Bauer Aluminum Co.

National Labor Relations Board - Board Decisions

Jun 9, 1965

152 N.L.R.B. 1360 (N.L.R.B. 1965)

1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board we
are posting this notice to inform our employees of rights guaranteed to them by the
National Labor Relations Act.
WE WILL, upon request, bargain collectively with International Ladies' Gar-
ment Workers Union, AFL-CIO, as the exclusive representative of our produc-
tion and maintenance employees, and we will embody in a signed agreement any
understanding reached.
WE WILL NOT deal with or support Honesdale Dresses Association, nor give
effect to our contract with the Association, as long as the ILGWU is your repre-
sentative and the Association has not been certified by the Board.
WE WILL NOT threaten to close the plant because you select the ILGWU to
represent you.
WE WILL NOT interrogate you concerning your union activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union and to engage in union activities, or not to
join a union and not to engage in such activities.
LAURA JAYNE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia,
Pennsylvania, Telephone No. 735-2612.
Bauer Aluminum Company and United Steelworkers of America,
AFL-CIO. Cases Nos. 16-CA-2000 and 16-CA-2027. June 9,1965
DECISION AND ORDER
On December 10, 1964, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and brief,
152 NLRB No. 138.
BAUER ALUMINUM COMPANY 1361
and the entire record in the case, and hereby adopts the findings, con-
clusions,) and recommendations of the Trial Examiner with the excep-
tion noted below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, Bauer Aluminum Company, Richardson, Texas, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, with the following
addition :
Add the following as a new paragraph 2(b), the present paragraph
2(b) and those subsequent being consecutively relettered:
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his rights to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
MEMBER JENKINS, dissenting :
The record shows that prior to the commencement of any union
activity at Respondent's plant, Respondent posted on its bulletin board
a set of rules which, under the caption "offenses", read in pertinent
part :
Entering plant property when not going on shift without permis-
sion and not having cleared through the main office ....
A 3-day suspension was provided for the first violation and discharge
for the second violation. Johnston, the alleged discriminatee, was
aware of the rule.
On the night of February 6, 1964, Johnston, an off-shift employee,
entered Respondent's premises without giving notice to the office and
'The Trial Examiner found that the rule in question , prohibiting off-duty employees
from entering the employer 's premises without permission , was in fact an unlawful rule
since its interpretation by the employer , as evidenced by its application , interfered with
the employees ' Section 7 rights. The Trial Examiner reasoned that the rule, as applied,
was unlawful because it prevented off-duty employees from engaging in union activities
during nonwork time and in nonwork areas without first securing Respondent 's permis-
sion to do so. The Trial Examiner therefore concluded that the suspension and dis-
charge of Johnston and the suspension of Swaner for violation of the above - mentioned
invalid rule were in violation of Section 8(a) (3) and ( 1), since the Respondent had
made no showing that the rule was necessary to maintain production and discipline. We
agree with this finding. See N.L.R B. v. United Aircraft Corp., and Whitney Aircraft
Div., 324 F. 2d 128 (CA. 2), cert denied 376 US 951
In view of the foregoing , we are of the opinion that it is immaterial whether or not
the Respondent would have granted permission to Johnston and Swaner to enter its
premises if such a request had been made.
7 8 9- 7 3 0-6 6-v o f 15 2-8 7
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stationed himself on the parking lot for the purpose of distributing
union literature to employees coming off shift at 11 p.m. He was
approached by Flores, Respondent 's production supervisor , and told
to leave Respondent 's property . The following morning Johnston
was given a 3-day suspension for violating the rule. On February 13,
Johnston and Swaner , a coworker , entered Respondent 's premises to
distribute union literature without giving notice to the main office.
They were told by a uniformed company guard they were not to enter
the parking lot and warned that the police would be called if they did.
Johnston and Swaner disregarded the guard 's instructions and warn-
ing, entered the parking lot, and began distributing handbills. Some
employees set fire to the handbills, and upon the arrival of the police
Johnston and Swaner left Respondent 's premises . The next day
Johnston was discharged and Swaner suspended for 3 days for viola-
tion of the rule. On these facts my colleagues have concluded that
Respondent violated Section 8 (a) (1) and ( 3) of the Act.
I agree with the Trial Examiner's conclusion , and apparently so
do my colleagues , that the rule in question is, on its face , a lawful
restriction against off -shift employees entering Respondent 's premises.
I do not agree that the record facts as summarized above will support
the conclusion that the rule was interpreted or applied as if it prohib-
ited nonshift employees from entering Respondent 's premises for all
purposes , including the distribution of union literature.
While I would construe narrowly any rule requiring notice of entry
by nonshift employees to an employer 's premises during a union orga-
nizing campaign and carefully scrutinize the employer 's enforcement
of such a rule, such construction and scrutiny together with the facts
found in the instant case fall short of supporting a finding of a viola-
tion of the Act 2 In my view , the General Counsel has not proved by
a preponderance of the evidence that Respondent discriminatorily
interpreted or applied the rule .-3
The Trial Examiner found that Respondent had not engaged in any
antiunion conduct; that it knew union literature and authorization
cards were being passed out in the plant; that the employees made no
attempt to hide their union sympathies ; and that Respondent made no
effort to dismiss or penalize employees engaged in such activities.
Despite these findings, he inferred that had Johnston and Swaner
given notice of entering the parking lot, they would have been denied
access thereto . He concluded that Respondent 's activities on the nights
2 The complaint alleged six independent violations of Section 8(a)(1) and a violation
of Section 8(a) (5), which the General Counsel withdrew . Three of the alleged 8(a) (1)
violations were dismissed after thorough discussion and analysis and two were dismissed
because they were "totally unsupported by proof "
3 The record shows that the Respondent had a valid no-solicitation rule in existence
The General Counsel , however , does not contend that this rule was discriminatorily enforced
BAUER ALUMINUM COMPANY 1363
of February 6 and 13 demonstrated Respondent's opposition to the
Union and supported a finding that there had been an illegal applica-
tion of the rule.
The record is wholly devoid of any facts to support the inference
that access would have been denied. The inference is predicated almost
solely on the conduct of the guard's demand that Johnston and Swaner
leave the parking lot without regard to whether they had "permission"
to be on the premises. But an equally plausible inference is that the
guard was aware of the rule and had been instructed to exclude every-
one except those he had been notified had obtained clearance, and
neither Johnston nor Swaner had obtained clearance. Thus, the infer-
ence that had notice been given clearance would have been denied
becomes sheer conjecture and should be wholly disregarded. The
events on the nights of February 6 and 13 are, in my view, wholly con-
sistent with fair enforcement of a presumptively valid rule, and are
not evidence of opposition to the Union justifying a conclusion that
the rule was illegally applied.4 Therefore, I would dismiss the
complaint.
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
S There is no issue of pretext presented here The General Counsel did not except to
the Trial Examiner's dismissal of the proffered evidence in support of the pretext theory
as falling "too far short of proof to warrant attention."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by United Steelworkers of America, AFL-CIO, herein called
the Union, in Case No. 16-CA-2000, dated February 7, 1964, a first amended charge
filed February 24, 1964, and a second amended charge filed March 2, 1964, against
Bauer Aluminum Company, herein called the Respondent, the General Counsel of
the National Labor Relations Board, herein called the Board, by the Regional Direc-
tor for Region 16, issued a complaint dated March 23, 1964, alleging that the
Respondent had engaged in conduct violative of the National Labor Relations Act,
herein called the Act. The Respondent's answer to this complaint denied the allega-
tions of unlawful conduct alleged therein. On April 9, 1964, the Union filed its
charge in Case No. 16-CA-2027 against the Respondent. On May 8, 1964, the
Regional Director issued an order consolidating cases, a consolidated complaint in
Cases Nos. 16-CA-2000 and 16-CA-2027, and a notice of hearing. The Respond-
ent's answer to the consolidated complaint denies all the allegations of unlawful con-
duct alleged therein. Pursuant to notice, a hearing was held before Trial Examiner
Thomas N. Kessel at Dallas, Texas, on May 25 and 26 and July 20, 1964. All
parties were represented by counsel or other representative who were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to present
evidence. After the close of the hearing the General Counsel and the Respondent
submitted briefs which have been duly considered.
On the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACT
The consolidated complaint alleges and the Respondent's answer thereto admits
that Bauer Aluminum Company is a Texas corporation operating a plant at Richard-
son, Texas, for the manufacture of building materials; that during the year preceding
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issuance of the complaint it purchased and received goods and materials valued in
excess of $ 50,000 which were shipped directly to its plant from suppliers across State
lines It is conceded and I find from the foregoing facts that the Respondent is an
employer engaged in commerce within the meaning of the Act and that the purposes
of the Act will be effectuated by the Board 's assertion of jurisdiction over its opera-
tions in these proceedings.
II. THE LABOR ORGANIZATION INVOLVED .
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The amended complaint 1 alleges that the Respondent by the acts and conduct of
its officials and supervisors violated Section 8(a)(1) of the Act by: (a) interroga-
tion of employees concerning their union activities and sympathies, (b) threats to
employees of discharge or other reprisals for membership in or assistance to the
Union, (c) threats to employees of withdrawal of specific benefits for supporting the
Union, (d) creating the impression among employees that their union activities were
under surveillance, (e) maintaining and enforcing a rule against entry to the
Respondent's premises in such manner as to prohibit the distribution by employees
of union literature in nonworking areas during nonworking time, and (f) advising
employees they were not required to honor the subpenas served on them by the
General Counsel to appear at the hearing in these proceedings.
Foregoing items (b) and (c) are totally unsupported by proof. The complaint
allegations regarding them are hereby dismissed.
The evidence pertaining to items (a) and (d) is related and will, therefore, be
discussed concurrently. Glen R. Swaner is a former employee of the Respondent
whose employment ended on March 2, 1964, in circumstances which the General
Counsel maintains were violative of the Act. This matter will be treated separately.
Swaner, who was active in the Union's behalf, testified that he had attended the
Union's first meeting with the Respondent's employees on January 23, 1964, and that
Don Hughes, one of his supervisors, had subsequently asked him whether he had
attended the meeting. Swaner related that he had but refused to tell Hughes after
he was queried who else had attended. He maintained also his refusal to tell Hughes
whether an employee named Boone and the mill operator had attended, although
specifically asked. Swaner claimed that on other occasions Hughes asked him who
had attended the Union's meetings and once when he had in turn inquired how
Hughes knew there had been a meeting was told "the office knew more about what
was going on than we did."
Swaner's foregoing testimony has been excerpted by the General Counsel in his
brief as the evidence relied upon to establish unlawful interrogation by Hughes and
conduct creating the impression of surveillance There was, however, other testi-
mony by Swaner, not mentioned in the brief, which I had thought at the hearing was
elicited to show other unlawful conduct by Hughes. Because the General Counsel's
failure to refer to it may have been oversight rather than abandonment I shall recite
the testimony and consider its impact in the case. Swaner testified that he had given
the Board's agent investigating the charges several affidavits of which the first was
dated January 28, 1964. Hughes thereafter asked Swaner whether he had "turned"
him in to the Board. Swaner revealed he had mentioned him in his affidavits but
had said nothing to harm him. Hughes continued to question him whereupon
Swaner offered to show him the affidavits to convince him he had said nothing detri-
mental. Hughes did not take him up. He left, then returned, and remarked, "You
little Dickens, you're going to get me in trouble." The incident closed with Swaner's
expression of regrets.
Hughes testified he and Swaner had been intimate friends, so close that Swaner
had slept in his house when he had no place of his own. Their wives worked together
and Swaner's mother took care of both couples' children while they worked. Both
men and their wives visited each other. Hughes admitted that he and Swaner fre-
quently talked about the Union. He claimed, however, the subject was always raised
by Swaner. He denied he had ever asked Swaner who had attended the Union's
meetings, or that he had specifically inquired about the attendance of employee Boone
IAfter substantial litigation of an alleged violation of Section 8(a)(5) of the Act,
the General Counsel's motion for withdrawal of such allegation was granted
BAUER ALUMINUM COMPANY 1365
or of the mill operator. He claimed that on one occasion employee Mernon Dollar
had asked Hughes in the shop in Swaner's presence whether he was going to the
union meeting. Hughes had grinned and in turn asked Swaner whether he was going.
All three were laughing. Hughes said it was Swaner who had stated to him "the
front office knows more about the union activities than we do." He just shrugged
his shoulders, "kind of grinned," and said, "Well, they might." He related that union
literature was being passed around the plant and it was therefore generally known
when and where the union meetings were to be held.
Concerning the discussion with Swaner about the affidavits, Hughes claimed that
Swaner had warned him to be careful of what he said to the employees on the union
committee who were distributing literature, that they would "nail" him. "They
would take down everything [he] said and turn it in to the Union." Hughes thereupon
asked Swaner whether he had turned him in, but was assured he had not done so.
Hughes asked how Swaner could prove this, and Swaner offered to get his affidavit
from the Union and show it to him. Hughes declined the offer. He subsequently
was directed by the Respondent's attorney not to say anything to the employees,
presumably about the Union, or to interrogate them. This provoked him to remark
to Swaner, "You little bastard, you are going to get me into trouble." This, he main-
tained was said in a friendly conversation
Former employee Rodney E. Toumbs testified that during the latter part of March
1964 he had been involved in a conversation about the Union with Sonny Gann,
referred to by Toumbs as his supervisor, and with Louis Pope, the die shop super-
visor. Pope testified that Gann is the head of the die repair department. I find that
both Pope and Gann are supervisors within the Act's meaning. Toumbs related that
Gann had initiated the conversation during which he and Pope asked Toumbs what
he thought about the Union. Pointing to the union badge Toumbs had been wearing
they had asked him whether he believed it would help. He said it would and they
countered with the doubt that he would be able to sustain himself if the Union were
to call a strike. He was further reminded that the Union was seeking a 35-hour week.
This, replied Toumbs, would be satisfactory if he were still able to make a living.
Gann was unable to appear as a witness because of his wife's hospitalization. Pope
testified concerning the conversation with Toumbs and gave the following version.
He had noticed employee Swaner conversing with Gann. He asked Swaner what he
was doing and was told he and Gann were talking about the Union. Swaner then
asked Pope how he personally felt about the Union and further asked why the
Respondent was opposed to it. Pope affirmed his and the Respondent's opposition.
He asked Swaner what benefits he expected from the Union and Swaner enumerated
various material advantages he thought would be derived. At this point Toumbs
arrived and listened. Pope continued the interchange with Swaner and pointed out
that his expectations would not necessarily materialize with unionization. He asked
Swaner whether he could get along on the 35-hour week which the newspapers had
indicated unions were seeking. Then Toumbs spoke and said he had many friends
in the Union who seemed to be doing well and that if he were paid sufficiently he
could get along on a 35-hour week. The conversation veered to a consideration of
whether, as Swaner believed, the Respondent would have to sign a contract, particu-
larly if the employees were to strike for this objective. Pope told him the Respondent
was compelled only to negotiate. He asked Swaner whether the Union would sup-
port him during a strike and the latter could not say. This appears to have closed
the discussion.
Employee Joseph A. Lande testified that in mid-February 1964 Art G. Bauer, the
Respondent's president, asked him what was the button he was wearing which said
"Vote USA." The letters USA obviously refer to the Union. Lande replied "collec-
tive bargaining." Nothing further was said. Bauer did not testify.
Item (e), the prohibition of distribution of union literature, is reserved for later
consideration in this Decision together with the alleged Section 8(a)(3) violations.
Concerning item (f), the matter of the subpenas, employee Paul W. Chapman
testified that Supervisor Pope had asked him after he had received his subpena to
appear at the hearing on May 25 and whether he would attend. Chapman expressed
the opinion he was obligated to go. Pope told him he did not have to if he did not
want to. A half hour later Don Hughes, admittedly the day-shift die shop foreman
who I find is a supervisor within the meaning of the Act, also asked Chapman whether
he was going to the hearing. The latter answered affirmatively. Hughes told him
he did not have to go if he did not want to. Chapman asked whether he would go
were he subpenaed. Hughes said he would because salaried men must, but that
hourly paid employees were not obligated to go. Employee Larry G. Osborn testified
at the hearing on May 26. On the preceding Saturday he had asked his foreman,
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farris Morris , whether he should attend the hearing as directed by the subpena he
had received Morris told him he did not have to go if he did not want to. He
added that the Respondent 's attorneys had so advised . I find that Morris is a super-
visor within the meaning of the Act as he assigns work to the men under him, issues
discipline slips, and gives time off from work. Employee Aaron G. Williams testified
at the hearing on May 26. He had spoken to Supervisor Gann on the preceding
Thursday about his subpena and was told by Gann he could not advise him what to
do except that he did not have to go and that the choice was his.
Pope testified he had been informed by Hughes that employees Chapman and
Mullins had received subpenas . As Chapman is his only die piler and Mullins his
only mill operator on the day shift he was concerned about their absence from work
on the day they were directed to attend the hearing. He asked Chapman whether
he would attend and the latter said he would because he was supposed to. Mullins
was standing nearby and when the same question was put to him he in turn asked,
"Well, I guess I have to go , don't 19" Pope replied , "That's entirely up to you if you
go or not. I only want to know so I can schedule my work for tomorrow." Pope
acknowledged he had checked with the Respondent 's attorneys to find out whether
the subpenaed employees had to attend the hearing and their advice had been it was
entirely up to the employees . Hughes testified he had asked Chapman whether he
had received a subpena and that this inquiry had been prompted merely by his desire
to know whether Chapman would work the next day. Hughes related that Pope had
informed him of the attorneys ' advice that it was entirely up to the employees to
decide whether to honor their subpenas . He had accordingly told Chapman that
whether he went to the hearing was up to him. He denied the remarks ascribed to
him by Chapman about only salaried as distinguished from hourly employees being
required to honor subpenas , but admitted saying that if he were subpenaed he might
go to the hearing.
I am not convinced that whatever passed between Swaner and his friend Hughes
about the Union tended to coerce employees in the exercise of their Section 7 rights.
These were exceptionally close friends who frequently talked about the Union as a
topical subject of mutual concern albeit they may have had opposing interests.
Assuming , as Swaner claimed , Hughes had asked about his presence and that of
certain others at the Union 's meeting, I do not believe that Swaner or any other
employee who knew the relationship between him and Hughes would have attributed
to the latter a purpose to uncover the identity of union adherents in order to pass
this information along to the Respondent . The Union 's meetings were not con-
ducted in secrecy . As Hughes cogently observed , dates and places of these meetings
were circularized in the plant and were common knowledge. Employees in the
plant seemed not to be reluctant to wear their union buttons openly. In the circum-
stances, I am impressed that the discussions between Swaner and Hughes consisted
of mere banter accompanied by grins and laughter which reasonably dispelled any
notion that Hughes was seeking to pry from his friend information to be used by
the Respondent against him and other employees allied with him in the union move-
ment. The comment about the Respondent knowing more about the activities of the
employees than the employees themselves was just another of the breezy remarks
which jokingly passed between them and could not have implanted the feeling that
the Respondent was spying on the employees to learn about their union activities.
Their discussion about the contents of Swaner's affidavits relative to Hughes was
strictly a private matter between them and is not to be classed with those situations
where an employer 's improper inquiries about employee affidavits tend to inhibit their
cooperation with the General Counsel in the investigation of the employer 's alleged
unfair labor practices . In any event , Hughes did not even request that Swaner show
him his affidavits or take him up on his offer to obtain them for his inspection.
Toumbs' account of his interchange with Gann and Pope also does not reflect
Section 8 ( a)( 0 misconduct . All that it amounted to was a debate between a known
union adherent who displayed his support for the Union by the button he wore and
his supervisors over the merits of unionization . They were not trying to discover his
undisclosed union sympathies , but were merely endeavoring to persuade him in
legitimate argument devoid of any threats that his opinions were wrong and theirs
were right . The incident involved no coercion.
Nor do I perceive anything unlawful in President Bauer's casual question to
employee Lande about the meaning of the union button he wore. Again , there was
no effort here to have the employee reveal anything more than his openly displayed
button showed . Bauer's question did not in my opinion tend to coerce.
Because I find that none of the evidence involved in items ( a) and (d) interfered
with, restrained , or coerced employees in the exercise of rights guaranteed by the
Act, I hereby dismiss the complaint allegations pertaining to them
BAUER ALUMINUM COMPANY 1367
I find that item (e), the Respondent's prohibition of literature distribution by
employees during nonworking time in nonworking areas was unlawful interference
with their Section 7 rights and that the Respondent thereby violated Section 8 (a) (1)
of the Act. My reasons for this conclusion are explicated below in connection with
my consideration of the Respondent's alleged Section 8(a)(3) violations
Finally, as to item (f), the comments by supervisors to employees about their
freedom to disregard the directive in their subpenas to appear at the hearing, I con-
clude in accordance with Board precedent that no statutory violation has here been
shown. The facts are not substantially disputed Supervisors did tell employees
that they were not obligated to honor their subpenas, but added the choice whether
to honor them or not was theirs. I find that the supervisors involved expressed these
opinions after receiving advice from the Respondent's attorneys, and that their inter-
est in communicating this advice arose from their desire to know whether employees
would be absent from their jobs thereby affecting the scheduling of work. I am
satisfied that the supervisors did not deliberately set out to induce employees to
refrain from attending the hearing nor that they said or did anything apart from
giving their erroneous advice which placed employees in fear of reprisal if they did
come to the hearing. In the foregoing circumstances no finding may be made that
the Act was violated. The few Board decisions dealing with this subject indicate
that a finding that the Act is infringed by advice that a subpena's directive is per-
missive and not mandatory is to be made only where the misleading advice is given
to peisuade employees not to honor their subpenas by intimidation through direct
or veiled threats of reprisal. See Winn-Dixie Stoles, Inc. and Winn-Dixie Greenville,
Inc, 128 NLRB 574, 578, 579; cf. The Babcock and Wilcox Company, 114 NLRB
1465.
It should here be emphasized, however, that the advice given to the employees was
incorrect and ought not in the future be repeated. For the Respondent's informa-
tion and that of the attorneys whose misleading advice, doubtless innocently given,
led to the error, I include the Board's pronouncement in its Winn-Dixie decision,
supi a.
We cannot view the statement that one may ignore a Board subpena if he so
wishes to be an accurate statement of the law The Act and the rules and regu-
lations of the Board provide clearly that a person served with a subpena is
required to appear and to give testimony pursuant to such subpena.
B. Disciiinination
The complaint alleges that on February 8, 1964, the Respondent suspended
employee Charles A. Johnston because he had distributed union literature in a non-
working area during nonworking time and because of his other union activities, and
that aforementioned employee Swaner was suspended on February 14, 1964, for the
same reasons. It is further alleged that for these reasons on February 14, 1964, the
Respondent discharged Johnston and that on March 2, 1964, it discharged Swaner.
These actions and the Respondent's refusal to reinstate the discharged employees are
claimed to be violative of Section 8(a)(3) and (1) of the Act. The Respondent
maintains that it lawfully suspended and discharged the foregoing employees merely
because they violated a posted rule forbidding employees to enter its premises with-
out first securing permission and that the distribution of literature or union activities
of these employees had nothing to do with the actions against them. Furthermore,
defends the Respondent, Swaner was not at all discharged on March 2, 1964, but
voluntarily quit his job. The General Counsel counters with insistence that Swaner
quit his job because the Respondent in reprisal for his union activities imposed new
working conditions calculated to force his termination of employment and thereby
constructively discharged him in violation of the Act.
The facts pertaining to the suspensions and the discharge following the distribution
of literature are substantially undisputed On the night of February 6, 1964, the
Union's committee, of which Johnston was a member, decided that handbills should
be distributed to the Respondent's employees coming off shift at 11 p.m. Johnston's
shift that day had ended at 3 p.m. He went to the plant after the meeting and
arrived there at 10:30 p.m. intending to solicit signatures of employees on union
authorization cards and to pass out handbills. He admittedly stationed himself at a
point on the "grassed area of the parking lot" in front of the building from which
the employees were to emerge. This lot, fronting on a public street, was used by
the Respondent's employees and others doing business with it to park their automo-
biles. Johnston testified that as he stood on the spot designated by him, Patrick H.
Flores, the Respondent's production supervisor, appeared at the front door of the
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant building and asked what he was doing. Johnston replied he had a right to be
where he was. Flores rejoined, "I have told you once and I don't intend to tell you
again." Thereupon Johnston left. Flores acknowledged that Johnston's testimony
accurately described what occurred. He added that when he asked Johnston what
he was doing Johnston revealed he was passing out union literature and that he,
Flores, then asked "what he was doing with it on company property " The next day
Johnston was suspended for 3 days. The discipline slip given him by the Respond-
ent on this occasion, signed by R. C. Witty, Johnston's foreman, states that the
offense for which he was suspended was:
Violation of general plant rules-"entering plant property when not going on
shift, without permission and not having cleared through the main office." Time
occurred 11:07 p.m., 2-6-64.
Penalty: 1st offense, 3 days suspension.
Johnston conceded that a set of rules had been posted on the bulletin board of the
Respondent's remelt department which he had read several times before February 6,
1964. Employee Joseph A. Lande testified he copied these rules from the old colored
and faded set which had been posted for some time on that bulletin board. The
rules, as he copied them, contained the following relevant provision under the cap-
tion "offenses":
Entering plant property enclosed by a fence when not going on shift with-
out permission and not having cleared through main office.
A 3-day suspension was provided for the first violation of this rule, and discharge for
a second violation.
Johnston testified that when he returned to work on February 12 after his sus-
pension had ended he noticed that the rules which had formerly been posted had
been replaced by a new set and that the rule prohibiting entry by employees not on
shift had been changed by the deletion of the words "enclosed by fence."
On February 13, 1964, Johnston attended another meeting of the Union's orga-
nizing committee where it was decided that he should again go to the plant to sign up
employees leaving their shift at 11 p.m. He arrived at the plant at 10.30 p in. accom-
panied by employee Swatter and Mernon Dollar. This time he stationed himself on
the parking lot closer than before to the plant building. As the employees emerged
he handed them union leaflets. Several ignited these papers with matches and
invited others to add their leaflets to the burning papers they had cast on the ground
When Johnston and Swaner approached the parking lot they were met by a uniformed
company guard wearing a pistol who told them they were not to go on the parking
lot and warned that he would summon the police if they entered. The police did
subsequently arrive whereupon Johnston and Swaner left. Johnston was discharged
the next day by Foreman Witty for violating the aforementioned rule. Swaner was
suspended the same day by Supervisor Pope for violation of the rule. Mernon Dol-
lar was summoned to the office that day by Foreman Warrington who asked him if
he had been handbilling the preceding night and where he had done this. Dollar
informed Warrington he had engaged in this activity while standing on the street.
He was sent back to work with no action against him.
Production Supervisor Flores testified that before August 15 or 16, 1963, a certain
area adjacent to the plant building where scrap metal and drums had been stored had
been enclosed by a fence. When the fence was removed about that time the rule in
existence before then was modified to prohibit entry to any plant area. The rules con-
taining this modification were posted by Flores on the main bulletin board and at the
entrance of the main building in August 1963 and have since remained there.
Flores claimed that the rule against plant entry without clearance was necessitated
by the following factors, "(a) insurance effectively covering people in the plant, (b)
possibility of accidents with the company being liable, (c) cases of theft in the park-
ing lot and building, and (d) people loitering around the area coming on the plant
property." He added that the plant is in a sparsely populated area not patroled by
local police and that in the past a plant guard had been required. As to specific
incidents supporting the necessity for application of the rule to the parking lot, Flores
testified that he recalled that about 2 years ago the hub caps were removed from an
automobile which had been parked there. Concerning the last "accident," he
referred to the removal of a case of tools from an automobile. This occurred about
a year and a half ago. He mentioned no examples of loitering since the posting of
the rule, but claimed that before then "guys" came back to the plant drinking beer
and carousing.
BAUER ALUMINUM COMPANY 1369
The General Counsel adduced testimony from several witnesses to show that the
Respondent had not enforced its rule against employees in the past who had entered
the plant without clearance and who were not disciplined for their violations. The
point that ought to be made is that the rule was disparately applied to Johnston and
Swaner because of their union activities . Moreover , argues the General Counsel,
the Respondent 's indifferences to breaches of the rule in the past reflects its applica-
tion in the present case as a contrivance to prevent the lawful distribution of union
literature during the Union 's campaign . I need not burden this decision with a
recital of the General Counsel's evidence intended to show the Respondent's past
failure to enforce its rule. The instances relied upon by the General Counsel fall
too far short of proof to warrant attention to them.
Concerning his alleged constructive discharge , Swaner testified that on Friday,
February 28, 1964, he was informed by Pope he would have to assume new duties
consisting of operating a filing machine . Swaner replied that he was satisfied with
his present job, but Pope pointed out that he was receiving the maximum rate for
that job and that if he sought higher pay he would have to take the filing assignment.
Pope then ordered Swaner to file or mill nights starting the following Monday.
Swaner chose the milling job. He reported for work on Monday, March 2, on the
3 to 11 p.m. shift. About 5 p.m. that day Pope informed him that 200 new dies had
been received and that beginning the next day he was to work from 5 p.m. to 3 a.m.
Pope further indicated this arrangement was to last about 6 months.
When Swaner was told by Pope on February 28 of his new duties and that he
would have to work from 3 to 11 p.m., Mrs . Swaner was also informed by her
employer, with whom the Respondent has no connection , that her shift was to be
changed so that she would be required to work from 1 to 8 a.m. This would have
enabled Swaner to be home with his children after his 11 p.m. shift ended and
before his wife had to leave home to start her shift. When Swaner was required on
March 2 to work from 5 p.m. to 3 a.m . a problem necessarily arose concerning the
care of his children during the time when he and his wife were both at work. In
this circumstance Swaner felt that he could not continue at his job, and thereupon
quit. Swaner maintained that Don Hughes , mentioned previously as his intimate
friend and whom he called his "night superintendent ," knew that Mrs. Swaner 's shift
conflicted with his 5 p.m. to 3 a.m. hours and that he, Swaner, would not be able
to work that shift . Swaner claimed that there had never before March 2 been a
shift for these hours and that it was maintained for only 2 weeks.
Pope conceded that he knew Swaner was married and had children , but denied
knowing that Swaner's wife worked and that a babysitter was necessitated when he
ordered Swaner to work the 5 p.m. to 3 a.m . shift. He maintained he had not known
on March 2 that Swaner had walked out and left work at 8 p.m. after he had been
informed of the shift change but that he learned of this the next day when Swaner
returned to the plant and explained that he had been unable to work the new hours
because of his wife's employment and because he could not afford to pay someone
to care for his children . He assumed that had Swaner been permitted to go back to
his 3 to 11 p.m . hours he would have continued his employment. He acknowledged
that he had given Swaner no indication he would make this concession but that he
might have done so had Swaner asked him. Swaner had said nothing.
Pope explained that he had no choice about putting Swaner on a 10-hour shift.
The arrival at the plant of the large number of dies necessitated that he establish two
shifts of 10 hours each . Swaner along with another group of employees who had
originally been hired for the night shift from 3 to 11 p . m., but who had been assigned
to day hours because of a slackening in work, were assigned to the 5 p.m . to 3 a.m.
shift These emergency shifts were to be temporary. They lasted about 1 month.
As to the change in Swatter 's duties from sawing to milling , Pope related that this
occurred about 2 months before he quit He testified that Swaner had originally
been hired for a milling job but when he noted his dislike for such work he had been
assigned to drilling and sawing. When the milling work had fallen behind he had
asked Swaner to do filing. Swaner protested that he did not care for filing or milling
whereupon he had pointed out to him that he could not get ahead unless he learned
to do some job other than sawing or drilling which were the lowest paid jobs in the
plant.
Hughes maintained he was not consulted by Pope about which employees would
be selected for the 5 p .m. to 3 a.m shift . Pope merely told him that the employees
that had been originally hired for the night shift would be assigned these hours
Swaner by choice had been hired for the night shift. Hughes insisted that he had
been unaware on March 2 that Swaner had a problem about a babysitter for his
children as he had known that Swaner's mother had always taken care of the chil-
dren whenever Swaner needed her services . Hughes claimed he had never discussed
1 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Pope the subject of Swaner's children. He furthermore denied knowing that
Mrs. Swaner's shift had been changed by her employer when Swaner was directed to
work the 5 p.m. to 3 a.m. shift.
The suspension of Johnston on February 7, 1964, his discharge on February 14,
and Swatter's suspension that same day by the Respondent were violative of the Act.
The conduct for which they were penalized was statutorily protected union activity
and the mere fact that they infringed a company rule while engaging in this activity
did not legally justify the Respondent's discrimination against them. N.L.R.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9. Thus, it is immaterial to these
findings of statutory violation that the Respondent's rule against entry of its premises
without clearance by employees off shift had been changed and posted before Johns-
ton's February 6 union activities, or whether Johnston and Swaner were aware of the
revised rule forbidding their entry of the Respondent's premises, whether fenced or
not, before they engaged in the union activities for which they were penalized.
I nevertheless find from credited testimony by Production Supervisor Flores that the
rule had been changed in August 1963 by the elimination of reference to fenced areas
and that the revised rules were then posted on certain bulletin boards in the plant.
I further find from the credited testimony of employees Lande and Johnston that the
old rules containing the reference to fenced areas remained on the bulletin board in
the remelt department until after Johnston's February 7 suspension and were replaced
sometime before his return to work on February 12. It is clear that Johnston and
Swaner were apprised of the changed rule before they engaged in their February 13
union activities on the Respondent 's parking lot.
On its face the Respondent's rule is a lawful restriction against entering its property
by off-shift employees. As written it says nothing about denial to employees of entry
to engage in union activities. The General Counsel's attack, however, is not against
the written rule but is addressed to its application and enforcement in this case as if
it were a stricture against entry by employees to engage in union activities.
The Respondent defends that it acted against Johnston and Swaner only because
they violated its rule by not requesting permission before going on its property and
insists that it did not infringe the Act by these actions notwithstanding that the
employees breached the rule to engage in union activities. Although no witness for
the Respondent so testified, the Respondent's brief asserts that had the employees
requested permission to engage in their union activities on the parking lot such per-
mission would have been granted. The record points to the opposite conclusion.
Flores' instantaneous demand that Johnston evacuate the premises when he discov-
ered on the night of February 6, 1964, that Johnston was soliciting and distributing
for the Union is not compatible with the brief's claim . Not one word was then said
by Flores about Johnston's failure to obtain clearance as might have been expected
had this been the cause of his concern. Instead, when he asked Johnston what he
was doing and was informed of his union activities, he reacted spontaneously by
firmly and abruptly ordering Johnston to depart. There was no evidence that
Johnston had to any degree disturbed the tranquillity of the parking lot. Flores'
peremptory demand for his immediate departure more consistently implies his dis-
turbance with the fact that he was there at all and that he quickly wanted to put a
stop to his activities, than with concern over Johnston's technical failure to comply
with the Respondent's rule by not having asked for permission to engage in these
activities. The events of February 13, 1964, reveal the Respondent's continued
opposition to union activities on its parking lot. On that night the armed guard who
was present ordered Johnston and Swaner to depart under threat of police action.
The guard did not inquire whether they had secured clearance. His order was
promptly given as soon as he saw the employees. No explanation was furnished by
the Respondent for the presence of the guard on the parking lot. Although a guard
had been stationed there in the past, possibly in connection with the thefts and
carousing which Flores related had occurred I to 2 years ago, no guard had been
assigned to the area for some time. The guards unexplained appearance directly
after Johnston's May 6 activities and his militant demands for the withdrawal of
Johnston and Swaner imply that he had been assigned to his duty for the purpose of
preventing them from engaging in their activities on the parking lot. I am not per-
suaded by the brief that the Respondent was willing to grant employee requests to
solicit and distribute literature for the Union on the parking lot. I infer the Respond-
ent would not have granted permission for this purpose had it been requested.
The Respondent was legally privileged to impose and enforce rules controlling the
use of its property to insure maintenance of production and discipline. The Respond-
ent was not, however, unreservedly privileged by law to deny access to employees to
engage in union activities on its property as an employer's right to control his property
BAUER ALUMINUM COMPANY 1371
must be balanced with the organizational rights of his employees. Republic Aviation
Corporation v. N.L.R.B.; N.L.R.B. v. LeTourneau Company of Georgia, 324 U.S.
793. In striking this balance the Board has declared that an employer cannot law-
fully restrict oral union solicitation by employees on plant premises during their non-
working time, that a rule which prevents distribution of union literature during non-
working time in nonworking areas is presumptively invalid, and that this presumption
may be overcome only by proof that the rule is necessary for the maintenance of
production or discipline. Stoddard-Quirk Manufacturing Co., 138 NLRB 615.
Although, as noted, the rule in question does not refer to entry of the Respondent's
premises to engage in union activities, it was applied to Johnston and Swaner by the
Respondent as if it prohibited nonshift employees from entering the Respondent's
premises without clearance for all purposes including solicitation and distribution of
literature for the Union on the parking lot. The rule, as thus amplified and applied
in the case, falls short of the Board's standards. First, it constituted a rule denying
to employees the right during nonworking time to solicit for the Union and to dis-
tribute its literature in a nonworking area. This being their legally established right,
its exercise was not dependent upon the Respondent's permission and clearance. This
is clearly denoted by the Supreme Court's affirmance of the Board's findings in the
LeTourneau case, supra, that the company in that case had violated the act by sus-
pending employees for distributing literature on its parking lot in violation of a posted
rule forbidding such activity without "first securing permission from the Personnel
Department." Moreover, the Board has held that an employer may not predicate
the exercise of a Section 7 right on its own authorization. J. R. Simplot Company
Food Processing Division, 137 NLRB 1552, 1553. See also General Aniline and Film
Corporation, 145 NLRB 1215. Second, the Respondent has made no showing that
employee requests for permission and clearance to engage in union activities on its
parking lot or that prevention of such activities at this location were necessary for
the maintenance of production and discipline.
It may hardly be seriously argued that maintenance of production necessitated com-
pliance with the Respondent's rule considering that the union activities were to take
place on its parking lot at 11 p.m. Nor is it perceivable that compliance with the
rule was necessary to maintain parking lot discipline. Assuming that the rule was
intended to prevent thefts of property from automobiles or carousing by intoxicated
revelers, it does not appear how these problems could possibly have been solved by
a requirement that permission to engage in union activities be requested or that they
be prevented from occurring. The thefts which had troubled the Respondent took
place when these activities could be clandestinely accomplished, not when the lot
was crowded with departing employees headed for their parked automobiles. The
carousers were assertedly employees who had left the plant and later returned for
their revels when the lot was empty. It cannot be imagined how the thieving and
carousing could have been prevented by insistence upon requests for permission to
solicit and distribute among the employees leaving their shift or by not engaging in
these activities at all
The Respondent's brief speaks of its heavy industry and utilization of powerful
equipment as a reason for compelling requests by nonshift employees for permission
to enter and the securing of clearance before they enter its premises. I can under-
stand the Respondent's desire in the promotion of safety to keep its premises clear
of persons not on duty especially where and when such equipment is in operation.
This consideration, however, has no relevance to the question at hand for there was
no showing that any equipment was utilized at or near the place where Johnston and
Swaner engaged in their union activities, or that any industrial processes were con-
ducted at this location. The brief also mentions the Respondent's loading operations
at the shipping area in the vicinity of the parking lot as a reason to support the neces-
sity for the rule. There is, however, no evidence of any shipping activities at 11 p.m.
Moreover, the Respondent's plot plan in evidence shows that the shipping department
is more than 200 feet from the parking lot. I do not understand how the requirement
for permission to enter the parking lot to engage in union activities or the conduct of
such activities by employees is related to maintenance of production or discipline in
the shipping department.
The brief adds a claim, not relied upon by any witness as a reason for application
of the rule that Johnston's return to the parking lot on February 14, caused "general
confusion, including bonfires." There is an implication that the rule's enforcement
was reasonably necessary to enable the Respondent to guard against the confusion
caused by Johnston's activities. I find, first, that there is no evidence of the "confu-
sion" to which the brief refers. The burning of the leaflets handed out by Johnston
was not shown to have been a conflagration of serious proportions, or even something
which could have been anticipated or forfended had Johnston sought permission and
obtained clearance before going on the paiking lot. Furthermore, the Respondent
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had an armed guard at the parking lot and the Respondent does not suggest what
more it might have done to control the situation had permission been requested and
clearance granted before the arrival of the employees at the parking lot.
In sum, having considered all the Respondent's reasons for the promulgation of its
rule and its arguments intended to justify its application and enforcement in the cir-
cumstances of this case, I find that there is no proof to establish that the requirement
for permission to engage in solicitation and distribution of union literature at the
Respondent's parking lot at the end of the I1 p in. shift, or that the prevention of
these activities at such place and time was necessary for the maintenance of produc-
tion or discipline. The Respondent's defenses to the suspension and discharge of
Johnston and to the suspension of Swaner are wholly without merit. By these actions
the Respondent violated Section 8(a) (1) and (3) of the Act.
The Respondent's contention that it should be exonerated even if access to its
parking lot had been denied to Johnston and Swaner on the ground that their union
activities could effectively have beeen carried out at locations other than the
Respondent's property is not tenable. N L.R.B. v. United Steelworkers of America,
CIO (Nutone Inc.), 357 U.S. 357, relied upon the Respondent to support this con-
tention, is not applicable, for the holding of that case involved the right to access
to an employer's property of nonemployee union agents. See Stoddard-Quick Manu-
facturing Co., supra, at 622. Here we are dealing with the rights of employees seek-
ing to engage in union activities on their employer's property. I add that there is no
showing that had Johnston and Swaner stayed off the Respondent's property they
could effectively have reached the employees exiting from the plant. They would
have been required to stand on a public street where they doubtless would not have
been able to contact many of the employees who walked directly to their parked
automobiles on the lot, and they would have spent their time on the street dodging
automobiles driven from the lot rather than reaching employees with their union
message.
Swaner's quitting was a voluntary act for which the Respondent bears no statutory
liability The record reveals no conduct by the Respondent reflecting that Swaner's
changed duties and hours were part of a plan to make his continued employment so
difficult that he would be forced to quit. In so concluding, I have taken account of
Swaner's union activities and the Respondent's opposition to the Union. Flores'
explanation for changing Swaner's duties is convincing. If anything, it shows con-
cern for Swaner's welfare. The explanation for his assignment to the emergency
shift also convincingly shows this was not done to harrass him. Swaner was a logical
choice for this assignment. He was not the only employee so assigned. In fact
all the employees in his group received this assignment. Finally, I believe Flores'
testimony that he was unaware of Swaner's personal problem which made the assign-
ment so onerous for him. It was not a difficulty which Flores foresaw or intended.
The allegation that Swaner was unlawfully discharged constructively has, therefore,
not been sustained. I shall recommend its dismissal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a) (3) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act. I shall further recommend that the Respondent be ordered to offer imme-
diate and full reinstatement to Charles A. Johnston to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges
as an employee. I shall further recommend that the Respondent make him whole
for any losses which he may have suffered because of his unlawful suspension and
discharge from employment by payment to him of such sum of money as he nor-
mally would have earned as wages absent the discrimination against him. Backpay
for Johnston shall be computed throughout the period of his suspension starting on
February 7, 1964, and beginning with his discharge on February 14, 1964, until the
date of offer of reinstatement to him. I shall further recommend that the Respond-
ent make whole Glen R. Swaner for any losses which he may have suffered because
of his suspension on February 14, 1964, by payment to him of such sum of money
as he normally would have earned as wages absent the discrimination against him.
BAUER ALUMINUM COMPANY 1373
Deductions shall be made from backpay payments to Johnston and Swaner of
interim earnings on a quarterly basis in the manner provided by the Board in F. W.
Woolworth Company, 90 NLRB 289, to which shall be added interest at the rate of
6 percent per annum.
I shall further recommend that the Respondent be ordered to cease and desist
from infringing in like or related manner the rights guaranteed its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Bauer Aluminum Company 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. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By applying and enforcing its plant rules to prevent employees from engaging
in union activities during their nonworking time in nonworking areas the Respondent
has violated Section 8(a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of employ-
ees Charles A. Johnston and Glen R. Swaner the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. All allegations of the complaint with respect to which specific findings of vio-
lations have not been made to have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that the Respondent, Bauer Alumi-
num Company, Richardson, Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of America, AFL-CIO,
by its discriminating in regard to the hire and tenure of employment of its employees.
(b) Applying and enforcing its plant rules to prevent employees from engaging
in union activities during nonworking time in nonworking areas.
(c) In like or related manner interfering with, restraining, or coercing its employ-
ees in the exercise of their right to self-organization, to form, join, or assist United
Steelworkers of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which it is found will effectuate the poli-
cies of the Act.
(a) Offer to Charles A. Johnston full reinstatement to his former or substantially
equivalent position and make him whole for any loss of earnings suffered as a result
of the discrimination against him in the manner described in the section above enti-
tled "The Remedy."
(b) Make whole Glen R. Swaner for any loss of earnings suffered as a result of
the discrimination against him in the manner described in the section above entitled
"The Remedy."
(c) Upon request, make available to the Board or its agent for examination or
copying all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to determine the amount of
backpay due.
(d) Post at its plant in Richardson, Texas, copies of the attached notice marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional Director for
2In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Deciee of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 16, shall, after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 16, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.3
31n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 16, in writing, within
10 days from the date of receipt of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify the employees that:
WE WILL NOT apply or enforce our plant rules to prevent employees from
engaging in union activities during their nonworking time in nonworking plant
areas.
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by suspending
them or by discharging them for engaging in union activities on our parking lot
during their nonworking time.
WE WILL offer immediate and full reinstatement to Charles A. Johnston to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him and Glen R. Swaner whole for
any loss of earnings resulting from our discrimination against them as provided
in the Decision issued by the Trial Examiner of the National Labor Relations
Board.
WE WILL NOT in like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed by Section 7 of the National
Labor Relations Act.
BAUER ALUMINUM COMPANY,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States in his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
Millwrights & Machinery Erectors , Local Union 1510, affiliated
with the United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO (Mulberry Construction & Welding Co.) and
Lige Lee. Case No. 1 2-CB-755. June 9, 1965
DECISION AND ORDER
On February 12, 1965, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that the Respond-
152 NLRB No. 132.