Mason & Hanger-Silas Mason Co., Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1967

167 N.L.R.B. 894 (N.L.R.B. 1967)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
, Mason & Hanger-Silas Mason Co., Inc . and Office
and Professional Employees International Union,
Local 306, AFL-CIO, and Metal Trades Council
of Amarillo , Texas and Vicinity , AFL-CIO. Case
16-CA-2637
October 19, 1967
DECISION AND ORDER
BY MEMBERS FANNING,J ENKINS , AND ZAGORIA
On May 5, 1967, Trial Examiner Rosanna A.
Blake issued her Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief, and also requested oral argument.
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
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer, except as modified herein. I
1. The Trial Examiner found that the Respond-
ent violated Section 8(a)(1) of the Act by promul-
gating and enforcing a too broad no-solicitation
rule, to wit: "Never conduct any outside business
on the reservation without permission," which
prohibits union organizing activity on company pro-
perty on the employees' own time. On the facts of
this case we agree, except as to the promulgation of
the rule. This too broad rule was enforced against
employee Dennis on March 31, 1966, while lie was
on his own time inasmuch as it was his lunch hour.
By so enforcing the rule the Respondent violated
' The request for oral argument is denied inasmuch as the record, in-
cluding the Respondent 's exceptions and brief, adequately presents the is-
sues and positions of the parties.
The Respondent contends that the Trial Examiner credited all of the
General Counsel 's witnesses and none of the Respondent's, hence ex-
hibited bias to the prejudice of the Respondent Even if this were so, it
would not establish bias or prejudice N L R B. v Pittsburgh S.S. Co.
337 U.S 656. Moreover , the Trial Examiner resolved the "key issues,"
as the Respondent describes them in its brief, which concern "the passing
of an envelope" between two employees with unrelated work assign-
ments "shortly after lunch hours," partially in favor of the Respondent
and partially against it The result, that is, that Fox, the union recording
secretary and chairman of the attendance committee , was not on her
lunch hour both when she spoke briefly to Dennis and when she passed
the envelope to him, but that Dennis , a member of the Union's member-
ship committee, was, we find, supported by the record. We base this
upon the preponderance of the testimony of the four witnesses who
participated - Fox, Dennis , Covey, and Kernion . We place no reliance
upon any speculation which may have contributed to the Trial Examiner's
reaching that same result.
Section 8(a)(1) of the Act . The rule , however, had
been included in successive employee , manuals, as
the Trial Examiner also found , so that its actual
promulgation occurred more than six months before
the charge herein . Accordingly , we find merit in the
Respondent 's exception that promulgation of the
rule cannot here constitute an unfair labor practice
because of the 10 (b) limitation. In the circum-
stances we shall so word our Order as to cover only
the "maintenance and enforcement " of a rule cur-
tailing union activity on company premises on the
employees ' own time.
2. The Trial Examiner also found , and we agree,
that the Respondent does not customarily object to
the use of company time for nonwork activity unre-
lated to the Union ,2 consequently the Respondent's
surveillance and questioning of employees Fox and
Dennis concerning suspected union activity on
company time on March 31, its confiscating the
union material in their possession, and its later
disciplining these two employees , amounted to
disparate enforcement of a valid restriction on the
use of working time and thus constituted a violation
of Section 8(a)(1). We so find.
The Respondent urges a clause in its contract
with the Union as a defense to any finding of viola-
tion based on the March 31 incident. The contract
clause provides that "Council members shall not
carry on any Council activities during their working
hours except as provided"; the exceptions are: (1)
investigation of grievances , (2) conferring with
company representatives , including collective bar-
gaining , and (3 ) posting and removing council
notices on council bulletin boards . Strictly con-
strued the phrase concerning the carrying on of
union activities during working hours may have
been intended to include the mere passing of an en-
velope, without more, although it is arguable that
this would consume no more time than , and serve
much the same purpose as, the posting of a notice,
which is excepted under the contract.
We note, however, that Fox's delivery to Dennis
on March 31 of the envelope with a list of union
In line with Board policy to encourage stipulated settlements, we ex-
pressly do not adopt the inference of the Trial Examiner in the last sen-
tence of fn. 3 of her Decision.
2 The Respondent contends that nonwork activity which occurs on
company time is "regularly approved in advance ," based on the uncon-
tradicted testimony of Division Manager House , and requests the Board
to reopen the record for additional testimony should it not agree . The Trial
Examiner concluded that a finding that community programs and cam-
paigns are always or even usually authorized in advance by the Respond-
ent is not warranted by House's testimony , with which conclusion we
agree . Although we do not view this testimony as hearsay , as the Trial Ex-
aminer did to some extent , we note that it was uncorroborated and that
evidence concerning the granting of permission for nonwork activity wa*
peculiarly within the capability of the Respondent to produce The
Respondent had an opportunity to litigate this point fully but chose to rely
on the generalized testimony of House We therefore deny its request to
reopen the record
167 NLRB No. 122
MASON & HANGER-SILAS MASON CO. 895
members and a list of those eligible to join w a-not
accompanied by any conversation , consumed no
working time of employee Dennis , and consumed
virtually no working time of employee Fox.
Moreover , the incident consumed so little actual
time that we think it may reasonably be equated
with delivery of personal telephone messages. As
to such messages approval is implicit , according to
foreman Covey, even though company time may be
involved . In all the circumstances we crmtlude that
this isolated occurrence , which involve¢Lanjnimal
use of working time and is not shown to have inter-
fered with the performance of the duties of the one
employee who was on working time , was so negligi-
ble that the Respondent 's real concern was not the
use of company time within the meaning of its con-
tract with the Union but rather the demeaning of
union adherents and thereby the Union itself.3
In assessing the contract prohibition against
union activities during working hours as not having
been the Respondent 's motive in investigating the
March 31 incident , and in reaching her 8 (a)(1) find-
ing based on surveillance , interrogation, and related
conduct, we note that the Trial Examiner included
a finding that the purpose and effect of the Respond-
ent's conduct were not only to interfere with union
activity generally "but a possible strike in particu-
lar." Although there is testimony by Union
Representative Bolt concerning a mid-1965 strike
authorization and reference to an imminent strike
situation 8 or 9 months later because of an apparent
impasse in bargaining concerning the use of testing,
we find it unnecessary to rely upon the possibility
of a strike in assessing the situation which existed
on March 31, 1966 . Clearly the contract was then
running on what was the last of a series of oral ex-
tensions , and the Respondent's conduct with
respect to Fox and Dennis was by its very nature
calculated to undermine the Union 's influence at a
time when it was seeking to secure a new contract
after prolonged bargaining negotiations . As we view
it, the Respondent's conduct , particularly in initiat-
ing the questioning, smacked of making a mountain
out of a mole hill and thereby harassing union ad-
herents.
in support of its position that it has the sole prerogative to determine what
interferes with employee performance during working hours, the pattern
of personal notetaking which the court considered objectionable was
characterized by it as an "elaborate spy system " with a master notetaker
and reporters whose activity disturbed the operation of the plant and in-
volved the use of working time over a period of weeks. We see no parallel
in the two cases The cease-and-desist order we here adopt is expressly
conditioned so that the Respondent is not circumscribed in its questioning
about union activity on working time if it customarily takes similar action
concerning matters unrelated to the Union . See also N .L.R.B. v.
Buschman Co , 380 F 2d 255 (C A 6), where the court enforced the
Board 's Order to the extent based on interference with the employees' ex-
ercise of Section 7 rights, even though the union there - unlike this case -
had specifically agreed to a plant rule prohibiting any solicitation at all
upon plant premises without prior permission.
a Delete from paragraph 2(b) of the Trial Examiner's Recommended
Order that part thereof which reads "to be furnished" and substitute
therefor "on forms provided."
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ROSANNA A. BLAKE, Trial Examiner : Upon a charge
filed on April 4, 1966, by the Office and Professional Em-
ployees International Union , Local 306, and the Metal
Trades Council of Amarillo, Texas and Vicinity,
AFL-CIO, the Regional Director for Region 16 issued
a complaint on May 9 , 1966, in which it was alleged that
Mason & Hanger-Silas Mason Co ., Inc., referred to
herein as the Company or the Respondent , engaged in
conduct which violated Section 8(a)(1) of the Act. In its
answer , the Company admitted certain allegations of the
complaint , such as the commerce allegations , but denied
having committed any unfair labor practice.
Pursuant to due notice , a hearing was held before me in
Amarillo , Texas, on July 6 , 7, and 8 , 1966. All parties
were represented by counsel, were given full opportunity
to present evidence , to examine and cross -examine wit-
nesses , to present oral argument , and to file briefs. Oral
argument was waived . A brief was filed by counsel for the
General Counsel and counsel for Respondent filed
proposed findings and conclusions and a brief.
Having considered the entire record , the briefs, and
Respondent's proposed findings and conclusions, and
having observed the demeanor of the witnesses while tes-
tifying , I make the following: t
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent , Mason & Hanger-Silas
Mason Co., Inc., Amarillo , Texas , its officers,
agents , successors , and assigns , shall take the ac-
tion set forth in the Trial Examiner 's Recom-
mended Order ,4 as amended , by changing the word
"Promulgating" in paragraph 1(b) to the word
"Maintaining."
3 See Taylor Instrument Companies, 165 NLRB 843 We note that in
N L.R.B v Threads, Inc , 308 F 2d I (C.A 4), urged by the Respondent
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT ; THE LABOR
ORGANIZATIONS INVOLVED
Respondent , a West Virginia corporation , is engaged in
the processing and manufacturing of goods and materials
at its Pantex plant in the vicinity of Amarillo, Texas, pur-
suant to a contract with the United States Atomic Energy
Commission . During the 12 months prior to the issuance
of the complaint, a representative period , Respond-
ent, in the course and conduct of its operations, manu-
factured, sold, and distributed goods and materials valued
in excess of $15 million, pursuant to its contract with the
All credibility determinations made herein are based in part upon my
observation of the demeanor of the witnesses
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atomic Energy Commission. These goods and materials
had a substantial impact on the national defense. Upon
the foregoing undisputed facts, Respondent admits and I
find that it is an employer as defined by Section 2(2) of
the Act and is engaged in commerce as defined by Section
2(6) and (7) of the Act.
It is also admitted and I find that Office and Profes-
sional Employees International Union, Local 306,
AFL-CIO, and Metal Trades Council of Amarillo, Texas
and Vicinity, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Metal Trades Council of Amarillo , Texas and
Vicinity , AFL-CIO, which will be referred to herein as
the Trades Council , is the certified bargaining representa-
tive of the Company's employees. However , the em-
ployees involved herein belong to Local 306 , Office and
Professional Employees International Union , AFL-CIO,
which will be referred to as the Local or the Union.2 A se-
ries of bargaining contracts have been entered into
between the parties and one such contract expired by its
terms on March 15 , 1965. However, it was extended
from time to time by oral agreement while a new contract
was being negotiated . The last extension of the old con-
tract expired at midnight on April 12 , 1966, i.e., about 2
weeks after the events here in issue , and the employees
worked without a contract between that time and on or
about May 4 when a new contract was signed. Contract
negotiations continued for more than a year and a strike
was authorized about the middle of 1965 but no strike
occurred .3 However , according to A. J. Bolt, the presi-
dent and chief steward of the Trades Council , a "strike
was very imminent" on March 31 , 1966; i . e., the date of
the events at issue herein which occurred shortly before
the contract was due to and did expire . A letter of intent
to strike was sent to the Company about April 21, 1966,
but it was rescinded a day or so later and , again , no strike
occurred.
All of the contracts , including the one in effect on
1 One or more members or officers of the Local are delegates to the
Trades Council
3 On February 15, 1966, the Court of Appeals for the Fifth Circuit en-
tered a decree enforcing a Board Order issued in a case involving the
Respondent (Case 16-CA-2375.) Respondent 's statement in its brief that
the Trial Examiner refused to take official notice of the prior proceeding
is not supported by the record The court 's decree was based upon a
stipulation providing for the entry of a consent decree The Board's Order,
which is dated December 3, 1965, provided that Respondent "Shall not-
(I) refuse to bargain with the Metal Trades Council as the representative
of the employees in the unit described in the Board's Decision, ( 2) make
unilateral changes in the job selection procedure in the unit without con-
sulting and bargaining with the Trades Council, (3) refuse, upon request,
to furnish information , tests and data to which the Council is lawfully enti-
tled; (4) interfere with, restrain , or coerce employees in any like or related
manner in the exercise of the rights guaranteed them by the Act." The af-
firmative portions of the Order required the Company ( 1) to bargain in
good faith , upon request , with the Council , (2) to revoke any changes in
job procedure which may have been instituted after February 22, 1965,
and to return seven named employees to their former positions absent a
waiver by the Union , (3) to furnish the Union copies of identified tests
"and all other information and data to which it is lawfully entitled", and
(4) to post copies of the attached notice. Although the stipulation may
have contained a statement to the effect that Respondent was not ad-
March 31, contained a clause prohibiting union activity
on company time.
At the time of the events at issue herein, Dallas William
Sasser, Jr., was president of Local 306 and recording
secretary of the Trades Council. Lenore Fox was the Lo-
cal's recording secretary and chairman of its attendance
committee. Thomas R. Dennis was a member of the Lo-
cal's membership committee, Fox and Dennis, whose
conduct on March 31, 1966, resulted in company action
which in turn resulted in an unfair labor practice charge
and the complaint herein, worked in Respondent's
general stores department or division which is essentially
a warehouse operation. Rubin A. Covey, Jr., was their
foreman and his immediate superior was General Stores
Supervisor Maurice C. Kernion. Carl M. Smith was the
Company's labor relations manager.4
As set forth more fully infra, on March 31, 1966,
Union Recording Secretary Fox handed an envelope to
Union Committeeman Dennis on what was in Fox's case,
at least, company time. The Company immediately began
an investigation which included the questioning of Dennis
and Fox and, according to the General Counsel, the
"confiscation" of the envelope, its contents, and of two
file folders and their contents which Fox had in her desk.
The lists in the envelope and in the folders were admit-
tedly union lists and the Company contends that its ex-
amination of the materials raised questions about the
possible use of company supplies and copying machines.
One of the lists was a copy of a company record and it as-
serts that the discovery of this list in Fox's desk also
raised a question about whether there had been a breach
of security regulations. After the Company had
completed its investigation, Fox was given an official
reprimand for engaging in unauthorized activity on com-
pany time and an "advisory discussion" was held with
Dennis.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by questioning Fox and Dennis, by
keeping union activity under surveillance, and by con-
fiscating the material described above. It also alleges that
the Company violated Section 8(a)(1) of the Act by main-
taining, promulgating, and enforcing a rule which
prohibits the Union from soliciting and distributing union
literature on company property on nonwork time.5
matting that it had violated the Act , I do not believe that it would have
agreed to the entry of a decree if the Board had not been in a position to
adduce convincing evidence in support of its Order.
The supervisory status of the various management representatives
referred to above and elsewhere is not disputed . Some of their titles - but
not their duties - were changed in the period between March 31 and the
hearing in July.
' The complaint identifies the date on which the alleged unfair labor
practices (other than the one based on the rule) occurred , the management
representatives involved , the nature of the violations, i.e., interrogation,
surveillance , and confiscation of union materials In addition , the events
on March 31 were fully litigated and it is undisputed that Kermon saw
Fox hand Dennis the envelope , instituted an investigation which included
the questioning of the two employees Moreover , there is no serious
dispute concerning the general nature of the questions asked . Under these
circumstances , it is immaterial that the complaint alleges that the em-
ployees were questioned about their union membership or desires
whereas the proof discloses that the questions concerned the union activi-
ty of Dennis and Fox that day and the lists found on Dennis ' workbench
and in Fox's desk. For the same reason, i e , the fact that the validity of
the "no solicitation" rule, as written , was fully litigated , it is immaterial
that there is some variation between the allegation in the complaint and
the proof concerning the scope of the rule.
MASON & HANGER-SILAS MASON CO. 897
B. The Plant Rule
Each employee is given a manual which includes the
following rule:
OUTSIDE BUSINESS
NEVER CONDUCT ANY OUTSIDE BUSI-
NESS ON THE RESERVATION without permis-
sion This rule applies, for example , to all solicita-
tions, membership drives, circulating petitions, union
organizing activities , pledges and collecting money.''
It is undisputed and I find that the above rule was well
known to the employees generally and to Fox and
Dennis, the two directly involved herein . Although it
seems clear that the employees had engaged in union ac-
tivity on their free time on company property, no em-
ployee was ever criticized or reprimanded for such con-
duct , at least before March 31, 1966. However , there is
no evidence that the Company has ever told the em-
ployees that the rule is not enforced as written , i.e., that
they are free to engage in union activity on company pro-
perty on noncompany time.7
It is undisputed that tickets to baseball games, probably
between teams made up of company employees , and Boy
Scout Christmas trees are sold on company time. Credit
union business is permitted during working hours and
contributions to the Christmas fund are solicited on com-
pany time. According to Fox's undenied testimony, the
"paper work" in connection with recreational activities,
such as tabulating bowling team scores and standings, is
done on company time. United Fund and similar cam-
paigns are also carried on during working hours.
"public" causes. There is no evidence that the Company
has a rule barring employees such as Fox and Dennis
from discussing occasionally, on company time, such
things as the weather , their new cars, their children or
grandchildren, or their favorite football, basketball, or
baseball teams. On the other hand, Foreman Covey
testified that personal telephone messages are delivered
to employees and his testimony certainly indicates that
they are delivered on company time (See infra.)
Fox testified without denial that, at the direction of
General Stores Supervisor Maurice Kernion, she had
prepared tickets for functions of the American Ordnance
Association , a private organization in which Kernion is
interested . She used company "duplimats " to prepare the
tickets, the duplimats were "run off" on company
machines, and all of the work was done on company time.
Fox further testified without denial that the tickets were
"distributed among the supervisors " who sell them. It is
also undisputed that Fox prepared , on company time,
notices of American Ordnance Association meetings
which were sent to both company personnel and "out-
siders," that she typed the names and addresses on the
envelopes in which the notices were mailed and that they
were company envelopes. Nor is it disputed that Fox had
prepared applications for membership in the Association
and sent them to the Association's headquarters in
Washington, D.C., in company envlopes. Also undenied
is Fox's testimony that when she was doing such work,
she was "letting [company] work . . . go" and that she
has spent as much as 5 hours a day on such work. None
of Respondent ' s witnesses claimed that American
Ordnance Association affairs are "Company business."
Fox also testified without denial that Kernion had
showed her a picture of his dog on company time.
Although Division Manager House testified that ad-
vance approval is given for the conduct of activity of the C. The Events on March 31, 1966
types described above , it is not clear from his testimony
that the Company gives permission for such activities to
be conducted on its time. More importantly , he did not
identify the management representative who approves
such requests and no witness testified that he is the
representative from whom permission is requested and
who gives it. In short , there is no evidence of even one in-
stance in which permission was in fact requested and
granted . In my opinion , House's general and hearsay
testimony does not warrant a finding that such programs
and campaigns are always or even usually authorized in
advance. On the contrary , I am convinced and find that
all House really knew was that it is company "policy" to
allow its property and perhaps its time to be used in con-
nection with employee recreational programs and
6 The same rule had been included in all or most of the employee
manuals
' The testimony of Respondent 's witnesses suggests that the Company
regards union activity on company property on noncompany time as a
violation of the rule but that it "overlooks " such violations, 1 e , that it
considers that the enforcement or nonenforcement of the rule is a matter
within its discretion Although Division Manager Donald L House
testified that the rule was not enforced with respect to union activity on
nonwork time , he stated in his prehearing affidavit , "To the best of my
knowledge, the rule as contained in the booklet is enforced in all instances
The booklet containing company rules is given to each new employee and
he is expected to know the rules and to abide by them " According to
Trades Council President Bolt, the Union filed a " protest" about a similar
1. The conduct of Fox and Dennis
When Lenore Fox left home for work on the morning
of March 3 1, she picked up a manila file folder which
contained a brown, clasp-type envelope and a photocopy
of a signed pledge of loyalty to the Union.8 Without pay-
ing any attention to the contents of the folder, Fox added
to it a list of union members to give to employee Joseph
Caddell. Fox was chairman of the attendance committee
and one of Caddell 's duties as a member of that commit-
tee was to notify certain union members about union
meetings and perhaps 20 to 25 copies of a suggested
notice were probably attached to the list of names."
A few minutes before 8 a.m , i.e., before the work
rule in 1963 However , the Union 's letter does not refer to the rule as such
but to the entire booklet in which it appeared The booklet referred to was
not the employee manual but one entitled " Regulations for Pantex Plant,
Amarillo , Texas" and the rule stated therein differs somewhat from the
one set forth in the manual
8 My reasons for crediting Fox's testimony that she and/or her husband
had bought the envelope and folder are set forth infra
9 The plant,is located in the country , perhaps 20 to 25 miles from
Amarillo Although many or most of the employees live in Amarillo, some
of them do not This means that when the union officers have lists to dis-
tribute, it is easier for them to do it at the plant and, as set forth supra, the
Company contends that it does not object to the passing of union lists,
etc , on its property on the employees' own time
898 DECISIONS OF NATIONAL
buzzer or bell rang , Fox gave the list to Caddell . 10 (Even
if it is assumed arguendo that Fox gave Caddell the list on
company time , no supervisor testified that he was aware
of the Fox -Caddell incident until a few weeks before the
hearing; i.e., long after Fox 's reprimand in early May. See
infra.) It is admitted that Fox put the folder and its other
contents (an envelope and a union pledge) in her desk
drawer.
All of the employees have their rest period or cof-
feebreak at the same time and as Fox was on her way to
coffee that morning, she met Local President Dallas
Sasser who handed her a manila file folder . According to
Fox, whose testimony I credit , Sasser asked her to give
Membership Committeeman Thomas Dennis a copy of
two of the lists in the folder ; i.e., a copy of lists Dennis
had asked for earlier . 11 (Booten , Fox, and Dennis
testified that the latter had asked for some lists at a union
meeting. However , Dennis and Fox differed about the
date on which Dennis made his request and Booten could
not recall the date .) On her return to work , Fox put the
Sasser folder and its contents in her desk drawer along
with the folder she brought from home that morning.
Fox's normal lunch period is from 11 : 30 a.m . to noon
but she is entitled to 30 minutes and it is undisputed that
if she is busy at 11:30 a.m . she does not go to lunch im-
mediately . When this happens, her lunch period does not
end until 30 minutes after it began . In other words, it is
possible for Fox to be on her lunch period at 12:05 p.m.
or perhaps even later . However , she did not testify that
she went to lunch late on March 31 although such
testimony would have permitted her to state categorically
that her lunch period was not over when she spoke to
10 The above finding is based on the credited testimony of Fox and
Union Vice President Stanley Booten In discrediting Caddell's contrary
testimony, I have considered the fact that he seemed to attach no sig-
nificance to the incident when it occurred although he says that it hap-
pened on company time and that General Stores Supervisor Kernion "was
standing about a step or two behind me, and a little to the right " Although
Kernlon claimed that he was watching Fox particularly during this period
because she had commented a week or so earlier about her work load, he
testified that he did not see her hand anything to Caddell that morning As-
suming arguendo that Kernion would not have paid any attention to the
exchange at the time it took place, I cannot believe that if it had happened
on company time Kernion would not have recalled it later that day when
he saw Fox hand an envelope to Dennis and instituted an investigation
which disclosed that the envelope contained union lists (See infra )
Furthermore, Caddell testified at one point that he was at his work station
when Fox handed him the list, i e., about 50 feet from the locker area
where he and other employees change their shoes At another point, Cad-
dell testified that when the sheaf of papers was handed to me, I opened
them, looked at them, folded them up, put them in my locker " This latter
testimony would almost certainly mean that the incident occurred in the
locker area rather than at his work station, i e , before rather than after the
bell rang Further doubt is cast on the reliability of Caddell's testimony by
his inherently incredible claim that he did not know, on March 31, that he
had been appointed to the Union's attendance committee but accepted the
material without asking, then or later, and without knowing, then or later,
why Fox gave it to him He did admit that a list of union officers and com-
mittee members had been posted on the bulletin board but said that he
could not recall having been given a copy Union President Sasser, on the
other hand, testified that he gave a copy of the list of officers and commit-
tee members to everyone on the list, including Caddell Union Vice Pres-
ident Stanley Booten testified on rebuttal that he saw a newspaper report
about Caddell's testimony, that he commented at the plant that he knew
that Caddell's testimony was not true, and that he later received a call ask-
ing him to testify According to Booten, Fox gave Caddell the list before
8 a in while Caddell was sitting at a desk a few feet from Booten 's desk,
"waiting for the whistle to blow." Booten also testified that Supervisor
Kernion came up a few minutes later and asked Caddell, who was an ex-
LABOR RELATIONS BOARD
Dennis in the warehouse (see infra) even if she did so a
few minutes after noon.12 Her failure to so testify is
another reason why I have credited her testimony
generally.
On March 31, Dennis worked in a building a mile or so
away from the one in which Fox worked and he came to
the latter building to eat lunch. His normal lunch period
is from noon until 12:30 p.m. but it may also begin a few
minutes after noon and end a few minutes after 12:30
p.m.
Neither Dennis nor Fox punches a timeclock at the
beginning and end of his respective lunch period and
there is no buzzer or bell to mark the beginning and end
of the various lunch breaks.
Fox testified that she was on her lunch period when she
took the lists for Dennis out of the folder Sasser gave her
earlier that morning, took the envelope out of the folder
she brought from home, put the lists in the envelope, and
wrote Dennis' name on it. If Fox did these things a few
minutes after noon, both Kernion and Covey would have
been on their lunch period and neither in fact claimed to
have seen Fox put the lists in the envelope. It is un-
disputed that Dennis talked to Covey in the warehouse,
just outside the office, shortly after noon and it would be
logical for Fox to speak to Dennis as soon as possible
after she prepared the envelope for him. These, of course,
are additional reasons why I think it likely that, as she
claimed, she spoke to Dennis almost immediately after
she returned to the office from lunch.
There is no claim that Fox had been doing less work
than she should have been doing or that she did so on
March 31. Nor is there any claim that Supervisor Ker-
cess clerk, whether the list was an "excess" list and that Caddell and Ker-
nion looked at it together
" Sasser could not recall either having asked Fox to give the lists to
Dennis or why Dennis might have needed them But Dennis was on the
membership committee and it is inherently creditable that he would ask
for a list of union members and potential members I do not doubt that
Sasser was testifying truthfully but he could easily have forgotten what he
told Fox particularly since he explained that he had no reason to and in
fact paid little attention to his meeting with Fox that morning. Although
my observation of Fox and Sasser as witnesses and my examination of the
testimony of each cause me to believe that Fox's memory is better than
Sasser's, the question of what Sasser told Fox that morning is relatively
unimportant It may be that when Fox looked at the lists in the folder
Sasser gave her, she saw that two of them were lists Dennis had asked for
and concluded that Sasser had given them to her to give to Dennis Her
conclusion may have been so "automatic" that she could not distinguish,
in July, between what Sasser said and her interpretation of his reason for
giving her copies of those lists It seems likely that, before the hearing,
Fox and Sasser talked over their meeting on the morning of March 31 and
discovered that Fox's recollection of it differed from Sasser's and Sasser
also heard Fox's testimony before he was called as a witness Of course,
Fox and Sasser could have avoided the conflict in their testimony if either
had been willing to testify contrary to his or her recollection in the interest
of consistency Their failure to "conform" their testimony causes me to
believe that each recounted truthfully the events of that morning as he re-
called them It is not unusual for persons to recall the same incident dif-
ferently and the fact that several witnesses describe an incident in exactly
the same way, particularly one which they had no reason to pay special at-
tention to at the time, may create as serious doubts as to their credibility
as a variance in their testimony Although Sasser did not tell Fox what to
do with the other lists in the file, she was the Union's recording secretary
and as such kept union records and documents generally.
1 L I note in this connection that neither Foreman Covey nor Supervisor
Kernion asserted that he knew that Fox went to lunch on March 31 at ex-
actly 11 30 a in and that, therefore, she was due back at work at exactly
12 noon
MASON & HANGER-SILAS MASON CO.
nion or Foreman Covey had ever had any reason to be-
lieve, before March 31, that Fox had engaged in "out-
side" activity on company time except, of course, when
she did work for Kernion on behalf of the American
Ordnance Association. In fact, Covey testified that Fox
was a "good employee" who "does her work well."
According to Fox, at "approximately 12:00 o'clock,"
i.e., almost immediately after she returned to the office
from lunch, she went into the adjoining warehouse area to
get something from the supply cabinet which is located
near the door which connects the office and the
warehouse. When she entered the warehouse, she saw
Dennis talking to Foreman Covey and, as she walked by,
she told Dennis to come by her desk before he returned
to his work station, that she had something for him. There
is no evidence that Dennis made any reply and neither
Foreman Covey, who heard Fox's remark, nor Super-
visor Kernion, who claimed to have done so, asserted that
Fox stopped to talk to Dennis or that the latter said
anything. Similarly, neither Covey nor Kernion claimed
that either of them said anything to Fox at the time or that
either considered the incident significant when it oc-
curred. Covey's explanation for his inaction was that
"some times the girls will take a telephone message for
one of the boys during lunch or some other time, and they
will give [the employee] a message" about work or a call
from home. (Emphasis supplied.) Covey did not claim
that messages of the latter type are permissible only in the
case of emergencies and his testimony indicates that it is
not uncommon for personal messages to be delivered on
company time. Kernion apparently realized the implica-
tion of such a practice and denied that messages even
about work are not delivered during working hours.
As noted previously, Dennis testified without denial
that he spoke to Foreman Covey both before and after he
[Dennis] ate lunch. However, he was unable to recall
whether Fox spoke to him in the warehouse before or
after he ate but he was certain that his lunch period was
not over either when Fox spoke to him or when he later
went to the office.
On the other hand, both Covey and Kernion testified
that it was a few minutes after 12:30 p.m. when Fox
spoke to Dennis which meant that his lunch period, as
well as Fox's, was over. Covey claimed that he was giv-
ing Dennis and employee Caddell instructions about the
afternoon's work. Kernion did not claim that he saw Cad-
dell and although Caddell was a witness for Respondent
and testified that Fox gave him a union list on company
time that morning, he did not testify that he was present
when Fox spoke to Dennis and that the time was after
12:30 p.m. Nor did either of the employees to whom Ker-
nion said he spoke, while waiting for Covey to finish, tes-
tify that he saw or heard the warehouse incident and that
it occurred after 12:30 p.m. On the other hand Dennis
testified that he saw neither Caddell nor Kernion when
Fox came by and spoke to him.
Fox admitted that it was about 12:30 or 12:25 p.m., i.e.,
13 As set forth supra, Kernion claimed that he had been watching Fox
for about a week because she had said something to him about her work-
load However, he did not explain the circumstances under which Fox
spoke to him or what he said in reply Fox denied that she had said
anything to Kernion about the amount of work to be done but said that on
one or more occasions she had so much to do she asked Covey, her im-
mediate foreman, what work was the most important and which she
should do first Kernion was not Fox's immediate superior and I think that
she would be more likely to discuss her problem with Covey than with
899
well after her lunch period had ended but before Dennis
was due back at work, when Dennis came by her desk
and she handed him the envelope. It is undisputed that
Dennis did not stop but he may have said "Thank you"
and went out into the hall on his way back to the building
in which he was working that day. There is no claim that
Fox said anything.
Supervisor Covey first testified that it was "not
unusual" for Dennis to leave the warehouse via the office
because the key to the truck he drives when he comes to
lunch "stays" in the office during his break so that the
truck can be used by others. Later, Covey claimed that
Fox "called" Dennis "out of a conversation" and asked
him "to defer from his normal path" on' leaving the build-
ing, "called him in and gave him this document." But if
the key to the truck was kept in the office while Dennis
was on his lunch period, he would have to go into the of-
fice for it before he could start back to the building in
which he was working.
Supervisor Kernion testified that a few minutes after
Fox spoke to Dennis, i.e., after 12:30 p.m., he saw
Dennis come into the office and saw Fox hand him an en-
velope. In Kernion's words, Dennis "carried [the envel-
ope] with him, he carried it right out. He just left with it
in his hands." Kernion immediately sent for Foreman
Covey and asked him if there was any connection
between Fox's work and Dennis' work that day and
Covey said no. Kernion then told Covey he had seen Fox
give Dennis an envelope and told Covey "to check on it"
because, as Kernion put it at the hearing, Fox "in the
past" had told him she was unable to keep up with her
work, that her "exact words" were that "she didn't know
what to do next."13 There is no claim that Kernion men-
tioned to Covey Fox's remark to Dennis in the
warehouse, which Kernion claimed that he heard, or that
Covey told Kernion that, a few minutes earlier, he had
heard Fox ask Dennis to come by her desk. Nor is there
any claim that the warehouse incident was mentioned in
any of the employee interviews or the management con-
ferences that day. Finally, Kernion did not claim that he
directed Covey to investigate because the envelope
resembled envelopes used by the Company.
2. The questioning of Fox and Dennis
As stated supra, Dennis received the envelope from
Fox as he was leaving to return to the building in which
he was working that day. He did not stop at any time to
look at the contents and when he reached his work sta-
tion, he placed the envelope on his desk or workbench
along with company records and papers. Although I
credit Dennis' testimony that he did not open the en-
velope, I think he probably suspected that it contained
union material.
About 45 minutes after Dennis began working, he left
the building on company business and while he was gone,
Foreman Covey entered the building and found the en-
Kernion I also think that if Fox had spoken to Kernion, he would have
been likely to go out and speak to her when he saw her hand Dennis the
envelope Of course, it is possible that Fox made some "off-hand" remark
in a general conversation with Kernion, Covey and others and had forgot-
ten having done so It is also possible that Covey reported to Kernion
what Fox had said to him or that Kernion overheard Fox's remark to
Covey However, for reasons stated elsewhere, I do not consider Kernion
a reliable witness and I do not believe that Fox made any comment to
Kernion about her workload
310-541 0 - 70 - 58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
velope "on top of this stack of papers" on the desk or
workbench Dennis was using that day. Covey saw that
Dennis' name was on the envelope, opened it, examined
the contents, and concluded that the lists were not related
to Dennis' work but were union lists. Covey put the lists
back in the envelope, put the envelope back on the desk,
and waited for Dennis to return.
When Dennis got back, he and Covey talked briefly
about company business. Then, Covey picked up the en-
velope and asked Dennis, "what is this?" Dennis replied
that he "honestly" did not know what was in the en-
velope. Covey, in turn , told Dennis, "Well, I do ... I
have looked .... It's union papers, and this is a serious
violation of our contract [with the Union], conducting
union business on company time." Dennis agreed that the
contract prohibited employees from conducting union
business during working hours but said that he was not
aware that he had done so.
Covey told Dennis that he wanted to take the envelope
and its contents but Dennis said that he did not want
Covey to take them, pointing out that the envelope had
his name on it and stating that he "felt like" it belonged to
him. Covey asserted that the envelope and the paper in it
were government property.'" Dennis' answer was, "Well,
if it is, then, I suppose there is nothing I can do about it,
so do as you please." When Covey said that he was going
to take the envelope, Dennis asked if he could look at the
contents. Covey handed the envelope to Dennis who
took out the lists, glanced at them, put them back in the
envelope, and put it on the table. Covey picked it up and
took it to General Stores Supervisor Kernion.15 Covey
admitted that if he had found Dennis' personal checkbook
at the latter's place of work, Dennis would have violated
no rule and that he [Covey] would have made every ef-
fort to see that Dennis got it back.
Dennis asked "what was going to come of this" and
Covey answered that " the girl in the office" would
probably get a reprimand. Dennis replied that he did not
want "to be any part of getting anybody in trouble." It is
undenied that Covey also told Dennis, "I think as far as
you are concerned, that you haven't done anything
14 Although the envelope resembled those used by the Company, there
is no explanation of why Covey thought the paper belonged to Respond-
ent
15 The above findings are based on the credited testimony of Dennis
and I also credit his denial that he told Covey that the latter could have the
envelope and lists, that they were company property, that they were
"passed" on company time, and that, therefore, Covey was entitled to
them I discredit Covey's testimony that when he asked Dennis for the en-
velope, the latter replied, "Well, I guess you have the right to it, it was
given to me on company time" and handed him the envelope I was
favorably impressed with Dennis' demeanor which was quiet and
straightforward However, the young man now and then disclosed an
unexpected firmness which causes me to believe that he would not have
meekly handed over the envelope and its contents For the same reason,
I think it even less likely that Dennis would have "volunteered" informa-
tion or would have made the admissions attributed to him by Covey which
Dennis must have known or suspected would cause trouble , not only for
himself but for Fox and the Union generally Covey's testimony in this
respect causes me to believe that he was willing to testify, contrary to fact,
if by so doing he could improve Respondent's case, i e , its denial that it
"confiscated" the material As a result, I consider Covey's testimony
about other critical matters untrustworthy The record as a whole also
causes me to disbelieve Covey's testimony that Dennis asked him to take
Dennis' name off the envelope Dennis appeared to be a sensible young
man who would realize that Covey had already seen his name on the en-
velope and that he would gain nothing by asking Covey to take it off
i" According to Kernion, after Covey gave him the envelope he had ob-
tained from Dennis and reported his conversation with Dennis , he (Ker-
wrong," adding something about "he sure didn't like to do
this, but it was part of his job and he had to do it." There
is no claim that Covey made any reference to the
warehouse incident.
At about 3 p.m., Covey informed Fox that he had some
lists he had taken from Dennis and asked if she gave them
to Dennis. (In his testimony concerning his conversation
with Fox at this time, Covey does not claim to have
referred to the warehouse incident or to the possibility
that the envelope and/or the paper inside were company
property.) Fox inquired what difference it made whether
or not she gave the lists to Dennis but added that she was
not refusing to answer. When Covey reminded Fox about
the "laws" governing the conduct of union business on
company time, Fox admitted that she gave some lists to
Dennis but asserted that she did not "consider that we
were conducting union business on company time." Fox
also wanted to know what the "stink" or "fuss" was
about but Covey told her that there was no "stink" or
"fuss," that he was "just doing what he was told to do."
On the other hand, Fox testified that "Anytime those par-
ticular supervisors start asking questions such as that, we
all pretty well know that there is something in the air,"
that "An investigation is going on or just something to
upset the employees."
About 4 p.m. Fox went to Supervisor Kernion's office
at the request of Covey. Kernion, Covey, and Fox sat at
a conference table and Covey had "some papers in front
of him with some writing" on them. 16 Covey, who asked
most of the questions, referred to the incident he had
questioned Fox about earlier and explained that he
needed answers to some questions. One was that lists
Fox gave Dennis and Fox truthfully described one as a
list of members of the Local and the other as a list of em-
ployees eligible for membership. Another question was
whether the lists were to be used in connection with work
and Fox answered, "Not that I know of." Covey also
inquired whether the lists were prepared on company
time, on company machines, or with company material.
Fox again answered, "not that I know of," that she did
not know "for sure," that she was not present when they
were prepared." When questioned about who prepared
neon) examined its contents and saw that they were not related to work
Kernion then went to see Labor Relations Manager Carl Smith who in-
structed Kernion to ask Fox if she gave the envelope to Dennis, a fact
which Kermon already knew, having seen her do so These instructions
resulted in Covey 's questioning at 3 p in During this period , Kernion also
went to the office of his superior, Donald L House, the division manager
of administration and services , and "explained the whole situation" to
House After House gave Kernion several questions which should be put
to Fox, Kernion wrote them down and on his return to his own office
called Covey in and also made a copy of the questions "so that we could
be sure" to ask Fox the "right questions " The list of questions was al-
legedly destroyed
" The truth of this answer is debatable Although I am convinced and
find that the original lists were typed by Local President Sasser's wife,
Fox admittedly added three names to both lists on her company
typewriter one morning before 8 a m (Before the additions, there were 62
names on the two-page list of union members and there were many more
names on the six-page list which contained the names of both union mem-
bers and of employees eligible for membership At the hearing, Respond-
ent's position was that the typing of the three names shows that they
were added on a different typewriter than the one on which the "original"
lists were typed If so, Fox had not "prepared" the "original" list on her
office typewriter) Fox did not tell Covey and Kernion that she had added
three names to both lists and insisted at the hearing that she did not con-
sider that her addition of the three names meant that she " prepared" the
lists Can a person who adds 3 names to a list of 32 names and the same
names to a much longer list be said to have "prepared" the list'
MASON & HANGER-SILAS MASON CO.
the lists, Fox replied that they were prepared by the
Union. Covey also asked where Fox got the lists and she
stated that they were given to her as she went to coffee
that morning and that she preferred not to identify the
person who gave them to her unless Covey "made" her.
But when Covey repeated the question, Fox named Local
President Sasser.
Another of Covey's questions concerned whether there
were any other lists in the department and Fox disclaimed
any knowledge on the subject but said that she had given
copies to no one but Dennis. She pointed out, however,
that there were 17 people working "out there" each of
whom might have a copy of one or the other or of both
lists. (At least some of the others were either members or
officers of the Local.)
At this point, Covey told Fox, "we are going to search
[your] desk" and Fox admitted that she had two folders
of lists in her desk drawer but explained that they had
been there all day, that she had done no work on them,
and was going to take them home with her.18 Covey re-
minded Fox that her desk belonged to the Company, that
she could not keep union papers in it but explained that
she could keep them on her "person" or in her purse. On
a later occasion, Covey admittedly told Fox that he was
not interested in the "personal" items she had in her desk.
Fox's comment was, "you might as well have what's in
my desk now" as the material the Company already had.
Fox said that she would get the folders so that Covey
and Kernion could see them. As Fox left Kernion's of-
fice, he and Covey followed her to her desk where she
took the folders from the bottom, right-hand drawer.
When the three returned to Kernion's office, Covey took
the folders, removed the lists, and looked at them. Ker-
nion also looked at the lists and picked up one of the fol-
ders and said, "We are not supposed to furnish folders for
union business ." Fox answered that the folder she
brought from home was not company property. Covey
picked up one of the lists in the Sasser folder (probably
the Mod Center Roster), asked where Fox got it and she
said that it was in the folder Sasser gave her. Covey ob-
served that it seemed that employees other than "cleri-
cals" were listed and Fox conceded that Covey might be
right, saying that she had not paid "much attention to it
because it was just in the folder" Sasser gave her that
morning.
Covey indicated that he had no further questions at that
time but that he and Kernion would like to search Fox's
desk to see if there was anything else in there.'9 Fox,
Covey, and Kernion then returned to Fox's desk and she
opened each drawer and went through its contents as
Covey and Kernion watched. In one drawer, Fox had
some "personal effects and a personal tablet" in which
she had done sortie work in connection with her bank
statement. When she opened the tablet and explained
what it was, Covey commented, "I'm not interested in
'x Respondent's counsel asked Fox to describe Covey's and Kernion's
manner during the interview and she described it as that of a supervisor
questioning "a little old peon You had better tell us the answers or
you will wish you had." She admitted that neither was "physically abu-
sive " Covey's testimony on the subject was less colorful but he admitted
that Fox was asked if "we could look at the contents of her desk" and that
he and /or Kernion followed her and as she opened the drawers looked at
what was in them
" Supervisor Kernion had taken the envelope Covey obtained from
Dennis to Donald L House , Kernion ' s superior , who directed Kermon to
ask Fox "to open" the drawers of her desk and "display the contents
901
anything like that." Cf. Kernion's testimony that the fol-
ders and lists were the only nonwork items found in Fox's
desk.
Fox had taken the folders back to her desk but Covey
told her, "I want the two folders that have the rest of the
lists in them" and she handed them to Covey. Covey con-
ceded that he asked Fox "to produce" the documents and
that she did so pursuant to his request.
Covey admitted that if he had found one "personal"
copy of a PTA list in Fox's desk and if she was not using
the list on company time, he would have "thought nothing
about it." However, Covey said that the fact that Fox had
several copies of the lists suggested that she might dis-
tribute them presumably on company time. However, she
also could have handed them out on nonwork time which,
according to the Company, was permissible.20
When Supervisor Kernion was asked if he would have
objected if Dennis had "come by" and received a per-
sonal check or a red feather fund contribution from Fox,
he answered:
If I had known what it was, I would have had- I
didn't object to it, I had to investigate it to see what
was going on.
3. The material found in the possession of
Dennis and Fox21
The envelope Fox gave Dennis closely resembled en-
velopes used by the Company and, the previous October,
it had purchased locally 500 file folders of the same brand
(Shaw-Walker) as those found in Fox's desk. The Com-
pany's name is on none of the material and there is
nothing distinctive about either the envelope or the fol-
ders.
As stated supra, Fox testified that she brought from
home that morning one file folder, one envelope, a
photocopy of a union loyalty pledge, and the material she
gave Caddell before work. The Sasser folder contained an
original copy, i.e., one made on a typewriter, and several
photocopies of the lists which were in the envelope Fox
gave Dennis One was a two-page list, dated March 9,
1966, of the names and addresses of members of the
Union. The other was a six-page list with each page
headed with the name of a department such as "Fiscal"
and "Production." The names of the employees in each
department were listed and an asterisk indicated which of
them belonged to the Union. Each page also contained a
notation of the percentage of the employees in the depart-
ment who were union members. Sasser testified he had
computed the percentages and entered them on the lists.
The Sasser folder also contained a Xerox copy of a six-
page document, dated December 1, 1965, headed Mod
Center Personnel Roster. The original of this document
was a company record and the facts set forth infra
indicate that the copy in the folder was made from
another copy rather than from the original document.
thereof' to Kernion and/or Covey
10 It is undisputed that Covey told Fox that there would be no objection
if she carried the lists in her purse or on her "person " But surely the
temptation and opportunity to distribute union material on company time
would be even greater if Fox had it with her at all times As for the en-
velope he found on Dennis' desk or workbench, Covey expressed the
opinion that if it had contained something "very personal ," it would have
been sealed and marked personal and confidential This testimony is sure-
ly an implicit admission that the Company did not object to the transfer of
purely personal items in company envelopes
21 The facts set forth in this section are set forth more fully infra
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, it is undisputed that perhaps as many as 40 copies
of the roster were produced in the Mod Center and were
distributed to the employees in that department as, a
Christmas list, all with the knowledge of the department's
supervisors?2
The original and several carbon copies of the lists,
other than the roster, were typed by the wife of Local
President Sasser.23 President Sasser, Mrs. Sasser, and
Local Vice President Stanley Booten identified a number
of places where photocopies of documents can be ob-
tained for 10 or 15 cents a page. Each testified that he
frequently had union documents photocopied although
neither Mr. or Mrs. Sasser testified that he-or she-
had made copies of the documents in question. (Booten
asserted that he had ordered photocopies of one of the
lists.) Their claims that the Union had paid for photoco-
pying were substantiated by the minutes of union
meetings in 1966.
On the other hand, Fox admittedly added three names
to the lists, other than the roster, on her company
typewriter one morning before work.24 (Respondent's
witnesses did not disclose when they learned that Fox
had used the company typewriter to add the names.) Fox
also admitted that she used her company typewriter to
type the list she gave employee Caddell on the morning of
March 31 but insisted that she did so on her own time.25
The paper in this case is a better-than-ordinary grade of
typing paper and is a brand to which she has access at the
plant. (Of course, management asserted that it knew
nothing about the Caddell list until a few weeks before the
hearing which means that the Company's actions on
March 31, in April, and in May could not have been
based on any suspicion raised by the brand of paper on
which it was typed.) Fox named the local store at which
she bought the paper and there is no evidence that the
store does not sell the brand or that it has no record that
she had ever bought any of it.
D. The Events in April and May
Early on the morning of April 1, Trades Council Pres-
ident and Chief Steward A. J. Bolt and Local President
Sasser went to see Supervisor Kernion and Foreman
Covey. They saw Covey first and asked if he had a little
time and could talk with them. The three men then went
to Kernion's office and, upon being asked, Kernion said
he could "spare" a few minutes.
Bolt told the company representatives that they had
come about the "Fox incident" the afternoon before.
Covey asked if a grievance had been filed and Bolt replied
in the negative , saying that he and Sasser had come to
determine if it was a matter "that could be grieved on,"
that the Union had a right to investigate to determine
whether or not a grievance was in order. At that point,
Kernion told Bolt and Sasser that he had some work
which had to be done immediately and that he would call
them later.
Bolt and Sasser went to the cafeteria and about 20
minutes later, Foreman Covey came in and told them that
the Company could not meet with them that morning
because the case was still under investigation but that a
meeting would be arranged " later that afternoon." Bolt
had written down some questions which he then asked
Covey. One was what the material was that had been
"confiscated" from Fox and another was what he hoped
to determine by the "search and seizure." Covey replied
that he could not answer the questions , that the case was
still "under investigation ," adding , " Don't try to push me
in a corner."
About 3 p.m. that same day, Bolt called Kernion about
the meeting which, Bolt said , the Company had
"promised" for that afternoon. Kernion's answer was that
there would be no meeting , that the case was "still under
investigation." Bolt started to ask Kernion the same
questions he had asked Covey that morning but got no an-
swers for Kernion told him, "I will not tell you any
more."
On April 3, Bolt wrote Kernion a letter in which he
"again" requested information "concerning company ac-
tivities against" Fox and Dennis. In the letter , Bolt stated
that, on Friday, April 1, he had requested the following
information from Covey and that it had been refused
because the investigation was still going on:
22 Respondent insists that the Union had no use for a copy of the roster
However , the Mod Center was a comparatively new department and at
least some of its employees were eligible for membership in the Union.
Under these circumstances , a list of the names and addresses of Mod
Center employees would enable the Union to solicit new members,
particularly at their homes As pointed out infra , the Company's rule
against union activity on company property even on the employees'
own time would make new employees reluctant to talk to union repre-
sentatives at the plant
23 This finding is based on the credited testimony of Mrs Sasser.
24 There is one definite conflict in Fox's testimony She first testified
that she did not know the date on which she typed the three additional
names although she stated flatly that it was before 8 a in On rebuttal, she
testified that she "believed " that she picked up the lists at a union meeting
on the previous Monday evening (March 28), that she added the names
the next morning and returned the lists to Local President Sasser at his de-
partment after working hours on March 29 A witness may not know what
has happened to refresh his recollection , i.e , he may just know something
he did not know earlier Or, Fox's examination of the Union 's minutes
about which she testified on rebuttal might have caused her to recall her
actions at or after the March 28 meeting although she was not aware of the
chain of thought that was responsible However , she gave her later
testimony on direct examination which is some indication that she had not
been seeking , earlier, to conceal the date but did not remember it at that
time. If her purpose was to testify untruthfully, all she needed to do was to
repeat her earlier testimony that she did not know the date . On March 28
and 29 , Fox had no particular reason to note , for future use, what she did
on those days . Similarly, neither Sasser nor Mrs. Sasser had any reason to
pay any special attention to the documents one or the other had copied be-
fore March 31. If Sasser received up -to-date lists from Fox, it is not in-
herently improbable that he would have had copies made promptly Of
course , it is possbile that Fox's testimony when first a witness was cor-
rect; i.e , that she did not know the date on which she added the names.
Apparently, there was more than one union meeting on and after March
9, the date on one of the lists, and her later recollection concerning the
meeting at which she picked up the lists could have been faulty.
" Respondent indicated that Fox's testimony that she did all of the typ-
ing on her own time is credible because of the short amount of free time
she has before work and during breaks and lunch periods. However, no
evidence was introduced about how long it would take Fox to add 3 names
to each of the two lists found on March 31 or to type the 2-line heading
and the 23 names, without addresses , on the Caddell list. (Of course, there
is no evidence that the names were added to the two lists and the Caddell
list was typed all on the same day.) I think I can take official notice that
the time required by an experienced typist like Fox would be substantially
less than that required by an inexperienced typist. If the time required was
substantial and if the typing was done during working hours, it would seem
that Fox would have been seen doing it. However, no one claimed to have
done so although Kernion admittedly had been watching Fox for about a
week. It may well be that typists and secretaries generally take it for
granted that their "fringe benefits" include the use of their typewriters, on
noncompany time, to type personal letters or other matter not related to
their employer's business . I also think it likely that Fox's attitude toward
using her company typewriter for "outside" activity was influenced by the
amount of company supplies and time she had used doing work for the
American Ordnance Association.
MASON & HANGER-SILAS MASON CO.
(1) What were the charges against Mrs. Fox and
Tom [Dennis]?
(2) What materials or properties had you con-
fiscated, with or without permission?
(3) What did you hope to establish?
Bolt's letter also requested the return of all of the pro-
perty that the Company had obtained "illegally" and a full
explanation. The letter closed with an expression of in-
dignation at the Company's actions and expressed the
"very strong feeling" that the Company's methods, its
"constant surveillance and veiled threats" against Fox,
Dennis, and other union officers constituted a campaign
of "fear" which would be effective in destroying the
Union by innuendo.
By letter dated April 5, Plant Manager John C. Drum-
mond advised Bolt that no charges had yet been filed
against either Fox or Dennis and listed the two purposes
of the Company's investigation:
(a) To determine if there has been any
unauthorized conduct of Union business on Com-
pany time.
(b) To determine the source of an "unauthorized"
copy of a roster in the hands of "unauthorized" per-
sonnel.
Drummond denied that any material had been con-
fiscated but stated that the Company had two folders and
an envelope "handed to" Foreman Covey by Fox and
Dennis containing lists of names and addresses of "cer-
tain" company "personnel." Drummond added that the
Company would "continue to hold" the material
"handed" to Covey by Fox and Dennis until the in-
vestigation was completed.
In a letter dated April 12, Bolt informed Plant Manager
Drummond that the Trades Council had instructed Bolt
to "give" the Company "until Wednesday afternoon at 4
o'clock to return" all of the "personal effects and/or
papers confiscated and held without the permission" of
Fox and Dennis. The letter also repeated the Union's
request that the items described be returned.
By letter dated the same day and addressed to Bolt,
Drummond referred to the charge which had been filed
with the Board against the Company as the result of the
events on March 31 and advised Bolt that the Company
would keep the documents "pending" further investiga-
tion by the Company and the Board's disposition of the
charge.
On or about April 14, Fox was taken to the office of
Labor Relations Manager Carl M. Smith. Also present
were Amos Walker, Fox's union steward, Security Su-
pervisor Jim Bunch, and Smith's secretary who took
notes. It was explained that Bunch was present because
there was a possibility that there had been a security
violation. Smith went on to say that he was investigating
the March 31 incident and he wanted Fox to answer
some questions. Fox stated that she had given all the in-
formation she had to Kernion and Covey and Union
Steward Walker expressed the opinion that, because of
the pending unfair labor practice charge, Fox should not
answer questions without talking to the Union's attorney.
Smith called the incident a "Company problem" and con-
tended that it was nothing that concerned the Union's at-
torney.
16 This entry may have been made after a grievance was filed by or on
behalf of Dennis which was "resolved" insofar as it related to the provi-
sion of the collective-bargaining contract which prohibits union activity on
company time Fox's grievance was still pending at the time ofthe hear-
903
Fox then said that she would be glad to answer any
questions. Smith first showed Fox the envelope and Fox
agreed that it was the one she gave Dennis. Smith next
asked if the envelope was company property and Fox
said that it was not, that it was in a folder she brought
from home that morning. She also stated that the folders
were not company property, that she brought one of them
from home on the morning of March 31 and that Local
President Sasser gave her the other as she went to coffee.
In reply to a question about the lists she gave Dennis,
Fox identified one of them as a list of union members and
the other as a list of employees eligible tor membership.
Another question was whether Fox knew whether any of
the copies had been made on company machines or on
company time Fox replied that she "felt sure" that the
answer was no. Smith also asked Fox if she had prepared
the list of names and addresses and she answered in the
negative. As before, she did not say that she had added
three names to two of the lists.
During this same period, Local President Sasser was
questioned about "how" the lists "came into [his] pos-
session and what [he was] going to do with them and why
they were passed on to these people, and so on. . . "
The Company's investigation brought to light the fact
that perhaps 40 copies of the roster had been made and
distributed to Mod Center employees, probably in
December 1965. It is undisputed that the investigation
did not produce any "proof" that company supplies had
been used or that Fox or Dennis (or anyone connected
with the Union) had made any of the copies on company
machines. As set forth more fully infra, Respondent did
assert that it had concluded that the copy of the roster had
been made on a company Xerox machine.
On May 3, Dennis was called to Supervisor Kernion's
office. Also present were Foreman Covey, Labor Rela-
tions Manager Carl Smith, and Dennis' union steward,
Amos Walker. Smith said he wanted to "give [Dennis] a
discussion of company rules and regulations about not
conducting outside business on company time" and that
"it was concerning the incident ... on March 31." Smith
asked Dennis if he was aware of those rules and Dennis
replied that he was. A notation of an "advisory discus-
sion" with Dennis "concerning company rules and regu-
lations and expected work conduct" was made on
Dennis' personnel card. Dennis was asked to initial the
entry and did so.
There is also an entry on Dennis' card, dated May 11,
1966, and signed or initialed by House, Dennis, Walker,
and Kernion It reads:
The above entry [May 3] is not considered as a first
offense of [or?] a violation of any plant rule or
regulation.26
The same company representatives and Union Steward
Walker were present when Fox was called to Kernion's
office on May 3 Smith told Fox that the Company felt
that an "official reprimand was in order" because of the
March 31 incident, that the Company felt that she had
"conducted unauthorized activities on company time." A
notation to this effect had been made on Fox's personnel
card and it was shown to her and she was asked to sign it.
However, Union Steward Walker advised Fox not to sign
it "until we know how the charges" filed with the Board
ing, its disposition having been deferred, by mutual agreement, until the
merits of the Union's charge and, presumably of the complaint, have been
determined
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"come out." Fox stated that she would not sign the nota-
tion, at least until she had talked to the Union's attorney
and she did not sign it.
Agreement on a new collective-bargaining contract was
reached at or about the same time that the Company
reprimanded Fox and held the "advisory discussion"
with Dennis
E. Conclusions with Respect to Factual Issues
1. The evidence and conclusions with respect to the time
when Fox spoke to Dennis and later handed him
the envelope
It is undisputed that when Fox spoke to Dennis in the
warehouse, she did not stop but told Dennis, as she
walked by, to come by her desk, that she had something
for him. It is similarly undenied that Fox said nothing
when she handed Dennis the envelope as he passed her
desk on his way back to work and that Dennis did not
stop and if he said anything at all, it was only "Thank
you." In short, each incident was very brief and in com-
bination probably took no more than a minute and per-
haps less than a minute.
Supervisor Covey first testified that it was not "un-
usual"-for Dennis to leave the warehouse via the office
because the key to the truck he drives when he comes to
lunch "stays" in the office so that other employees can
use the truck. However, Covey later claimed that Fox
"called" Dennis "out of a conversation" and asked him
to "defer from" his normal path; i.e., the one he ordinarily
used in leaving the building. If Dennis had to go to the of-
fice for the key, it is obvious that Covey sought, by his
later testimony, to create the obviously false impression
that the two incidents had a substantial impact on Dennis'
routine. If Covey was willing to give misleading
testimony in this respect, I doubt that his testimony con-
cerning other matters is reliable. See also his testimony
concerning Dennis' statements on the afternoon of March
31, as set forth supra, in which he also sought to improve
Respondent's case
As noted previously, Fox claimed that it was "approxi-
mately" noon when she spoke to Dennis in the
warehouse and that it was about 12:20 or 12:25 p m.
when he came by her desk and she handed him the en-
velope. Although the latter incident clearly occurred well
after Fox's lunch hour was over, she expressed the
opinion that she was still on her lunch hour when she
spoke to Dennis in the warehouse. Dennis could not re-
call whether Fox spoke to him before or after he ate lunch
but, no matter how Respondent's counsel asked the
question, Dennis always answered that he was on his
lunch hour not only when Fox spoke to him but when she
handed him the envelope 27
On the other hand, both Supervisor Kernion and
Foreman Covey insisted that both incidents occurred
after 12:30 p.m.; i.e , on company time in the case of both
Dennis and Fox. If so, it is difficult to understand why
neither Kernion nor Covey said anything or started any
investigation at the time of the warehouse incident since
both asserted that they knew of no work-related reason
why Fox needed to speak to Dennis. (This would also
mean that there was no work-related reason why she
would have something to give Dennis.) Nor is there
anything in the testimony of either Covey, Kernion, or
any other management representative which indicates
that on March 31 he regarded the warehouse incident as
a violation of the contract or of any company rule. On the
contrary, it is clear that neither Covey nor Kernion at-
tached any significance to Fox's remark at the time she
made it and that no reference was made to her remark
during any of the employee interviews or management
conferences that day. In contrast, Kernion promptly
launched an investigation when he saw Fox hand Dennis
the envelope on what was clearly company time in Fox's
case .211
In addition, on March 31, Kernion and Covey centered
their attention on Fox's activities and seemed to regard
Dennis' actions as important only insofar as they helped
to establish what Fox had done. Thus, when Covey
talked to Dennis, he indicated that it was Fox who was
primarily, if not entirely, at fault and showed little or no
interest in Dennis' actions as such. Indeed, it is un-
disputed that Covey told Dennis, ". . I think that as far
as you are concerned . you haven't done anything
wrong." Of course, it was Fox who spoke to Dennis but,
according to Respondent, Dennis' lunch period was over
even then as well as when he later went by Fox's desk, as
requested, and accepted the envelope. Moreover, Dennis
took the envelope to his place of work and placed it with
company papers on a company desk or workbench. Cf.
Covey's statement to Fox later that day that her desk be-
longed to the Company and that she could not keep union
papers in it and House's testimony that it was not "right"
for a company desk to be used for "this type" of material.
Finally, during the "advisory discussion" with Dennis
in May, he was not charged with any actual violation and
the "facts" on which the discussion was based were not
stated Indeed, a later notation on Dennis' personnel card
states that the previous notation was not meant to imply
that he had violated any rule. Although Fox was given an
official reprimand, it was stated in general terms-"con-
ducted unauthorized activities on Company time"-a
statement which could refer to both the warehouse and
office incidents but which could also refer to the latter in-
cident only; i.e., the one which clearly happened after her
lunch break was over.
The above facts, including Covey's and Kernion's lack
of interest in or comment on Fox's remark to Dennis in
the warehouse on the day it occurred, their reaction that
day to the envelope incident only, and their attitude that
Fox only had violated the contract, are surely incon-
sistent with the Company's claim at the hearing that both
incidents occurred after 12:30 p.m., i.e., on company time
in the case of both Fox and Dennis.
Although Fox's lunch period normally ends at noon, it
may end several minutes after noon if it did not begin at
exactly 11:30 a.m This means that Dennis could have
reached the warehouse while a few minutes of Fox's 30-
minute break remained. It may be, as Fox's testimony in-
dicates, that she did not really know whether she spoke to
Dennis a minute or two before or a minute or two after
21 If Fox spoke to Dennis at or about noon, as she claimed, and if
Dennis had gone to the office immediately, as Fox probably expected him
to do, he would clearly have been on his lunch break and it is posuhle that
Fox would not have been due back to work for another minute or two
-" Kermon did not explain why he did not speak to Fox immediately
and fix the time beyond doubt Although Kernion was not Fox's im-
mediate supervisor, it would have been logical for him to speak to hei if,
as he claimed, Fox had commented to him about a week before about her
workload Perhaps, Kernion hesitated to speak to Fox for using such a
small amount of company time having used so much of Fox's time in con-
nection with American Ordnance Association business
MASON & HANGER-SILAS MASON CO.
her lunch period ended. But the failure of Covey and Ker-
nion (if the latter was present) to say anything at the time
suggests that they did not really know either; i.e., that
they were aware that Fox could have been on her own
time when she spoke to Dennis."' (As noted supra, these
employees, at least, do not punch the timeclock when
going to or returning from lunch and there are no buzzers
marking the beginning and end of the various lunch
periods) However, I think that Fox's lunch period was
probably over when she spoke to Dennis.
On the other hand, I am convinced that Dennis
knew that he was on his lunch period not only when Fox
spoke to him but also when she gave him the envelope.
This means, as I find, that both incidents occurred
between noon and 12:30 p.m. This finding is based not
only on Dennis' testimony, which I credit, but on
management 's attitude - on March 31 - toward the
warehouse incident and its lack of interest in Dennis' ac-
tions per se. It is also based in part on the failure of
Respondent to call as its witness the man Dennis picked
up on his way back to work who surely knew the approxi-
mate time Dennis came for him that afternoon and would
certainly have been called if he would have testified that
it was substantially after 12 30 p.m. when Dennis arrived
In fact, I doubt seriously that Kernion was present
when Fox spoke to Dennis.3 " Although Covey claimed
that he was talking to Dennis and employee Caddell and
that Kernion was nearby, Kernion did not testify that he
saw Caddell and Caddell did not testify that he was wait-
ing to talk to Covey, that Kernion was also present, and
that the time was after 12:30 p.m. I also note that
Respondent did not call as a witness either of the em-
ployees to whom Kernion allegedly talked while waiting
for Covey to finish his conversation with Dennis."
Furthermore, as set forth supra, Dennis testified that he
did not see either Caddell or Kernion when Fox came
into the warehouse. And, as previously noted, Kernion
did not refer at any time on March 31 to the warehouse
incident
As also noted previously, Covey sought to improve
Respondent's case by claiming that Fox "called" Dennis
"out of a conversation" and asked him "to defer from"
his usual route when leaving the warehouse although he
had testified earlier that it was not "unusual" for Dennis
to leave via the office because the key to the truck he
drove back and forth stays there while he is eating lunch.
I also note that Covey failed to mention that he talked to
Dennis both before and after Dennis went to eat although
he did not deny Dennis' testimony in this respect. See
also Covey's testimony in which he claims that Dennis
volunteered information or made admissions on March
31.
In addition, I have considered Respondent's attempt at
the hearing, to improve its case by contending that it was
possible if not probable that Fox had used company sup-
2° Neither Kermon nor Covey claimed that he knew that Fox went to
lunch at exactly 11 30 a m on March 3 I
10 The fact that Covey was talking to Dennis proves nothing because it
is undisputed that he talked to Dennis both before and after Dennis went
to eat
11 Anothei reason for doubting Kernion's reliability as a witness is his
testimony that he and/or Covey "didn't find anything that was we
didn't find anything [in her desk besides the lists] unrelated to Company
business " However, Fox admittedly had a "personal" notebook and
other "personal" property in her desk and Covey later told her that he did
not want her to give him such items I also find incredible Kernion's
testimony that he did not know, after April I , what aspects of the March
31 affair were being investigated, that he did not know the results of the in-
905
plies and equipment although no mention was made of
this possibility in Drummond's April 5 letter and
although Fox's reprimand in May was based entirely
upon her use of company time
Even more significantly, early in the hearing, company
council indicated that the roster found in the folder in
Fox's desk constituted convincing if not well-nigh conclu-
sive proof that Fox (or someone) had obtained im-
properly and photocopied a company record. However,
the testimony of Respondent ' s witness Smith establishes
that management had learned during its investigation in
April that perhaps 40 copies of the roster had been made
and distributed to the employees in the Mod Center for
their personal use. (The undenied testimony of employee
Lusk concerning the circumstances under which the
copies were made and distributed is set forth infra.)
Apparently, until employee Lusk testified about the
history of the roster, management had misled its own
counsel by failing to tell him what it had learned about the
roster during the investigation. If counsel for the General
Counsel had not been able to discover the true history of
the roster and if he had not been able to produce a witness
to tell it, it seems likely that management would have per-
mitted company counsel to continue to argue that the fact
that Fox had a copy of the roster constituted virtually
conclusive "circumstantial" evidence that she, or the
Union, had violated not only company rules but security
regulations.
Furthermore, the two company representatives who
were responsible for the post-April 1 investigation
seemed to have difficulty remembering that the use of
company time on March 31 was an important question.
Instead, each indicated that the primary purpose of the in-
vestigation was to find out whether company supplies and
copying machines had been used. It is true that both wit-
nesses referred to the possible use of company time but
one of them did so only after suggestive questions by
company counsel and the other mentioned it only in-
cidentally Thus, when Labor Relations Manager Carl M.
Smith, who conducted the investigation after April 1, was
asked the following questions by Respondent's counsel,
he gave the following answers:
Q. .. from your examination of materials and
from your discussion with Mr. Kernion, did you con-
clude that further examination was required, and if
so, why?
A. Yes. An investigation was indicated because
of the presence of the Mod Center Roster and
because of the presence of Xerox copies of lists, in-
dicated the possibility of the use of company sup-
plies, company equipment for the reproduction of
materials that are not authorized.
Q. From the circumstances which had been re-
vestigation, and that he was not told the basis for the personnel action
Although Kermon did not participate in the post-April I investigation, I
cannot believe that he was told nothing about it or what was discovered
I think it even less unlikely that he was not told why an employee in his
department was reprimanded (See also the testimony of Division Manager
House in which he states his belief that the "records which Mr Smith
compiled were reviewed maybe in an [sic] interim with Mr Kernion or
maybe with myself ") It may be that Kernion misunderstood the
questions about whether he had talked to anyone about his testimony or
the events in issue , which he first answered in the negative However, the
questions were clearly worded so that it is difficult to accept this explana-
tion for his answers which counsel for Respondent was able to change
after a series of questions
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated to you concerning the passing of the envelope,
did that indicate the need forfurther investigation?
A. Yes.
Q. What was the further matter that needed to be
investigated along that line?32 [Emphasis supplied.]
TRIAL EXAMINER : Ask what other reasons he had
for investigating.
Q. . . . What other reason did you have for further
investigation , Mr. Smith?
A. To determine the possibility of a violation of
the union agreement and plant regulations through
the conduct of unauthorized business.
Similarly, the testimony of Division Manager Donald
L. House , who directed Smith to make the investigation,
indicates that the Company's chief concern was the possi-
ble use of company property by Fox or the Union. When
asked "what it was about the incident that precipitated, or
indicated to you that further investigation was necessary"
and to state the purpose of that further investigation, he
answered:
Well, I was concerned about the use of what 1 saw on
the paper and the envelope and its contents, the ex-
amination of the materials, I was quite aware that
these materials, or materials of that type, were em-
ployed in our use at the plant, and know that the type
of reproduction which it was we employ in numerous
locations in the plant.
I was concerned about the use of the materials,
unauthorized use of the materials, the volume of
reproduction thereof, use of company machines for
unauthorized reproductions, company time,
utilization, this type of thing. 33 [Emphasis supplied.]
Furthermore, House seemed to be either reluctant to
state or to have difficulty recalling the basis for Fox's
reprimand. For example, when asked the following
question on cross-examination, he gave the following
answer:
Q. . what did [Labor Relations Manager]
Smith tell you that he had found upon which you
based your recommendation?
A. His investigation revealed the-it appeared
appropriate to give Mrs. Fox an official reprimand.
Later, I asked House the question and he gave the answer
set forth below:
TRIAL EXAMINER: Did [Smith] enumerate facts
and factual conclusions that he drew from the facts
he stated?
THE WITNESS: I believe, based upon his in-
vestigation, facts which he has first-hand knowledge
of which I reviewed subsequently with him, and I
can't recall what all of this may have been, he did
make a recommendation as to what remedial action
we should take ....
Still later, House explained that "It appeared to him" that
"there was a possibility " that the material was "done on
company time [and] paper ......
The foregoing facts make it clear that the Company
originally (March 31 through April 5) stressed the use of
company time for union business and the roster and the
use of company time was the only basis for Fox's repri-
mand . In contrast , the Company 's primary emphasis at
the hearing was on the possible use of company supplies
and equipment and its post-April 1 investigators were
vague concerning the facts upon which Fox's reprimand
was based . 34 One possible explanation for Respondent's
shift in emphasis was the small amount of time involved
in the March 31 incident (or incidents ) and the un-
disputed evidence concerning the use of company time
for other nonwork activity. In other words , these facts
may have caused the Company and/or its counsel to de-
cide that it would be desirable for Respondent to advance
additional reasons to justify its actions.
Having considered the above facts and having ob-
served the demeanor of the various witnesses while testi-
fying, I conclude that: (1) Neither Fox , Covey, nor Ker-
nion really knew whether or not Fox was on her lunch
break when she spoke to Dennis in the warehouse but
that it is probable that she did so after her lunch period
was over ; (2) Fox's lunch hour was over when she
handed the envelope to Dennis; and ( 3) Dennis was on
his lunch period when Fox spoke to him in the warehouse
and when she handed him the envelope in the office.
2. The evidence and conclusions concerning the use of
Company's supplies and equipment
As set forth supra, in his interview with Dennis on
March 31, Foreman Covey asserted that the envelope
and paper belonged to the Company and in the later inter-
view with Fox, Kernion tacitly claimed that the folders
were company property. However, in his letter of April
5, after the Company had 5 days in which to examine all
of the material, Plant Manager Drummond did not refer
to the possible use of company supplies or equipment but
only to the possible use of company time and a question
about the source of the roster.
Notwithstanding Drummond's letter, much of Re-
spondent's evidence was designed to create a suspicion
that Fox had used a company envelope, two of its folders,
some of its paper, and its Xerox machines in the conduct
of union business. Of course, the validity of the Com-
pany's actions on March 31 depends on its reasons why
it acted that day and its emphasis at the hearing and in its
brief on the envelope, etc., suggests that it preferred not
to defend its actions solely or even primarily on the facts
as they appeared that day and in the period immediately
following; i.e., when Drummond wrote his letter.
Respondent introduced no direct evidence that any of
the material belonged to the Company or, with one excep-
tion, that its equipment had been used. The one exception
was the copy of the roster which one of its witnesses said
32 At that point, counsel for the Charging Party objected on the grounds
that the questions were leading and that they "suggested [to the witness]
that the passing was the reason for further investigation "
19 House's testimony quoted above seems to link the "time" question
with the copying of documents rather than with the passing of the en-
velope The possible explanation that the witness did not refer to the en-
velope incident because it had already been established that it occurred on
company time is negated by Plant Manager Drummond's April 5 letter
which states that one of the purposes of the investigation was
To determine if there had been any unauthorized conduct of Union
business on Company time [Emphasis supplied ]
Drummond's use of the word "any" indicates that the Company was in-
vestigating in order to find out whether its time had been used at all, not
whether more time had been used than the amount involved when Fox
handed Dennis the envelope
14 After Lusk's testimony concerning the number of copies of the roster
which were made and distributed to the Mod Center employees, Respond-
ent virtually abandoned the roster as an important piece of its "circum-
stantial " evidence against Fox. Respondent 's actual evidence concerning
the possible use of its supplies and equipment is set forth infra.
MASON & HANGER-SILAS MASON CO. 907
he had decided had been reproduced on one of its
machines. However, it introduced not a scintilla of
evidence that either Fox or Dennis had made the copy.
Indeed, its evidence makes it most unlikely that either
had done so and its evidence that the machine had been
used by some "unauthorized" person is highly specula-
tive. (See infra.) As a matter of fact, Labor Relations
Manager Smith, who conducted the post-April 1 in-
vestigation, admitted that he had no "proof' that Fox or
Dennis (or anyone else) had used company machines to
copy material for the Union.
Instead, as conceded by counsel at the hearing, the
Company's case in these respects is based on "circum-
stantial" evidence. But to be convincing or even persua-
sive, circumstantial evidence must also indicate that the
possibility of an "innocent" explanation is most unlikely.
To state it in another way, to be convincing, circumstan-
tial evidence must establish that the conclusion sought is
the only probable or at least the most reasonable explana-
tion of what happened.
Although Respondent argues that there are "gross dis-
crepancies and inconsistencies" in the testimony of the
witnesses for the General Counsel, it acknowledges in its
brief that:
The state of the record as to whether Company
supplies, equipment and time were used in preparing
and making copies of the various lists is in considera-
ble flux and it is doubtful that any positive conclu-
sions can be drawn therefrom.
The basis for the Company's contention about the
possible use of its supplies is that the envelope resembled
those used by the Company, that the Company had
bought 500 Shaw-Walker folders the previous October,
and that the paper on which the Caddell list was typed is
a brand stocked by the Company and to which Fox had
access. (The Caddell list is the one discovered by the
Company a few weeks before the hearing.)
The Company stocks 20,000 or more items which in-
clude "a lot of office supplies." At times, it buys some of
the latter locally and, in fact, bought the file folders and
Caddell paper in Amarillo. Because of the large volume
of supplies and the various brands stocked by the Com-
pany, it might be difficult if not impossible for Fox, Union
President Sasser, or any other union officer to buy office
supplies, especially items which the Company buys lo-
cally, which the Union could be sure the Company had
never bought or would never buy in some quantity.
Although the envelope is similar to those used by the
Company, it is a plain, brownish envelope with nothing
distinctive about it. Shaw-Walker file folders are available
locally and there is no evidence that it is an uncommon
brand. Although the Company bought 500 of these fold-
ers in October 1965, its operation is a large one and
there is no evidence that any of the 500 remained unused
in March 1966. The Caddell list paper is a better-than-
average grade and is watermarked: Gilbert Opaque
Bond -25% Rag Content. None of the supplies has the
Company's name on it or any other mark which identifies
it as company property. Although the Caddell list paper
is the most distinctive item, Foreman Covey testified that
he had never heard that it was "hard" to find and there is
no evidence that the local store had to order it specially
for the Company. As for its cost, Covey testified only
that he knew that "it is a little more expensive paper than
. we normally use ... .
As the recording secretary of the Union, Fox would
need such items as envelopes, folders, and paper and she
testified that she or her husband bought the envelope
either at a local stationery store or a variety store across
the street from where they live. 35 She further testified that
she bought the folder, which she said she brought from
home, at Russell's stationery store and bought the Cad-
dell list paper at Connell Stationery Store36 Local, Pres-
ident Sasser brought to the hearing two Shaw-Walker
file folder boxes, one of which still had some folders in it.
According to Sasser, he bought the two boxes of folders
for union business. (As set forth supra, Fox and Sasser
testified that Sasser gave Fox a folder as she was going to
coffee on the morning of March 31.)
As for the Gilbert Opaque Bond paper , it is undisputed
that the supply cabinet in the office of the Union's attor-
ney contains a box labeled Gilbert Opaque Bond
although the rag content is not known. In addition, the
second page of Trades Council President Bolt's April 5
letter to Supervisor Kernion is written on Gilbert Opaque
Bond - 25% Cotton. And the first page of Plant Manager
Drummond's April 5 letter watermarked Gilbert Opaque
Bond-25% Cotton Fibre.37 These facts make it clear
that the use of some type of Gilbert Opaque Bond paper
is not uncommon in Amarillo. Of course it is possible
that not many brands of better typing paper are available
locally.38
The Company's purchase of some of the supplies lo-
cally, the fact that most of the material is not uncommon
and that none was really unique increases the possibility
- or probability - that Fox or her husband bought the
material as she testified. Nor is it inherently incredible
that Fox, an experienced typist, would ask for Gilbert
Opaque Bond, as she testified she did, because she
preferred a better-than-dime-store quality typing paper.
Nor is it unlikely that she would ask for a brand she had
used at work either because she liked it or because it was
the only "better" brand she knew by name.
Respondent's argument concerning the use of its copy-
ing machines is based on the fact that the lists were
photocopies rather than the original typed copies. How-
ever, it is far from clear that Fox had used or had access
to a company copying machine during working hours.39
ati Fox's husband was secretary of an archery club and would also use
office supplies. Fox also testified that she uses envelopes for filing recipes.
In evaluating Fox's testimony , I have considered her admissions that she
did not know exactly who bought some of the materials or when or where
they were purchased . A witness who was willing to testify falsely would
surely have been prepared to give firm answers to such questions and to
provide convincing details.
36 Fox brought some Gilbert Opaque Bond- 25 % Rag Content - to the
hearing and testified that it had been in her briefcase for several months.
"Covey testified that the Company stocks Gilbert Opaque Bond in
both letterhead and "second sheets" which do not have the letterhead
Although Respondent brought a number of envelopes to the hearing, it did
not bring any non-letterhead Gilbert Opaque Bond taken from the Com-
pany's supplies . I also note that the second page of Drummond 's April 5
letter does not have a heading and is not watermarked.
98 There is no evidence about how many brands of "better " paper can
be bought locally or how many local stores stock "good" typing paper.
However, it is probable that there are fewer brands and stores than there
are in cities the size of Dallas or Houston.
99 The only evidence that she did is a statement by Covey that he asked
Fox "if the Xerox machine that is located there had been used .
However, he did not identify the place to which he referred. In view of the
care with which Respondent introduced evidence on other matters and the
ease with which evidence could have been adduced about Fox's access to
a Xerox machine , I consider Covey's passing reference insufficient to
warrant a finding that there was a Xerox machine in the office in which
Fox worked
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence that, during its investigation,
Respondent made any effort to determine how difficult it
would have been for the Union to have copies of its docu-
ments made outside the plant and whether the cost was so
high that it would be unlikely to have them made commer-
cially. (Similarly, the Company did not claim that it had
sought to determine whether the envelope, folders, and
paper were available locally and, if so, whether Fox,
Dennis, or Sasser had made such purchases in fact.) On
the contrary, Respondent apparently considered it suffi-
cient to establish that the Union could have used its
supplies and machines.
Local President Sasser and his wife listed a number of
places in Amarillo where one or the other or both had
union documents copied .40 They identified them as the
public library, the Vaughn Building, the Flair Secretarial
Service, the Barfield Building, the Fisk Building, and the
Petroleum Building. At some of these locations, the
machines are coin operated or are operated on the "honor
system" and in some places the machines are available in
the evening . Sasser and Union Vice President Stanley
Booten also testified that Booten , at Sasser's request,
sometimes had copies made at Borger, Texas, on
Booten 's way home. (Booten testified that he had made
copies of the list of union members.)
Apparently none of the locations provides a receipt
showing the identity or the number of documents copied
and few, if any, give dated or even undated receipts. The
price is 10 cents a sheet in Amarillo and 15 cents a sheet
in Borger. Sasser's practice is to make a note about the
amount he has spent for "Xeroxing" which he destroys
after the Union votes to reimburse him for the total
amount he has spent for this purpose. The minutes of
union meetings disclose that the Union authorized the fol-
lowing payments for Xeroxing:41 June, 90 cents and
$9.90; May, $12.10, April, $10.10 and $12.85; and
March and February, none.42
However, neither Sasser nor his wife claimed to recall
specifically having had the documents in question
photocopied although each would easily have done so if
either had been willing to testify falsely in order to im-
prove the General Counsel's case and it would have been
difficult, if not impossible, for Respondent to refute such
testimony. The Sassers' failure to so testify is another
reason why I credit their testimony. However, a witness
who was willing to fabricate evidence (and Respondent
suggests that Fox was that kind of witness) would surely
4° 1 credit Mrs Sasser's testimony that she is usually in such a hurry
that she does not read or even look at the documents her husband gives
her to have copied
41 Sasser explained that he is paid a salary for his work as a union of-
ficer and that if the amount he spends is small, he pays it out of his salary
and does not ask to be reimbursed Local Vice President Booten also
testified that he does not seek reimbursement if the cost is small, as for ex-
ample, 60 cents
42 1 note that there were no payments for Xeroxing in February and
March
43 It may be that the presence or absence of the imprint and the
markings depends on the type of Xerox machine used It is obvious that
they would not appear on copies made on a machine on which the docu-
ment to be copied is placed flat on top of the machine and "held down" by
a cover so that nothing that is not on the document appears on the copy
On the other hand, it is possible that the imprint and markings appear if
the document to be copied is "fed into" the machine and is held firm by
clamps or clasps. Such a machine might use paper marked "Xerox" along
the edges and the copies might have lines or markings not on the original
document
14 Smith testified "It was my conclusion that because of the similarity"
have "rewritten" the minutes for February and March in
order to corroborate the testimony of the witnesses called
by the General Counsel. Respondent points out in its
brief that Local President Sasser testified that neither he
nor the Union had any records of payments for Xeroxing.
The questions by Respondent's counsel dealing with this
subject followed the question, "You don't have even a lit-
tle slip of paper or anything to show what the expendi-
tures [for Xeroxing] was?" I think, therefore, that what
Sasser meant was that neither he nor the Union had his
notes or records showing what documents were copied,
how many copies were made, or when or where they were
made. This conclusion is further borne out by Sasser's
testimony when asked by Respondent's counsel to
describe his recordkeeping with respect to his expendi-
tures for photocopying. Sasser explained, "I usually write
down whenever I spend some money, I write this down
on a slip of paper and give it to the secretary-treasurer
and bring it up at the meeting and it is O`K. ed, it comes
out of the petty cash [and] there is no record made of
petty cash." Mrs. Sasser testified that when she does
Xeroxing for her husband, she makes a note of the
number of copies and the cost and gives the note to
Sasser Respondent introduced no evidence which cast
doubt on the accuracy of the union minutes.
The Xerox copy of the roster in Fox's desk shows the
Xerox imprint on one edge and other markings which are
not on the other list as taken from Dennis and/or Fox. In
addition, Lusk testified that the imprint and other
markings did not appear on the copies of the roster she
made 43
Labor Relations Manager Smith testified that his in-
vestigation disclosed that only one of the company
machines made similar markings and this fact alone was
the basis of his testimony that he had decided that the
roster was copied on that machine.44 But this conclusion
is convincing if, and only if, Smith had determined that
few, if any, of the "outside" machines, available to Fox,
or someone else connected with the Union, left similar
markings and Smith clearly had made no such determina-
tion. As a matter of fact, Smith admitted that he did not
know the type of paper used in the local machines and it
is clear that he did not know what markings those
machines left on the copies. He also admitted that the
Company does not always use Xerox paper but that its
Xerox machines "will copy on most any type of paper"
and that the Company "maybe" had used other bond
of the markings the copy of the roster was "made on the copying machine
in Building 12-42 " He did not testify, as Respondent states in its brief,
that he concluded that the Fox copy was "probably" made on that
machine and his categorical testimony is further evidence that Respond-
ent's witnesses were willing to exaggerate in an effort to improve its case
Doubt is also cast on the credibility of both Smith and House by their
claim that they heard nothing that was said in the hearing room before
they were called as witnesses On the motion of counsel for Respondent
and over the objection of counsel for the Union , the witnesses, with
agreed-to exceptions, were excluded from the heanng room Later House
and Smith admitted that from time to time they stood a few inches from a
door to the courtroom with a glass pane while the hearing was in session
Both denied , however , that they heard anything that was said It seems
likely that neither heard any testimony because the witnesses were seated
beyond the Trial Examiner , i e , away from the door However, counsel
for the General Counsel has a strong voice which carries well and, in my
opinion , anyone standing close to the door during periods when he was
questioning witnesses , making objections, or engaging in colloquy with
other counsel would have heard what he was saying clearly enough to un-
derstand the points he was seeking to make
MASON & HANGER-SILAS MASON CO. 909
paper when copying documents.
More significantly, Smith testified that the machine he
referred to is located in building 12-42; i.e., one other
than the one in which Fox works and some undisclosed
distance from the latter. There is no evidence that Fox (or
Dennis or Sasser) goes to building 12-42 on company
business or that she or they had ever been seen there at
any time. Because of security regulations, Fox and the
others might not have been able to enter that building or
if they were, their presence would probably have been
noted and they might well have been required to "sign" a
record book.
In sum, the probative value of Smith's claim that the
Fox copy of the roster was made on a machine in building
12-42 is slight, at best, and is even less with respect to the
question of whether Fox, Dennis, or Sasser had used that
machine for union business. The Company's willingness
to rely on such speculative evidence to establish that
there was some basis for its suspicions against Fox
causes me to wonder if its other "circumstantial"
evidence had any more foundation in fact.
Even greater doubt is cast upon Respondent's "circum-
stantial" evidence by its reliance early in the hearing on
the fact that Fox had a copy of the roster in her desk. The
value of this "circumstantial" evidence was greatly
reduced if not destroyed entirely by the undenied
testimony of employee Doan Lusk that perhaps as many
as 40 copies of the roster were prepared and distributed
to the Mod Center employees as a sort of Christmas list.
(It is dated December 1, 1965.)
It is undisputed that in the summer and/or fall of 1965
company operations in other locations, including those
performed in whole or in part by Mod Center employees,
were being moved to the Amarillo plant. Because most if
not all of the Mod Center employees were new to the
Pantex plant in the fall of 1965, they were not yet listed in
the local telephone book. As a result, the newcomers
were having difficulty finding their friends in that depart-
ment and the office employees in the department were
asked repeatedly, in late 1965, for the local addresses of
many Mod Center personnel. This caused Doan Lusk, a
clerical employee in the department to decide that a lot of
time and trouble would be saved if a list of the names and
addresses of all Mod Center employees were prepared
and given to each employee in the center. Lusk and per-
haps others in the Mod Center made perhaps as many as
40 copies of the roster and they were given to the super-
visors to give to the employees and a copy was posted on
the bulletin board. The employees were not told that the
copies were "confidential" or "top secret." Instead, ac-
cording to Lusk, the lists were given to the employees "to
keep" and to do with as they "pleased." Under these cir-
cumstances, the employees would assume that they could
take the lists home, loan them to friends, including mem-
bers and officers of the Union, and permit them to be
copied either in longhand or mechanically.
Lusk also testified that her supervisor, Herman Hoff-
man, did not reprimand her for preparing and distributing
copies of the roster but "was completely in favor of it."
At the hearing, Lusk was asked the following questions
and gave the following answers.
Q. Did you make any inquiries of Mr. Hoffman
about permission to reproduce this list on a Xerox
machine?
A. It was so long ago that I couldn't remember if
I asked him or not.
Q. Well, in the subsequent conversation after Mr.
Smith talked to you, did you ask Mr Hoffman?
A If I asked him, he said he couldn't remember
it, but that if I had, he would have given me permis-
sion.45
Although the company representatives involved-iii the
March 31 events did not know these facts, during his
post-April 1 investigation, Labor Relations Manager
Smith learned the basic facts about the reproduction and
distribution of the copies of the roster. The Company
tried to retrieve the copies but was able to collect only 20
or 25 of the approximately 40 copies made in later 1965.
On May 2, a memorandum to all employees, signed by
Plant Manager Drummond, was distributed reminding
them that company supplies and equipment are govern-
ment property and that their "unauthorized" use is
prohibited and "offenders may be subject to disciplinary
action " (Emphasis supplied.) On the same date, a note,
also signed by Drummond, was attached to the copying
machines stating that they were to be used for official or
"authorized" work only and that their use for any other
purpose was prohibited.
Having considered all of the foregoing facts, particu-
larly Plant Manager Drummond's April 5 letter, the
availability of all or most of the materials locally, and the
Company's failure to mention, when reprimanding Fox,
the use of company supplies, I credit Fox's testimony
that none of the materials belonged to the Company. The
availability of "public" copying machines in Amarillo, the
low cost per sheet, the Union's payments for Xeroxing in
the spring of 1966, the basis of Fox's reprimand, the un-
convincing nature of Respondent's evidence that the
roster had been copied on one of its machines, and Drum-
mond's April 5 letter cause me to conclude that neither
Fox nor Dennis had used a company Xerox machine.46
In reaching this conclusion, I have not overlooked
Fox's admission that she did some typing for the Union
on her company typewriter. She testified that she did the
typing on her own time and there is not a scintilla of
evidence to the contrary. Although Fox's free time at the
plant is limited, an experienced typist does not require
much time to type a few names and addresses or a list of
23 names with a two-line heading. If any of the typing was
done on company time, no one saw Fox doing it which
also indicates that it did not require much time and, as
also noted previously, Kernion was watching Fox care-
fully during this period.
Although Fox had no right to use a company
typewriter for noncompany business even on her own
time, there is no evidence that the Company would have
objected if she had used it, on her free time, to write a per-
sonal letter or to address a few personal envelopes. In ad-
dition, as a practical matter, Fox's attitude toward using
her typewriter on her own time is at least understandable
in view of the amount of company supplies and time she
had used in connection with the American Ordnance As-
sociation, an outside organization in which Kernion was
interested.
"s
The above testimony discloses that the Mod Center supervisors per-
mitted company supplies , equipment, and time to be used to produce
documents for the personal use of the Center's employees
46 Respondent argues that if Fox had brought the envelope from home,
she would have put the material she gave Caddell in it However, I doubt
that the envelope was large enough to hold the list with its 25 to 30 at-
tached notices A larger envelope would certainly have been convenient
and Fox would surely have found a larger company envelope for the Cad-
dell material if she had been willing to use company property for union
business
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged "confiscation" of the material in the
possession of Dennis and Fox
Another of the factual issues is whether, as alleged in
the complaint, Respondent "confiscated" from Dennis
the envelope and the lists which it contained that Fox
gave him on March 31 and whether the Company also
"confiscated" the file folders and their contents which
Fox had in her desk. The Company argues, on the other
hand, that Dennis and Fox surrendered the materials if
not voluntarily, at least willingly. (At the hearing, it did
not rely on its right to demand the material but upon the
factual claim stated above.)
Concededly, Covey did not obtain the envelope and its
contents from Dennis and the file folders and their con-
tents from Fox by force. It does not follow, however, that
either Dennis or Fox gave the various items to Covey
and/or Kernion because either employee wanted to or
that either felt that he had any choice but to surrender
them. On the contrary, it is clear that both handed over
the materials only upon request. In fact, Dennis told
Covey that he did not want Covey to take the envelope
and lists, that his name was on the envelope and that he
"felt like" they were "his." But when Covey claimed that
the envelope and the paper were company property,
Dennis replied that, if so, he supposed there was nothing
he could do about it, adding that Covey could do as he
pleased. In Fox's case, Covey and Kernion told her they
wanted to search her desk and watched as she showed
them the contents of each drawer. Fox indicated her in-
tention to retain the materials by taking them back to her
desk and handing them to Covey only when requested or
directed to do so.
"Force" can be exerted in a number of ways including
fear of the consequences if he does not comply with a
request. And when a foreman, in the presence cf an even
higher ranking supervisor, asks an employee for material
in the latter's possession, he scarcely can fail to be aware
that he may be in trouble if he refuses to hand it over.
Neither Dennis nor Fox impressed me as the type who
would give union materials to a representative of manage-
ment if he felt that he was being given a choice about
whether or not to comply. In short, I am convinced and
find that in both cases, the employee acted as he did only
because he felt that he had no alternative and because
each was convinced that a refusal to hand over the
materials would cause him even more trouble than that
with which he was already faced.
For the reasons set forth above, I cannot accept
Respondent's claim that no "pressure" was exerted upon
Fox or Dennis and that both parted with the materials
either voluntarily or willingly. It has been pointed out that
some power is self-exercising, that it influences even if it
is not mentioned because the other party knows that it ex-
ists and fears that it will be used. Needless to say, an ob-
vious example of such a situation is that which exists
when management makes a request of an employee no
matter how politely or mildly it is expressed.
In addition, the testimony of Respondent's witnesses
in this respect indicates that they were seeking to conceal
or minimize the Company's actions on March 31 and that
the Company preferred not to rely solely on an accurate
account of what its representatives did that day.
F. Conclusions with Respect to the Company's Alleged
Unfair Labor Practices
Fox spoke only a sentence or two to Dennis in the
warehouse and no more-if as much-time was involved
when Dennis went by her desk and she gave him the en-
velope. Thus, the two incidents in combination took no
more time than it would have taken Fox and Dennis to
exchange comments about the weather or for Fox to tell
Dennis he had left a sweater in the office and to hand it to
him as he left to go back to work. It is also obvious that
the practical effect of both incidents on the ability of Fox
and Dennis to do their quota of work was negligible.
Moreover, there is no claim that before that day either
Fox or Dennis had ever used any company time for other
than work except when Fox did so for Kernion on behalf
of the American Ordnance Association. Nor is there any
claim that on March 31 or on any other date, Fox and/or
Dennis did less work than they should have been able to
do during the time for which they were being paid. On the
contrary, Foreman Covey described Fox as a "good em-
ployee" who "does her work well."
Unquestionably, an employer has the right to demand
that every employee spend every minute of company time
working and has the right to discipline every employee
who fails to work every minute, whether the amount of
time wasted is 1 minute or 20 minutes. But the amount of
time involved, the effect on the efficient operation of the
business, the Company's attitude generally toward the
use of its time for something other than work and all of
the other circumstances must be considered in determin-
ing the Company's motive for acting in the case under
consideration. If an employer normally does not enforce
his right to insist that every minute of his time be spent
working, i.e., permits various types of "outside" activity
on company time, it becomes necessary to determine why
he acted in the case to be decided. Of course, one possible
explanation for the contrast between an employer's
general nonenforcement of his right and his strict enforce-
ment of it in a particular case is his attitude toward the na-
ture or the purpose of the activity involved. It follows,
therefore, that the undisputed fact that Fox used a small
amount of company time for nonwork does not conclu-
sively establish, as Respondent argues, that its actions did
not violate the Act.
In sum, the validity of a respondent's conduct, be it in-
terrogation, surveillance, investigation, or disciplinary ac-
tion, must be determined on the basis of the entire record
and conduct which would be valid in one case may not be
valid in another. Thus, if an employer discharges every
employee who is late even once, it would almost certainly
be found that he did not violate the Act by discharging the
union president the first time the latter did not report on
time. But the conclusion might well be different in a case
in which the record established that the employer had
never before taken any action against employees who
were regularly late, the distinguishing fact being the
disparate treatment of the union president and other em-
ployees.
In the instant case, the record as a whole raises a
number of questions. One is whether the record indicates
that Kernion reacts, as he did here, every time he has
reason to think that a clerical employee may have used a
small amount of company time for something other than
work. For example, would Kernion have ordered Covey
to investigate if he had seen Fox give Dennis a sweater he
had forgotten or a poster announcing a church supper?
(As noted earlier, Kernion did not claim that he ordered
the investigation because the envelope looked like a com-
pany envelope.) Another question is whether Covey
would have demanded that Dennis give him the envelope
and its contents if Covey had found that the envelope
contained a personal check or a list of guests to be invited
MASON & HANGER-SILAS MASON CO.
to a wedding. Assuming that he would have confiscated
the material, after Kernion had looked at it, would he
promptly have taken the items to his superiors and
described what he saw? Obviously, if none of these things
had happened, the Company would not have discovered
the folders and lists in Fox's desk. (It must also be kept in
mind that the roster was not found until late in the day
when Covey and/or Kernion examined the contents of
Fox's desk. This means, of course, that the presence of
the roster cannot be used to justify Respondent's actions
before the roster was found.)
According to Kernion, he noticed the incident and or-
dered an investigation because he had been watching Fox
for about a week after she commented to him about her
workload. It is undisputed, however, that the Company
did not object to other kinds of nonwork activity on its
time, such as the sale of baseball tickets and Boy Scout
Christmas trees and solicitations on behalf of "public"
fund drives. It is equally undisputed that Kernion had
used both company property and many hours of Fox's
time in connection with the American Ordnance Associa-
tion , an "outside" organization in which Kernion is in-
terested. Of course, the fact that Kernion, a member of
management , had used company supplies and considera-
ble amounts of its time on behalf of an organization he is
interested in did not give Fox the right to use company
time on behalf of an organization in which she is in-
terested. However, Kernion's use of his own and Fox's
time (and company supplies) for nonwork raises a
question about whether his decision to investigate on
March 31 was motivated entirely or even primarily by a
firm belief that the Company was entitled to have Fox
work for it during every minute for which it was paying
her. To put it otherwise, did Kernion act only because he
was determined that no employee should use any amount
of company time, however small, for anything other than
company work?
It is clear from Kernion's testimony that he in-
vestigated not because Fox might have wasted a few
seconds of company time, per se, but only because he did
not know what type of nonwork activity was involved.
Thus, when he was asked if he would have objected if
Dennis had "come by" Fox's desk and she had given him
a personal check or a red feather contribution, he an-
swered:
If I had known what it was, I would have had-I
didn't object to it. I had to investigate to see what
was going on.
The above testimony also leaves little doubt that Ker-
nion would have dropped the matter if Covey had re-
ported that the envelope contained a personal check or a
contribution to charity. Similarly, Foreman Covey
testified that if he had found Dennis' personal checkbook
on his workbench, its presence would have violated no
rule and that he [Covey] would have made every effort
to see that Dennis got his checkbook back. Moreover,
neither Covey nor Kernion showed any interest in the
"personal" property in Fox's desk and Covey later told
Fox that he did not want such items.47 Covey also
testified that he would have "thought nothing" about it if
he had found "one personal" copy of a Parent Teachers
41 Kermon 's clearly untrue claim that the folders and lists were the only
nonwork related matenal found in Fox 's desk indicates that he was seek-
ing to conceal that the only nonwork items that Company was interested
in were those related to the Union or its activity
48 As noted supra , the company official from whom permission to con-
duct such activities was allegedly requested and who allegedly granted
911
Association list in Fox's desk. If the employees are per-
mitted to engage in union activity on company property
on their own time, as Respondent contends, they would
have to have some place to keep such things as union
cards, lists of names and addresses, and notices of union
meetings. In a big plant like Respondent's such material
would well be too bulky to be carried in purses or
pockets. Furthermore, as pointed out earlier, if the em-
ployees carried union matenal with them at all times, the
temptation and opportunity to distribute it on company
time would be greater than if they left it in their desks.
In short, it is clear from the record that the Company's
attitude toward nonwork activity on company time de-
pends upon whether it approves or disapproves of the
purpose of the activity. Thus, the Company allows its
time to be used for such things as the sale of baseball
tickets because a recreational program improves em-
ployee morale. And the sale of Boy Scout Christmas trees
and fund drives are permitted because these activities are
in the "public" interest.411 But union activity is also em-
ployee activity and Congress has determined that it also
should be encouraged in the public interest. Congress
also made it an unfair labor practice for an employer to
engage in conduct if the records establish that the purpose
or effect of his conduct is to interfere with the rights
guaranteed employees by the Act.
Respondent's attitude toward union activity and the
statutory rights of its employees is revealed by its rule
which bars specifically organizational activity, inter alia,
on company property on the employees' own time. It is
well established that such a rule is illegal per se, except in
certain situations not present here, even if it is not en-
forced.
The reason for the above holding is that the very ex-
istence of such a rule interferes with union activity by at
least some employees on their own time because they be-
lieve that the Company means what it says and because
they fear that the Company may decide, at any time, to
enforce the rule. It is likely that the illegal effect of such
a rule is most potent in the case of new employees whom
the Union seeks to interest in the Union and among
whom it probably obtains most of its new members.49 All
that the new employees know is that the Company has
given them a manual which prohibits union organizational
activity on company property outside of working hours
and it is reasonable to conciude that some of them are un-
willing to take a chance and violate the rule even if the
Union tells them that the Company has never disciplined
anyone for engaging in union activity in and around the
plant on his own time. Of course, the Company has never
announced that employees are free to engage in union ac-
tivity on company property on their own time Although
Division Manager House testified that the rule was not
enforced with respect to union activity, he stated in his af-
fidavit, "To the best of my knowledge" the rule "set forth
in the manual" is "enforced in all instances" and added
"The booklet containing the Company rules is given to
each new employee and he is expected to know the rules
and abide by them." If this was House's understanding
when he gave the affidavit, it is reasonable to conclude, as
I do, that new employees and probably others would also
permission did not testify and was not even identified.
49 The plant is located about 25 miles from Amarillo, apparently in the
country Although many employees live in Amarillo, some do not These
facts mean that it would be difficult for the Union to locate and talk to all
new employees unless it can do so on company property on nonwork time
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe that the Company enforces the rule as written.
Finally, why does the Company continue to include the
rule in every new issue of the manual if it does not reflect
the Company's actual policy and practice? The most ob-
vious answer is that it hopes that some employees, at
least, will believe that the rule is or may be enforced and,
therefore, will abide by it with the result that union activi-
ty on company property on nonwork time will be reduced
accordingly. However, if the validity of the rule is chal-
lenged, the Company can argue, as it does, that it is not
enforced.
Although there is no evidence that before March 31
Respondent had enforced the rule, it did so when it
questioned Dennis about his union activity during his
lunch period and later held an "advisory discussion" with
him based on the incident. It is true that a subsequent
notation was made on his personnel card which con-
stituted a whole or partial retraction but the original entry
was not expunged and Dennis' experience made it clear
to him and the other employees that the rule will be en-
forced if it suits Respondent's purpose to do so.
It is for the foregoing reasons that I conclude that
Respondent violated Section 8(a)(1) of the Act by
promulgating and enforcing a rule which prohibits union
organizational activity on company property on the em-
ployees' own time. N.L.R.B. v. Walton Manufacturing
Company, 289 F.2d 177, 180 (C.A. 5), Mira-Pak, Inc.,
147 NLRB 1075, 1082, fn. 19, enfd. 354 F.2d 525 (C.A.
5).
Further evidence that something more was involved
than the fact that Fox used a small amount of company
time for something other than work is provided by the
Company's reluctance to base its case, either at the hear-
ing or in its brief, primarily on the incident per se. Instead,
in both cases, Respondent placed much more stress on
the possibility that Fox had used company supplies and
equipment. But this possibility is wholly irrelevant to the
two really basic questions; i.e., why Kernion attached any
significance to Fox's conduct and whether the envelope
and lists would have been confiscated if the material had
oeen unrelated to the Union. In other words, Respond-
ent's answers to these questions are, mainly (alleged),
suspicions which arose only because Kernion ordered
Covey to investigate and the latter demanded that Dennis
give him the envelope and lists. Although Covey did tell
Dennis that both were government property, the fact
remains that after the Company had ample time on which
to examine all of the material confiscated that day, Plant
Manager Drummond did not refer to the possibility that
the materials belonged to the Company or that the copies
had been made on its machines. The reason for the re-
peated references to Drummond's letter is that it is the
major reason for the finding that the later questions about
the envelope, folders, etc., were "afterthoughts" put for-
ward to draw attention away from the fact that Respond-
ent originally acted only because Fox had used a small
amount of company time for something other than work.
If its subsequent conduct can be made to appear justified,
that justification may subconsciously relate back and
create the impression that the Company acted validly ab
initio.
Doubt concerning good faith of Respondent's explana-
tions at the hearing and in its brief for its conduct is also
created by management's obvious intention , before em-
ployee Lusk testified, to rely heavily on the copy of the
roster found in Fox's desk although the company officials
were aware that perhaps 40 copies of the roster had been
given to Mod Center employees for their personal use.
Also, as noted earlier, Foreman Covey sought to make it
appear that Fox affirmatively delayed Dennis' departure
although Dennis had to go to the office for the key to the
truck. In addition, Respondent sought to improve its case
by claiming that Dennis gave Covey the material volun-
tarily and volunteered damaging information, by asserting
that both the warehouse and the envelope incidents hap-
pened after Dennis' lunch hour was over and by stating
flatly that the copy of the roster was made on a company
Xerox machine.
The foregoing facts, particularly Fox's good work
record, the small amount of time involved when she gave
Dennis the envelope, the Company's attitude toward the
use of its time for something other than work, and Ker-
nion's practice of having Fox work for the American
Ordnance Association when she was being paid to work
for the Company, convince me, and I find, that Kernion's
motive for ordering Covey to investigate the envelope in-
cident was not his suspicion that she might have wasted,
per se, a few seconds of company time. I find, instead,
that Kernion would have done nothing if he had seen Fox
use the same amount of time to hand Dennis a sweater.
Indeed, as pointed out earlier, his own testimony makes
it clear that he would have ignored the whole affair if he
had known that the envelope contained a personal check
or a contribution to charity and that he acted only
because he did not know what type of material was in the
envelope.
The record as a whole also causes me to conclude that
Covey would not have taken the material from Dennis if
he had found that it contained a personal check or a con-
tribution to charity. In this case, Covey's testimony
leaves no doubt that he would have let the matter drop if
he had found that the envelope contained Dennis' per-
sonal checkbook.
But even if it is assumed, arguendo, that Covey would
have taken such items to Kernion, I do not believe that the
latter would have promptly taken them to his superiors
and reported what had happened. I think it likely under
such circumstances that Kernion would have directed
Covey to return them to Dennis either without comment
or, at most, would have talked to Fox and maybe Dennis
informally or instructed Covey to do so. This conclusion
is based in part on my belief that Kernion would not have
wanted to risk an inquiry into whether Fox spent all of
her time working for the Company which would reveal,
as it in fact did, the amount of company supplies and time
he had used to transact American Ordnance Association
business. (In this connection, I note that neither Kernion
nor any other company representative testified that Ker-
nion's superiors knew about and had no objection to his
using company materials and time preparing notices of
American Ordnance Association meetings and handling
its applications for membership.)
But when the envelope was found to contain union
lists, the risk to Kernion if he failed to report what he had
discovered, particularly at a time when the existing con-
tract was about to expire and there was a possibility of a
strike, would outweigh the risk of having his AOA activi-
ty brought to light.
Contract negotiations had been going on for about a
year, the Union had filed a charge with the Board, and, by
stipulation, a consent decree was entered by the Court of
Appeals for the Fifth Circuit enforcing a Board Order,
dated December 3, 1965, which provided, inter alia, that
Respondent "shall not" refuse to bargain with Trades
Council, make unilateral changes in job selection
MASON & HANGER-SILAS MASON CO. 913
procedure without consulting and bargaining with the
Council, and refuse to furnish the Council, upon request,
with information, tests and "data" to which the Council
was "lawfully entitled." Among other things, the court-
enforced order required Respondent, upon request, to
bargain in good faith with the Council and furnish it with
"data," to return to the job selection procedure, in effect
before February 22, 1965, and, absent a waiver by the
Union, to return seven employees to their former posi-
tions. A strike was authorized about the "middle" of 1965
and, on March 31, the latest extension of the old contract
would end in less than 2 weeks and Respondent must
have known that the employees might strike.
In such a situation, Respondent would naturally watch
closely the union officers in an effort to obtain clues to the
Union's plans which might be found in any out-of-the-or-
dinary conduct on their part. If such unusual conduct oc-
curred, it would be natural for the Company to consider
it suspicious and to investigate unless it was certain that
the conduct related to something other than the Union
and its possible preparations for a strike although it nor-
mally paid no attention to personal or other outside busi-
ness conducted on its time.,"
Fox's position as chairman of the attendance commit-
tee would make her a logical person to prepare and dis-
tribute notices of an important union meeting and Mem-
bership Committeeman Dennis would be a logical person
to enlist membership support for a strike and to notify
members about strike plans and assignments.,' And the
discovery that the lists Fox gave Dennis included the
names and addresses of all union members and the per-
centage of members in each department would do nothing
to lessen the Company's suspicions that the Fox-Dennis
exchange had special significance. The percentage figures
were particularly suggestive because, if the Union was
considering a strike, it would want to know its exact
strength; i.e., whether or not it was in a position to call a
really effective strike.
Furthermore, Respondent's questioning of Fox was
broader than if its sole purpose was to find out if Fox
and/or Dennis had "wasted" a small amount of company
time or even if it was seeking to learn whether its supplies
and equipment had been used. Indeed, no questions were
necessary to establish that Fox had used some company
time because Kernion saw her give Dennis the envelope
after her lunch period was over and neither employee
ever denied that fact. Moreover, neither ever claimed that
the material in the envelope was related to work and
Covey's ex parte examination of it disclosed that the lists
were union lists.
Proof that Respondent was seeking to learn the pur-
pose of the lists is provided by its questioning of Fox on
two occasions (March 31 and April 14) about what the
lists were, where she got them, and who gave them to her.
(Fox was not asked if the lists were given to her on com-
pany time.) Assuming, arguendo, that Respondent had
legitimate reasons to ask some of the questions, this fact
does not justify its asking of other questions which related
purely to union business and the answers to which had no
bearing upon whether or not Fox and/or Dennis had en-
gaged in union activity on company time or even upon
whether Fox and/or Dennis had used company supplies
and machines for union business. See also Respondent's
later questioning of Local President Sasser about how the
material came into his possession, what he was going to
do with it, and why it was passed on to "these people."
Having considered all of the above facts, including the
small amount of time involved when Fox gave Dennis the
envelope, the Company's and Kernion's attitude toward
the use of company time for other nonwork activity, Ker-
nion 's virtual admission that he would not have ordered
the investigation if he had known that the envelope con-
tained a personal check or a red feather fund contribution,
the Company's attitude toward the Union and bargaining,
its efforts to limit union activity by barring such activity
on its property on the employees' own time, the state of
contract negotiations and the possibility of the strike, the
union offices held by Fox and Dennis, Kernion's uncon-
vincing if not untrue explanation of why he was watching
Fox, the nature of some of the questions asked, the
willingness of Covey and Kernion to exaggerate, manage-
ment' s intention to rely on the roster although it knew the
roster's history, and the Company's reluctance to rely on
what Fox and Dennis actually did on March 31, I find
that: (1) Kernion was watching Fox because of her posi-
tion in the Union, the state of contract negotiations, and
the possibility of a strike; (2) Kernion ordered an in-
vestigation of the envelope incident for the reasons listed
immediately above and also because he suspected and
wanted to find out whether it contained union material,
perhaps related to a strike; (3) Covey made his ex parte
investigation because of the same reason; (4) Covey de-
manded the material from Dennis, Kernion took it to his
superiors, and they ordered that Fox be questioned and
her desk searched, which was done, because the lists
were union lists and could have been compiled in prepara-
tion for a strike; and (5) the material found in Fox's desk,
other than the roster, was confiscated because it was
union material and also because it, too, could have been
compiled in preparation for a strike.52 I also find that the
purpose and effect of the conduct summarized above was
to interfere with union activity generally and a possible
strike in particular by embarrassing and putting the Union
and its officers on the defensive and undermining their ef-
fectiveness at a time when the contract negotiations were
at a critical state and the Union might be considering or
planning a strike.53 It follows, therefore, and I find that
Respondent violated Section 8(a)(1) of the Act by keep-
ing possible union activity under surveillance, by
questioning union officers about their activity, particu-
larly by questioning Fox about the nature of the lists, who
prepared them, and who gave them to her, and by con-
fiscating union property. 54
so Cf. Kernion's testimony that he ordered the investigation because he
did not know what the envelope contained.
51 A list of union officers and committee members had been posted at
the plant so that the Company must have known the offices held by Fox
and Dennis.
SR For the same reasons , I find that Respondent's motive for acting was
not the prohibition in the union contract against union activity on com-
pany time. Of course , the existence of a contract provision giving the em-
ployer the right to discharge employees for cause does not mean that the
discharge of a union officer or member for misconduct be found to violate
the Act if a preponderance of the evidence supports such a finding.
sa In this connection, I note also that, although there were comparative-
ly few facts to be investigated , the Union was kept in doubt concerning
what the Company would do until at or about the time agreement was
reached on a new contract.
5' The surveillance finding is based upon Kernion's watching of Fox,
his order to Covey to investigate, and Covey's ex parte examination of the
envelope when he found it at Dennis' place of work
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Let there be no misunderstanding about the above
findings. They are not findings that the Company did not
have a right to act against all employees, including of-
ficers of the Union, for engaging in nonwork activity on
company time. It is a finding that the Company was not
motivated by the fact that Fox had wasted some of its
time but by its attitude toward the type of activity it
suspected was involved which is demonstrated by its
failure to object to the use of its time for other nonwork
activity. The principle underlying the disparate enforce-
ment of a valid rule requiring employees to work every
minute for which they are paid is the same which under-
lies cases in which an employer is found to violate the Act
by discharging a union member or officer for being late or
absent while taking no action or less serious action
against nonunion employees who are "guilty" of the same
or more serious "misconduct." (In such cases , of course,
the employer's right to act is undisputed, the real issue
being his real motive.) The basic fact in all such cases is
that the employer acts one way when the employees and
activity are unrelated to the union and in a different way
when dealing with union employees and activity.. It is for
this reason that I find no merit in Respondent s conten-
tion that the fact that Fox, at least, engaged in union ac-
tivity on company time proves, without more, that its ac
tions did not violate the Act. Comparatively few Board
cases present "pure" questions of law and in most cases
the General Counsel concedes the Respondent's "ab-
stract" right to discharge an employee or to take what-
ever other action the validity of which he challenges. In
comparatively few cases is the Respondent unable to put
forward any evidence that it acted legally and in most
cases it is able to provide a seemingly valid reason for its
actions if each is considered in isolation rather than in the
light of the whole record.
The principle underlying the findings in this case, i.e.,
the Company's disparate reaction to union and nonunion
activity, has no applicability to the Company's confisca-
tion of the roster found in Fox's desk because the record
as a whole makes it clear and I find that the company offi-
cials involved on March 31 would have demanded a copy
of the roster had it been found in the possession of any
employee under any circumstances. None of the com-
pany representatives who participated in the events on
March 31 were aware on that date of the history of the
roster and all of them believed in good faith that no em-
ployee could have obtained a copy legitimately. In view
of these facts, their confiscation of the roster was not
based even in part on the fact that it was found in the pos-
session of an officer of the Union or in a file of union
material.
Similarly, no finding is based upon the Company's
refusal to return the material taken from Dennis and Fox
even if its failure to do so is an issue . It may be that
Respondent would not have returned the material even if
the Union had not filed an unfair labor practice charge but
the fact remains that the Union did file a charge on April
4; i.e., only a few days after the events in issue. If the
Board issued a complaint based on the charge, as it in fact
did on May 9, the Company had the right to retain the
materials as evidence that the lists in the envelope Fox
handed Dennis were union lists and that Fox had addi-
tional union lists in her desk. As a matter of fact, this was
the reason for keeping the materials which was asserted
by Plant Manager Drummond in his April 12 letter to
Trade Council President Bolt.
CONCLUSIONS OF LAW
1. Mason & Hanger-Silas Mason Co., Inc., is an em-
dployer within the meaning of Section 2(2) of the Act an
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Office and Professional Employees International
Union, Local 306, AFL-CIO, and Metal Trades Council
of Amarillo, Texas and Vicinity, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. Because Respondent does not customarily object to
the use of its time for nonwork activity and because of its
reasons for acting in the instant case, Respondent vio-
lated Section 8(a)(1) of the Act by keeping union activity
on company time under surveillance , by questioning em-
ployees about their suspected union activity on company
time and about matters in which it had no legitimate in-
terest, and by confiscating certain union property found
in or on a company workbench and desk.
4. Respondent violated Section 8 (a)(1) of the Act by
promulgating and enforcing a rule which prohibits union
organizational activity on company property on the em-
ployees' own time.
THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, the Recommended Order
will direct it to cease and desist therefrom and to take the
affirmative action normally provided in such cases.
As set forth supra, the unfair labor practice findings are
based on the conclusion that the record establishes that
management would not have acted as it did if Kernion had
not wanted to know whether the Fox-Dennis incident
was related to the Union and if the material found had not
been union lists , the one exception being its confiscation
of the Mod Center Roster which it would have con-
fiscated under any circumstances. Of course, this excep-
tion makes it clear that the Order leaves Respondent free
to act in any situation involving union activity on com-
pany time if it customarily takes the same or similar ac-
tion no matter who the employees are or what type of ac-
tivity or material is involved.
Because Respondent would not have investigated the
envelope incident if Supervisor Kernion had not
suspected that and wanted to find out whether Fox and
Dennis were engaging in union activity and because it
would have taken no further action if Foreman Covey
had not found that the lists were union lists , it follows that
no entry would have been made on the personnel card of
either Fox or Dennis if their conduct on March 31 had
not been union activity. This means that the entires
resulted directly from and are inextricably connected
with Respondent's unfair labor practices that day. It also
means that if the notations are allowed to remain on the
cards, they will serve to remind Fox, Dennis, and other
employees of Respondent 's conduct on March 31 which
demonstrated to them that the Company acts one way
when union activity is involved and in a different way
when nonwork activity is unrelated to the Union.55
The foregoing considerations cause me to conclude
that the notations must be removed because their proxi-
mate cause was Respondent 's unfair labor practices on
March 31 and their removal is necessary in order to ex-
punge, as fully as possible, the illegal effect of Respond-
ent's violation of Section 8(a)(1) of the Act. Accord-
SS The illegal effect of the unfair labor practices - caused entries - could
continue indefinitely if they delay or prevent Fox and/or Dennis from
receiving a promotion or a similarly desired personnel action Obviously,
Respondent would not have made the notations on the employees ' records
if it did not mean to take them into consideration when determining, in the
future , whether or not Fox and Dennis have been satisfactory employees.
MASON & HANGER-SILAS MASON CO.
ingly, the Order will contain a provision directing
Respondent to remove physically all entries on the per-
sonnel card of Fox and Dennis which were based on their
conduct on March 3 1.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Respondent, Mason & Hanger-Silas Mason Co., Inc.,
its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Questioning employees concerning their union ac-
tivity on company time, keeping their union activity on
company time under surveillance, and confiscating any
union material found in their desks or places of work un-
less it customarily takes or would take the same action if
the employees, the activity, and the material were unre-
lated to the Union.
(b) Promulgating and enforcing a rule which prohibits
union organizational activity on company property on the
employees' own time.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Physically remove from the personnel records of
employees Lenore Fox and Thomas Dennis the notations
which were a direct result of Respondent's illegal conduct
on March 31.
(b) Post at its plant in the vicinity of Amarillo, Texas,
copies of the attached notice marked "Appendix."56
Copies of said notice, to be furnished by the Regional
Director for Region 16, after being duly signed by an
authorized representative of the Respondent shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.57
56 In 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
61 In 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 this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
915
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT question employees about their
union activity on company time, WE WILL NOT keep
employee union activity on company time under sur-
veillance, and WE WILL NOT, confiscate', union I pro-
perty found in or on company desks or workbenches
unless we customarily take or would take similar ac-
tion if the employees, the activity, and the property
involved are unrelated to the Union.
WE WILL NOT enforce the rule in the current em-
ployee manual which prohibits employees from en-
gaging in union solicitation on company property on
nonworking time and WE WILL NOT include a similar
rule in-future issues of the manual.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to form, join,
or assist Office and Professional Employees Interna-
tional Union, Local 306, AFL-CIO, and Metal
Trades Council of Amarillo, Texas and Vicinity,
AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own
choosing, or to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or refrain from any or all such
activities.
WE WILL remove from the personnel records of
employees Lenore Fox and Thomas R. Dennis all of
the entries related to or growing out of their conduct
on March 31, 1966.
All of our employees are free to become, remain, or to
refrain from becoming or remaining members of Office
and Professional Employees International Union, Local
306, AFL-CIO.
MASON & HANGER-SILAS
MASON CO., 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 other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal Office
Building , Room 8A24, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2941.
310-5410 - 70 - 59