Memcor, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1967

162 N.L.R.B. 930 (N.L.R.B. 1967)

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of pay suffered as a
result of the discrimination against them.
WE WILL make Wallace Ludgate and Elrodan Brister whole for any loss of
pay that they may have suffered as a result of their unlawful discharge.
WE WILL make Therman C. Long whole for any loss of pay that he may
have suffered as a result of the discriminatory refusal to hire him.
All our employees are free to become and remain, or to refrain from becoming
or remaining, members of the above-named Union or any other union.
PIONEER DRILLING 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, 609
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado 80202,
Telephone 297-3551.
Memcor, Inc., Courter Division and International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO and William Routley. Cases
7-C_A-5360 and 7-CA -5360(2) . Janua y 16, 1967
DECISION AND ORDER
On August 31, 1966, Trial Examiner Alvin Lieberman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain, unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Respond-
ent filed limited exceptions to the Trial Examiner's Decision and a
supporting brief. The General Counsel filed cross-exceptions to the'
Trial Examiner's Decision and a brief in support thereof. The
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
162 NLRB No. 86.
MEMCOII, INC. 931
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision , the exceptions and briefs , and the entire record
in these cases , and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner , as modified below :
[The Board adopted the Trial Examiner 's Recommended Order
with the following modifications:
[1. Paragraph 1(b) of the Recommended Order is deleted and the
following substituted :
["(b) Promulgating , maintaining , or enforcing rules prohibiting
employees from engaging in union solicitation during nonworking
time on Respondent 's property , or from distributing union literature
during nonworking time in nonworking areas of Respondent's
plant."
[2. The second indented paragraph of the Appendix attached to the
Trial Examiner 's Decision is deleted and the following substituted:
[AVE WILL TOT promulgate , maintain , or enforce rules prohibit-
ing employees from engaging in union solicitation during non-
working time on Respondent 's property , or from distributing
union literature during nonworking time in nonworking areas of
our plant.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Alvin Lieberman in Charlevoix, Michigan, on March 30 and 31 and April 1, 21,
22, and 23, 1966, on an amended complaint 1 of the General Counsel and Respond-
ent's answers.2 The issues litigated were whether Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called
the Act). More particularly, the questions for decision are as follows:
1. Did Respondent independently violate Section 8(a) (1) of the Act by promul-
gating a '"no solicitation" rule on April 23, 1965,3 by subsequently publishing
another such rule, and by the manner in which it applied both rules?
2. Did Respondent further independently violate Section 8(a)(1) of the Act by
interrogating employees, by making threats and promises of benefit to employees,
and by engaging in surveillance of its employees? 4
1 The original complaint in this case was issued upon a charge ( Case 7-CA-6.^,60) filed
by International Union, United Automobile , Aerospace and Agricultural Implement Work-
ers of America (UAW), APL-CIO (herein called the Union ). The complaint was amended
following the filing of a related charge (Case 7-CA-5360( 2)) by William Routley . Unless
otherwise indicated , all subsequent references to the complaint in this Decision relate to the
amended complaint.
2 Respondent submitted an answer to the original complaint and supplemented it by an
additional answer specifically addressed to those allegations of the amended complaint
which did not appear in the original complaint.
3 Unless otherwise indicated , all dates mentioned in this Decision relate to 1065.
4 On motion of Respondent made at the conclusion of the General Counsel's case-in-chief
paragraph 10(h) of the complaint , which alleged that certain conduct engaged in by
Respondent ' s division manager violated Section 8(a) (1) of the Act , was dismissed for the
reason that the General Counsel had offered no evidence to establish that allegation.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Did Respondent violate Section 8(a)(3) and (1) of the Act by discharging
two employees, Glenn Bronson and William Routley? 5
Upon the entire record, upon my observation of the witnesses and their demeanor
while testifying, and upon careful consideration of the arguments made and the
brief submitted by Respondent,6 I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is engaged at Boyne City, Michigan, and elsewhere 7 in the nlanu-
facture. sale, and distribution of gyroscopes, radios, bomb racks, and related prod-
ucts. During 1965, a representative period, Respondent received at its Boyne City,
Michigan. plant goods and materials valued at in excess of $50,000 from suppliers
located outside the State of Michigan. Accordingly, I find that Respondent is
engaged in commerce within the meaning of the Act and that the assertion of
jurisdiction over this matter by the National Labor Relations Board (herein called
the Board) is warranted.
If. THE LABOR ORGANIZATIONS INVOLVED
The Union and International Association of Machinists (herein called TAM) are
labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly , this case concerns itself with the events which followed the renewal in
April, of a campaign by the Union to establish itself as the collective - bargaining
representative of Respondent 's employees .1 Among these were Respondent 's pronnil-
gation and application of two "no solicitation " rules; its interrogation and surveil-
lance of , and threats and promises of benefit to, employees ; a refusal to transfer
and grant a merit wage increase to an employee ; and the discharge of two other
employees.
The General Counsel contends ,9 insofar as the "no solicitation " rules are con-
cerned that Respondent independently violated Section 8(a)(1) of the Act by
promulgating one such rule on April 23 , for the purpose of stifling the Union's
organizing drive; by subsequently publishing another which was unduly broad; and
by discriminatorily applying both rules . The General Counsel further contends that
Respondent also independently violated Section 8(a)(1) of the Act by coercively
interrogating employees about their union activities , sympathies , and desires, and
concerning the union activities and desires of other employees ; by making threats
of reprisals and promises of benefits to employees to induce them to forgo the
Union ; and by engaging in surveillance of union activities engaged in by employees.
Finally, the General Counsel contends that Respondent violated Section 8(a)(3)
of the Act by discharging two employees , Glenn Bronson and William Routley, by
refusing to grant a merit pay increase to another employee, Betty Goff, and by
5 The complaint alleges that Respondent further violated Section 8(a)(3) of the Act
in that it "failed and refused to grant Betty Goff [an employee] periodic merit pay in-
creases" and "failed and refused to transfer Betty Goff from the second (night) shift to the
first (day) shift." At the trial Respondent withdrew its answer to those allegations of the
complaint relating to this employee. The General Counsel, the Union, and Respondent then
stipulated that appropriate findings of fact and conclusions of law could be entered based
upon the allegations of the complaint with respect to Goff and the withdrawal of the
corresponding portions of the answer. The parties also agreed upon the terms of a recom-
mended order concerning Goff, which, in my opinion, effectuates the policies of the Act.
6In view of the complexity of this case and the length of the trial a brief from the
General Counsel would have been very helpful. He has seen fit, however, not to submit
one, although he was requested, and agreed, to do so.
7 Only Respondent's Boyne City, Michigan, plant is involved in this proceeding.
8 The Union's previous efforts in this direction culminated in its defeat in a representa-
tion election in June 1964.
O 'Having failed to file a brief the General Counsel's contentions are gleaned from his
opening and closing statements and the allegations of the complaint.
MEMCOR, INC. 933
refusing to transfer her to the day shift, all because of their activities on behalf of
the Union.
Taking issue with the General Counsel on all points except those relating to
Goff, as to which it withdrew its answer, Respondent argues that neither the promul-
gation, content, or application of its "no solicitation" rules contravened Section
8(a) (1) of the Act and denies that it violated that section in any manner. With
respect to the discharges, Respondent asserts that both employees were discharged
for cause, Bronson for fighting on plant premises in violation of its rules and Rout-
ley for being unable to perform his work properly. Although Respondent admits
that it had knowledge of Bronson's organizing efforts on behalf of the Union, it
stoutly maintains that it had no knowledge, either at the time the decision was
made to discharge Routley or at the time of his actual dismissal, that Routley had
engaged in protected activity.
B. Facts concerning Respondent's independent violations of
Section 8(a) (1) of the Act.
1. The "no solicitation" rules and their application
As noted above (see footnote 9) in June 1964, the Union was defeated in a
representation election conducted among Respondent's employees, and Respondent
expected that the Union would renew its organizational activities in the spring of
1965. In this Respondent was not wrong. In mid-April, employees began to meet
with a union representative. On April 21, union literature and authorization cards
began to be distributed in Respondent's plant and pencils bearing the Union's
insignia started to make their appearance there.io
On April 23, Respondent did three things. It mailed to each employee a letter in
which Respondent expressed its opposition to the Union and urged the employees
not to sign the Union's authorization cards.il It circulated among its supervisors a
notice reminding them that Respondent "does not permit solicitation by employees
during work time" and that any "employee failing to observe this rule will be sub-
ject to disciplinary action." 12 Finally, this notice was posted on Respondent's bulle-
tin board.13 Despite the text of the notice, which seems to imply that the ban it
enunciated was not new, Gilbert, Respondent's personnel director, testified that
Respondent had never before promulgated a "no solicitation" rule and promulgated
the one under discussion here upon the recommendation of its lawyer made at a
conference held on April 19.
Shortly after the circulation and posting of the foregoing notice Stephen Lick-
feldt, one of Respondent's foremen, instructed Johnson, a leadgirl, to watch Goff
and Bronson, the employees who appear to have been the Union's prime movers in
Respondent's plant,14 because he wanted to "catch" them "passing out union
cards." 15 Notwithstanding this directive to Johnson, employees, since April 23,
have, with impunity, taken up collections during "work time" for such purposes as
gifts and check pools. These solicitations, as Johnson credibly testified, were con-
ducted with the knowledge of Respondent's supervisors.
As stipulated by the parties, on March 1, 1966, Respondent delivered to its
employees a document entitled "Code of Conduct," a copy of which was received in
evidence. The Code's preamble states that the "rules and regulations" which it
"describes" are necessary in order "to protect the rest of [the employees] from the
irresponsible acts of a few." Among these rules is one which provides that employ-
ees are to "Make no unauthorized solicitations."
to These findings are based on the testimony of Kenneth Gilbert, Respondent's personnel
director, Bronson, and Sandra Johnson, who at the time was employed as a leadgirl by
Respondent.
U It is not contended that the contents of this letter, a copy of which was received in
evidence, or its distribution to the employees constitutes an unfair labor practice.
13 The General Counsel does not claim that this rule, on its face, is invalid. Accordingly,
no finding will be made in this regard.
13 The findings with respect to the circulation of the notice among Respondent's super-
visory personnel and its posting are based upon a stipulation and upon the testimony of
Thomas V. Borisch, who was, at the time in question, Respondent's plant manager.
11As noted above, the General Counsel contends that both Goff and Bronson later be-
came victims of Respondent's discriminatory conduct, Bronson by being discharged and
Goff by being denied a merit pay increase and transfer to the day shift.
1m This finding is based on Johnson's undenied credible testimony.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Surveillance
Lickfeldt, one of Respondent's foremen, not only instructed Johnson, a leadgirl,
to watch Goff and Bronson, as set forth above, because, as Lickfeldt stated to
Johnson, they "were pushing the union," but asked her also to report to him the
number of employees who wore union pencils.16 About the same time, Johnson
was reprimanded by Lickfeldt because she failed to inform him that authorization
cards were being distributed in the plant. A week later, on about April 30, Lick-
feldt directed Johnson and another lead employee to "find out about union activity
on the night shift." 17
In September or October, Gilbert, Respondent's personnel manager, asked Betty
Andrick, an employee to do "spy work." In explanation of this cryptic request
Gilbert told Andrick that "if there were union talk going on . . . he would [like to]
have somebody that he could come to and ask" about it. Andrick refused, telling
Gilbert that she "didn't think [she] cared to be a stool pigeon." 18
3. Threats and promises of benefit
In connection with his application for employment as a machinist, Routley 18
was interviewed on December 27, by Gilbert. At that time, as Routley testified, he
was informed by Gilbert that Respondent "did not like unions . . . would not toler-
ate union organization and . felt that unions were unfair." Routley further
testified that during the interview Gilbert "advised" him not to sign a union card
if one was offered to him.
Gilbert's version of the interview differs considerably from that given by Routley.
Gilbert testified that he informed Routley of the "history of the Company's union
situation" and "advised" him that there was a "very good chance that [he] would
be approached to sign [a] union authorization [card] and . . . the company would
rather he did not sign it."
In essence, Gilbert denied that he told Routley that Respondent disliked unions,
would not tolerate union organization and felt that unions were unfair. Based on
the demeanor of Gilbert and Routley while testifying s to this incident I believe
Routley's account of the interview. Moreover, additional credence is lent to this
account when it is considered in the light of Respondent's announced opposition to
the Union as expressed in the letter it sent to all employees on April 23. .nd a
statement admittedly made by Gilbert at a later meeting of Respondent's machinists,
which will be discpssed below, that in his opinion there was no need for a union in
Respondent's plant.
Routley was discharged on January 17, 1966. His foreman notified him of his
dismissal about 3 p.m. on that day. An hour later, Routley's foreman was informed
that on the previous day Routley and several other machinists employed by
Respondent had, at Routley's instance, attended a meeting 20 during sshich, among
other things, they discussed matters related to their working conditions and decided
to communicate with IAM and request that it organize Respondent's machinists.
On the day following Routley's discharge, Respondent's machinists obtained an
audience with Gilbert for the purpose of protesting Routley's dismissal. At this
conference Gilbert informed the machinists of the reasons which prompted
Respondent to discharge Routley and explained the circumstances surrounding the
actual termination of Routley's employment. There was then a discussion of unions
in relation to Respondent and Respondent's plans with respect to the machinists
and other employees.21 Concerning the former, Gilbert stated that in his opinion
there was no need for a union in Respondent's plant; that he did not want any
part of unions; that Respondent "would rather not deal with" unions; that what
the employees did "in the way of organizing [was their] own business," but that he
did "not like to be threatened whether with the NLRB or union organization."
1m These pencils were affixed to employees' outer garments or purses by clips bearing the
Union's emblem.
14 These findings are based on Johnson's credited and undenied testimony.
is These findings are based on Andrick's credible testimony, which, like Johnson's, was
undenied.
1B As noted above, the General Counsel contends that Routley's later discharge was viola-
tive of Section 8(a) (3) of the Act.
20 Respondent contends that this was its first notice that this meeting had been held.
n The record Is not clear with respect to the sequence in which these matters were taken
up and I make no findings in this regard.
MEMCOR, INC. 935
As to Respondent's plans with respect to the machinists, Gilbert stated that job
classifications and wage ranges were being reviewed by a management representa-
tive from Respondent's main office at Huntington, Indiana; that this would result
in the institution of "a job posting system [having] firm wage ranges [and] job
descriptions [which] would offer employees an opportunity to promote themselves."
Finally, Gilbert agreed to meet with the machinists monthly for the purpose of
discussing grievances and complaints.22
4. Interrogation
The complaint alleges that Stephen Lickfeldt, one of Respondent's foremen,
"coercively interrogated employees about their union activities, sympathies and
desires" and the "union sympathies, desires 'and activities of other employees " The
complaint further alleges that "Kenneth Gilbert [Respondent's personnel manager]
coercively interrogated employees concerning their union affiliation and sympathies "
The evidence concerning interrogation by either of these officials is meager As
to Lickfeldt, it consists of testimony as to several statements made by him to John-
son, then a leadgirl in his department, during the latter part of April or early May.
As Johnson testified in this regard, Lickfeldt "did not actually ask, he would come
out with a remark `I think this one is union, I think this one has signed, this one is
either going to go union or this one has signed.' "
The evidence of interrogation with respect to Gilbert is found in a single con-
versation between him and Norma Jean Ayers, a receptionist and switchboard
operator employed by Respondent. In the latter part of December, Gilbert informed
Ayers that he would soon become her immediate supervisor and Ayers, taking
advantage of this announcement, asked Gilbert for a raise in pay. During their
ensuing discussion, which veered to unionism, Gilbert asked what Ayers thought
about the Union and stated that although there were times when he considered
unions "to be a good thing," he "didn't feel that [Respondent] particularly needed
the union." 23
C. Concluding findings as to Respondent's alleged independent
violation of Section 8(a)(1) of the Act
As noted above, the General Counsel contends, with respect to the "no solicita-
tion" rules promulgated by Respondent, that the April 23 rule, while not invalid
on its face, was adopted to stifle the Union's organizing campaign; that the second
rule was unduly broad; that both were discriminatorily applied; and that by reason
of the foregoing, Respondent violated Section 8(a)(1) of the Act. Respondent
admits the closeness of the timing with respect to the institution of the first rule
and the resumption of the Union's organizing campaign, but points out that the
decision to adopt the rule was made at least two days prior to the start of the
Union's organizing drive and hence the promulgation of the rule was not violative
of the Act. With respect to the second rule, Respondent contends it merely sum-
marizes the first rule and since the first rule is not invalid on its face, neither is the
second. Respondent, apparently, takes no position with respect to the claimed dis-
criminatory application of either rule
The law seems clear that even a presumptively valid "no solicitation" rule is
rendered invalid if adopted for a discriminatory purpose. Ward Manufacturing, Inc,
152 NLRB 1270, 1271. And the evidence in this case shows, in my opinion, that
Respondent's motivating purpose in adopting the April 23 rule was to thwart the
Union's organizing drive which Respondent expected would be renewed in the
spring of 1965.
Thus, although Respondent never before had had such a rule, on April 23, upon
the resumption of the Union's organizing campaign, which Respondent expected
would start at about that time, it not only precipitately promulgated, circulated, and
posted the rule in question, but also it simultaneously distributed a letter to all
employees announcing its opposition to the Union. Furthermore, following the
22 The findings with respect to this meeting are based on a synthesis of the testimony
given by Gilbert and several machinists employed by Respondent including John R Clarke,
Richard Massey, Floyd Giem, Boyd Heaton, and Robert L. Hublick.
2 Ayers, upon whose uncontiadicted and credible testimony these findings are based,
was unable to recall whether Gilbert's question as to her attitude toward the Union came
before or after his statement as to the need for a union at Respondent's plant. Accordingly,
I make no finding in this respect.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule's promulgation and posting Respondent actively sought to "catch" the two
most stalwart organizers of the Union violating the rule by "passing out union
cards" during working hours while at the same time it passively permitted solicita-
tions among employees for non -union purposes.
The absence of a past "no solicitation" rule, Respondent's sudden adoption of
such a rule at a time when it was anticipated that the Union would resume it's
drive together with Respondent's contemporaneous announcement of its opposition
to the Union, its attempt to find employees in contravention of the rule by dis-
tributing union cards while concomitantly allowing other forms of solicitation all
lead me to believe that Respondent promulgated the rule solely for the purpose
of stifling the Union's organizing campaign. Accordingly, I conclude that by adopt-
ing the April 23 "no solicitation" rule and by its discriminatory enforcement of
this rule as well as a later one, which will be discussed below, Respondent inde-
pendently violated Section 8(a)(1) of the Act. Ward Manufacturing, Inc., 152
NLRB 1270, 1271, and the cases therein cited.
Respondent's second "no solicitation" rule was delivered to employees on
March 1, 1966. This provides that employees are to "Make no unauthorized solici-
tations " Much need not be said with respect to the invalidity of this rule. It is not
limited either as to working time or area Accordingly, it is presumptively invalid.
Stoddard-Quirk Manufacturing Co. 138 NLRB 615.
In its opening statement Respondent argued that its March 1, 1966, rule was not
invalid because it is a "summary" of the earlier rule. A mere comparison of the
two rules shows, however, that if the latter is a summary of the former, it is an
unduly broad summary. Accordingly, I reject Respondent's contention and in the
absence of evidence to rebut the presumed invalidity of the March 1, 1966, rule I
conclude that by its adoption Respondent further independently violated Section
8(a)(1) of the Act.
I also conclude that Respondent engaged in conduct independently proscribed by
Section 8(a)(1) in the following additional respects:
1. By directing, instructing, and requesting employees to act as informers regard-
ing the union activities of other employees. N.L.R.B. v. Duval Engineering & Con-
tracting Co., 311 F.2d 291, 292 (C.A. 5). This conclusion is based on my findings
that Lickfeldt, a foreman employed by Respondent, instructed Johnson, an employee,
to "watch" two other employees, Goff and Bronson, because they were "pushing
the union" and to report to him the number of employees who carried union
pencils; that Lickfeldt directed Johnson and another employee to "find out about
union activity on the night shift"; that Lickfeldt reprimanded Johnson because she
did not inform him of the distribution of union cards in the plant; and that Gilbert,
Respondent's personnel manager, requested an employee to act as a "spy" with
respect to the "union talk going on "
2 By threatening an employee with reprisal if he supported a union. In this
regard, I have found that when Routley applied for employment with Respondent
Gilbert informed him that Respondent did not like, and would not tolerate, unions;
felt that they were unfair, and advised him not to sign a union card. I conclude
that this statement by Gilbert was in essence a threat that adverse action would be
taken against Routley should Respondent learn that he had, in fact, signed a union
card or engaged in other activity in support of a union.
3. By promising employees benefits to influence them to forgo unionization. This
conclusion is premised on my findings as to statements by Gilbert at the meeting
on January 18, 1966, which Respondent's machinists had requested for the purpose
of protesting Routley's discharge. It will be remembered, in this connection, that
several of the machinists, present at this meeting and Routley had, 2 days earlier,
met and had agreed to call upon IAM for organizational assistance. With knowl-
edge of this earlier meeting 24 Gilbert told the machinists on January 18, 1966, in
no uncertain terms that Respondent was opposed to unions. Gilbert also stated at
this meeting that based upon position classification and rate range studies then in
progress Respondent intended to institute a system whereby jobs having firm
descriptions and wage ranges would be posted and that employees would thereby
be offered "an opportunity to promote themselves." Finally, Gilbert agreed to
monthly grievance and complaint sessions.
24 Respondent does not deny that it knew on January 18, 1966, that Routley had met
with other machinists in its employ on January 16, 1966. As will be discussed below, how-
ever, Respondent vigorously denies that it acquired this knowledge or knowledge of any
other form of protected activity engaged in by Routley at any time prior to his discharge.
MEMCOR, INC. 937
Respondent contends that Gilbert's statement at the January 18, 1966, meeting
were privileged by Section 8(c) of the Act. Insofar as these statements related to
the institution of a job classification and posting procedure which would give
employees "an opportunity to promote themselves" and Gilbert's undertaking to
discuss the machinists grievances and complaints on a monthly basis, they were
clearly promises of benefit.25 Having been uttered in an antiunion context with
knowledge that only two days earlier some of the machinists had agreed to seek
help in organizing from IAM, Gilbert's words fell outside the purview of Section
8(c) whose protection is expressly limited to expressions which, among other
things, contain "no promise of benefit." N.L.R.B. v Grand Foundries, Inc., 362
F.2d 702 (C.A. 8). See also N.L.R.B. v. Floinatic Corporation, 347 F.2d 74, 77
(C.A. 2).
4. By coercively interrogating an employee concerning her attitude toward the
Union. This conclusion is based on my findings with respect to Gilbert's conversa-
tion with Ayers, Respondent's receptionist and switchboard operator. In view of
Respondent's announced opposition to the Union, as expressed in the letter which
it distributed to all employees on April 23, and Gilbert's statement to Ayers during
the course of their conversation, which had its genesis in Ayers' request for an
increase in pay, that he did not feel that the Union was needed at Respondent's
plant, Gilbert's question to Ayers as to what she thought about the Union was
coercive. Lindsay Newspapers, Inc., 130 NLRB 680.26
In addition to alleging an "interrogation" violation of Section 8(a)(1) of the
Act by Respondent based on Gilbert's conduct, the complaint, as noted above,
alleges a similar violation with respect to Lickfeldt, one of Respondent's foremen.
The record, however, is devoid of any evidence showing that Lickfeldt interrogated
any employee concerning his or other employees' attitude toward, or activity on
behalf of, any union. All that was developed in this direction was a conversation
between Lickfeldt and Johnson, an employee, in which, as Johnson testified, Lick-
feldt "did not actually ask" her for information but stated his opinion to her con-
cerning other employees This falls far short of questioning which is required to
be shown before a violation of Section 8 (a) (1) of the Act by coercive interrogation
can be said to have taken place. Hot Shoppes, Inc., 146 NLRB 802, 806.
Inasmuch as the allegations of the complaint here under consideration are not
otherwise supported, I conclude that the General Counsel has not sustained his bur-
den of proving by a preponderance of the evidence that Lickfeldt coercively inter-
rogated employees and that thereby Respondent violated Section 8 (a) (l) of the
Act. Accordingly, I will recommend that paragraphs 10(f) and 10(g) (i) and (ii)
of the complaint be dismissed.
In paragraph 10(c) of the complaint it is alleged that Respondent violated Sec-
tion 8(a)(1) of the Act by Lickfeldt's informing employees that "had it not been
for their activities on behalf of the Union they would have had increased economic
benefits." As no evidence whatsoever was offered in proof of this allegation, I shall
likewise recommend its dismissal.
D. Facts relating to the alleged violation of Section 8(a) (3) of the Act.
The complaint alleges that Respondent violated Section 8(a)(3) of the Act by
refusing to grant Betty Goff a "periodic merit pay increase," by refusing to
transfer her to the day shift, and by discharging two other employees, Glenn Bron-
son and William Routley. Respondent withdrew its answer to the allegations of
the complaint concerning Goff and asserts that Bronson and Routley were dis-
charged for cause, the former for fighting in violation of Respondent's rules and
the latter for being unable to perform his work properly.
25 With respect to the beneficial nature of Gilbert's statements as to job classification,
see Bernel Foam Products Co , Inc., 146 NLRB 1277, 1278, 1299-1300
26 Respondent took the position at the trial that it did not violate Section 8(a)(1) of
the Act by Interrogating Ayers because, as an office worker, she was not in the unit which
the Union was attempting to organize. The short answer to this contention is that under
the Act's definition Ayers is an employee. As such, she is invested with all the rights
guaranteed to employees by Section 7 of the Act, including the right to be free from
coercive interrogation by Respondent as to her attitude toward the Union Any conduct
by Respondent which interferes with, restrains , or coerces Ayers in the exercise of these
rights constitutes an unfair labor practice within the meaning of Section 8(a) (1) of the Act.
Cf. Phelps-Dodge Corp. v. N L.R.B., 313 U.S 177, 191-192.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Betty Goff
In view of the withdrawal of Respondent's answer to the allegations of the com-
plaint concerning Goff, they will be "deemed to be admitted to be true." 27 Accord-
ingly, I find that Goff joined or assisted the Union and engaged in other concerted
activities for the purpose of collective bargaining. I further find that since on or
about July 1, Respondent has failed and refused to grant Goff a periodic merit pay
increase and that since on or about August 16, 1965, Respondent has refused to
transfer Goff from the night shift to the day shift.
2. Glenn Bronson
Bronson was hired by Respondent in September 1963, and assigned to work as
an inspector. In the early spring of 1965, in connection with the resumption of the
Union's organizational campaign among Respondent's employees, Bronson and
Goff began to meet with a union representative and they soon became the Union's
principle adherents in Respondent's plant.28
On April 21, Bronson began to distribute union authorization `cards to Respond-
ent's employees. As recounted above, shortly after April 23, on which date
Respondent posted its first "no solicitation" rule, Lickfeldt, one of Respondent's
foremen, instructed Johnson, an employee to watch Bronson because he wanted to
"catch him" passing out union cards.
In June, Bronson gave a card to another employee while both were having lunch.
Lickteldt, seeing this, immediately called Gilbert, Respondent's personnel manager,
on the telephone and told Gilbert "I have got him. I caught Zeke [Bronson's nick-
name] handing out a union card at lunch time." Upon being informed by Gilbert
that it was "perfectly permissible" to do so during lunch periods, Lickfeldt replied,
"O.K., I'll watch him." Lickfeldt then turned to Johnson, who was in his office
while he spoke to Gilbert on the telephone, and said "Zeke was O.K., it was on
his lunch hour so we can't get him for that." 29
On May 17, Respondent reissued Rules of Behavior for its employees which
were originally promulgated in 1963. Among these was one which stated that "The
following acts on company premises are all considered acts of misconduct .. .
d. Fighting or disorderly conduct." As reissued the Rules of Behavior contained no
statement of the nature of the penalties which would be meted out for their breach.
When originally published, however, they provided that "Disciplinary action for
infractions of all company rules will be handled according to the severity of the
infraction and the attitude of the employee The action will be written warning,
written reprimand or immediate termination."
On Saturday, September 18, Bronson and several other employees, including
David Elliott and James Anthony, were working in Respondent's inspection depart-
ment. Throughout the morning of that day Elliott, who for some time had been
antagonistic toward Bronson,30 teased Bronson by placing uncomplimentary notes
on Bronson's toolbox. About 3 o'clock in the afternoon Elliott put the last such
note on Bronson's box. Bronson removed it, and, as he testified, told Elliott that
he "wasn't even going to give that one the dignity of looking at it before [he] got
mad and beat the hell out of [Elliott]." 31
A few minutes later Elliott picked up a box of Kimwipes 32 from Bronson's
workbench. While Elliott was doing this, Bronson walked behind him and struck
a Board's Rules and Regulations, Section 102 20
28 Respondent admits in its brief that it "knew of Bronson's open and avowed efforts
to organize [its] employees for the [Union] "
29 These findings are based on a synthesis of testimony given by Johnson and Gilbert.
30 This finding is based on testimony given by Elliott and James Anthony.
3z All the witnesses who were then present and who testified as to the events of Sep-
tember 18, are in substantial agreement as to what occurred up to this point What
followed was completely witnessed by only three people-Bronson, Elliott, and James
Anthony I have credited James Anthony's version not only because he was a disinterested
observer, but also because of his demeanor while testifying and because his testimony was
in large part corroborated by Douglas Anthony, another neutral observer, and by Elliott
who, although a participant, impressed me as being a truthful witness.
321iimwipes were used in the inspection process then being performed by both Bronson
and Elliott. As Bronson testified, he had had trouble in maintaining his supply of Kim-
wipes and the box in question had been given to-him'that morning by Respondent's receiv-
ing clerk, and had been inscribed by her with the words "property of Zeke-do not touch."
MEMCOR, INC. 939
him in the back, the force of the blow causing Elliott to fall into a nearby stand
of shelving.33 Upon-recovering his balance, Elliott shoved Bronson into a bank of
filing cabinets. Bronson then directed two punches at Elliott who retaliated by
kneeing Bronson in the groin. James Anthony, whose version of this entire incident
I have credited, further testified that the contestants then "squared off and started
talking or arguing back and forth, using quite a bit of profanity." Following this,
Elliott left the inspection department but soon returned and told Bronson, as James
Anthony remembered it, that "if [Bronson] ever hit him in the back again he
would kill [Bronson]."
Elliott, who had been contemplating quitting Respondent's employment for some
time, resigned immediately after the fracas. Bronson was discharged on the follow-
ing Tuesday, September 20, his termination slip reciting, as the reason, "fighting on
company property and company time." Since his discharge Bronson applied for
employment with several companies in the Boyne City 34 area but has been unsuc-
cessful in obtaining a job.
Early in October, Gilbert, Respondent's personnel manager, asked Ayers, its
receptionist and telephone operator how Bronson "was making out." Ayers replied
that he was not doing very well, and that "it was a good idea of [Gilbert's] to have
Zeke blackballed. If he waits a little while longer he will have to leave town to
find a job." In response, Gilbert stated that he "figured that." 35
3. William Routley
Routley applied for employment with Respondent on December 27, and was
interviewed by Gilbert and Robert Howard, then Respondent's machine shop
foreman. Routley convinced Howard and Gilbert that he was a most proficient
machinist and Howard told Routley that "he would like to have [Routley] if
[Routley]and Gilbert could get together on money."
During their subsequent discussion Routley told Gilbert that he was then earn-
ing more than $2 60 an hour and that he would not work for less. Because this
was higher than the rate which Respondent was then paying to many of its highly
skilled machinists with long tenure, Gilbert took the matter up with Howard and
Alfred Kantola, then Respondent's production manager. Although Howard was not
in favor of paying Routley the high wage which he sought, Kantola, because he
needed machinists with Routley's asserted experience and proficiency, directed Gil-
bert to hire Routley at the $2.60 rate 36
The next day, December 28, Routley began working for Respondent Because
of what they considered excessive scrap which he produced in the light of the high
wages he was receiving Kantola and Howard soon became dissatisfied with Routley.
During the week of January 3, 1966, Kantola and Howard began to consider how
best to cope with the problem posed by Routley's inability, in their opinion, to per-
form his work in a manner commensurate with his wages. Howard recommended
that Routley's wage rate be reduced. Kantola, however, rejected this recommenda-
tion and decided to discharge him Kantola notified Gilbert of his decision on the
morning of Friday, January 14, 1966.37
a In his description of the event, Bronson denied that he struck Elliott. He stated that
as he and Elliott struggled with each other in his attempt to retrieve the box of Kimwipes
Elliott lost his balance and fell into the shelving adjacent to his bench.
31 It will be remembered that Respondent's plant is located in Boyne City, Michigan
35 These findings are based on Ayers' credible testimony. Gilbert admitted asking Ayers
about Bronson and that she made the statement about his having been "blackballed." Gilbert
however denied the response attributed to him by Ayers and testified that he merely
laughed. Gilbert further testified that he did not "blackball" Bronson. Ayers also testified
that Gilbert laughed. Ayers is thus completely corroborated, in this regard, except in the
important respect of Gilbert's response. As to this, I credit Ayers. Not only was I favor-
ably impressed by her demeanor as a witness, but I also have taken into account, in
assessing her testimony, that at the time of the trial she was in Respondent's employ and
therefore was, in a sense, testifying under peril of reprisal
36 These findings are based on a synthesis of the testimony given by Routley, Howard, and
Gilbert. ,
37 These findings are based on the mutually corroborative and unimpeached testimony
of Kantola, Howard, and Gilbert In view of my ultimate conclusion with respect to this
phase of the case, I consider it unnecessary to make a finding with respect to Routley's
proficiency as a machinist.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the meanwhile, as Routley credibly testified, on January 12, 13, and 14, 1966,
Routley asked several machinists in the plant to meet with him on the following
Sunday, January 16, 1966, for the purpose of organizing a union.
After being informed by Kantola, then Respondent's production supervisor, that
he had decided to discharge Routley, Gilbert, Respondent's personnel director,
instructed his secretary to prepare a termination notice. This notice was prepared
during the early afternoon of January 14, 1966. It bore that date and recited as
the reason for Routley's separation that "Skills did not meet job level requirements."
About 1:30 p in. on January 14, 1966, Routley's termination notice was handed
to Kantola. Had he followed Respondent's usual procedure in such cases, Kantola
would have given the notice to Howard, Routley's foreman, in time for Howard to
serve it on Routley, shortly before 3:30 p.m., the time at which Routley's shift
ended As it happened, however, after receiving the notice from Gilbert and before
giving it to Howard, Kantola was summoned to attend a staff meeting which con-
tinued until 4.30 p.m. Fifteen minutes after the end of the staff meeting Kantola
handed Routley's termination notice to Howard. But it was too late then for
Howard to deliver it to Routley that afternoon, he having already left the plant.38
On Sunday, January 16, 1966, about 11 machinists met with Routley pursuant
to invitations previously extended by him. At this meeting, which was chaired by
Routley, the machinists discussed matters relating to their wages and working con-
ditions and agreed to call upon IAM for organizational assistance.
On Monday, January 17, 1966, the last day of Routley's employment by
Respondent, he reported for work as usual. Between 2:30 and 3 that afternoon
Howard gave him the discharge notice which, as set forth above, had been prepared
the previous Friday and which bore that day's date.
About an hour after he served the termination notice on Routley, and after
Routley had already left the plant, Howard was told by the second shift foreman
of the meeting attended by Routley the previous day Howard credibly testified
that this was his first notice of the meeting. Howard further credibly testified that
he had no knowledge that Routley had engaged in any union activity before his
discharge.
E. Concluding findings concerning the alleged violations of
Section 8(a)(3) of the Act
As noted above, the General Counsel contends that Respondent violated Section
8(a)(3) by its discriminatory treatment of Goff and by its discharge of Bronson
and Routley. Respondent withdrew its answer insofar as Goff is concerned, alleges
that it discharged Bronson for fighting, and Routley because of his inability to do
his work properly. Respondent further stoutly maintains that at no time prior to
Routley's discharge did it have any knowledge that he had engaged in activity pro-
tected by Section 7 of the Act.
In view of the withdrawal of answer with respect to Goff, I find, as set forth in
the complaint, that Respondent refused to grant her periodic merit pay increases
and refused to transfer her to the day shift because she joined or assisted the Union.
Accordingly, I conclude that Respondent violated Section 8(a)(3) and (1) in this
regard.
The question for decision insofar as Bronson's discharge is concerned, is whether
he was actually discharged for fighting, as Respondent contends, or, as the General
Counsel urges, whether this reason was seized upon as a pretext to discharge him
for his activity in support of the Union. If the latter is the case, then clearly the
discharge was violative of the Act.
Before considering this question, however, a subsidiary issue raised by the Gen-
eral Counsel must first be met. The General Counsel contends that the contretemps
38 Except with respect to the time at which Kantola gave Routley's termination notice to
Howard, the findings with respect to the preparation of the notice, its contents, and the
reason for its late delivery to Howard are based upon the credited and uncontradicted
testimony of Kantola, Howard, Gilbert , and Bernice Al. Klump, Gilbert's secretary Kantola
testified that he gave the notice to Howard during the morning of Monday, January 17,
1966. Howard, however, testified that he received it from Kantola about 4 • 45 p in on
Friday, January 14, 1966. In this regard, insofar as it may be material, I credit Howard
because his memory with respect to the events surrounding the notice appeared to be
sharper than Kantola's.
MEMCOR, INC. 941
between Bronson and Elliott was a mere scuffle and not a fight warranting disci-
plinaiy action in accordance with Respondent's Rules of Behavior. I disagree. Blows
were struck in anger, harsh words were exchanged, and threats of future violence
were made. By any measurement this was a fight, and I so find.
I further find that by fighting Bronson contravened Respondent's rules and could
have been discharged for this reason On the evidence of what preceded and fol-
lowed the fight, however, it is my opinion that the real reason for the termination
of Bronson's employment was not his fight with Elliott, but the extensive assistance
which he gave to the Union.
Respondent does not deny that it was aware that Bronson was the Union's prime
mover in its plant And, it will be remembered in this connection, that as far back
as April, immediately upon the resumption of the Union's organizing campaign,
Lickfeldt, one of Respondent's foremen, gave orders to an employee to watch
Bronson because he wanted to "catch" him "passing out union cards," obviously
for the purpose of discharging him. Two months later, in June, Lickfeldt caught
Bronson in this act during his lunch hour and hastened to inform Gilbert, Respond-
ent's personnel manager, of this fact. Upon being informed by Gilbert that Bron-
son's distribution of union cards was not impermissible during nonworking periods,
Lickfeldt told Gilbert that he would continue to "watch" Bronson. At the same time
Lickfeldt stated to the employee whom he had earlier ordered to "watch" Bronson
that because his distribution of cards occurred during "his lunch hour . . . we
can't get him for that."
After 3 months of "watching" Bronson, he was finally "gotten." Having fought
with Elliott, he furnished Respondent with an excuse whereby his employment could
be, and was, terminated.
My finding in this regard is buttressed by Gilbert's admission to Ayers, Respond-
ent's receptionist and telephone operator, that he had "blackballed" Bronson. This
type of postseparation treatment would not, I believe, have been accorded Bronson
if fighting had been the mere cause of his discharge. It is more reasonable to con-
clude, taking note that "blackballing" is a familiar and effective form of retaliation
against employees engaged in union organization, that Bronson was "blackballed"
because of the support which he gave to the Union.
In view of the foregoing, I find, in agreement with the General Counsel, that
Bronson was discharged because of his strong adherence to the Union, a fact well
known to Respondent, and that Respondent latched on to Bronson's fight with
Elliott as a transparent pretext for this action
It is well settled "that even though a valid ground for discharge exists, there is
nevertheless an unfair labor practice if in fact the reason for the discharge was
Union activities on the part of the employees." N.L R.B. v. The Howe Scale Com-
pany, 311 F 2d 502, 505 (C.A. 7). Applying this principle to the facts of this case,
insofar as they relate to Bronson, I conclude that by discharging him Respondent
violated Section 8(a)(3) and (1) of the Act.
Unlike the situation with respect to Bronson, whose activities on behalf of the
Union prior to his discharge were well known to, and readily admitted by, Respond-
ent, Respondent most strongly insists that it had no knowledge prior to the termi-
nation of Routley's employment that he had engaged in similar conduct. If this con-
tention is sustained by the proof, then the complaint must be dismissed, insofar as
Routley is concerned, for knowledge such as Respondent claims it did not have
must be shown before a violation of Section 8(a)(3) of the Act can be said to
have occurred.
Based on a careful examination of the record in this case I must find, as the
Board did in Lyn-Flex Industries, Inc, 157 NLRB 598, that there is no evidence
which directly shows, or from which it can be inferred, that Respondent had any
knowledge prior to Routley's discharge that he had engaged in conduct protected
by Section 7 of the Act. Routley's discharge on the day following the meeting
called and presided over by him at which, among other things, those in attendance,
all of whom were employed by Respondent, decided to seek assistance from IAM
is certainly suspicious. Suspicion, however, is not a substitute for proof. In the
absence of evidence that Respondent was aware at any time during Routley's short
tenure as its employee that he had engaged in any sort of union activity, I cannot
find that his discharge was in violation of Section 8(a)(3) of the Act.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude, therefore, that the General Counsel has not sustained his burden of
proving by a preponderance of the evidence that Routley's discharge violated Sec-
tion 8(a) (3) of the Act as alleged in paragraph 15 of the complaint 39 Accordingly,
I will recommend that the complaint be dismissed insofar as it is asserted therein
that by discharging and failing to reinstate Routley, Respondent violated Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above, occurring in connection
with its operations as set forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in the unfair labor practices set forth
above, my Recommended Order will direct Respondent to cease and desist there-
from and to take the affirmative action normally required in such cases to effectu-
ate the policies of the Act. Any backpay found to be due to Bronson shall be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, and shall include interest in the amount and manner provided for in
Isis Plumbing & Heating Co., 138 NLRB 716.
Insofar as Goff is concerned, I will recommend, in accordance with the agree-
ment of the parties entered into during the trial, that Respondent transfer her to a
position on the day shift substantially equivalent to the position she held on the
night shift on March 30, 1966, without prejudice to her seniority or other rights,
said transfer to take place no later than October 3, 1966, and that Respondent
make Goff whole for the discrimination practiced against her by paying to her the
sum of $35 with interest from October 1, 1965, in the amount and manner pro-
vided for in Isis Plumbing & Heating Co., supra.
In view of the nature of the unfair labor practices engaged in by Respondent, my
Recommended Order will contain broad cease-and-desist provisions.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6) of the Act.
2. The Union and IAM are labor organizations within the meaning of Section
2(5) of the Act.
3. By the conduct set forth in section III, B, and III, C, hereof, Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By failing and refusing to grant Betty Goff periodic merit pay increases and
by failing and refusing to transfer her from the night shift to the day shift because of
her activities on behalf of the Union, thereby discouraging membership in, and
activities on behalf of, the Union, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
5. By discharging Glenn Bronson because of his membership in, and activities on
behalf of, the Union, thereby discouraging membership in, and activities on behalf
of the Union, Respondent has engaged in, and is engaging in, unfair labor' practices
within the meaning of Section 8(a)(3) and (1) of the Act.
6. Respondent did not violate Section 8(a)(1) of the Act in the manner set forth
in paragraphs 10(c), 10(f), and 10(g)(i) and (ii) of the complaint.
7. Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging
William Routley.
39 Paragraphs 11(b), 14, and 15 of the complaint allege that Respondent's failure to
reinstate Routley was also violative of the Act I cannot so conclude, however, in view of
my findings as to the reason asserted by Respondent for discharging Routley. Cf. Lyn-Flex
Industries, Inc., 157 NLRB 598
_MEMCOR, INC. 943
Upon the foregoing findings of fact and conclusions of law, and upon the entire rec-
ord in this case, I hereby issue the following:
RECOMMENDED ORDER
Memcor Inc., Courier Division, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily promulgating or enforcing rules prohibiting employees from
soliciting or distributing authorization cards or any other literature on behalf of
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, or any other labor organization.
(b) Promulgating, maintaining, or enforcing rules prohibiting employees, during
nonworking time or in nonworking areas, from distributing authorization cards or
any other literature or from otherwise soliciting their fellow employees to join or
support International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, or any other labor organization.
(c) Ordering, directing, instructing, or requesting employees to act as informers
for, or report to, Respondent regarding the activities, attitudes, or desires of other
employees with respect to International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL-CIO, or any other
labor organization.
(d) Engaging in, attempting to engage in, or giving the impression that it is
engaging in surveillance of the activities of employees on behalf of International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other labor organization.
(e) Threatening employees with discharge or any other form of discipline or
reprisal for supporting, or engaging in activities on behalf of, International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America
(UAW), AFL-CIO, or any other labor organization.
(f) Promising benefits to employees to dissuade them from supporting, or engag-
ing in activities on behalf of, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other
labor organization.
(g) Coercively interrogating employees concerning their, or other employees',
activities in support of, attitudes toward, or signing authorization cards on behalf
of, International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, or any other labor organization.
(h) Discouraging membership in International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW), AFL-CIO, or any
other labor organization by discriminating against employees in regard to hire or
tenure of employment or any other term or condition of employment.
(i) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the National Labor Rela-
tions Act, as amended, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment in conformity with Section 8(a)
(3) of said Act.
2. Take the following affirmative action which, it is found, will effectuate the pol-
icies of the National Labor Relations Act, as amended:
(a) Rescind its "no solicitation" rule promulgated and posted on or about
April 23, 1965.
(b) Rescind its "no solicitation" rule distributed to employees on or about
March 1, 1966.
(c) On or before October 3, 1966, offer to transfer Betty Goff to a position on
the day shift substantially equivalent to the position she held on the night shift on
March 30, 1966, without prejudice to her seniority or other rights or privileges and
make her whole for loss of earnings she suffered by the discrimination practiced
against her in the manner set forth in the section of this Decision entitled "The
Remedy."
(d) Offer to Glenn Bronson immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights and
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges and make him whole for any loss of earnings he may have suffered by
reason of the discrimination practiced against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(e) Notify Betty Goff if presently serving in the Armed Forces of the United
States, of her right to transfer to a position on the day shift upon application in
accordance with the Selective Service and Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
(f) Notify Glenn Bronson, if presently serving in the Armed Forces of the
United States, of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(g) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary or useful to determine the amount of backpay due under the terms of
this Recommended Order.
(h) Post at its premises copies of the attached notice marked "Appendix." 40
Copies of said notice, to be furnished by the Regional Director for Region 7 of the
National Labor Relations Board, shall, after being signed by an authorized repre-
sentative of Respondent, be posted by Respondent immediately upon receipt thereof,
and be maintained by it for at least 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(i) Notify the aforesaid Regional Director, in writing, within 20 days from the date
of receipt of this Decision, what steps Respondent has taken to comply herewith 41
IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges
unfair labor practices not found herein.
40 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 be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
41In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read, "Notify the aforesaid Regional Director, in writing, within
10 days from the date of this Decision, what steps Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT in order to discriminate against any union establish or enforce
any rule prohibiting employees from soliciting or distributing union authoriza-
tion or membership cards, or any other literature issued by any union.
WE WILL NOT establish, keep in effect, or enforce any rule prohibiting
employees, during nonworking time or in nonworking areas, from distributing
union authorization or membership cards, or any other union literature, or
from soliciting their fellow employees to join or support any union.
WE WILL NOT order, direct, instruct, or request any employee to act as a spy
or as an informer for us or to report to us regarding any employee's union
activities, attitudes, or desires.
WE WILL NOT spy upon, attempt to spy upon, nor will we give employees the
impression that we are spying upon, any employee's activities on behalf of, or
in support of, any union.
WE WILL NOT threaten any employee with discharge or any other form of
discipline nor will we discharge or otherwise discipline any employee or dis-
criminate against any employee because he has supported, or engaged in any
activities on behalf of, any union, or because he has, or may, become a mem-
ber of any union.
WE WILL NOT promise benefits to any employee to dissuade him from sup-
porting, or engaging in any activities on behalf of, any union, or from becom-
ing a member of any union.
RED BIRD IGA 945
WE WILL NOT coercively interrogate any employee about his , or any other
employees ', desires toward any union , or whether he or any other employee
has signed a union authorization or membership card, or whether he or any
other employee has become a member of any union.
WE WILL NOT discourage membership in, or activities on behalf of, Inter-
national Union , United Automobile , Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, or in, or on behalf of, any other
union by discharging or laying off any employee , by failing or refusing to grant
merit pay increases to any employee , by refusing to transfer any employee from
one shift to another , or by disciplining any employee in any other manner in
regard to his hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce employ-
ees in the exercise of their rights guaranteed them by the National Labor
Relations Act.
WE WILL cancel our rule against solicitation established and posted by us on
about April 23, 1965.
WE WILL cancel our rule against solicitation appearing as Rule 26 of our
Code of Conduct which we distributed to employees on about March 1, 1966.
WE WILL on or before October 3, 1966 , offer to transfer Betty Goff to a
position on the day shift substantially equivalent to the position she held on the
night shift on March 30 , 1966 , without prejudice to her seniority or other rights
or privileges and make her whole for loss of earnings she suffered by our fail-
ure and refusal to grant her periodic merit pay increases by paying to her the
sum of $35 with interest from October 1, 1965.
WE WILL offer to Glenn Bronson immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of earnings he
may have suffered by reason of the discrimination practiced against him.
All our employees are free to become, remain , or refrain from becoming or
remaining, members of International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL-CIO, or any other
union, except to the extent that this right may be affected by the provisions of the
National Labor Relations Act.
MEMCOR, INC. COURTER DIVISION,
Employer.
Dated----------- -------- By-------------------------------------------(Representative ) ( Title)
NOTE.-Notify Betty Goff and Glenn Bronson if presently serving in the Armed
Forces of the United States of America of their rights as set forth in this notice
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended.
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 pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit , Michigan 48226 , Telephone 226-3244.
Red Bird Foods, Inc., d/b/a Red Bird IGA and Retail Clerks
Union, Local 536, Retail Clerks International Association, AFL-
CIO. Case 38-CA-929. January 16, 1967
DECISION AND ORDER
On November 3, 1966, Trial Examiner Charles W. Schneider
issued his Decision in the above proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
162 NLRB No. 89.
264-047-67-vol. 162-61