity to sit down and discuss these problems, that he would come back and he prom- ised us that he would personally see that these problems were ironed out." Pryor did return to the Oroville facility the first week of January 1979, and spoke to all of the employees of the assembly department.2 2 McCall states that Pryor said he returned to the Oroville plant because the Company was very concerned and wanted to solve some of the prob- lems. He asked the employees to voice their gripes. McCall complained about the maternity benefits, favorit- ism, and the lack of a job-bidding procedure. There was also a discussion about signing job cards.2 3 McCall claims Pryor stated that the purpose of the job cards was to permit "a job-time analysis for costing purposes" and that there was no real reason to sign the cards; further- more, in response to a question Pryor stated that it would be uncalled for and without "real reason" to fire or reprimand an employee for failure to sign a job card.2 4 Finally, McCall did not recall Pryor saying that he could not make any promises but did not deny that such a statement could have been made. Fred Thurman2 5 recalled Pryor telling the employees that they did not have to sign union cards and that those who signed them would not have to stand behind them. He also recalled that Pryor discussed a few problems ex- isting in the shop but he did not recall most of the specif- ics of the discussion. Thurman did remember some men- tion of the use of job cards which Pryor indicated were used to ascertain the assembly time as a cost component and not for use against individual employees if they took too long to do a job. Thurman stated most of the discus- sion involved job cards and "the way people were being treated."2" The testimony of Moina Ruth Shannon 27 substantially corroborated the testimony of Thurman and McCall. Shannon recalled Pryor stating at the December meeting that he would return in 4 weeks "to meet with every- body because of the Union" and that at the second meet- ing he "wanted to clarify and get rid of all the gripes." The second meeting included a discussion of problems, :2 The sectnd meeting as actually a series of departnenltal meetings Onily the assembly department meeting as discussed in the testimony 2:1 Jb cards identify the part being assembled, states the number to be assembled, notes the department number. has a space for clocking the as- sigllllent i ad out, and has a signature space 24 here appears to be some confusion (in the part of most of the ist- nesses in distilnguishing what was said during the first and second meet- irgs. T'herefiore. i discussing some of the subsequent testimony, no dis- titlction can olr ill be made between the meetings 2h Thurnal vas enlplioed by Respondent fr approximately 3 years arid is currently cmplosed as an assembler, a psition he was assigned 4 or 5 months prior to the hearing 2I Thurmanl stated here were times he failed to sign the job cards but not frequently since the rcenlcy of his appointment did nt afford a suf ficietlt opporlunity to develop a meaningful history Preiously hie worked in the die department where he had to sign job cards only three hlr four imes a week He never received a written warning for failure to sign a job card Thurmanl knows oif oher eployces in the assembly de- parlmeti that failed to sign job cards and he is riot aware of their receiv- ing rlllen .arnilgs. 2 Shlannon has beecl employed b Respondenl in the assembl depart- tncni sice ()clther 1'78 646 ()MARK-RCBS one of which Shannon raised dealing with the amount of time the Company took to bring an employee up to full wages, I year, compared to the time they were expected to be able to perform the job, 45 days. Another matter discussed was the signing of job cards and she recalled Pryor saying there was no point in signing the cards, but he did not change the policy, rather he indicated that he would consult other managers a'out the job cards. Ac- cording to Shannon. no moratorium on signing job cards was imposed and there was no change in existing policy. Shannon does not recall whether Pryor said he could or could not make any promises. 28 Rebecca Lynn Graves2 9 stated that the meetings in- volved consideration of many different questions, such as medical and other benefits, pay scales for different jobs, the role of seniority in advancement, and the signing of job cards. She recalled Pryor saying that he did not know why employees had to sign the job cards.: °0 Graves also specified Pryor discussed the union organiz- ing campaign.:' Pryor "stated basically that the Union was trying to organize and that people were kind of asking for things that it was illegal for him to promise until after union activities ceased." She also recalls him commenting "that if you are sure you want to get into union activities that's your business, but if you're not sure, don't just fumble into it." Later in her testimony Graves said: "During one of Pryor's visits he did discuss the fact that higher management knew the shop was having problems and that they had been trying to straighten them out for a long time, but then they called the meeting when everything kind of came to a head, and they wanted everybody just to spell it out exactly what was on their shoulders.: 2 Graves further testified that: "Pryor never made any promises to anybody about anything. He stated he was basically there to listen and he would try to do what he could about some of the things that were going on. He was talking about both old and new problems." Brian Goff al recalled the second meeting. He remem- bered Pryor telling the employees that he did not want them to sign any cards and he did not think that the Union was the way to solve their problems. For that reason, Pryor said he traveled to Oroville to have a meeting to find out what the problems were and to try and solve them. The problems discussed included job cards,14 seniority, and most comments were described as gripes about the bosses. Although he could not remem- ber what Pryor said word for word, Pryor did say he "2 The iness also recalled specific questions were asked (on many subjects, hut she could only remember the general areas of interest such as job security and seniority One question regarding equal pay for equal work as specifically recollected. (i ira'es had been employed by ()mark for approximately I year :" appears fronm Gra\es' iestinlory that these statements ere made al the second Ptrsor meeting :B hased on Cirave' descriplon of the statements, and by making a comparisonll to (lhaer trsttniol. it appears she is referring o the first Pryor mectiring and It I so concluded 12 II is rioted hat this xxillncs appeared to he reluctant to state all?- thing hich could he conlsderced detrimental o management and 'w.ho bs her conduct xuanted to appear to be on the side of management G:0 (ioff has orked mil the assnhly approximatetly 5-1/2 ears 4 P'ryor said the use of the ards as temporary, it as a means of cealualing costI I assist he company in pricing its produclts came to Oroville "to hear the employees' problems" and further, he said something to the effect that "he couldn't promise a resolution to all their problems." Walter Wilkerson"" stated that at the first meeting Pryor asked them not to sign union cards. At the second meeting he recalled Pryor saying "his interest was to hear all the employees' complaints" and everyone "was given a chance to air their beefs,"3 6 Pryor was said to have declared at the meeting that he could not make any promises to the employees and that he could not do any- thing to change the current situation. William Casaulong 3 7 testified that Pryor, at the Christ- mas party, stated that he felt the Union could not help the employees, that they would be better off working on a one-to-one relationship rather than have a bargaining agent going between them. According to Casaulong, Pryor also said that he thought wages and working con- ditions were adequate. During the second meeting, Ca- saulong represented that Pryor repeated the Company's opposition to the Union saying that they could deal with the problems on a one-to-one basis and he would like ev- eryone not to sign a card until after the Company had an opportunity to dig into the problems3 8 and try to solve them. Pryor testified that he had planned to address the em- ployees at the Christmas luncheon to inform them of the Company's past performance as well as future hopes and expectations. When he learned of the union organizing drive he modified his address to include this subject: I explained to the employees that we were ery interested in them in dealing directly with them, and said that I thought that, really, it would be worth both their time and the Company's time to spend some-a period of time talking to them di- rectly as to what our views were on unionizing the plant, as to explain again, in case they didn't under- stand, what our policies were at this time, how we arrived at them, and really what our plans were and where we were going in the future. And I said that I would be back the day after New Year's and we would hold departmental meetings and discuss those items. When Pryor did return, as promised, he conducted de- partmental meetings which he estimated lasted 1-1/2 to 2 hours each. The format he used was to devote the first 30 minutes discussing Omark's personnel philosophy, in- cluding wages and fringe benefit programs, and the is Wilkerson has been employed as an assembler since February 1975 a6 Some of the complaints were about the poor quality of the parts to hbe assembled and, inconsistencies in management, particularly in the as- sembly shop Inconsistency in management as defined as faxormilismi J h cards sere also discussed and he understood that the emplo)ees ere asked to sign the cards but the signatures "ere not necessarily to pin the ,,itrk do n to one person, that they still had to sign the card but tha it "tasnil necessarily to he held against you in anSy ay : Casaulong has worked for Omark for 15 years and had recently been pronmoted It the position of production coordinator Any questlon regarding his supervisory status was not posed :' Some of the problems or complaints raised by the employees includ- ed discrimilnation. ages. insurance benefits; there Afere some pointed re- marks about Jenkin, and jbh cards Ie does nt recall any dscussions about scnliority r it oh hiddilng 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's open-door policy. It is uncontroverted that the Company's open-door policy was promulgated prior to the commencement of the union organizing campaign. The policy grants employees the right to seek advice from any supervisor or other managerial appointee at any level, including the president of the Company. According to Pryor, the explanation of the open-door policy generated employee discussion. Pryor stated "that he wasn't asking for grievances or problems exactly, but they certainly did arise." (Emphasis supplied.) One prob- lem raised involved the employees' concern about having to sign job cards. Pryor told the assemblage that he was not sure that the job cards needed to be signed, that they were not signed in the Company's Lewiston plant and, hence, he indicated that he would check to ascertain if the cards really needed to be signed. Someone did ask if an employee could be terminated for failure to sign the cards. Pryor claims he replied as follows: Look, if you're a good employee and you have [sic] good work record, so forth, if you don't sign a work card you're not going to be terminated for that just alone. Someone might come and ask you why you didn't obey a work rule and there could be a conversation but that in itself certainly would not be cause for termination. 3 Pryor also asserts that at the commencement of each departmental meeting he stated that because of the union organizing drive it would be illegal for Omark to make any changes in the fringe benefits, the wage package, or the personnel policies. This testimony is not credited for the reasons stated hereinbefore, particularly the lack of corroboration and the fact that the overwhelming major- ity of employees who did testify represented that Pryor met with them the second time announcing that he wanted to know their "gripes" or "complaints," and ex- pressing a desire to resolve the problems. The employee consensus on Pryor's statements, cojoined with Pryor's lack of candor, leads me to credit the employees' version of both meetings. The meetings were clearly not mere extensions of Respondent's open-door policy for much more was discussed than a mere explanation of that policy. The record clearly demonstrates that Pryor announced Respondent's desire to avoid the Union, which was de- scribed as a middleman, requested the employees to deal directly with the management, asked for "complaints or gripes," and requested an opportunity to resolve the problems. The statements are found to constitute a clear attempt to dissuade employees from supporting a union by soliciting grievances and holding out the possibility of more favorable treatment in violation of Section 8(a)(1) of the Act. See John L. Lutz Welding and Fabricating, Inc., 239 NLRB 340 (1978), and Kantor Pepsi-Cola Bot- tling Co. of Beloit, Wisconsin, 248 NLRB 99 (1980). a9 Based on the great similarity in the testimony of the employees re- garding Pr)or's statements on the job cards, demeanor. the relative posi- tion and interests of the employees their testimony that Pryor said he did not see a need to sign the job cards, that failure to sign is not a cause for discipline or discharge, and did not change the policy is credited, and not the above-quoted statement The question of job bidding, as previously indicated, was an issue of great import to the employees. Respond- ent did include in its handbook 40 a job-bidding program which was not implemented until February 1, 1979. It is admitted by General Counsel that job bidding was a pro- gram contemplated and planned prior to the commence- ment of the union organizing campaign. It is uncontro- verted that Respondent intended to implement a job-bid- ding program at Oroville but was waiting until it had a centralized bulletin board for posting jobs. They planned to position the bulletin board in a lunchroom which was under construction. Construction was to be completed in November 1978 but, according to Pryor, was not com- pleted until the last part of April. Respondent argues that managerial reorganization permitted implementation of job bidding without a centralized bulletin board. There was no clear showing of how the supervisory reorgani- zation obviated the stated need for a central posting site. The Respondent's implementation of job bidding prior to the completion of the lunchroom and prior to the estab- lishment of a central posting location is therefore found to have been an acceleration of conferring an extremely important benefit 41 for the purpose of interfering with the union organizing campaign in violation of Section 8(a)(1) of the Act. See N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1974), and A & P Tea Co., 162 NLRB 1182 at 1185. E. Alleged Discrimination The General Counsel alleges that because of McCall's union activities, Respondent discriminated against him by issuing a written reprimand to him on December 20; by imposing more onerous working conditions upon him; and, by discharging him on or about March 1, 1979. 1. Written reprimand On December 20, 1978, Jenkins issued to McCall a written warning on the following basis: Open harassment of employees on company property during scheduled work time in an attempt to gather signed union representation cards. Compa- ny rules strictly prohibit harassment of employees for any cause or reason during working hours. [sic] Respondent asserts that the origin of this warning was not McCall's union activities but rather his harassment of coworker Sharon Politovich. According to Politovich, McCall approached her and several other assemblers during worktime and started discussing the union; particularly the need for better re- tirement benefits. Politovich stated that after listening for awhile she indicated her disagreement with McCall's as- sertion that there was a need for the Union, to which McCall's response was a more aggressive presentation of 4 As previously stated, the handbook was distributed to employees in November 1978. 4 As pres iously discussed, job bidding, the lack of which was general- ly ad undoubtedly felt to have resulted in unfair advancement and fa- voritism, was an extremely important issue to the employees and was part of the genesis of the uniori organizing campaign. 648 OMARK-RCBS his views using the device of derisive and belittling verbal attacks. McCall then asked her to sign an authori- zation card and when Politovich responded, "no," McCall was said to have attacked her on the basis that she was a single parent who should be home with her children, that she was "not the kind of person that should be working there." Politovich described McCall as being "very very rude" to her, and "she left crying." Respondent stated that a coworker42 observed the inci- dent and reported it to management who then inter- viewed Politovich. Politovich testified that she described the incident to management during the course of its in- vestigation of the matter in the same manner as she testi- fied at the instant hearing. McCall was then called into the personnel office and talked to Robert Stevens, the personnel manager. McCall denied that the incident oc- curred. The investigation resulted in the issuance of the written warning. McCall's denial is not credited based on demeanor, prior consistent behavior, and, as the General Counsel stated in his brief, McCall does not contradict Polito- vich's testimony concerning the conversation. As de- tailed below, McCall had previously been disciplined for making untoward remarks to coworkers. The issue therefore is whether McCall was disciplined because he violated the no-solicitation rule, previously found invalid, or whether his actions went beyond the usual spirited attempts to convince coworkers to join the Union or were activities which would normally be sub- ject to discipline absent the union organizing cam- paign.43 On July 28, 1978, McCall received a written warning for making comments that inferred that two female employees were lesbians. McCall denied making the statement. On September 22, 1978, McCall received a written reprimand for making "offensive racial state- ments" to Mary Bradford, 4 4 which, according to the warning, Ella Smith, who did not testify, also heard. McCall's response indicated that he denied making the remarks. These two incidents occurred prior to the com- mencement of the union organizing campaign and clearly demonstrated an established company policy of issuing written reprimands for making untoward comments to coworkers. The record also demonstrates that McCall had a history, prior to December 20, and unrelated to the organizing campaign, of making such comments and being reprimanded therefore by the issuance of written warnings. Accordingly, it is found that the warning of December 20 was issued in accordance with the estab- lished company policy against harassment of coworkers and not because McCall was soliciting union authoriza- tion cards. That McCall was soliciting cards at the time is hereby found, on the basis of the total record, to have been incidental. The General Counsel has failed to show that union activity was the genesis or motivating factor leading to the discipline. On this basis, I shall recom- mend dismissal of the allegation that the issuance of the warning on December 20, 1978, was illegal. 42 Skjerping, Twho did not testify '4 As cited by General Counsel, see Kern's Bakeriev. 227 NLRB 1329 (1977) 44 Bradford testified and repeated her complaints about McCall 2. Imposition of more onerous working conditions McCall testified that shortly after the first organizing meeting in early December, he was assigned to work on "burring tools" at the "burring table.45 Both Jenkins and his assistant, Jim King, stated that there may have been a short-term assignment of McCall to that location, but it was part of the normal shop routine of rotating assign- ments. The table was close to Jenkins' work location and not close to the work station of other assemblers. McCall, on the other hand, asserts that the assignment was unusual in its long duration and because, contrary to standard practice, he was instructed not to punch in and out on jobs but that either Jenkins or King would per- form that function. McCall further asserts that, also con- trary to his normal job duties, he was instructed not to get his own supplies but to request either Jenkins or King to acquire the needed supplies. Prior to his assign- ment to the burring table which was about 20 to 25 feet away from the closest coworker, McCall worked only in the general assembly area. McCall asserts that he was as- signed to the burring table for about 2 or 3 weeks and then was assigned to another remote area to work with David Featherstone, to assemble case trimmers,4 6 until the end of February. Featherstone's work station was re- moved from the general assembly area McCall and other assemblers who testified were usually assigned. McCall asserted that Fred Casaulong4 ' usually worked at the burring table who, because it was not a high-demand item, would devote a day or day and a half to package the burring tools. It is noted that this estimate comports with the estimate given by Jenkins regarding the amount of time per month needed to package an average month's order of burring tools. Casaulong testi- fied but did not confirm or refute McCall's contention. There was no clear explanation as to why Casaulong did not perform his usual duties. Furthermore, no other as- sembler employed by Respondent testified that they were assigned to the burring table or to assist Feather- stone as part of their regular job duties. Therefore, the removal of McCall from what had been his normal work area has not been shown to be an established routine.4 8 This finding takes full cognizance of Respondent's pro- bative evidence that McCall greatly exaggerated the amount of time he was assigned to the burring table to package burring tools. It is found that the inventory was 4s According to McCall burring tools are used to reshape expended shells to permit reutilization Jenkins states that the tools are manufac- tured by a subcontractor who delivers them in lots of 228 units which are then boxed individually in custom-made boxes The subcontractor is a small firm that has difficulty keeping up with Respondent's demand. swhich is approximately 4000 per month. Accordingly, the inventory is generally low and as a shipment arrives it is usually boxed. Jenkins esli- mates that it takes 12 to 13 hours to package 4,000 burring tools. McCall said he could "assemble" about 2,000 burring tools a day. 46 Case trimmers pare down the casing of the shell and takes the place of a burring tool. 4 Casaulong's work station is not the location where McCall said he was assigned. Casaulong is confined to a wheelchair and has a permanent bench assignment 4" In fact, Mary Bradford, a coworker, during her testimony wherein she Was describing the McCall slur allegedly made to her, stated "she always sat in the first chair " This statement contradicted earlier testimo- ny she gave on emploee assignment, but is credited because of the spon- taneity oif the response 649 DECISIONS OF NATIO()NAL LABOR RELATIONS BOARD insufficient to keep McCall occupied the amount of time claimed. Further, McCall signed job cards during the months of December and January 1978, indicating he en- gaged in activities other than packaging burring tools or working on case trimmers. However, the job cards do not state the physical location of McCall when he ac- companied the tasks described on the cards. The evi- dence submitted by Respondent is insufficient to rebut the prima facie case of the General Counsel. Further- more, coworkers did notice McCall was assigned to the area he described as the burring table; and, King ad- mitted that on occasion he got all the parts for employ- ees, a fact not supported by any other nonsupervisory witness. 49 No other general assembler was shown to have been routinely assigned, or assigned at all, to the burring table or to assist Featherstone. Accordingly, the explanations given by Respondent are not credited. That McCall was physically removed from the usual work sta- tion shortly after the commencement of the union orga- nizing campaign and his designation as a principal union organizer is mentioned in Respondent's brief. The timing of the change in work station,50 the admis- sion that Respondent wished to keep the plant nonunion, and Respondent's failure to produce any documentation or other probative evidence demonstrating that employ- ees regularly or routinely were assigned to the burring table or to assist Featherstone5 t are factors requiring the conclusion that the assignments were unlawfully motivat- ed. Accordingly, it is concluded that the changes in work assignments were done with discriminatory intent in violation of Section 8(a)(1) and (3) of the Act. 3. McCall's discharge On March 1, 1979, McCall was discharged. Two ter- mination notices were prepared. One notice was dated February 28, 1979, and lists the following basis for the adverse action: "Job card not signed; job time too long; dies not properly assembled, refer to written warning of 7-19-78,52 verbal warning of 6-26-78; 53 a written warn- ing dated February 28, 1979 did not punch time card in at lunch time." This form was designated as the third written warning indicating other written warnings were 49 Management contended such assignments were made on an "as needed" basis but this mere assertion was not buttressed by one specific example of demonstration or implemention of the claimed policy involv- ing any employees other than McCall. Accordingly, this bare assertion is not credited '" See Liberty Mutual Insurance Co., 235 NLRB 1387 (1978) 5' See Vorthern Packing Co. v Paye, 274 U.S 65 (1927). ~2 The warning issued to McCall by Jenkins on July 11, 1978, contains the following supervisor's remarks: Henry did a very poor job of stamping some puller collet hboxes. They were so poorly stamped they could not he read Henry was given hrough sic] instructions by Jim King as to proper way to stamp this item We have had several poor quality jobs from Henry. He has been warned before about quality. s The dalte of the verbal warning is not clearly reproduced on the ex- hibit. Respondent introduced two notes initialed by Jenkins, one is dated June 26, 1978, and reads "Henry did not check die threads properly in assemble [sic]. Told he must check Has been told this many times." The second note is dated June 27. 1978 and reads: "Henry McCall-more im- properly checked die threads. Told quality must improve " issued February 28, 1978,54 and July 19, 1978.55 The second termination notice was dated March 1, 1979, and states the basis for termination was McCall's absence without permission. The notice also indicates that this is the first warning, written or verbal, McCall received for being absent without permission. These termination no- tices were signed by both Jenkins and his supervisor, James G. Bell. Respondent asserts that the sole basis for McCall's dis- charge was his poor work. According to the Company, on February 27, Tom Matthews,5 6 an inventory control worker, inspected some neck sizer dies in the normal course of his duties, and found that all he inspected were improperly assembled. Matthews informed James King,5 7 the assistant supervisor of the assembly depart- ment, of the poorly assembled dies.58 King examined the job card, noted that it was not signed, therefore he could not tell who was responsible for the assembly. However, the job was stamped at the timeclock, so King could as- certain how long the assembly took, and he claims the assembly took too long.5'9 King thought the problem was serious enough to bring to Jenkins' attention which he did. Jenkins said he inspected more of the dies and he also could not find any that were properly assembled. Jenkins asked King who performed the work and King replied he did not know because the job card was not signed. Jenkins indicated that he had never before seen such poor work where not one die was properly tightened, therefore, the more he inspected the more angry he became. Jenkins stated that Respondent is noted for the qualify of its products; that the extent of the error caused grave concern for it led him to conclude that the error was not inadvertent. Normally, he claims, employees made occa- sional errors, just an odd error, but in this case all were improperly assembled. Jenkins' characterization is found to be a gross overstatement. McCall's warning dated February 28, 1978, written and signed by Jenkins on March 1, 1978, was issued because of his failure to "tighten pin holders on pistol expanders properly." (Em- phasis supplied.) McCall's reply to Jenkins' remarks on the warning form indicates that the entire batch was as- sembled without the pin holders being properly tight- '4 Prior warning, issued to McCall by Jenkins for substandard work, state "Failed to ighen [sic] pin holders on pistol expanders properly. Henry has been corrected and instructed on this operation previously" s. This warning was previously discussed. sn Matthews did not testify. S7 The unrefuted testimony of the employees is that Matthews, when he discovers mistakes, informs Vernon LaRose, the production coordina- tor who generally makes the work assignments. Both Matthews and L.aRose are hourly employees and it is not contended that they' are super- visors. Why Matthews fails to follow normal routine in this instance is unexplained King did admit that it is unusual for Matthews to call a job to his attetion. r' The poor assembly was described as the expanders being loose in the siuer bodies which was caused by the assembler's failure to properly tighten the expander with plyers Also, after sampling about 20 percent ,rf he group. which contained 112 expanders, he found one set screw missing Most assembly jobs are assigned in lots of lO-)-why this assign- ent contained 112 was unexplained. .' King states that assembly of I(X) of those dies should, on the aver- age, take I hour and 2(I minutes 650 OMARK-RC3BS ened for he said he learned that day the proper method of tightening the parts. Additionally, on July 19, 1978, Jenkins issued another written warning to McCall stating that he "did a very poor job of stamping some bullet puller collet boxes." (Emphasis supplied.) This wording indicates that the error was not just an "odd error." The impression given by these two warnings is that mistakes were made involving an entire batch. This impression is confirmed by the testimony of several employees whose testimony is credited based on their status as employees, demeanor, and the consistency of the testimony. For ex- ample, Fred Thurman testified assemblers at times make mistakes such as "getting the wrong parts on the dyes they're putting together." This error would encompass the entire batch. Thurman stated he made mistakes once or twice a month. Denny confirmed this estimate of fre- quency of mistakes. 6 0 None of the employees who testi- fied stated that they were disciplined for making mis- takes, rather they were afforded the opportunity to cor- rect the mistake.6f' Based on the testimony of the employees and Jenkins' own remarks in McCall's written reprimand, it is con- cluded that finding errors or mistakes in an entire set of dies is not uncommon, contrary to Jenkins' testimony. Accordingly, it is concluded that Jenkins was less than candid and his testimony on this point is not credited. Jenkins then stated that he gave King the job card for the improperly assembled dies and instructed him to check with LaRose to see if LaRose knew who had as- sembled the dies. This testimony is not corroborated. King testified that Jenkins told him he, Jenkins, would ask LaRose, the production coordinator, which employ- ee assembled the dies. LaRose testified that Tom Mat- thews asked him, on February 28, to have McCall sign the job card.6 2 LaRose did not report to Jenkins or King, he just went to McCall and asked him to sign the card.63 McCall did sign the card. Jenkins consulted his superior, Bell, although he pos- sessed the authority to terminate McCall without seeking advice or permission from any other supervisor. Robert E. Stevens, the personnel manager, was also consulted. Stevens then contacted Pryor. Respondent contends that it proceeded with an abundance of caution due to so Another example is the testimony of Moina Ruth Shannon who stated that "she has made mistakes in her assembly work, such as putting wrong seats in a er of dies or pullting a set of dies ogelher incorrectdir with the wrong expanders in the wrong box." (Emphasis supplied.) 61 In addition to the testimony of Thurman. Denny. and Shannon, sim- ilar statements in this regard were made by Wilkerson and Casaulong 2 Although LaRose testified he knew the joh was performed by McCall, since he sat across from McCall on the day the job was done he did not state that he told anyone or was asked by anyone. who had per- formed the job Also, if L.aRose did observe McCall h he did nol ob- serve McCall't failure to insert the die in a special apparatus to hold the die while plyers were used to tighten the expender bolt. he proper as- sembly method. is unexplained us McCall stated that he signed the card a a favor to LaRoIse who said he needed a card signed and not as an admission that he had per- formed the work. While it is nt outcome determinatise. McCall's lesli- mony is not credited based on demnearlor, inherent incunsihtencies, and the other factors discussed n .'orthridge Knitting lil. /ic.., 223 NlRI 230. 235 (976). McCall's position as an in-plant organizer. 64 Only after Respondent was assured that McCall was responsible for the incorrect assembly, it contends, was the termination decision made. The question therefore is whether McCall was dis- charged for engaging in protected concerted activity or because of the improper assembly of dies cojoined with his past work history.6 5 The termination notices issued to McCall make it clear that the poorly assembled dies were not the sole reason for his termination. McCall received written warnings for poor work on February 28, 1979, and July 19, 1978; two verbal warn- ings dated June 26, 1978, and June 27, 1978 for poor work, yet McCall was not suspended or terminated. Ad- ditionally, McCall received several warnings unrelated to work quality. 6 6 McCall was not suspended or terminated h Respondenl also asserts that it exercised this abundance of caution even though it recognized that most of the "wind" had left the organiz- ing campaign's sails Is Respondent has a rule which states, in part: The following violations can result in termination without swarning Theft frnom the Company or employees Willful insubordination to Management Falsification of Company records Obtaining employment through false representation Immoral conduct or fighting on Company property Possession anid/or use of alcohol and/or controlled substances (Drugs) on Company property Reporting to work under the influence of alcohol and/or con- trolled substances (Drugs) Failure to comply with safety regulations Possession of unauthorized weapons on Company property Being on Company grounds outside normal work hours without permission Some iolations of Company rules relating to job performance will require prior counseling and/or disciplinary action. Examples are: Failure to perform effectively Inability to perform effectively Failure Io work effectively with others Failure to correct absenteeism or ardiness It is expected that employees will make every effort to correct unac- ceptable behavior or poor performance after counseling with their supervisor However. when corrective discipline is necessary it may take the form of a written warning and/or unpaid suspension from work prior to actual termination. With the exception of absenteeism, which is covered as a separate topic, one written warning followed by a repeat of the same offense within any 12-month period will result in suspension or termination. depending on the Supervisor's judgment. If the suspension is chosen and the employee repeats the violation within a 12 month period, termination will fiollow. An employee who received a written warning will be placed on a three-day unpaid suspension from work if he already has two written warnings for other offenses within the previous 12 month period in his file One more written warning for any offense within the 12 month period following suspension will result in termination Noi disciplinary document which is more than one year old will be held against an employee who is being considered for a job transfer or priomotilon nor will it affect his overall performance record Each year all personal files will be reviewed by the Personnel Man- ager Documentation of disciplinary actions which are over one year will be removed from the employee's file "; As presiously discussed: On December 201). 1978. McCall received a writtllen ariiling for harassing an employee during working hours in the course iof olitinlg authorization card signatures; on July 25, 1978. McCall receised a warning regarding comments made by McCall to iwo v omen inferring that they were lesbians and, a warning dated September 22, 1978. ,tating that McCall made offensise racial slurs These warnings Continued 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for these nonwork performance warnings. Respondent's actions, therefore, contrary to its claims, confirms the testimony of its hourly employees that the Company was lax in the enforcement of its rules. Yet, when McCall made the mistake of February 27, more than 7 months after his last work performance warning, he was immedi- ately discharged. This action leads to an inference that the reason for the discharge was pretextual inasmuch as the nature of the mistake was not shown to be substan- tially different from his prior errors or the errors of others, as discussed hereinbefore. Respondent admitted it knew of McCall's union activi- ty and further admitted it was actively trying to keep the Oroville plant nonunion. In this atmosphere, more than 7 months after the last warning was issued for poor work- manship, McCall's mistake of February 27 constitutes in- tolerable work habits which indicates discriminatory mo- tivation. See Liberty Mutual Insurance Co., 235 NLRB 1387 (1978). Also relevant in determining motivation is the employ- er's use of a multiplicity of alleged reasons for its action, which is a familiar signpost to discriminatory intent. See La-Z-Boy Tennessee, 233 NLRB 1255 (1977); N.L.R.B. v. Superior Sales. Inc., 366 F.2d 229 (8th Cir. 1966). The failure to sign a job card, as Pryor admitted and many employees testified, is not usually an offense warranting discipline. That the job time took too long is also a reason subject to debate since the standard time for as- sembly of these dies was only estimated by Respondent's witness, there is no published standard, and based on a problem, free assembly, 6 7 which is an assumption not discussed in the evidence. It is noted that it took King about 35 minutes, or almost half the "standard time" just to tighten the assembly and check one of the 112 lock rings for set screws, which indicates that the "standard time" is probably not realistic for this assembly. The last reason given on the February 28 notice for the termina- tion was failure to punch the clock after lunch. Many hourly employees testified on this issue and stated, un- controverted, that the hourly employees fail to "punch in" on occasion and their failure has not historically been the basis for disciplinary action. The variance by Re- spondent in this case from its normal business practices further supports an inference of unlawful motivation McGowen-Edison Company, 172 NLRB 1604 (1968), enfd. McGraw-Edison Co. v. N.L.R.B., 419 F.2d 67 (1969). The second termination notice, dated March 1, was based on McCall allegedly being absent without permis- sion the morning of March 1. It is undisputed that McCall was running for a local elective office and both Bell and King remembered talking to McCall about this activity. Bell also admitted that McCall asked him if he could occasionally have time off to campaign and, after checking, Bell replied that the Company encouraged such activity and requested that McCall give manage- ment advance notice of when he would be off campaign- ing. The question of whether McCall did, in fact, give were characterized as termination offenses in the section of the warning entitled "Action to be taken " 67 A problem-free assembly means that there were no missing parts, all parts were machined properly. had no rust or other impediments to a smooth, and, hence, a rapid standard assembly such notice is the subject of conflicting testimony. How- ever, based on his position as a current employee, the testimony of Abiecunas, that he did in fact tell Jenkins that McCall would be a little late the morning of March I is credited and Respondent's refutation of Abiecunas' testimony is not credited based on demeanor, inherent probabilities, and inherent inconsistencies. That the inci- dent was used as an additional reason for termination is further demonstration of Respondent's search for reasons to justify the discharge of a known union adherent, and is indicative of discriminatory nature. See N.L.R.B. v. Walton Manufacturing Co., 369 U.S. 404 (1962). Upon all the facts, including the above indicia of un- lawful motive, and the finding of antiunion proclivities I conclude that the General Counsel has established a prima facie case and Respondent has failed to establish a convincing defense. Therefore, it is found that Respond- ent discharged McCall to rid themselves of a leader of the unionizing effort in violation of Section 8(a)(3) and (I) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 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 interfered with, coerced, and restrained employees in the exercise of rights guaranteed them in Section 7 of the Act, thereby committing unfair labor practices prohibited by Section 8(a)(1) of the Act, by: (a) Instructing employees not to distribute union litera- ture or engage in union solicitation during nonworking time. (b) Soliciting employee grievances while offering to try to resolve such grievances during a union organiza- tional campaign for purposes of discouraging union ac- tivities. (c) Implementing a job benefit for the purpose of inter- fering with the union organizing campaign. 4. Respondent discriminated with respect to employ- ees' tenure, terms and conditions of employment, thereby discouraging membership in a labor organization and committing unfair labor practices prohibited by Section 8(a)(3) and (1) of the Act, by imposing more onerous terms and conditions on Henry McCall, by discharging Henry McCall on March 1, and by failing and refusing to reinstate him thereafter. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent has not been shown to have engaged in any other violation of the Act. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall rec- ommend that it cease and desist therefrom and take cer- tain affirmative action to effectuate the policies of the Act. Accordingly, the Respondent shall be ordered to 652 OMARK-RCBS immediately reinstate Henry McCall to his former job or, if that job no longer exists, then to a substantially equiva- lent job, without prejudice to his seniority and other rights and privileges previously enjoyed, and to make him whole for any loss of earnings and compensation he may have suffered because of this illegal discrimination against him in his employment as herein found. Backpay shall be computed with the formula and method pre- scribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and payment of 6-percent interest per annum 6 8 shall be computed in the manner prescribed by the Board in Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 9 The Respondent, Omark-RCBS, Incorporated, a Divi- sion of Omark Industries, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining and enforcing a rule prohibiting union solicitation and distribution of union literature in work areas during times not unequivocably defined as working time. (b) Soliciting employee grievances and indicating that attempts will be made to resolve at least some of the grievances during a union organizational campaign for purposes of discourgaging union activities. (c) Implementing job benefits for the purpose of inter- fering with the union organizing campaign. (d) Discriminating against any employee in regard to hire, tenure, or any other terms or conditions of employ- ment or order to discourage membership in or activities on behalf of the General Teamsters Local 137, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, or any other labor orga- nization. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join or assist the 68 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 69 In the event no exceptions are filed as provided by Sec 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. Union, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind its rule against union solicitation and distri- bution of union literature applicable to work areas and its discriminatory no-solicitation rule through the plant. (b) Offer Henry McCall immediate and full reinstate- ment to his former position as a general assembler or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights or privileges previously enjoyed, and make him whole for loss of earnings in the manner set forth in the section of the Decision entitled "The Remedy." (c) Expunge from Respondent's personal records, any and all referrences to the discriminatory termination of employment of Henry McCall. (d) 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 terms of this Order. (e) Post at their Oroville, California facilities copies of the attached notice marked "Appendix" 70° Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by the Respondent's representative, shall be posted by the Respondent imme- diately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 60 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the amended complaint be, and hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. '° 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 Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an a Order of the National Labor Relations Board." 653