Drum Parts, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1976

222 N.L.R.B. 511 (N.L.R.B. 1976)

DRUM PARTS , INC. 511
Drum Parts , Inc. and Pedro Gonzalez
Drum Parts , Inc. and Warehouse, Industrial & Service
Employees Union Local 752, Petitioner
Drum Parts, Inc., Employer-Petitioner, and Ware-
house, Industrial & Service Employees Union Local
752. Cases 8-CA-8737, 8-RC-9636, and
8-RM-712
January 22, 1976
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
By MEMBERS FANNING, JENKINS,
AND PENELLO
On September 30, 1975, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The, Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. The Administrative Law Judge found, and we
agree, that, by General Foreman O'Kelly's interroga-
tion of employee Lindeman and Production Fore-
man Collette's interrogation of employee Pekar, re-
garding activities protected under Section 7 of the
Act, Respondent violated Section 8(a)(1) of the Act.
2. The Administrative Law Judge found, and we
agree, that by promulgating and posting a no-solici-
tation, no-distribution rule on August 29, 1974; 2 by
promulgating and maintaining a second no-solicita-
tion, no-distribution rule on August 30; by repri-
manding and issuing a warning notice to employee
Pedro Gonzalez on October 24, in part because he
violated the August' 30 no-solicitation, no-distribu-
tion rule; and by Collette's cautioning of employee
Fixel and another employee on about October 24 not
to talk together about the Union, Respondent violat-
ed Section 8(a)(1) of the Act .3 For the reasons set
i The Board hereby corrects certain inadvertent errors of the Administra-
tive Law Judge, which do not affect the results herein. The hearing in this
matter was held on April 10 and 11, 1975, in Cleveland, Ohio, rather than in
Columbus, Ohio. The interrogation of employee Pekar was conducted by
Production Foreman Collette rather than by General Foreman O'Kelly
2 All dates herein are 1974 unless otherwise indicated.
3 Consistent with their dissenting opinion in Essex International, Inc, 211
forth by the Administrative Law Judge, we agree
with these findings.
3. The General Counsel has excepted to the' Ad-
ministrative Law Judge's findings that Respondent
did not violate Section 8(a)(3) and (1) of the Act by
assigning- Gonzalez to work on the large welding ma-
chine on November 11 or by thereafter suspending
Gonzalez for a period of 3 days after he refused to
work on the large welding machine and left the plant.
We find merit in these exceptions.
When Gonzalez reported to work on the morning
of November 11, he was instructed by Collette to
take over the operation of the large welding machine
which had been operated by employee Bester for 12
years. Gonzalez, who had operated the - automatic
rolling machine for approximately 5 years, had never
operated the large welding machine, although he had
operated all of the Respondent's other welding ma-
chines. After attempting to operate the large welder
for approximately 15 minutes, Gonzalez complained
to Collette that the fumes affected him and he could
not do the work. Collette informed him that "[t]his is
what I have for you." Gonzalez asked to speak to
General Manager Tiernan, but he was informed by
Collette that Tiernan was out of town. Collette had
previously informed Gonzalez that his assignment
was pursuant to instructions from O'Kelly. At this
point, Gonzalez went to the timeclock to punch out
and leave. Collette approached Gonzalez at the time-
clock and asked him what he was doing there. Gon-
zalez told Collette that he was not going to do the job
because his back hurt .4 When Collette requested
Gonzalez to perform the work until O'Kelly arrived,
Gonzalez responded that he was not going to do the
job. Collette then stated that "If you leave the shop,
as far as I am concerned, you are finished here."
Gonzalez punched out and left the shop. Thereafter,
Gonzalez received a telephone call from Collette who
informed him that he was suspended for 3 days. A
short time later, Gonzalez received a letter from Re-
spondent confirming his suspension. When Gonzalez
returned to work,' he brought with him a statement
from his doctor attesting that he had a history of
asthma attacks and advising that a change in jobs
may be beneficial. Nevertheless, Gonzalez was again
assigned to the same large welding machine.
NLRB 749 (1974), Members Fanning and Jenkins find that the August 30
no-solicitation, no-distribution rule is ambiguous and therefore impermissi-
bly broad. Member Penello finds, consistent with his concurring opinion in
Essex, that the August 30 rule is invalid since the language of the notice that
accompanied the rule, which included a reference to the "plant working
day," clarified the rule and extended its prohibition beyond "paid working
time "
4 The record reveals that Gonzalez regarded his asthma condition and the
pain in his back as one and the same physical hmitation . He felt that his
back pain was caused by his breathing in of the smoke fumes which were
emitted by the large welding machine
222 NLRB No. 78
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the following facts, we find that Respon-
dent violated Section 8(a)(3) and (1) by discriminato-
rily assigning Gonzalez to work at a job it knew was
physically difficult for him to perform, because he
had openly expressed a prounion attitude.
The fact that Respondent had knowledge of Gon-
zalez' prounion attitude is clear from the record. On
October 24, Gonzalez received a verbal reprimand
and a written warning after another employee had
complained to Respondent that Gonzalez had been
bothering her about the Union. As noted above, we
have found that these actions violated Section 8(a)(1)
of the Act because they were, at least in part, the
result of the Respondent's application of an unlawful
no-solicitation rule. Respondent also made reference
to its disciplining of Gonzalez in a notice which it
posted on October 24. This notice stated, in part, that
"just prior to my posting of this notice, it has been
brought to my attention that-one of our male em-
ployees who is an apparent strong Union supporter
has intimidated another employee in regard to her
position in election matters. This person has been
given a disciplinary reprimand in regard to this in-
fraction. This employee and all others are hereby put
on notice that Drum Parts will not tolerate any such
conduct and will issue severe disciplinary actions if
any such activities become known."
It is also evident from the record that Respondent
had prior knowledge of the fact that it would be
physically difficult for Gonzalez to work on the large
welding machine. Thus, as found by the Administra-
tive Law Judge, Respondent had known for some
time that Gonzalez had allergy and breathing prob-
lems. Additionally, the record reveals that the large
welding machine emits more smoke fumes than the
Respondent's other welding machines and its opera-
tion, unlike the other welding machines, requires the
operator to be in a sitting position which makes it
difficult to avoid breathing in the smoke fumes.
When Gonzalez complained to Collette that the
fumes affected him and that he could not do the
work, Collette's only response was that "[t]his is what
I have for you." This unaccommodating treatment of
Gonzalez, when viewed in light of the following facts,
supports our finding that Gonzalez' assignment was
discriminatory. Gonzalez was an employee of com-
paratively long standing with the Respondent and he
had an outstanding work attendance record. Further,
he was able to perform any of the various duties of
the regular production employees and he had always
willingly accepted, without question, any assignment
given to him. This treatment is also in sharp contrast
to the more favorable treatment that Respondent
had recently given to two known antiunion employ-
ees who had complained about stress. Finally, this
treatment is inconsistent with the accommodating at-
titude that Respondent had exhibited toward Gonza-
lez' health problems in the past. Thus, during the pre-
vious summer, Gonzalez had complained that his
breathing was affected by certain fans in the plant
which were blowing air on him. The fans were redi-
rected and Gonzalez was given permission by Re-
spondent to turn them off whenever he wished.
That Gonzalez' assignment was discriminatory is
also supported by the fact that he was reassigned to
the large welding machine when he returned to work
after his suspension. This conclusion is supported by
the fact that the reassignment was made even though
Gonzalez had given Respondent a letter from his
doctor which described his asthma condition and ad-
vised that a change in jobs may be beneficial. Gonza-
lez had been informed by Respondent in the letter
confirming his suspension that a certified doctor's
statement would be necessary if he had a health
problem which prohibited him from performing
"various jobs in [his] general production capacity."
Finally, we are not persuaded by the Respondent's
alleged reason for assigning Gonzalez to the large
welding machine on November 11. Respondent
claims that it removed employee Bester from the
large welder and transferred Gonzalez from the auto-
matic rolling machine because it was believed by
management that Bester was holding up production.
However, as found by the Administrative Law Judge,
no evidence confirming a falloff in production was
introduced. Further, in late October or early Novem-
ber, Lindeman had complained to O'Kelly that she
felt that Bester was literally loading her down with
work and she could not keep up with him.
We also find that Respondent violated the Act by
suspending Gonzalez for 3 days after he refused to
continue to work on the large welding machine and
left the plant. As set forth above, Respondent dis-
criminatorily assigned Gonzalez to a job that it knew
was physically difficult for him to perform. By so
doing, Respondent effectively forced Gonzalez to
take the action that he took. The fact that Collette
told Gonzalez to stay and at least perform the work
until O'Kelly arrived does not alter our finding since
Collette had previously informed Gonzalez that his
assignment was pursuant to O'Kelly's instructions.
We note in this regard that Gonzalez asked to speak
to General Manager Tiernan but was told by Collette
that Tiernan was out of town. Under these circum-
stances, we find that Respondent was not justified in
suspending Gonzalez since, as a result of its discrimi-
natory assignment, it forced Gonzalez to leave the
plant. Accordingly, we find that Respondent violated
Section 8(a)(3) and (1) by suspending Gonzalez for 3
days.
DRUM PARTS, INC. 513
4. Inasmuch as we have found that Respondent
has committed violations of Section 8(a)(l) and (3)
during the relevant period between the first Board
election on October 11 and the second Board elec-
tion on February 6, 1975, we shall set the second
election aside and direct a third election.
ADDITIONAL CONCLUSION OF LAW
Insert the following after paragraph 3 of the Ad-
ministrative Law Judge's Conclusions of Law and
renumber the remaining paragraphs accordingly.
"4. By discriminatorily assigning Pedro Gonzalez
to work on the large welding machine on November
11 and by thereafter suspending him for 3 days, be-
cause he engaged in protected union activity, Re-
spondent has violated Section 8(a)(3) and (1) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Drum Parts, Inc., Garfield Heights, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
union sympathies or activities, or those of fellow em-
ployees.
(b) Promulgating, maintaining, and enforcing any
rule which prohibits employees from soliciting or dis-
tributing literature on behalf of a labor organization
on the premises of Drum Parts, Inc., during non-
working time.
(c) Forbidding employees to engage in conversa-
tions concerning any union, disciplining employees
for such activities, or threatening employees with dis-
cipline or discharge for engaging in such activities.
(d) Discriminatorily assigning employees to jobs
because they have engaged in protected union activi-
ties.
(e) Suspending employees because they have en-
gaged in protected union activities.
(f) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form labor organiza-
tions, to loin or assist Warehouse, Industrial & Ser-
vice Employees Union Local 752, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other
protected concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act, or to refrain
from any and all such activities.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Remove from its bulletin board and rescind
the notices and revoke the no-solicitation, no-distri-
bution rules posted August 29 and 30, 1974, and re-
posted on October 24, 1974, and revoke and with-
draw the disciplinary warning notice given to Pedro
Gonzalez on October 24, 1974.
(b) Offer Pedro Gonzalez immediate reinstate-
ment to his former job on the automatic rolling ma-
chine or, if no such job exists, to a substantially
equivalent job that he is physically suited to perform,
without prejudice to his seniority or other rights and
privileges, and make Pedro Gonzalez whole for any
loss of earnings he may have suffered by reason of
the discrimination against him from the date of his
suspension on November 11, 1974, until he resumed
employment on November 15, 1974, by payment to
him of the sum of money he would have earned dur-
ing this period, less net earnings, if any, to be com-
puted in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), to-
gether with interest thereon at rate of 6 percent per
annum as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant at Garfield Heights, Ohio,
copies of the attached notice marked "Appendix." I
Copies of said notice, on forms provided by the Re-
gional Director for Region 8, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material,
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the rerun election in
Cases 8-RC-9636 and 8-RM-712 conducted on
February 6, 1975, be, and it hereby is, set aside, and
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the case be remanded to the Regional Director
for Region 8 for the purpose of conducting a new
election in the appropriate unit at such time as he
deems the circumstances permit the free choice of a
bargaining representative.
IT IS FURTHER ORDERED that in all other respects the
complaint be, and it hereby is, dismissed.
[Direction of Third Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL revoke the no-solicitation, no-distri-
bution rules promulgated in the bulletin board
notices of August 29 and August 30, 1974, re-
posted on October 24, 1974, and maintained by
us on the employee bulletin board and enforced
by us against our employees.
WE WILL withdraw the disciplinary warning
given Pedro Gonzalez on October 24, 1974, and
the posted notice of the same date which ad-
vised the employees of the disciplinary action
taken against Gonzalez, and the reposted Au-
gust 30 notice.
WE WILL NOT promulgate, maintain, or enforce
any rule which prohibits our employees from
soliciting or distributing literature on behalf of
any labor organization on the premises of Drum
Parts, Inc., during nonworking time which in-
cludes breaktime and lunchtime as well as be-
fore they punch their worktime cards.
WE WILL NOT forbid employees to engage in
conversations concerning any union or threaten
employees with discipline or discharge for doing
so.
WE WILL NOT question, interrogate, or inter-
view our employees concerning their own and/
or other employees' union membership, activi-
ties, and desires.
WE WILL NOT discriminatorily assign employ-
ees to jobs or suspend employees because they
have engaged in protected union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the-right to self-organization, to join
labor organizations, to join or assist Warehouse,
Industrial & Service Employees Union Local
752, or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in other protected concerted
activities for the purposes of collective bargain-
ing or other mutual aid or protection, as guaran-
teed in Section 7 of the Act, or to refrain from
any and all such activities.
WE WILL offer Pedro Gonzalez immediate re-
instatement to his former job on the automatic
rolling machine or, if no such job exists, to a
substantially equivalent job that he is physically
suited to perform, without prejudice to his se-
niority or other rights and privileges and WE
WILL make Pedro Gonzalez whole for any loss in
earnings- ie may have suffered by reason of our
discrimination against him.
DRUM PARTS, INC.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: Upon
due notice, this consolidated proceeding under Sections 9
and 10(c) of the National Labor Relations Act, as amend-
ed (29 U.S.C. 151, et seq.), hereinafter referred to as the
Act, was heard before me at Columbus, Ohio, on April 10
and 11, 1975. Hearing was pursuant to an order consolidat-
ing cases issued on April 7, 1975, by the Regional Director
of the National Labor Relations Board for Region 8 in-
volving, in Case 8-CA-8737, a complaint issued on Febru-
ary 24, 1975, amended on March 19, 1975, presenting alle-
gations that Drum Parts, Inc., hereinafter referred to as
Respondent, engaged in conduct violative of Sections
8(a)(1) and (3) and 2(6) and (7) of the Act, based on
charges filed on November 11, 1974, and, in Cases
8-RC-9636 and 8-RM-712, issues raised by objections to
a second election, based on the same alleged unlawful con-
duct concerning which a hearing was ordered on April 4,
1975, by direction of the National Labor Relations Board.
Respondent filed an answer denying that it committed un-
fair labor practices. Representatives of all parties were pre-
sent and participated at the hearing, and Respondent and
General Counsel thereafter filed timely briefs.
Based on the entire record, including my observation of
witnesses, and after due consideration of briefs, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
Respondent, an Ohio corporation, with its principal of-
fice and place of business at Garfield Heights, Ohio, is
engaged in the manufacture of drum locks. Respondent
admits that in the operation of this business it annually
ships products valued in excess of $50,000 directly to
points located outside the State of Ohio. I find that Re-
spondent is an employer within the meaning of Section
2(2) of the Act, engaged in commerce and in operations
DRUM PARTS, INC. 515
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION
I find that Warehouse, Industrial & Service Employees
Union Local 752, herein called the Union, is now, and has
been at all times material herein, a labor organization with-
m the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent engaged in unlawful interroga-
tion of its employees in regard to union activities, sympa-
thies, and membership.
2. Whether Respondent promulgated, posted, and en-
forced an unlawful no-solicitation rule.
3. Whether Respondent engaged in unlawful discrimi-
nation against an employee in his job assignment and sus-
pension because of his union sympathies and activities.
4. Whether any of the foregoing- conduct warrants set-
ting aside the second election.
B. Background
Respondent makes locking rings which are the steel
bands that go around the top of steel barrels to hold covers
in place. Using in this operation steel ranging from 12 to 20
gauge, Respondent utilizes rolling machines where the
rings are formed, six resistance welders where component
parts are affixed to rolled and formed rings, and riveters to
attach fixings. Respondent also has a painting system, a
bundling machine, and auxiliary shipping and mainte-
nance departments. Most of the approximately 25 employ-
ees are able to perform any of the production functions
and are shifted occasionally from one process to another as
the need arises. The exception is the three setup men who
generally operate the rolling machines which require their
tooling skills.
An election was conducted by the Board in Cases
8-RC-9636 and 8-RM-712 on October 11, 1974, but was
thereafter set aside and a new election was conducted on
February 6, 1975. The objections under consideration here-
in relate only to the February 6, 1975, election and em-
brace conduct alleged to be violations of the Act occurring
between October 11, 1974, and February 6, 1975.'
C. The Alleged Violations
1. Interrogation
Employee Jacqueline Lindeman testified that a couple of
weeks after the October 11, 1974, election she engaged in a
conversation with Gary O'Kelly, general foreman, in an
effort to refute a rumor that it was the women employees
who had started passing out union cards. In this conversa-
t The Singer Company, 161 NLRB 956 (1966).
tion she told O'Kelly that it was Pedro Gonzalez who had
given her the card and O'Kelly asked her if she had signed
it, but she did not tell him one way or the other. Lindeman
stated that around that time she had several conversations
with O'Kelly involving the Union. One such conversation
involved an interview for the purpose of giving a signed
statement as to what had transpired during the October.1 l
election. In that interview, or another about the same time,
O 'Kelly asked her if any of the employees were distributing
union cards, where and when these cards were passed out,
who was passing the cards, and if she had signed one of
these cards.
O'Kelly testified that there were five or six conversations
with Lindeman in which the Union was discussed. The first
of these occurred around the first week in November after
the first election when Lindeman was upset because of alle-
gations that the women in the plant had started the union
drive and she wanted to assure him that the women had
not started it. On that occasion Lindeman told him she had
been asked to sign a card. Assertedly, he told her that if she
had signed it, not to worry about it, because nothing could
happen to her from either side, and that it was strictly her
privilege, and he did not want to know. O'Kelly gave no
testimony as to other four or five conversations concerning
the Union.
Lindeman appeared under subpena and, although she
was in a laid-off status at the time of the hearing, is'still
employed by Respondent. It is undisputed that employee
witnesses subpenaed by the General Counsel were uncoop-
erative and that the General Counsel was not afforded an
opportunity to interview them concerning their testimony
until about 10 minutes before the hearing. Lmdeman's de-
meanor was that of a reluctant witness and I attribute cer-
tam self-contradiction and confusion appearing in her tes-
timony, and her repeated assertions that she had not told
Respondent whether or not she had` signed a card, to her
attempts not to offend Respondent by her testimony. To
the extent that there is a conflict between her version of the
conversation concerning who started the Union and
O'Kelly's self-serving recollection, I credit Lindeman.
On the basis of her testimony, I find that O'Kelly unlaw-
fully interrogated Lindeman both in a conversation con-
cerning who started the Union and in a later one when
O'Kelly asked Lindeman if any of the employees were dis-
tributing union cards, where and when these cards were
passed out, who was passing out the cards, and if she had
signed one of these cards.
Maintenance man, Joe Pekar, testified that a "couple of
months" before the October 11 election, Collette asked him
if he "got a union card" or if he "had seen one," and he
replied in the negative. About 2 weeks to a month before
that election he had another conversation with Collette in
which the question of whom the union supporters were was
discussed and he gave Collette the names of employees he
thought were union supporters.
Collette denied that he inquired of Pekar who was for
the Union, but admitted that Pekar did bring to his atten-
tion the names of a few employees that he had found out
were for the Union. Collette further testified that he once
asked Pekar did he see, or had anybody approached him to
offer a union card, or did he get one, or did he see anybody
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand them out on the job, and that Pekar responded in the
negative.
Although Pekar's testimony consisted substantially of
declarations of lack of memory , Collette's own testimony
establishes that he engaged in unlawful interrogation of
Pekar.
Respondent argues that , even if found to have occurred,
each of these incidents were isolated and should not be
regarded as supporting a finding of a violation . However,
each incident cannot be regarded as isolated from similar
conduct or from other Respondent conduct. In these cir-
cumstances, I find that Respondent violated Section
8(a)(1) by O'Kelly's interrogating Lindeman as to whether
she had signed the card which she reported was given her
by Gonzalez and in the later conversation as to the union
card distribution activities of other employees as well; and
by O'Kelly's similar interrogation of Pekar.
2. The no-solicitation rules
Martin J . Tiernan , Respondent's general manager , testi-
fied that a no-solicitation rule dated January 11, 1972, was
posted on the employees bulletin board on that date. It
remained posted for a period of from 4 to 6 weeks and did
not appear on the bulletin board at any time thereafter.
Tiernan was unable to supply the reason for, or circum-
stances surrounding , its removal from the bulletin board .2
From the time of its removal until the August 29 period
there was no notice on the employee bulletin board. Ac-
cording to Tiernan, during that period the Company had a
policy "that the employees would not congregate during
paid working time , would not pass material to one another;
but would stay in their working positions during working
time." On August 29, 1974, Letcher Collette, the shop fore-
man, informed Tiernan of a report that union cards were
being passed out among the employees . Tiernan drafted
and posted the following rule:
TO ALL EMPLOYEES:
It has just been brought to my attention that certain
employees of Drum Parts, have been involved in talk-
ing about Union membership and passing out Union
cards during working hours.
2 The no-solicitation rule posted in 1972 was in the form of a notice which
reads as follows.
It has been brought to my attention that one or more of our shop
employees is soliciting his fellow employees with regard to their prefer-
ence concerning a union in our plant
It should go without a necessity of the writer formerly mentioning
this matter by official bulletin board notice that it is against the rules
and policy of the employer to permit or condone any union activities
during paid working time.
All members of supervision are to strictly enforce this policy which
will cause the imposition of severe disciplinary penalties to any viola-
tors.
We believe that it is reasonable that the company have full control
over its paid working time.
It is difficult for the undersigned to comprehend the interest in a
union, especially at this particular tune because of the two current facts
of life.
# I Employees may not receive raises in excess of 5 1/2% during the
year due to the economic stabilization program rules, and,
#2 In view of the opening recently of our southern division opera-
tion in lower wage area, any further increases will make for a lesser job
security.
I want to make it very clear, that such activity is
completely unlawful and should any employee be seen
promoting any Union activity, he will be punished by
immediate dismissal.
After the employees left at the end of the workday on Au-
gust 29, Tiernan contacted the Company's labor consult-
ant. As a result of this conversation the consultant under-
took the task of composing a new notice . Tiernan
purchased a new glass enclosed bulletin board , assertedly
because his August 29 notice had been removed by persons
unknown from the open cork-style bulletin board, and on
the morning of August 30, posted the following notice:
ATTENTION ALL EMPLOYEES
Unfortunately, we now find it necessary to once
again repost our prior brief bulletin board notice re-
garding certain improper and company prohibited ac-
tivities . This has been brought to management's atten-
tion already by several employees who report they are
starting to be high pressured, during their plant work-
ing day, by a few other employees , concerning obtain-
ing their support for a Union.
Contrary to common sense , normal company regu-
lations, and totally without any right or authorization
to do so, someone promptly removed this prior com-
pany notice from the bulletin board posting area. Of
course , such removal is contrary to any company's
work rules, permitting any employees who disagrees
with a posted company policy to take it upon himself
to remove, deface or otherwise obliterate , change or
destroy posted employer policy positions . Please note
carefully: Failure of any employee to fully observe
this common place rule of employee conduct will
cause such employee's immediate discharge if caught
violating same.
Due to the substantial importance of this prior post-
ed rule, the company shall now, once again , restate
this employer's very logical work regulation.
This writer has been advised that it is entirely lawful
and completely proper for any employer to prohibit the
distribution of any materials, such as Union Authori-
zation Cards, or other Union campaign literature of
any type, or the expenditure of any employee time thru
the verbal efforts of any employee to sign up or other-
wise pressure a fellow employee to support the union
effort, whenever any of these things are done while any
of the employees concerned are then on company paid
working time.
Also prohibited is the distributing of union litera-
ture of any kind where it is passed out, read and/or
discussed in the plant working area , so as to similarly
cause a violation thru misuse of "the company's paid
working time," as set forth herein above, where it may
well create , or tend logically to cause other employee
distractions from the employee's normal paid working
time efforts , or other related possible personnel prob-
lems of work interference , or the impeding of normal
plant production , safety, etc.
We close by once again stating that this notice is
nothing more than a careful re-statement of this
company's or, indeed , any other employer's clear law-
DRUM PARTS, INC. 517
ful right to a presumptively valid work rule against
letting certain employees use the plant work time of
either or both themselves and/or their fellow employ-
ees to circulate or discuss matters at our plant, while
they are receiving company wages for what the em-
ployer has every right to expect to be solely employer
paid working time which he must reasonably regulate
in order to efficiently control.
On October 24, 1974, Pedro Gonzalez was called into the
office of O'Kelly and given the following Employee Warn-
ing Notice:
VERBAL WRITTEN WARNING
Using coercive and intimidative tactics to fellow
employees in violation of previously posted notices.
Any further violations of this nature will result in
more severe disciplinary action.
Pedro Gonzalez testified that before they punched the
timeclock that morning he had told Maryann Glasko the
Union wanted to talk to her because she had been talking
to the Company one day and another day she was talking
to the Union. He stated to her that "Maybe he wants to
bring you in court to testify to the truth." Gonzalez denied
that he told her at that time the Union had tapes of her
conversation with the business agent 3 and was going to
take her to jail because she had lied.4 He also denied that
he said anything to Glasko about this after he punched in.
Maryann Glasko testified that, before she punched the
timecard on October 24, Gonzalez was jumping around
saying that the Union was throwing her in jail because she
did not go to some union meeting. She tried to ask him
what meeting he was talking about but he just said they
were throwing her in jail. After she punched in and went to
work "it just kept going on all morning until I was just so
nervous I didn't know what to expect." After the mid-
morning break she went to see Collette and told him what
Gonzalez had said to her; that he had continued telling her
this from the time she had punched her work card; and
that she was so nervous that maybe she should go home.
Collette took her, instead, to O'Kelly's office and had her
repeat what she had reported to him. When she suggested
she should go home, O'Kelly told her he would talk to
Gonzalez and she should go back to her job. Glasko fur-
ther testified that during the morning Maryann Fixel who
worked with Gonzalez said to her, "Pedro is really after
you with the union, they are going to throw you in jail."
Fixel testified that it was about 6:45 a.m., near the
women's lunchroom just before she punched the timeclock,
that she overheard the conversation in which Gonzalez
told Glasko something about some tapes that he had heard
and that she was going to be in trouble about it. Fixel
3 It appears that when the union agents called upon Glasko in her home
during the preelection campaign they had with them answering service
equipment, and that Glasko had thought it was a small radio but on reflec-
tion concluded it could have been a tape recorder.
4 According to his affidavit, and his admission thereof at the hearing "a
couple of days before the October 11, election," Gonzalez told Glasko that
"the union was waiting to talk to her, because she was talking on two sides
for the company and for the union, and maybe he was going to bring a case
in court about her talking one day for the union and one day for the compa-
further testified that during the period between the two
elections "mostly everyone" was talking about the Union
during company paid time. Around the time when the inci-
dent between Gonzalez and Glasko took place, Collette
came to her work station and spoke to her and another
employee, telling them not to talk together about the
Union because it was causing trouble.
According to Collette, when Gonzalez came into the of-
fice he was asked about his statements to Glasko and he
did not deny the conversation. When he was asked about
the things he was talking to her about, he said, "You will
see, you will see. She can't play two sides at the same
time." So they gave him the warning slip.
O'Kelly testified that, when they brought Gonzalez into
the office, he told Gonzalez that he was brought in for "the
allegation" to Glasko that morning, for disrupting produc-
tion, and for speaking to Glasko with threatening accusa-
tions, and that he was being given a written reprimand.
Gonzalez agreed he had made "the allegation" to Glasko,
asserting that she could not say the things that she had
been saying and that she would go to jail for it. O'Kelly
told Gonzalez that it was not his concern; he would be
paid to work and she was paid to work; and that he was
not allowed to do this on company time because of the
postings.
Tiernan testified that he had overheard the conversation
with Glasko from his office across the hall. After she re-
turned to work "they" had a meeting in O'Kelly's office
where it was decided to give a warning notice to Gonzalez.
They typed up a "verbal written notice." When Gonzalez
came into the office Tiernan stood by the door. O'Kelly
told Gonzalez he had in front of him a "formal written
verbal notice' and then proceeded to read the notice to
Gonzalez. Pedro responded that what he said to Glasko
"was true and that they would find out that she was a liar;
she lies to the company and she lies to the union. She can-
not do this. She will go to jail." Tiernan then interjected,
"Pedro, Maryann and you and everyone else in this plant is
paid to make rings. Whether or not Maryann is a liar is
none of your concern, and you should not, and you cannot
continue this type of wording to her. Do your job and go
home and be paid for it. That is all you have to worry
about." Gonzalez signed the slip, took his carbon copy and
went back to work. Tiernan asserted that at no time did
Gonzalez express a denial of the accusations.
Gonzalez recalled that when he entered O'Kelly's office
he was invited to sit down and, when Tiernan came, O'Kel-
ly said he was giving Gonzalez a warning slip because he
was talking to Glasko but did not mention specifically
what he was supposed to have said to Glasko. Then Tier-
nan said that he was not allowed to talk at the Company;
"he said, no talk to the ladies." Gonzalez explained, that he
worked the rolling machine, he had to tell the ladies what
to do once in a while; "I am responsible for the job, I must
explain to lady."
On October 24, 1974, the following notice was posted:
ATTENTION: ALL EMPLOYEES
It has been brought to the attention of the Produc-
tion Foreman, Letcher Collette, and the writer, as
General Foreman,_ that certain individuals who are ex-
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceptionally strong supporters of the petitioning Union
are roaming around the plant areas away from their
normal work stations and duties engaging during
Company paid working hours and attempting to elec-
tioneer and otherwise pressure their fellow employees
with regard to supporting the Union.
A previous notice prohibiting such activities on paid
working time was posted on August 30, 1974 and is
now by this notice reposted, in view to the objections
to the election which are presently pending.
EVERY PLANT EMPLOYEE IS HEREWITH AND HEREBY DI-
RECTED TO CEASE ALL WANDERINGS ABOUT THE PLANT RE-
LATING TO UNION MATTERS OR ELECTION MATTERS COV-
ERED BY THIS NOTICE. THIS SHALL APPLY EQUALLY TO ANY
EMPLOYEE WHO SPENDS HIS PAID WORKING TIME ENGAGING
IN UNION CAMPAIGNING OR ELECTIONEERING. DISCUSSIONS
WITH OTHER[ EMPLOYEES, REGARDLESS OF WHETHER SUCH
EMPLOYEE MAY BE TALKING FAVORABLE TO THE UNION OR
FAVORABLE TO THE COMPANY'S POSITION. JUST PRIOR TO
MY POSTING OF THIS NOTICE, IT HAS BEEN BROUGHT TO MY
ATTENTION THAT ONE OF OUR MALE EMPLOYEES WHO IS AN
APPARENT STRONG UNION SUPPORTER HAS INTIMIDATED
ANOTHER EMPLOYEE IN REGARD TO HER POSITION IN ELEC-
TION MATTERS . THIS PERSON HAS BEEN GIVEN A DISCIPLI-
NARY REPRIMAND IN REGARD TO THIS INFRACTION. THIS
EMPLOYEE AND ALL OTHERS ARE HEREBY PUT ON NOTICE
THAT DRUM PARTS WILL NOT TOLERATE ANY SUCH CON-
DUCT AND WILL ISSUE SEVERE DISCIPLINARY ACTIONS IF
ANY SUCH ACTIVITIES BECOME KNOWN.
Generally, with respect to enforcement of the no-solici-
tation rule, Tiernan testified that no employee has been
warned, reprimanded for congregating, soliciting, or dis-
tributing on company time. Collette testified that he ex-
pects everybody to stay on his job during working time. If
a man leaves his job and is talking to somebody else on the
job Collette asks him to go back to his position. "That is
all." He asserted that he has issued warnings to employees
for talking during paid working time. No written warnings
were supplied in support of this assertion and no particu-
lars of any such incident were supplied. It is not suggested
by the testimony of any witness that Respondent had a rule
against employees talking to one another while they were
working or in their normal work contact, other than the
no-solicitation rule.
During the union campaign T-shirts with union slogans
were worn by some union adherents. At the request of em-
ployees opposed to the Union, Respondent purchased and
printed on the backs of vests a legend representing a union
election ballot with an "X" in the "No" box. These were
made available to employees to wear. The T-shirts and
vests were worn by employees at their work stations during
their working hours.5
The General Counsel contends that both of the rules
promulgated and posted on August 29 and 30, 1974, are
presumptively unlawful since they reasonably could be in-
terpreted by employees as restricting protected activity
5 At the hearing I reserved ruling on Respondent's objection to testimony
concerning the jackets and on a motion to strike such testimony Inasmuch
as such evidence arguably relates to the areas of application of the no-
during lunch and break time: The August 29 notice be-
cause it was patently illegal, prohibiting on its face solicita-
tion during "working hours"; and the August 30 notice
because it was ambiguous and served as a reposting and
republication of the August 29 notice. Respondent asserts
that the August 29 notice was only posted for approximate-
ly 2-1/2 hours before it was removed and was never en-
forced, therefore its effect was de minimis, unworthy of a
finding of a violation; and that the rule posted on August
30 is presumptively valid on its face, and no discriminatory
or disparate enforcement has been shown.
Both the General Counsel and Respondent rely upon the
Board's decision in Essex International, Inc., 211 NLRB
749 (1974), as support for their respective positions. In that
case the Board held 6 that a rule which prohibited union
solicitation or distribution during "working time" or
"worktime" would be considered valid on its face and that
the party attempting to invalidate the rule must show by
extrinsic evidence that in the context of the particular case,
the rule was communicated or applied in such a way as to
convey an intent to restrict or prohibit solicitation during
breaktime or other periods when employees were not ac-
tively at work. On the other hand, a rule .that prohibits
union solicitation or distribution during "working hours,"
unless its impact on lunch and breaktime is clarified, is
considered prima facie susceptible of the interpretation that
the prohibition applies to all business hours and is unduly
restrictive of Section 7 rights. In that case the Board will
find such a rule invalid unless the employer shows by ex-
trinsic evidence that, in the context of the particular case,
the "working hours" rule was communicated or applied in
such a way as to convey the intent clearly to permit solici-
tation during breaktime or other periods when employees
are not actively working.
The August 29 notice containing reference only to
"working hours" is, under the Essex rationale, unlawful on
its face. The fact that it actually remained posted for a
period of less than a half day, in itself, does not remove the
coercive effect or nullify the notice. Respondent not only
did not take steps to withdraw this rule, it did not even
remove the posted notice. That notice disappeared from
the bulletin board by the end of the workday and it was
clear at the hearing herein that the Respondent entertained
a suspicion of its removal by an employee, as employees
passed the bulletin board when they punched the timeclock
at the end of the day. In these circumstances, I find that
the promulgation and posting of the August 29 no-solicita-
tion, no-distribution rule was a violation of Section 8(a)(1)
of the Act.
The language contained in the August 30 notice, set out
in italics and designated as a restatement of the prior post-
ed rule, uses the phrase "on company paid working time."
Standing alone, this rule could be said to be valid on its
face under the tests set forth in Essex. It'would not appear
appropriate, however, in evaluating the rule, to consider
the phrases used as in isolation from the context of the
entire notice in which the rule is set forth. The General
Counsel points to the preceding paragraphs of the notice,
particularly the opening sentence, as establishing that this
solicitation rule I find that it is relevant, and deny the motion to strike 6 Members Fanning and Jenkins dissenting.
DRUM PARTS, INC. 519
was a reposting and reiteration of the unlawful rule posted
the previous day, which carried forward and continued in
effect the unlawful aspects of the prior -rule.? This view
ignores the fact that the Board's approach to the evaluation
of the language in a rule permits clarification of the lan-
guage by delimiting the area of its impact. While such clar-
ification is referred to in Essex only with respect to phrases
considered prima facie susceptible to an unlawfully broad
interpretation, it is not thinkable that the Board intended a
phrase, considered valid on its face, to stand in isolation
and thereby become immunized from pronouncements de-
signating the areas of impact as going beyond lawful limits.
Thus, although in the August 30 notice Respondent pro-
claimed it was restating the rule and proceeded to do so
with phrases designated as lawful in Essex, in the same
notice Respondent indicated the areas of impact as includ-
ing "employees . . . plant working day," and "the distribu-
tion of union literature . . . where it is passed out, read
and/or discussed in the plant working area, so as to simi-
larly cause a violation thru misuse of `the company's paid
working time,' . . . where it-may well create, or tend logi-
cally to cause other employees distractions from the
employee's normal paid working time effort, or other relat-
ed possible personnel problems...." etc.
These phrases constitute the context in which the August
30 rule was communicated to employees. I view them as
clarifications of the impact area of that rule, which I find
extends the rule beyond the individual participating in
employee's "paid working time" conduct to include union
activities engaged in during breaktime, lunch, or other peri-
ods when not actively at work, where such activity might
possibly instigate or result in a chain of effects culminating,
not only in union activity by others during "paid working
time," but also in distractions, possible personnel prob-
lems, etc.'
Viewed in this light, I find that the August 30 rule, as
clarified by the context in which it was communicated, is
unduly restrictive of employees' Section 7 rights.9 Accord-
7 The language of the notice makes it clear that reference was to the
August 29 rule which had been removed from the bulletin board and not to
the 1972 rule or any unwritten interim rule referred to in testimony of
various witnesses of Respondent. The evidence reveals, and I find, that the
1972 rule was abandoned after it had served its purpose and there was no
such rule in effect at the time of the August 29 posting.
8 Although I rejected Respondents contention that the only extrinsic evi-
dence relevant is of the rule's discriminatory application or disparate en-
forcement, and I received evidence of its application or lack thereof as
relevant in applying the Essex standards of evaluation and interpretation, I
have found it unnecessary and therefore have not` relied upon evidence of
the rule's application in determining the scope and coercive impact of the
rule itself
9 That this was indeed the intent of the rule, if one need look further, is
demonstrated by the subsequent application of the rule to the Gonzalez-
Glasko incident wherein comments concerning union activity made by
Gonzalez to Glasko before either had punched their work timecards, which
resulted in Glasko becoming nervous and asking her foreman to go home,
was the basis for a written warning notice of violation of the rule issued on
October 24, to Gonzalez.
In'this conneetion,t on the record and demeanor of the witnesses, I find
that Gonzalez did not in, fact continue -making those statements to Glasko
after their working time commenced. Glasko was not one of the girls who
worked directly with Gonzalez and there is no testimony indicating that
either went to the other's work station after the shift began. I credit Gonza-
lez in this respect. Fixel who did work with Gonzalez was not asked about
this although she was a witness and testified concerning the initial conversa-
ingly, I find that, by promulgating and maintaining that
rule, Respondent violated Section 8(a)(1) of the Act. °
3. Enforcement of the rule
Enforcement of the foregoing rule is also urged as a vio-
lation of the Act, specifically in the issuance of a warning
notice to Gonzalez and in the cautioning of Fixel and an-
other employee not to talk about the Union.
With respect to the Gonzalez warning notice of October
24, 1974, it is clear that such notice was regarded by Re-
spondent as being issued, at least in part, for violating its
no-solicitation rule. Not only does the written warning slip
refer specifically to a "violation of previously posted no-
tices," (and the evidence fails to establish that any notices
of rules other than no-solicitation no-distribution rules ex-
isted), but also to make sure that the message of the rule's
application reached the employees the Respondent, that
very day, posted a "notice" on the bulletin board purport-
ing to repost the August 30, 1974, notice. Included in the
October 24 notice was Respondent's publication of the fact
that a disciplinary reprimand had been given to "a male
employee," a "strong union supporter" for an infraction of
the rule, and a warning to employees that "severe discipli-
nary actions" would befall others if any such infractions
become known.
As the no-solicitation rule as communicated to employ-
ees was itself unlawful, the application of that rule was also
unlawful.! I Even if it were arguable that application of the
rule was only a part of the reason for the disciplinary warn-
ing given Gonzalez, the illegality of the rule taints the ac-
tion taken by Respondent as unlawful." Accordingly, I
find that the reprimand of Gonzalez on October 24, 1974,
given in the form, of an oral confrontation in Respondent's
office with plant officials and the issuance of the warning
slip constituted unlawful interference, restraint, and coer-
cion within,the meaning of Section 8(a)(1) of the Act.
Although the comment by Foreman Collette to Fixel
and her working companion, that they should not talk to-
gether about the Union because it was causing trouble,
occurred during working time at her machine, this circum-
stance is insufficient to limit his instruction to "working
time." Even if so regarded it was contrary to the normal
pattern during, the entire period between the October 11
and February 6, 1975, elections of "mostly everyone" talk-
ing about the Union during company paid-time. If this
cautioning arose because of Fixel's comment to Glasko,
clearly there was disparate treatment which could be at-
tion before work. Further, Fixel, according to Glasko's undenied testimony,
did make a comment to Glasko during the morning repeating in part what
Gonzales had said earlier, but Fixel did not receive a warning for this
"working time" comment Indeed the question of whether Gonzalez in fact
made any statement during the "working time" of either employee was so
insignificant to Respondent that it did not even inquire into the matter of
timing and place of the remarks, either before it decided upon and prepared
the warning slip or before it delivered the reprimand to Gonzalez and publi-
cized the fact on the bulletin board as a reaffirmation of the no-solicitation
no-distribution rule
1° See Pepsi-Cola Bottling Co of Los Angeles, 211 NLRB 870 (1974), ap-
plying the Essex, supra, standard of evaluation to unfair labor practice pro-
ceedings.
See Groendyke Transport, Inc., 211 NLRB 921 (1974).
i2 See Leon Ferenbach Inc., 213 NLRB 373 (1974)
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributable only to Respondent's knowledge that Gonzalez
was a "strong" union adherent. In any event, the restriction
of an employee's conversations about the Union in the face
of an unlawful no-solicitation rule is unlawful and violative
of Section 8(a)(1) of the Act.13
4. The suspension of Gonzalez
Pedro Gonzalez was an employee of comparatively long
standing with Respondent, who, according to his supervi-
sors , had an outstanding work attendance record, was able
to perform any of the various duties assigned to regular
production employees, and had always willingly accepted
any assignment given him without question. His primary
work assignment for some 5 years, however, had been on
the automatic rolling machine.
According to the testimony of Gonzalez and other em-
ployees whom I credit in this respect, when Gonzalez re-
ported at the plant on the morning of November 11, 1974,
he was instructed by Foreman Collette to take over opera-
tion of the large welding machine regularly operated for
some 12 years by employee George Bester. This is a low
machine at which the operator must be seated, generally
used for welding the heaviest gauge steel, and was the only
welder in the plant that Gonzalez had not previously oper-
ated. Because of the heavier gauge steel involved in its op-
eration, and the comparatively longer period of heat con-
tact required thereby, this welder gives off many more
smoke fumes than do the other welders which require only
an instantaneous spark touch and consequently give off
little or no smoke, and at which the operator is able to
stand to operate placing him in a more advantageous as-
pect in relation to any fumes.
Gonzalez attempted to operate the machine for some 15
minutes, in the meantime complaining to Collette that the
fumes from the machine affected him and that he could
not do the job. Collette informed Gonzalez that "This is
what I have for you." Because in making the initial assign-
ment Collette had stated it was pursuant to instructions by
General Foreman O'Kelly, Gonzalez then asked to speak
to the plant manager and Collette said that Tiernan was
out of town that day. At 7:15 Gonzalez went to the time-
clock to punch out and leave.
Uncontradicted testimony of Collette indicates that he
approached Gonzalez at the timeclock and inquired what
he was doing there. Gonzalez stated he was not going to do
the job. Collette asked him why, and Gonzalez replied that
his back hurt. Collette told him to at least do the job until
O'Kelly arrived at the plant. Gonzalez responded that he
was not going to do the job. Collette then said, "If you
leave the shop, as far as I am concerned, you are finished
here."
Gonzalez punched his timecard, left the shop, and went
directly to the National Labor Relations Board Regional
Office and filed the complaint herein. Later that day he
received a call from Collette advising him that he was sus-
pended for 3 days, and a letter confirming this followed.
When Gonzalez reported to work after the suspension he
13 Ling Products Company, Inc, 212 NLRB 152 (1974)
brought with him a statement from his doctor attesting that
Gonzalez had a history of asthma attacks. Nevertheless he
was again assigned to the same welding machine about
which he had complained. Gonzalez testified that he was
able to operate the big welder during this period of assign-
ment because, having seen his doctor during his suspen-
sion, he was then taking his allergy pills.14
It is clear from his testimony that Gonzalez regarded his
allergy, his asthma, and his pain in the back as one and the
same physical limitation. He explained that the position
required in operating that particular welding machine
forced him to be close to the weldmg spot; that he has to
have his mouth open to get air to breathe; and that the
smoke fumes from the heat contact go inside and affect his
back, causing a lot of pain in his back. He concludes that
the pain in his back is caused by his asthma.
Respondent presented testimony that the reason for re-
moving George Bester from his regular welding job and
assigning Gonzalez to operate it was because a production
lag had developed on that line and it was believed by man-
agement that George Bester was slowing down and holding
up production; and that Gonzalez was chosen to take
Bester's place because he was able to operate any of the
machinery and had never before taken exception to an as-
signment . No evidence confirming a falling off of produc-
tion on that or any other line was presented to verify this
assertion.
Additionally, it appears that, in late October or early
November 1974, Lindeman was at the front door intent
upon quitting because, as she reported to O'Kelly, she felt
she was being abused on the production line by George
Bester who was deliberately working beyond his normal
speed and literally loading her down with work at her sec-
ondary operation, and she could not keep up with him.
O'Kelly told Lindeman not to quit but to go home for the
rest of the day and cool off, which she did. This happened
again and he persuaded her to take some time at the plant
to cool off in the women's lounge rather than go home.
Similarly, in contrast to the Respondent's reaction to Gon-
zalez' claim of physical problems on the job assignment,
efforts were made by Respondent, in the Glasko-Gonzalez
incident discussed above, to rectify the situation and to
keep Glasko on the job despite her desire to go home be-
cause of her nervous condition.
Despite Respondent's knowledge of Gonzalez' prounion
attitude and its unaccommodating attitude toward his
health complaints in contrast to the treatment accorded the
complaints concerning stress by Lindeman and Glasko,
both of whom had displayed their antiunion attitude in
requesting and wearing the company vests and in reporting
to Respondent officials on union activities, I am not per-
14 Respondent asserts that the doctor's statement presented after the sus-
pension was the first knowledge it had of Gonzalez' asthma. I view its
knowledge of the specific diagnosis as irrelevant , since all three supervisors
involved in the suspension decision had notice that Gonzalez had allergy
and breathing difficulties from an incident the previous summer when Gon-
zalez complained to both Collette and O'Kelly about the fans which were
affecting his breathing and told them of his allergy. At that time O'Kelly
merely said he also had an allergy, and left the fan in a position where it hit
Gonzalez Upon his appeal to Tiernan because of his allergy and the latter's
investigation of the situation, Tiernan ordered the fan redirected and told
Gonzalez he could turn the fan off anytime.
DRUM PARTS, INC. 521
suaded that the initial assignment given Gonzalez was
made for. discriminatory reasons. I cannot, therefore, find
on the evidence presented here that Gonzalez' assignment
to the Bester welder was unlawful.
Similarly, in spite of these contrasts in treatment and
cognizant of Respondent's apparently unreasonable and
vindictive attitude in assigning Gonzalez the same welding
machine for a period of time upon his return from his sus-
pension after it had medical proof of his physical impair-
ment, I do not find his 3-day suspension to have been for
unlawful reasons. Unlike the situation with respect to
Lindeman and Glasko, Gonzalez walked off the job rather
than wait and take the matter up with a higher official-a
reasonable request in view of Collette's initial representa-
tion to Gonzalez that the assignment was on O'Kelly's or-
ders. In the face of this, Gonzalez left the premises under
threat of discharge if he did so. His belief that talking to
O'Kelly would be a futile gesture because it was repre-
sented to him as O'Kelly's initial decision does not dimin-
ish his responsibility for leaving the plant against the direct
orders of his supervisor. What, to him, was reasonable or
futile is not the test of the issue here. Rather, we are con-
cerned with the motive for Respondent's actions. In the
circumstances, I find that an unlawful motive, although
suspected, is not established.
Accordingly, I shall recommend dismissal of the allega-
tions of an 8(a)(3) violation.
IV. THE OBJECTIONAL ELECTION CONDUCT
Having found that during the relevant period between
October 11, 1974, and the second Board election conduct-
ed on February 6, 1975, Respondent engaged in unlawful
interrogation of Lindeman,15 and promulgated, main-
tained, and enforced an unlawful no-solicitation no-distri-
bution rule, each and all constituting interference, re-
straint, and coercion of employees in the exercise of their
Section 7 rights, I find that such conduct interfered with
exercise of a free choice by employees in the February 6,
1975, election. Accordingly, I recommend that the Board
set the election aside and that a new election be ordered.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material to
this proceeding, an employer within the meaning of Sec-
tion 2(2) of the Act engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has committed unfair labor practices
within the meaning of Section 8(a)(1) of the Act by interro-
gating its employees with respect to activities protected by
Section 7 of the Act, and by promulgating, maintaining,
and enforcing no-solicitation no-distribution rules which
are unduly broad, thereby interfering with the rights guar-
anteed in Section 7 of the Act.
4. The aforesaid unlawful conduct constitutes unfair la-
bor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The aforesaid unfair labor practices interfered with
the freedom of choice in the election conducted on Febru-
ary 6, 1975, under Section 9 of the Act, and warrant setting
that election aside.
15 Because it is not specifically established that the admitted part of the
unlawful interrogation of Pekar occurred during the relevant election period
I have not relied upon that conduct as a basis for setting aside the February
6, 1975, election . In this connection in such interrogation as occurred con-
current with or during Respondent's interviews for procurement of state-
ments relating to the conduct of the first election, I find no merit in
Respondent 's defense of privilege for the purpose of developing its objec-
tions. Such questions were clearly irrelevant to any such inquiry. To the
extent that its defense is Respondent's efforts to enforce its no-solicitation
no-distribution rule, suffice it to note that those rules have been found
unlawful.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain specific ac-
tion set forth below in the recommended Order designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]