Latex Industries, Inc.

LATEX INDUSTRIES, INC. Latex Industries, Inc. and United Paperworkers In- ternational Union, AFL-CIO, CLC, Local No. 1541. Cases 8-CA-12407 and 8-CA-12692 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 28, 1980, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Latex Indus- tries, Inc., Akron, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- hility unless the clear preponderance of all of the relevant seidence con- vinces us that the resolutions are incorrect Standard Drr [all Producrr. Inc., 91 NRB 544 (1950) enfd. 188 F 2d 362 (d Cir 1951) We have carefully examined the record and find 1no) basis for reversing his findings DECISION HERZEL H. E. PLAINE, Administrative Law Judge: Latex Industries, Inc. (herein called Respondent), a man- ufacturer of latex products used in the medical field, was charged with two distinct violations of the National Labor Relations Act (herein called the Act) in the course of and following the reaching of a first contract with United Paperworkers International Union, AFL- CIO, CLC, Local No. 1541, herein called the Charging Party or the Union after certification of the Union as bargaining representative of its production and mainte- nance employees. First, it is alleged that, after arriving at a collective- bargaining contract with the Union in December 1978, Respondent in January 1979 unilaterally changed its policy and rules on absenteeism and tardiness; its disci- plinary policy and rules to include absent-tardy infrac- tions in cumulative discipline for all other work rule in- 252 NLRB No. 122 fractions: eliminated the distinction and disciplinary dif- ferences between major and minor rule infractions; and made such changes without notice to or consultation and bargaining with the Union, thereby refusing to bargain with the Union within the meaning of Section 8(a)(5) and (1) of the Act. Second, it is alleged that, during the course of an eco- nomic strike by Respondent's employees after the con- tract negotiations had begun in 1978, Respondent discri- minatorily suspended and discharged in November 1978 Gary Webster who was engaged in lawful picketing, and refused to reinstate him when the strike ended, thereby violating Section 8(a)(3) and (1) of the Act.' Respondent contended that the changes it effected, for example in the absenteeism-tardiness policy and rules, en- compassing all work rule infractions in cumulative disci- pline, were within management discretion under the management rights clause of the collective-bargaining contract, and did not require notice to or consultation or bargaining with the Union. Respondent further contended that it properly dis- charged Webster for picket line and other strike related misconduct. The case was heard in Akron, Ohio, on May 22-23, 1979. The General Counsel and Respondent have filed briefs. Upon the entire record, including my observation of the witnesses and consideration of briefs, I make the fol- lowing: FINDINGS OF FACT 1. JURISDICTION Respondent is an Ohio corporation engaged in the manufacture of latex products for the health care indus- try at its plant in Chippewa Lake, Ohio. Annually, in the course of its business, Respondent ships products valued in excess of $50,000 from its Ohio plant direct to points outside the State of Ohio. As the parties admit, Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As the parties also admit, the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. THE UNFAIR ABOR PRACTICES A. Respondents Business Operations Respondent is a manufacturer of latex catheters and as- sembly kits and trays for them, used in the medical field. Its plant at Chippewa Lake, Ohio, comprises, three connected buildings, constructed separately between 1960 and 1973. The plantsite is a totally fenced-in oblong area fronting north on Briarwood Boulevard a divided roadway with The charge in Case 8-CA-12407 (the alleged 8(aS3) and (I) iola- tion) was filed hb the Union on November 17. 1978, and a complaint sAas issued on December 15. 1978. The charge in Case 8-CA-12h92 (the al- lcged 8(a)(5) and (I) iolation) as iled by the Union on March 19. 1979. and a omplainll consolldatring both casres as issued on April I1. I 49 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a grass median strip separating its eastbound and west- bound lanes. The main entrance gate for employee onsite parking in the employee parking area is a wide 15-foot gateway in the Briarwood Boulevard side of the fence, located at a point on Briarwood where eastbound cars can turn right directly into the gateway, and westbound cars can turn left into the gateway by crossing the median strip on a paved crossover, and, after a stop at the stop sign, cross- ing the eastbound lane. There is another and smaller gateway entrance to the plantsite on Briarwood for su- pervisors' parking, west of the main gate. At the rear of the site (the south side) fronting on Reid Road, are two gateways in the fence for ingress and egress of trucks and other vehicles engaged in the movement of goods in and out of the plant. At the time of the events of this case, Respondent had about 170-180 hourly employees engaged in production and maintenance. Management is comprised of Glenn Grable, president; James Allen, vice president; and Hartley Johnson, per- sonnel director, who were admitted supervisors and agents of Respondent within the meaning of the Act. Also participating in the making of management deci- sions, such as the negotiating and concluding of the col- lective-bargaining contract and the suspension and dis- charge of Webster, was Respondent's attorney (at the time), William Rice, who was also an agent of Respond- ent within the meaning of the Act. B. The Union Contract The Union was certified as bargaining representative of the production and maintenance employees on June 26, 1978.2 Bargaining negotiations commenced in July, but were interrupted by an economic strike by the employees that commenced on October 30 and ended November 20. Thereafter contract negotiations resumed and culmi- nated in the signing of a contract on December 8 for a 2- year term, retroactively from November 20, 1978, to No- vember 20, 1980, G.C. Exh. 2. The contract contains a "management rights" article 8 (G.C. Exh. 2, p. 8) which states that: It is understood and agreed by the Union that the Company shall retain any and all of its rights, powers, privileges and authorities except as such are specifically abridged, delegated, shared or modified by this Agreement. Thus the Company expressly re- tains the exclusive right to manage its jobs, oper- ations and affairs, and to effectively direct its em- ployees. Prominent among such unqualified rights are the following . . . to promulgate and enforce reasonable work rules. The contract negotiators for Respondent were princi- pally Attorney William Rice and Personnel Director Hartley Johnson, with Vice President Allen and Presi- dent Grable participating from time to time. The negotia- tors for the Union were Union International Representa- z' 'lhe dalte hereinlafter are 1978. unless otherwise specificd tive Robert Moore and a committee of the three employ- ees who were the union local officers, President Patricia Russell, Vice President Doris McComas, and Recording Secretary Pauline Carol Vannoy. According to Union Representative Moore, the management rights article was not the subject of any bargaining or negotiation other than a union request to shorten its length, which, presumably, was done. C. The Change in Plant Rules and Policy Relating to Absenteeism and Tardiness For years prior to and at the time of signing the col- lective-bargaining contract of December 8, 1978, Re- spondent dealt with employee conduct, or more accu- rately misconduct, under three sets of separate regula- tions or policies. First, were the rules framed in terms of prohibitions, such as: prohibiting deliberate destruction of company property, fighting on company property, theft, smoking in nondesignated areas, horseplay, etc. Second, in a separate guide for discipline, misconduct was divided between major and minor infractions. Major infractions were such as striking a supervisor, use of al- cohol or weapons on company property, or theft, and could result in immediate discharge. Minor infractions were such as horseplay or carelessness, and discipline for minor infractions followed a sequence of verbal warning, written warning, 3-day suspension, 5-day suspension, and discharge. Third, was a separate policy or guideline for absentee- ism and tardiness. Rule 14 of the rules prohibited habit- ual excessive absenteeism or tardiness. Under the guide- line, to achieve some uniformity of understanding and to avoid unequal treatment, an employee's absence that did not exceed 8 percent of the available worktime for a 2- calendar month period, or an employee's tardiness that did not exceed 8 percent in the available workdays for a l-calendar month period, was not deemed excessive and not subject to discipline. Disciplinary actions taken against an employee for excessive absenteeism or tardi- ness were deemed to be active for a 12-month period, and then erased and not cumulated with the next 12- month period, and the discipline for absenteeism and tar- diness was kept separate from the discipline for other rule infractions and not accumulated with that discipline. Hence, excessive absenteeism-tardiness had its own series of cumulative disciplinary steps, comprising verbal then written warnings, 3-day then 5-day suspensions, and fi- nally discharge. The three sets of rules, guides, and guidelines were separately posted on the plant bulletin boards and not re- moved until late December 1978 or early January 1979, after the December 8 contract was signed.3 :' The foregoing summary of the precontract system of rules of con- dluct, discipline, and the absent-tardy policy, represent the combined testi- mony of Vainoy. McComas. and Russell. who were the employee offi- cers of the union local, and represented experience of 18, 10, and 5 years, respectively, as employees under the rules and policy. and several years' experience in Vannoy's case as a supervisor in administering the rules and policy While Personnel Director Johnson differed as to certain conclu- sions of the employees, such as the continued existence of the difference Continued 856 L.AIEX INDUSTRIES. INC. Both Union Representati e Moore and Negotiating Committee Member Vannoy, in agreement with Person- nel Director Johnson, testified that in a contract negotia- tion meeting in August or September 1978, the Union proposed increasing the 8-percent allowance in comput- ing excessive absences and tardiness to 10 percent, but that Respondent declined to make the change stating that it was satisfied and that 8 percent was adequate. Vannov testified that the union negotiators decided not to press the issue, rather than risk stirring up a counterproposal to reduce the allowance. Johnson claimed that he as- sumed from the Union's acquiescence in Respondent's position that the Union was not interested in negotiating any rules of conduct Respondent might produce. How- ever, the unchallenged contradictory evidence indicates that there was no warrant for such an assumption, and that affirmatively the Union sought to be informed in writing on the existing rules and rules policies, and to be informed of and discuss any proposed new rules and policy affecting the employees. Thus, on November 28, 1978, in a meeting with Re- spondent's President Grable, Vice President Allen, Per- sonnel Manager Johnson, and Attorney Rice, the union negotiating committee headed by Union Representative Moore asked for a copy of all Respondent's rules of con- duct and related policies, and in particular the absentee- ism-tardiness rules and policies. The response was that Respondent was going to review the entire program; and Respondent agreed with the Union that it would wipe the slate clean of all existing records of absenteeism and tardiness since the employees had just returned from a strike. On December 5, at a meeting of the negotiating com- mittees for proofreading the copies of the contract to be signed, when Union Representative Moore asked again for the written absent-tardy policy he was given an oral explanation by Respondent of how the 2-month and 1- month cycle of absences and tardiness worked and was told by Vice President Allen, as both Moore and Vannoy testified, that he, Moore, would be provided with a copy and with a draft of any possible changes when President Grable returned from his vacation. This was not done said Moore. Again, at the December 8 contract signing meeting, Moore repeated his request for a copy of the absent- tardy policy and was told that Respondent was still re- viewing it, and updating it, that no significant changes were contemplated but that they would be discussed and negotiated with the Union if there were any changes to be made. No one for Respondent told Union Representative Moore and the union negotiating committee in these meetings and negotiations, including the contract signing, said Moore, that disciplinary procedures or policy con- helween major and minor infractions, I have not accepted his contradic- tor) testimony, because he admitted at the hearing that, after the removal of the preexisting posted rules ad guidelines, when cmployees McComas and Russell made repeated requests for copies of the prior postings, he concealed such postings from them but pretended compliance by giving them some materials that (he said at the hearing) were merely drafts of old proposals that had nriot becore rules or policy In the circumstances, his testimony, t1 the extent hat it purported to contradict the emphl ees' iestimony as not entitled to belief cerning absenteeism and tardiness, or changes therein, were not negotiable, indeed, it was his testimony that these discussions, particularly in the contract signing meeting, constituted agreement that before any change in the absent-tardy rules or policy was made there would be discussion and negotiation between the Employer and the Union. Apart from Personnel Manager Johnson's bland and unwarranted assumption that the Union was "not interested," not one of the participants for Respond- ent testified to contradict Union Representative Moore. On January 15, 1979, and again on February 20 and 21, without notice to or discussion with the Union, Re- spondent posted, in segments, what purported, to be new rules of conduct and what the new policy was respecting discipline, particularly concerning absenteeism and tardi- ness. Actually the "new" rules of conduct were almost a copy of the preexisting rules. However, there were two substantial changes in the guidelines and discipline for absenteeism and tardiness. First, was the abolition of the 8-percent allowance of absences and tardiness (in the 2- month and I-month cycles, respectively), so that exces- sive absence and tardiness would no longer be judged by a uniform objective standard for all affected employees, but rather judged individually in the subjective view of the relevant supervisor. Second, was the abolition of the separate discipline and separate chain of cumulation of offenses for excessive absences and tardiness, merging the discipline with that for all other misconduct and cu- mulating discipline for all offenses, including absenteeism and tardiness, in a single chain of disciplinary steps cul- minating in discharge. In effectuating the new rules and changes in discipline and disciplinary policy, Respondent first posted the two pages, that more or less repeated the preexisting rules, on January 15, 1979. The changes in discipline and disciplin- ary policy contained in two other pages were not posted until February 20 and 21, 1979. In contemporary meet- ings of the union committee with Respondent's repre- sentatives held on other subjects about the same times in January and February, the Union protested the breach of Respondent's undertaking to notify the Union of and ne- gotiate the proposed changes.4 8(a)(5) and (1) Finding Respondent contended that in view of the management rights clause of the collective-bargaining contract it could unilaterally change, without notice or bargaining, the preexisting rules of conduct and policy on discipline, specifically the rules and policy affecting absenteeism and tardiness. Mandatory subjects of bargaining are those which set a term or condition of employment or regulate the rela- tion between the employer and employee. Plant rules or rules of conduct governing employees clearly affect con- ditions of employment and are mandatory subjects of collective bargaining. The initiation of new or more 4 The current four pages of rules and discipline comprise Resp Exhs 7 and 8, from which the 8-percent guideline in computing excessie ab- sence or tardiness 'was dropped. and the merger of the line of discipline for absence and lardiness with cumulatise discipline for other misconduct was described Also, the former distinction in discipline between major and minor infractions was dropped 857 DECISIO(NS OF NATIONAL IAB()OR RELA'IONS BOARD stringent rules with respect to absenteeism, which repre- sent a significant change from prior practice, without consulting or bargaining with the Union, violates Section 8(a)(5) and (1) of the Act. Womac Industries, Inc., 238 NLRB 43 (1978). The law is settled that the right to be consulted con- cerning unilateral changes in terms of employment is a right given by statute and not one obtained by contract and that, in order to establish a waiver of a statutory right, there must be a showing of a clear relinquishment of the right. Whether there has been a clear relinquish- ment of the right is to be decided on the facts and cir- cumstances surrounding the making of the contract. Mc- Donnell Douglas Corporation, 224 NLRB 881, 887 (1976); Pepsi-Cola Distributing Company of Knoxville Tennessee, Inc., 241 NLRB 869 (1979). In Murphy Diesel Company v. .L.R.B., 454 F.2d 303, 307 (7th Cir. 1971), affg. 184 NLRB 757, the court held that the management functions clause of the contract made no reference to rules on absence or tardiness, and that there was no clear and unmistakable waiver of the Union's right to bargain about substantial changes in the discipline concerning absence and tardiness. According- ly, the violation of Section 8(a)(5) and (1) was sustained. In Pepsi-Cola Distributing Company of Knoxville, supra, the contract contained a management rights article and so-called zipper clauses, by which it was agreed that all matters desired by either party had been presented, dis- cussed, incorporated, or rejected, and the parties waived any right to bargain over any matter whether or not re- ferred to in the contract, and further stipulated that the contract comprised the complete understanding of the parties. Nevertheless, the Board held that, by looking at the prior history and the course of contract negotiations, it appeared that the Union had not waived the right to bargain over the employer's elimination of a yearend bonus paid in previous years but not mentioned in the contract. 5 So here, notwithstanding the management rights arti- cle of the contract recognizing the employer's right to promulgate and enforce reasonable work rules (art. 8, see heading B above), and indeed a zipper clause (art. 31, not cited or argued by Respondent),' the circumstances and negotiations leading to the entering of the contract establish that both parties bargained minimally for but agreed upon continuance under the contract of the pre- existing guideline of up to 8-percent allowances for ab- sences and tardiness that excused employees from disci- plinary action, and that both sides were in agreement when the contract was signed that Respondent would notify and bargain with the Union if Respondent contem- plated changing the existing absenteeism and tardiness s Likewise, in Rose Arbor Manor. A Division o Geritricsv. Inc., 242 NLRB 795, 796 (1979), where the contract contained management rights and zipper clauses, the Board held that in the light o the circumstances and negotiations relating to the making of the contract, the Union had not waived its right to bargain over employer discontinuance of payroll deductions for group health insurance benefits 6 T'he zipper clause, art. 31, states that the parties have set forth their entire understanding on all matters properly subjects for collectisve bar- gainilg; and that all matters subject to collective bargaining have been bargaining upon, whether or not included, and they may not be made the subject of bargaining durirlg ternm of the contract policy and discipline or any of the rules of conduct and discipline. In the circumstances, there was no clear and unmistakable waiver by the Union of its right to bargain about Respondent's changes in existing rules, policy, or discipline relating to employee conduct. Therefore Respondent's failure and refusal to notify the Union of, and to consult and bargain with it over, the substantial and more stringent changes Respondent made in the discipline and disciplinary policy affecting employee absences and tardiness, and dropping of the distinction and disciplinary differences between major and minor rule infractions, violated Section 8(a)(5) and (1) of the Act. The remedial order to correct the violation will pro- vide for abrogation of the changes in the rules and disci- plinary policy, for bargaining over any proposed changes, and for restoration to the status quo ante of any employees who have been disciplined or have suffered other adverse consequences or losses by reason of Re- spondent's unlawful action, Boland Marine and Manufac- ture Company, Inc., 225 NLRB 824 (1976). D. Discharge of Webster In the strike that commenced October 30 and contin- ued to November 20, Respondent obtained on the first day a state court restraining order (Resp. Exh. 9) limiting picketing to two pickets at each of the four gateway en- trances to Respondent's premises (see description, head- ing A above). Gary Webster, a maintenance man, who signed up for picket duty with the union committee was assigned to picket duty usually, though not always, at the main em- ployee gateway on Briarwood Boulevard, and was one of two pickets who picketed there from 4 to 8 a.m., or occasionally from midnight to 4 a.m. According to Union Representative Moore, on the 8th day of the strike, November 6, he received a call to attend with the union committee a 2 p.m. meeting with the management committee at a center in Wadsworth, Ohio, where the two committees had been meeting for contract negotiations. Attending for Respondent were Attorney Rice and Personnel Director Johnson. In the presence of both committees, Attorney Rice told Moore and the union committee, as Moore and Committeewom- en Vannoy and McComas testified, that Respondent was forthwith suspending Gary Webster, and he would be discharged because Webster had allegedly thrown a cherry bomb or other firecracker in or on the passen- ger's side of an employee's automobile, when it crossed the picket line at the main employee gate that morning. According to Moore, Rice stated that Respondent's action in suspending and deciding to discharge Webster had been taken on information of employees who were not striking and had come to work that morning. There was no reference by attorney Rice to the nature or extent of any injuries to or damage sustained by anyone, nor was there reference to any other or prior misconduct allegedly committed by Webster, nor was there reference to any investigation made or to be made by Respondent, according to Union Representative Moore and Vannoy and McComas. As Moore further 858 I.AT['X INDUSTRIES. INC testified, Attorney Rice further stated that unless Moore came up with something substantial to change Rice's mind and the Company's mind about the conduct of Webster that morning, Webster's suspension and dis- charge would stand. According to Union Representative Moore, he thor- oughly investigated with Webster and members of the union committee and other employees who had partici- pated in events at or near the main gate on the morning of November 6, and was informed that Webster had done nothing but stand near the gate that morning and had not thrown anything or committed any other unto- ward act. Moore so reported to Respondent's Attorney Rice a few days after November 6; Rice said he would get back to him and, when he did later in November, told Moore that the discharge of Webster would not be changed. When at the signing of the union contract on December 8, Moore requested the reinstatement of Web- ster, Respondent refused the request. None of the foregoing testimony was denied by anyone of Respondent's management, in particular Attor- ney Rice who did not testify, and Personnel Director Johnson who was the only member of management to testify. Director Johnson merely testified that Respondent's reasons for the discharge of Webster were the alleged November 6 picket line incident, and two earlier inci- dents, one on October 31 where Webster allegedly at- tempted to interfere at the picket line with ingress of em- ployee Hosey's car, and another on November 3 when Webster allegedly followed Hosey to a beauty shop she patronized. This testimony at the hearing adding two other incidents was the first specification by Respondent of alleged misconduct by Webster other than the No- vember 6 incident as the basis for his discharge, and had not been previously discussed between the Employer or the Union, let alone the employee. 7 ' Personnel Director Johnson sought to establish that Respondent at- tempted to notify Webster personally by certified mail on November 7 that he was suspended and subject to discharge for picket line and other misconduct, and that if he had anything to say to the Company to tele- phone; and, again by certified mail on November 13, that he was dis- charged because Respondent had not received any information on his behalf regarding the suspension However. Johnson established only hat such certified mail was not delivered and was returned unclaimed to Re- spndent, see Resp. Exhs 2a and h and 3a and b. Webster established that he received in the regular mail a copy of the suspension letter of November 7 after it was posted on November 27 and a copy of the discharge letter of November 13 after it was posted on No- vember 30, both well after his suspension and discharge had been effectu- ated and well after he was aware that Respondent appeared to have sug- gested that it was willing to hear him directly In light of Union Representative Moore's uncontroverted testimony that Respondent asked only for Moore's investigation (and ignored it when provided), and in further light of these late tongue-in-cheek com- munications to Webster, it is clear that Respondent was not interested in a true investigation that would include hearing directly from Webster or giving him an opportunity for direct confrontation This attitude was un- derscored by the fact that though Webster continued to picket at Re- spondent's gate daily after November 6 to 20 (when the strike ended). Respondent made no effort to hand him, or serve him personally with. the letters which would have afforded him an opportunity to he heard if Respondenlt really was ilhng to give hinm that opportunity Respondent was fully aware of Webster's continued presence at the employee's gate. because Production Manager Neff came out of the plant on November and took a moie camera photo of him .Vvemnber 6 Incident On Monday, November 6, Webster started his picket- ing at the main employee gateway on Briarwood Boule- vard at 4 a.m. His copicket was employee Etta McCourt. Because of the cold weather, the pickets maintained and usually stayed at a fire barrel for warmth. The fire barrel was at the left hand side of the gateway entrance (which was the left hand side when facing the gate, and the side closest to the driver of any vehicle when it entered the gateway). About 6 a.m., a group of about twenty women em- ployees of Respondent gathered in the median strip of Briarwood Boulevard near the main employee gateway and, carrying homemade cardboard signs, began a circu- lar protest march in the roadway at or near the cross- over used by westbound traffic to turn left and cross the eastbound lane into the driveway and through the gate- way (see description, under heading A above). According to employee pickets Webster and McCourt and several of the employee marchers such as employees Wallace, Gammell, Buckingham, Vannoy, McComas, and Russell, between six and eight cars carrying non- striking employees entered the gateway intermittently between 6:15 and 6:45 a.m., parked in the parking area, and discharged their drivers and passengers who went into the plant. Among these cars was the car of employee Rosemary Brown, which arrived at the gateway between 6:30 and 6:45 a.m. On the front seat of the car were Brown driv- ing, employee Goldie Husk sitting on the rider's side, and employee Elsie Kasserman in the middle; and on the rear seat were employees Diane White and Alice Morris, according to the employee pickets and marchers. (White and Morris claimed, as did Brown and Husk, that White and Morris were in a second car driven by White, direct- ly following Brown's car, that moved into the driveway and through the gateway to the parking area immediate- ly and only a few feet behind Brown's car. There was no clue in the evidence to settle this discrepancy in the two sets of testimony, nevertheless it made no material differ- ence in understanding and evaluating the alleged crucial event in this incident.) Since employee Brown's car had been traveling west on Briarwood, to reach the plant gateway it turned left on the crossover, stopped at the stop sign before crossing the eastbound lane to allow marchers in the eastbound lane of Briarwood to separate and step aside as the car proceeded on to the apron of the driveway and through the gateway. As Brown testified, after leaving the stop sign she tried to get into and through the gateway as quickly as she could, moving the car fast enough to let people know that she was not going to stop and was going to keep going in. She said it took her no more than I or 2 seconds. Some of the marchers testified that at the stop sign one or two of them laid their cardboard signs briefly on the windshield of Brown's car, then removed them as they stepped aside for her car to proceed forward. (Brown testified that no one placed a cardboard sign on her windshield, but she, Morris, and White, testified that one 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marcher hit the rear or rear window of Brown's car with her cardboard sign.) As Brown's car proceeded to the driveway and through the gateway, according to pickets Webster and McCourt and all of the above named marcher witnesses, Webster and McCourt were near the fire barrel on the driver's side of the car as it went through the gateway. Webster and McCourt said they were not carrying picket signs that morning, and stayed near the fire barrel to keep warm. The four of the five car riders who testi- fied (Brown, Husk, White, and Morris) said that Webster was standing on the passenger's side of the car as it went through the gateway. They remembered seeing the fire barrel on the other side to the left of the driver's side of the car, but two of them (Husk and Morris) did not recall seeing McCourt, and the other two (Brown and White) had nothing to say on the whereabouts of McCourt. No one disagreed that the car windows were closed as Brown's car went through the gateway. According to driver Brown, though she claimed picket Webster was on the side of the car away from her, she said she saw his arm move and heard a loud "crack like a cherry bomb or crack of a gun." She admitted that she had never seen a cherry bomb and would not know what it looked like. After she parked the car, said employee Brown, she did not look at her car but she and the other riders went directly into the plant, though there were no picketers or marchers inside the 8 foot high fence. Later, when she looked at her car, she found no mark on it. She said she thought she had seen something shiny leave Webster's hand but neither she nor anyone on her behalf took a look in the street to see if there was any evidence of the alleged thrown object. Brown admitted that she had been nervous when she drove through the group of marchers and was made in- creasingly so when one of the marchers laid the sign on the back of her car, and, that after passing the stop sign in the middle of the boulevard, she tried to get the car into and through the gateway as quickly as she could, at the same time trying to watch a lot of people as she moved the car fast enough to let them know she was not going to stop, and was going to keep going in. Brown further conceded that after she got into the plant, as a result of discussion with her supervisors she concluded that Gary Webster had thrown something at the car that exploded or made a loud noise. Goldie Husk, who rode in the front seat on the passen- ger side of Brown's car, with Kasserman between her and Brown, testified that as the car moved past the marchers into the driveway she heard a noise at the back of the car and turned around and saw one of the march- ers beating her cardboard sign on the back of the car. When she straightened out to look forward again, said Husk, she said she saw Webster on the right hand side of the gate throw something shiny that hit the car and ex- ploded. She saw no flash of light or smoke, only some- thing shiny, she said. Husk claimed that as a result of the loud noise she could not hear for 4 hours thereafter. She testified that after the car was parked, she and the others went into the plant and she talked to several foremen, including Foremen Batley and Carpenter, telling them she had heard something, that it hurt her ear, and she could not hear. None of the foremen, or anyone including Husk herself, suggested going to a doctor or the hospital. At 10:30 a.m., said Husk, her hearing came back. Husk said that sometime in the afternoon someone in manage- ment (not identified) asked her if she wanted to go to a hospital. She claimed that she went at 2 p.m., a doctor gave her some drops for the ear, and told her to check further if necessary with her family physician. Husk testi- fied that her hearing has been all right. There was no evidence of any hospital report or doc- tor's report, no supervisor testified regarding Husk's al- leged complaint of temporary or other loss of hearing or regarding any aspect whatsoever of the incident or of any employee reporting thereon, and, indeed, none of the other three employees (Brown, White, and Morris), who accompanied Husk into the plant on the morning of No- vember 6, mentioned that she complained of loss or tem- porary loss of hearing. Kasserman who sat next to Husk in Brown's car did not testify at all. Alice Morris, who was either on the rear seat of Brown's car with White beside her (according to the witnesses on the ground), or on the front seat of White's car immediately behind Brown's car in going into the driveway and through the gateway (according to the rider witnesses), claimed that she saw Webster throw something at Brown's car that hit it near the front of the car. The object was shiny and she thought it was a can, but when it hit the street it was not a can, she said, but looked round and shiny, She saw no flash of an explo- sion or smoke, and the object did not burst open. She made no mention of any noise. Diana White, who was either on the rear seat of Brown's car with employee Morris beside her, or driving her own car with Morris beside her on the front seat, and following directly behind Brown's car through the gateway (depending on the witnesses testifying), testified that she did not see Gary Webster throw anything, but saw a reflection of something shiny bounce off Brown's car. There was a noise, she said, a loud crack like some- thing hitting metal. White said she saw no flash of an ex- plosion and saw no powder or smoke. She claimed Web- ster was about 20 feet from Brown's car and was the only person near the car at the gate. Gary Webster and Etta McCourt testified that Rose- mary Brown's car was one of the several cars that drove past them at the gateway between 6:15 and 6:45 a.m. of November 6, and parked in the parking area. The two pickets said they stayed by the fire barrel to keep warm, on the left side of the gateway (when facing it) on he driver's side, and there was no throwing by them or by anyone of objects at Brown's car or any car, or the making of loud noises other than the yelling by the marchers, or any other interference with cars or persons coming through the gateway. Webster said he had no firecrackers or other explosive devices, nor beer or pop cans in his possesion. Both pickets also testified that they had observed the marchers assemble about 6 a.m. and march at or about 860 [.ATEX INDUSTRIES, INC the median strip of the roadway and saw no interference by them with the progress of cars that went into the gateway to the parking area. After the halfdozen or more cars, including Brown's car, were in, Webster said he left the fire barrel or driver's side of the entrance when Sheriff Del Rambo came to the gateway and pro- ceeded to disperse the women marchers in the roadway who, the sheriff said, were violating the court order limiting the pickets to two at that gate. According to Webster, the sheriff said nothing to Webster about any alleged misconduct or report of misconduct attributed to Webster, and there was no record of any complaint to the police by Respondent or other persons, nor was there any charge, arrest, or civil suit against Webster in the matter. At or about 7:15 a.m., according to pickets Webster and McCourt, Production Manager Neff came out of the plant to the employee gateway carrying a movie camera, and took pictures of them. According to Webster, he and Neff spoke jokingly, Neff saying he wanted to be sure to get their pictures in the movies, and Webster responding he would buy the popcorn if Neff showed the pictures. Neff said nothing about any alleged throwing of an object at Brown's car. Neff did not testify and Webster's testimony was uncontradicted. All of the marcher witnesses who testified-Wallace, Gammell, Buckingham, Vannoy, McComas, and Rus- sell-said they saw nothing thrown at Brown's car by pickets Webster or McCourt or by anyone else, and that they heard no explosions or loud noises, other than shouting and yelling by the marchers, as Brown's car proceeded into and through gateway. Perhaps out of a misguided notion that it would prop up what had the appearance of a flimsy case against Webster, Personnel Director Johnson claimed at the hearing that after the close of the afternoon meeting of November 6, when attorney Rice, for Respondent's com- mittee, announced to the union committee the suspension of Webster, Union Local President Russell, who was part of the committee, said to him (Johnson) that, "we'll say anything we have to in order to prove that Gary Webster did not create an incident on November 6." Johnson had difficulty in recollecting the circum- stances of the derogatory charge he was making. On cross-examination, he changed his account to say that Russell made the statement to him not at and after the suspension meeting, but after the discharge of Webster was completed, and made it in the plant at or near her work station. Russell denied having made any such state- ment at any time, and denied having ever discussed Webster with Johnson at or near her work station in the plant. In any event, I was not impressed with the credi- bility of Johnson who, by his own admission, was not above engaging in deception in his dealing with the em- ployees, see footnote 3, supra. I do not credit the deroga- tory statement he sought to attribute to Russell. In my view the whole matter was a flimsy, unsubstan- tiated accusation of wrongdoing against Webster. There was no objective evidence to support Respondent's con- temporaneous claim that a cherry bomb-a type of fire- cracker-or any other explosive had been thrown by him at Brown's car, and exploded. Looking only at the testi- mony Respondent produced, no one saw any flame or smoke or powder or any mark on Brown's car, or found, or looked for, any debris from an explosion at the gate- way, driveway, or street. There was doubt as to whether the so-called shiny object burst or disintegrated and there was no effort to locate it or particles (if it did burst) at or about the driveway or gateway. Brown, who had never seen and did not know what a cherry bomb looked like, was assisted to the conclusion by supervi- sors, who had not witnessed or investigated the alleged incident, that a cherry bomb was thrown at her car by Webster and exploded. Husk's testimony that she claimed temporary loss of hearing at the time (from a loud explosion) had no sup- port from anyone, including her fellow riders and super- visors, or from any doctor's or hospital records. The claim had the appearance of afterthought. Respondent made no investigation of the alleged inci- dent, avoided discussion with or hearing from Webster, made no complaint to the police, made no report other than to tell the Union it was suspending and firing Web- ster for throwing a cherry bomb, asked the Union to in- vestigate the accusation, and then ignored the union report without explanation. The October 31 Incident Pauline Hosey, an employee of Respondent who did not go out on strike, testified that on Tuesday morning, October 31, the second day of the strike, she drove her car through the employees gateway into the parking area for employees. In driving through the gateway, according to Hosey, Gary Webster and an unidentified woman placed their hands on the front end of Hosey's car and said, you are not going through. Hosey said she rolled down her window and told them she was going in and to get out of the way. According to Hosey, she moved her car for- ward, the woman stepped out of the way but Webster braced his hands as if to stop the car saying, you are not going in, and landed on the hood of the car as Hosey continued to drive the car foward. Webster testified that he had just come from the super- visor's gateway, also on Briarwood Boulevard to the right (facing the fence) of the employees' gateway, to sign in for picket duty. There were several police (deputy sheriffs) at the employees' gateway. Pickets were permitted to ask employees not to go into the plant, said Webster, and, as Hosey's car turned into the driveway, he started walking across the 15-foot driveway from the right-hand side to the left-hand side (or driver's side when facing the gateway) to talk to Hosey, and ask her not to go in. Webster testified that he did not touch Hosey's car until she hit him with it, going at about 5 to 10 miles per hour. He was hit in the knee he said and landed on top of the hood and came down with his feet on the ground, but was being pushed or bumped by the car as Hosey propelled it forward. Webster and Hosey agreed that Webster was saved from being run down by the car when a deputy sheriff reached over and pulled him to the side. Webster testified that at no time was he phys- ically trying to stop the car from going into the gateway. 861l DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the incident he went to the hospital to check his aching knee, but was told he had suffered only a bruise. On cross-examination, Hosey admitted that she kept bumping Webster with her care and testified that she felt it was all right for her to keep bumping him with her car if he did not have better sense than to get out of her way. There was no testimony by others, and there was no complaint to the police or charge by them concerning Webster. Respondent did not discuss the incident with the Union or Webster or investigate it. In my view, Hosey gave the appearance of a vindic- tive individual who did not hesitate to physically assault another person with her automobile when it appeared to her that the other was getting in her way. I do not credit her testimony, or Respondent's contention, that there was physical, or attempted physical, interference by Webster with her ingress into the plant on October 31. The Vovember 3 Incident Pauline Hosey testified further that in the early eve- ning of Friday, November 3 (3 days after she hit Web- ster with her car at the employee gateway), she was at her hairdresser's home and combined place of business, some miles from the plant. She testified that, out of her presence and hearing, the hairdresser (Marlene) had an- swered a ring or knock at the door, and reported to her that a man and three women had asked that she come out and talk to them. Hosey claimed that she knew the man was Gary Webster because the hairdresser reported that he said he was the person whom Hosey ran over at the Latex plant a few days before. Hosey did not come out, but claimed she called the police; and further claimed that later, when she left the hairdresser's, she found the four tires on her car punctured. She conceded that she did not see who punctured the tires. Webster, Russell, McComas, and Vannoy testified that they and three other employees, Irene Porter, Jean Smith, and Linda Saffell, had discussed on November 3 what seemed to them to be unexplained evidence of an- tagonism by Hosey to the strikers, such as hitting Web- ster on the picket line with her car, which was baffling to them particularly since Porter and McComas regarded her as their friend. They decided to see Hosey and talk it over. Her two friends knew she was at the hairdresser's place and McComas knew the hairdresser, Marlene, who bowled with her and other employees. Going in McCo- mas' car, they called at Marlene's. According to their testimony, Irene Porter did the talking when Marlene came to the door, and asked Mar- lene to tell Hosey that Irene wanted to talk to her. Hosey did not come out or make herself visible, and the seven employees piled into McComas' car and Webster drove them back to Chippewa Lake. Webster denied that he did any tire puncturing or slashing or that he talked to the hairdresser. Russell testi- fied that there was more than one car parked at the hair- dresser's place. Other than the bare claim of Hosey that her tires were punctured, there was no corroborative evidence that it was so. There was no evidence of a police report, or a repairman's report, or a contemporaneous report to Re- spondent by Hosey. If the tires were punctured, there was no direct accusation against Webster that he was re- sponsible, let alone any evidence that he was in fact re- sponsible for the damage. Respondent nor its committee discussed the alleged incident of November 3 with the Union or the union committee in connection with the suspension and discharge of Webster on November 6, nor at any other time thereafter prior to the hearing. Clearly, there was no misconduct established in con- nection with the attempt by the striking employees, in- cluding Webster, to talk to Hosey away from the picket line on November 3. 8(a)(3) and (I) Finding Acts of misconduct during a strike constitute justifica- tion for a denial of reinstatement, if the conduct is so violent and of such serious character as to render the employee unfit for further service, N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 815-816 (7th Cir. 1946). But such justification may not be found in merely a trivial rough incident or a moment of animal exuberance, Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies. Inc., 312 U.S. 287, 293 (1941). As the Board summarized a series of Board and court cases in Coronet Casuals. Inc., 207 NLRB 304, 305 (1973), a picket is not disqualified from reinstatement despite participation in varying minor incidents of misconduct, such as using obscene language, making abusive threats against nonstrikers, engaging in minor scuffles and disorderly arguments, and momentar- ily blocking cars by mass picketing. In that category, the Board held that the throwing of cherry bombs by two striking employees onto the plant premises, where no damage was done to company property or to any person on or about the premises, was not sufficiently serious misconduct to disqualify the employees from reinstate- ment, Seminole Asphalt Refining, Inc., 207 NLRB 167, 168 (1973). However, on the record made in this case, we do not reach this legal-factual question. No misconduct of even a minor nature was established against Gary Webster. The charge that he threw a cherry bomb or any other explosive at Rosemary Brown's car on the picket line on November 6 was unsubstantiated, as was Goldie Husk's claim that she suffered a temporary loss of hearing from the unproved explosion. When Respondent suspended and discharged Webster for this alleged misconduct it acted without investigation on an assumption of wrong- doing that was without foundation. The alleged earlier misconduct of Webster on October 31 and November 3, which was also not investigated and not even mentioned or relied upon by Respondent in ef- fectuating the suspension and discharge, was likewise not misconduct. The incident of October 31 proved to be a case of Hosey running Webster down with her car at the picket line, rather than attempted bodily interference by him with her car's ingress into the parking lot. The incident of November 3, in which Webster and six women strikers, some of whom were friends of employee Hosey, made an attempt to see Hosey at her hairdresser's shop and persuade her to desist from her opposition and hostility to the strikers, was an attempt that did not ma- terialize. The strikers did not see, let alone talk to Hosey, 862 I.ATEX INISTRIES. INC and made no further effort to see and talk to her. There was no evidence of threats made or conveyed to Hosey in connection with the attempted visit. Though Hosey claimed that the tires of her car were punctured thereaf- ter, this was not established, and if indeed the tires were punctured there was no evidence indicating that Weh- ster, or any other of the strikers, was responsible. In MP Indus.riA, Inc. and its Suhsidari's, Micro Alloy Missouri Inc. ad Midwest Precision Cauting Compant11', 227 NLRB 1709, 1710() I1 (1977), where strikers followed a strike replacement to her home, questioned her and told her she had "better watch it . . . we know where you live," but made no threat of physical harm aind never followed her again, the Board held that this was an isolated incident, not serious enough to deny reinstate- ment to the strikers. and that the action of the strikers was an attempt to persuade, not intimidate. Comparing the action in the case at bar. it was a solitary attempl to persuade which never got beyond the stage of an inten- tion to try to persuade that was never consummated. The discharge of a striking employee, based on the un- founded accusation and mistaken belief that the employ- ee engaged in strike misconduct, constitutes interference, restraint, or coercion infringing rights protected under Section 7 of the Act, in violation of Section 8(a)(1), V.L.R.. v. Burnup und Sims. Inc., 379 U.S. 21, 23 (1964), and further iolates Section 8(a)(3), N.L.R.B. v. Industrial Cotton MllV (a Diviion of J. P Stervens Co.), 208 F.2d 87, 90-93 (4th Cir. 1953), cert. denied 347 U.S. 935. By the suspension and discharge of Gary Webster, that was effective from November 6, 1978, and refusing to re- instate him, because of the unfounded accusation and mistaken belief that he had engaged in misconduct as a striker and picket, Respondent violated Section 8(a)(3) and (1) of the Act. CONCI USIONS Ot LAW I. In executing the collective-hargaining contract be- tween Respondent and the Union on December 8, 1978, the Union did not waive the statutory right to be noti- fied, consulted, and to bargain respecting changes by Re- spondent in preexisting policy, rules, and discipline relat- ing to employee absenteeism and tardiness or relating to other policy, rules and discipline governing employee conduct. 2. By unilaterally putting into effect. in January and February 1979, substantial and more stringent changes in discipline and disciplinary policy affecting employee ab- sences and tardiness and dropping the distinction and dis- ciplinary differences between major and minor employee rule infractions, without notice to, or consulting or bar- gaining with, the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 3. By suspending and discharging Gary Webster on November 6, 1978, while the economic strike of Re- spondent's employees against it was in progress, and re- fusing thereafter to reinstate him, based on the unfound- ed accusation and mistaken belief by Respondent that Webster had engaged in misconduct while striking and picketing, Respondent committed unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 4. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Tltl RI Mi11)N It will be recommended that Respondent: 1. Cease and desist from its unfair labor practices. (2) Rescind any changes it has unilaterally made since I)ecember 8, 1978. without bargaining with the Union, in the preexisting policy, rules, and discipline governing employee absenteeism and tardiness, in dropping the dis- tinction and disciplinary differences between major arid minor employee rule infractions, and any other unilateral changes in preexisting policy, rules. and discipline go'*- erning employee conduct. (3) Restore to the status quo ante any employees who have been disciplined or suffered adverse consequences or losses by reason of Respondent's foregoing unlawful unilateral changes in preexisting policy, rules, and disci- pline governing employee conduct, by canceling all dis- ciplinary actions that resulted from violation or failure to comply with the unilaterally promulgated changes in policy, rules, or discipline, by offering any employees discharged, suspended, or otherwise denied work oppor- tunities as a result of the unilaterally promulgated policy. rules, or discipline, immediate and full reinstatement to their former positions or, if not available, to substantially equivalent positions, and by making whole any such em- ployees who were so discharged, suspended, or other- wise denied work opportunities. computing lost pay or benefits as set out in paragraph (4) below. (4) Offer to reinstate Gary Webster, and give him backpay from the effective date of his discharge, Novem- ber 6, 1978, said backpay to be computed on a quarterly basis as set forth in 1' WI Woolworth Company, 90 NlRB 289 (195()), appro ed in .L.R.B. v. Seven-U[p Bottling Company of.M1ami. Inc., 344 U.S. 344 (1953), wkith inter- est as prescribed in Florida Steel Corporation, 231 NLRBI 651 (1977).8 (5) Post the notices provided for herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recom- mended: ORDER 9 The Respondent. Latex Industries, Inc., Akron. Ohio, its officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Promulgating or enforcing changes made after De- cember 8, 1978, in policy, rules, or discipline relating to employee absence and tardiness or other rules of conduct See. generalk. Is Plurning l'eriatg C(l, 231 NRB 71R (1h62) Il the .ve'll i no exception are filed ai provided h) Sec 102 4 of the Rules and Rgulalion, of the Nationial l.ahor Relatrins HBoard. the find- rlgs cillhrilon,, ild Ilt 'i'oinlm nded ()rder hereill hall. as pro'ildcd in Sec 102 48 1r thI Rule, and Rgulalionl. he adopted h lilt Board and heolrnl its firllllgs, con(IIluriol. and ()rder, illld .X1 ohltie .tll Ihereto ,h:all he deened ai .s' I, r ll purposes 8(i I)ECISIO)NS ()I NATI()NAL L.ABOR RELA'II()NS B()ARI) governing its employees represented by the Union, with- out bargaining with the Union. (b) Failing to notify, or failing or refusing to coInsult anld bargain with, the Union concerning any proposed changes in policy, rules, or discipline affecting absence and tardiness or other rules of conduct governing its em- ployees represented by the Union. (c) In any like or related manner interfering with the efforts of the Union to bargain collectively on behalf of the employees of Respondent whom it represents. (d) I)ischarging or suspending employees or discrimi- nating against them in regard to their hire, tenure, or any other term or condition of cmploymlent, because of their protcted concerted activities. (C) In any like or related manner interfering with, re- strainlng, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the followirng affirmative action necessary to effectuate the policies of the Act: (a) Canlcel and rescind the changes it has made since l)cceniber 8, 1978, unilaterally and without bargaining with the Union, in the preexisting policy, rules, and dis- ciplinc relating to employee absenteeism and tardiness, in dropping the distinction and disciplinary differences be- tween major and minor employee rule infractions, and any other such unilateral changes in preexisting policy, rules, or discipline governing the conduct of its employ- es represented by the Union, (b) Cancel and expunge from its personnel filcs all re- cords of disciplinary actions that resulted from \;iolation or failure to comply with the said unilaterally promulgat- ed changes in policy, rules, or discipline governing the conduct of employees represented by the Union. (c) ()ffer employees discharged, suspended, or other- wise denied work opportunities, solely as a result of the said unilateral promulgation of changes ill policy, rules, or discipline governing employee conduct, immediate and full reinstatement to their former positions or. if not available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (d) Make whole all employees who were discharged, suspended, or otherwise denied work opportunities solely as a result of the said unilateral promulgation of changes in policy, rules, or discipline governing employee con- duct in the manner set forth in paragraphs (3) and (4) of the portion of this Decision entitled "The Remedy." (e) Notify, and bargain with, the Union respecting any contemplated changes in policy, rules, or discipline gov- erninig the conduct of employees represented by the Union, and embody in a signed agreemenlt any under- stallding reached. (f) Make Gary Webster whole, in the manner set forth in paragraph (4) of the portion of this Decision entitled "The Remedy," for any loss of earnings incurred by him as a result of his suspension and discharge effective on November 6, 1978. (g) Offer to Webster immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and prvileges. (h) Preserve and, upon request. make available to the Board and 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 ascertain the backpay or other reim- bursement due under the terms of this Order. (i) Post at its plant in Chippewa Lake, Ohio, copies of the attached notice marked "Appendix.""' Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region , Respondent shall cause the copies to be signed by its authorized repre- sentatives and posted, the posted copies to be maintained for 60 consecutive days thereafter, in conspicuous places, including 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. (j) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what stegs Respondent has taken to comply herewith. "i Il the ent tha;t his ()rder is clrforccd h ai Judgmenl of a United Stlcs ('ouArt of Appeals, he ords i r Ith noItice reading "to'sltald t. Cler of the Nalional abor Relations oiard" shall read "l'oted P'urs'- llt to it Judgmll lti of the United Slates Court of Appeals l-inforcing all ()rder of the National abor Rclalions Board" APPENDIX NoIItciL To ENMit' OYII.s lPOSrII) HY ORI)IHR OF T1I NAIIONAI I.ABOR RtlATIONS BOARD Anl Agency of the United States Government After a hearing at which all sides had an opportunity 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 or- dered us to post this notice. WiI Wll I NOt promulgate or enforce changes made after ecember 8, 1978, in policy, rules, or discipline relating to employee absence and tardi- ness or other rules of conduct governing our em- ployees represented by the United Paperworkers In- ternational Union, AFL-CIO, CLC, Local 1541, without bargaining with the Union. WI, wil.l NOr fail to notify, or fail or refuse to consult and bargain with, the Union concerning any proposed changes in policy, rules, discipline affect- ing absence and tardiness of other rules of conduct governing our employees represented by the Union. Wl- wil.I NOT in any like or related manner in- terfere with the efforts of the Union to bargain col- lectively on behalf of our employees whom the Union represents. Wlt wllt. NOr discharge or suspend employees, or discriminate against them in regard to their hire, tenure, or any other term or condition of employ- ment, because of their protected concerted activi- ties, W}- wilt. NOt ill any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. I A I IN)lIS IRI-S. INC' WI wil I cancel alld rescind the changcs wec have made sillce I)ecemnber 8, 178, unilaterally and \kithout bargaining itlih the linion, in tlhe preecxisl- ing policy. rules, aid discipline relatinig to employee abscrtleis ;lland tardiness, i droppinig the disltinc- tion and disciplinary dlifferences between major atld minior emlploce rule illfraclions, ald lany other such unilateral chanlges in preexisting policy, rules, or discipline governing the conduct of our employees represented by the Union. Wl[ wit I cancel and expunge fronm our personnel files all records of disciplinary actions that resulted from violation or failure to comply with the said unilaterally promulgated changes in policy, rules, or discipline governing the coniduct of our employees represented by the Union. Wt wilt offer employees discharged suspended, or otherwise denied work opportunities, solely as a result of the said unilateral promulgationi of chaniges in policy, rules, or discipline governing employee conduct. iimldialc and full rcinstalcmenllt to th-ir foriier positions. or if not available to suhstaitiall equiv/alcnt positions, witlhout prejudice to their se- niority or other rights and privileges. Wi: Wii I make whole all enlplo\cc, \lio xcrc discharged. suspended, or otherwise delllicd .o-1k opportunities olely tas a result of the said unilateral promulgation of changes in policy, rulcs, or disci- pline governing employee conduct. W}' wHIt1 notify, and bargain with, tile Uniorl re- specting any contcmplated changes i polic. rules. or discipline governing the conduct of eniplos ecs represented by the iUnion, and cmhody in a signed agreement any understanding reached. Wt wil offer to Gary Webster his fornimer ob, anld wi t vIII give hilm hackpay , ith inlterest from the effective date of his discharge. November . 1'78. LA IIX INI)US IRIIS, INC. Shs