Phillips Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1975

216 N.L.R.B. 885 (N.L.R.B. 1975)

PHILLIPS INDUSTRIAL COMPONENTS 885
Phillips Industrial Components , Inc., a wholly-owned
subsidiary of Phillips Industries , Inc. and Local
414, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and International Molders and Allied Workers
Union, AFL-CIO-CLC. Cases 25-CA-5992, 25-
RC-5517, and 25-CA-6118
March 6, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On August 29, 1974, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs,
General Counsel filed a brief in support of the
Administrative Law Judge's Decision , and Respond-
ent filed an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions .2 of the Administrative Law
Judge and to adopt his recommended Order, except
as modified below:
1. We find merit in Respondent's exceptions to
the Administrative Law Judge's conclusion that Shift
Supervisor Mendenhall's October 16 instruction to
employee Smart to stop soliciting authorization cards
on company property constituted a violation of
Section 8(a)(1). Smart had been soliciting cards
before the beginning of the shift; afterwards Men-
denhall told him he could not engage in such activity
on company property. When Smart protested that he
had a right to solicit cards before work and during
breaks, Mendenhall told him to stop the soliciting
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In agreeing with the Administrative Law Judge's conclusion that
Respondent should be held in violation of Sec. 8(a)(1) because of threats to
discipline employees who honored the picket line of its drivers, Members
Kennedy and Penello have taken cognizance of the efforts made by the
Respondent to assure the employees that they would not be disciplined as
threatened . However , it further appearing that employee Ort was discharged
because he honored the picket line, Members Kennedy and Penello are not
satisfied that Respondent 's assurances may be considered as having
216 NLRB No. 106
until he (Mendenhall) could ascertain whether such
nonworktime activity was permissible. A short time
later , no later than lunchtime, Mendenhall, after
consulting with higher levels of management, told
Smart that it was in fact permissible for employees to
solicit on company property as long as they did so on
their own nonworking time , such as before or after
work and during breaks and lunch.
We find that Mendenhall's initial blanket no-
solicitation order was effectively cured by his
immediate retraction of that order only a few hours
later . There is no evidence that any employee was
effectively precluded from engaging in lawful solici-
tation activity. In fact, the record shows that
subsequent to October 16, and throughout the entire
union campaign, Smart and other prounion employ-
ees solicited openly and freely on their own time
without any interference by management. Therefore,
we shall dismiss this 8(a)(1) allegation of the
complaint.
2. We also disagree with the Administrative Law
Judge's conclusion that Foreman Retael's act of
ripping a union bumper sticker off employee Fran-
kart's individually owned toolbox and ordering
employee Witham to remove his bumper sticker
violated Section 8(a)(l).3 The action by Retael was
an isolated event which affected, at most, two
employees. There is no evidence that Retael 's act was
in any way carried out pursuant to company policy.
In fact, both Frankart and Witham continued to
display bumper stickers on their toolboxes after the
Retael incident. Finally , Retael 's later apology to
Witham is a matter of record. In light of these
surrounding circumstances , we do not view Retael's
conduct as coercive and shall therefore dismiss this
allegation of the complaint.4
3. Finally, we do not accept the Administrative
Law Judge's conclusion that Respondent created the
impression of surveillance when Shift Superintendent
Busche and Foremen Thompson and Knox, while
standing outside the plant on the evenings of October
16 and 17, observed various employees soliciting
union cards in the plant parking lot.
effectively neutralized the coercive impact of the threats Member Fanning
would find the 8(axl) violation whether or not Ort had been discharged.
The gap of about 2 weeks between the threat and the attempt to neutralize it
is too great.
3 The Administrative Law Judge 's finding that Retael also removed
Witham 's sticker is not supported by the record.
4 Member Fanning would affirm the Administrative Law Judge's
conclusion that Retael 's conduct violated Sec. 8(axl). Retael's gross act of
summarily ripping a union bumper sticker off of one employee's toolbox
and ordering another employee to do the same is a blatant invasion of the
right of employees to express their support of unions during an organiza-
tional campaign. The fact that Frankart and Witham displayed bumper
stickers later in the campaign is of little significance ; for an indeterminate
period following Retael's action , one employee , Frankart , was effectively
precluded from displaying his union insignia.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Busche, accompanied by Knox and Thompson, did
come out onto the company parking lot on the
evening of October 16 to tell Union Agent White, a
nonemployee, to leave Respondent's property. After
White withdrew from the parking lot and began
solicitation from an adjacent public roadway, Busche
remained in the parking lot for approximately 1
hour, while walking over to some nearby gasoline
pumps and later talking to a police officer who had
just driven up. On the evening of October 17, while
several employees were soliciting cards, Busche and
Knox again appeared in the parking lot to ascertain
whether White had come on the premises again.
After 15 or 20 minutes they went back into the
building.
We are unwilling to infer an unlawful attempt to
create an impression of surveillance from the mere
presence of Busche, Knox, and Thompson, for
varying lengths of time, on the company parking lot.
They were on Respondent's property for a lawful
purpose; i.e., keeping out nonemployee union agents.
There is no evidence that they were making notes or
taking photographs of employees soliciting cards.
Nor did they attempt to hide their presence from
these employees. For these reasons we shall dismiss
this allegation of the complaint .5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Phillips Industrial Components, Inc., a wholly-
owned subsidiary of Phillips Industries , Inc., Albion,
Indiana , its officers, agents, successors , and assigns,
shall take the action set forth in said recommended
Order, except as modified below: 6
1. Delete paragraphs 1(d) and 1(f) of the recom-
mended Order, and reletter all other paragraphs
accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election conducted
on November 30, 1973, in Case 25-RC-5517 be set
aside and that this proceeding be, and it hereby is,
remanded to the Regional Director for Region 25 for
the purpose of conducting a new election at such
time as circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
S Member Fanning would affirm the Administrative Law Judge's
conclusion that Superintendent Busche created an impression of surveil-
lance. While Member Fanning agrees that Busche had a legitimate reason
for initially coming out onto the parking lot to order Molders Agent White
off the premises , his subsequent unexplained and unnecessary extended
presence in the parking lot after White departed, and his further presence
the next evening when White was not on company property, lead to the
inescapable conclusion that his intent was to create the impression of
surveillance among the employees soliciting cards in the parking lot This is
especially true given the persistent hostility exhibited by Respondent toward
union activities of various employees evidenced by the numerous unfair
labor practices found by the Board in this case.
6 Member Fanning finds merit in the General Counsel's exceptions to
the Administrative Law Judge 's failure to include a broad cease -and-desist
provision in par . l(g) of his recommended Order . The sum total of
Respondent 's unfair labor practices found by the Administrative Law
Judge , the interrogations , threats of discharge , attribution of loss of a raise
to the union campaign , promulgation of invalid no-solicitation and no-
distribution rules, and the discharge of employee Ort for honoring a picket
line, is sufficient to warrant a broader remedial order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these rights.
WE WILL NOT do anything that interferes with
these rights. More specifically:
WE WILL NOT discharge or otherwise discrimi-
nate against any employee in regard to hire or
tenure of employment or any term or condition of
employment for engaging in any activity protect-
ed by Section 7 of the National Labor Relations
Act.
WE WILL NOT coercively interrogate you re-
garding your union membership, activities, or
sympathies.
WE WILL NOT advise employees that we are
withholding wage increases or other improve-
ments in their wages, hours, or conditions of
employment because of their activities in support
of, or adherence to, Local 414, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America or Interna-
tional Molders and Allied Workers Union, AFL-
CIO-CLC, or any other labor organization.
WE WILL NOT maintain or enforce any rule
which prohibits you from union solicitation in the
plant during nonworking time, or which prohibits
PHILLIPS INDUSTRIAL COMPONENTS 887
you from distributing union literature in nonwork
areas during nonworktime.
Since it was decided that we violated the Act by
terminating the employment of Arthur Ort,
WE WILL offer him full reinstatement to his
former job or, if that job no longer exists, to a
substantially equivalent position, and WE WILL
pay for any loss he suffered because we fired him.
WE WILL respect your rights to self-organiza-
tion, to form, join, or assist any labor organiza-
tion, or to bargain collectively in respect to any
term or condition of employment through Local
414, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America; International Molders and Allied
Workers Union, AFL-CIO-CLC; or any repre-
sentative of your choice, or to refrain from such
activity, and WE WILL NOT interfere with, restrain,
or coerce our employees in the exercise of these
rights.
You, and all our employees, are free to become
members of any labor organization or to refrain from
doing so.
PHILLIPS INDUSTRIAL
COMPONENTS, INC., A
WHOLLY-OWNED
SUBSIDIARY OF PHILLIPS
INDUSTRIES, INC.
amended on April 16 and 23, 1974. Both complaints, as
amended , alleged that the Respondent engaged in unfair
labor practices violative of Section 8(aXI) and (3) of the
National Labor Relations Act, referred to herein as the
Act. The Respondent, by answers to the complaints and
the amendments , denied the commission of any of the
alleged unfair labor practices.
The petition for certification in Case 25-RC-5517 was
filed by Local 414 on October 15, 1973. Thereafter,
pursuant to a Stipulation for Certification Upon Consent
Election, an election was conducted in a unit' of the
Respondent's employees on November 30, 1973. The tally
of ballots showed that out of 171 eligible voters 36 voted
for Local 414, 48 voted for the Molders, and 38 voted
against both labor organizations . The ballots of three
employees were challenged.
On January 31, 1974, the Acting Regional Director
determined that a hearing on Local 414's timely objections
was necessary and ordered that Local 414's Objections I
and 22 and "additional alleged objectionable conduct" be
consolidated with Case 25-CA-5992. The hearing in this
consolidated case was held before me in Kendallville,
Indiana , on May 6 and 7, and in Auburn, Indiana, on May
8 and 9, 1974.
Upon the entire record in the cases and from my
observation of the demeanor of the witnesses, and after
having considered the briefs filed by the General Counsel
and the Respondent, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon a charge filed by Local 414, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, referred to herein as Local 414, on
December 6, 1973, in Case 25-CA-5992, the General
Counsel of the National Labor Relations Board, by the
Acting Regional Director of the Board's Region 25, issued
a complaint against Phillips Industrial Components, Inc., a
wholly-owned subsidiary of Phillips Industries, Inc.,
referred to herein as the Respondent , on January 30, 1974.
Thereafter, upon a further charge filed on February 15,
1974, by International Molders and Allied Workers Union,
AFL-CIO-CLC, referred to herein as the Molders, a
second complaint was issued against the Respondent in
Case 25-CA-6118, on March 26, 1974, together with an
order consolidating Cases 25-CA-5992 and 25-CA-6118.
The complaint in Case 25-CA-5992 was amended on April
23, 1974. Finally, the complaint in Case 25-CA-6118 was
The stipulated unit was : "All production employees , all maintenance
employees , and all general laborers employed by [the Respondent] at its
Albion , Indiana , establishment ; but excluding all over-the-road drivers, all
office clerical employees , all professional employees , all guards and
supervisors , as defined in the Act."
2 Local 414's objections one and two are as follows.
1. Prior to the election , one or more supervisors passed the word to
employees that because of the Teamsters ' Petition employees would
Respondent is an Ohio corporation engaged in the
processing, sale, and distribution of metal castings and
related products at its Albion, Indiana, plant. During the
12 months preceding March 26, 1974, Respondent manu-
factured, sold, and shipped from its Albion, Indiana, plant,
products valued in excess of $50,000 to points outside the
State of Indiana. During the same period, the Respondent
received at its Albion plant goods and materials valued in
excess of $50,000, directly from points outside Indiana. It is
undisputed and I find from the foregoing admitted facts
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
Local 414 and the Molders are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
During the first half of October 1973,3 Local 414 and the
Molders began their respective organizing campaigns
among the Respondent's production and maintenance
lose a 25¢ per hour raise which would have been forthcoming but for
the Union activity involved.
2. Prior to the election , the Employer discharged vanous people
because of their support of the Union which had been conducting a
strike among another bargaining unit of the same Employer.
3 Unless otherwise stated , all dates referred to hereafter in this Decision
occurred in 1973.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees . On October 15, Local 414 filed its petition for
an election in a unit of the Company's production and
maintenance employees in Case 25-RC-5517. Thereafter,
on November 30, the Board conducted the election in Case
25-RC-5517.
While the election was pending , Respondent's over-the-
road truckdrivers , who were represented by Local 414 at all
times material , staged an economic strike which began on
October 25 and ended early in December . One issue
presented in Case 25-CA-5992 was whether the evidence
shows that Respondent in treating with these union
activities violated Section 8(a)(1) of the Act by:
(a) Interrogating employees concerning their union
membership , activity , and sentiment , and the union
sentiment , activity , and memberships of other employees.
(b) Threatening employees with discharge if they
engaged in an economic strike.
(c) Advising employees that a wage raise had been
denied because of union activity.
Another issue was whether Respondent violated Section
8(a)(3) and (1) of the Act by discharging employee Arthur
Ort because he supported Local 414.
The foregoing allegations are also alleged as objections
to conduct affecting the results of the November 30
election in Case 25 -RC-5517.
The issues presented in Case 25-CA-6118 are: (1)
whether the evidence shows that Respondent in opposition
to its employees ' union activity violated Section 8(a)(1) of
the Act by:
(a) Threatening employees with disciplinary reprisals if
they engaged in union activity or displayed union insignia.
(b) Maintaining surveillance over its employees' union
activity.
(c) Promulgating excessive restrictions on solicitation
and distribution.
(2) Whether Respondent violated Section 8(aX3) and (1)
of the Act by issuing disciplinary warnings to John Smart,
demoting him, laying him off, assigning more onerous
tasks to him , and requiring him to present a medical report
following his absence from work , all because of his union
activity.
IV. THE ALLEGED UNFAIR LABOR PRACTICES IN CASE
25-CA-5992
A. Alleged Interference, Restraint, and Coercion
1. Attributing loss of wage increases to union
activity
The undenied and credited testimony of employee David
Cole shows that about 1 week after Local 414 had filed its
election petition and the Molders had openly begun a rival
campaign , Foreman Renkenberger, a supervisor , advised
4 On direct examination , Respondent's counsel asked Renkenberger "do
you recollect any conversation with [Frankart ]." Renkenberger's testimony
that " I never remember any conversation with Mr . Frankart" (Tr. 306) does
not constitute a denial that such a conversation occurred
S Smart 's testimony regarding Retael 's remarks was undenied . Thomas'
testimony substantially contradicts Smart However , as employee Smart
impressed me as the more forthright and candid witness, I have credited
Smart's version of Thomas ' remarks
8 My findings regarding this incident are based on employee Smart's
him that some employees had lost up to a 50 -cent hourly
wage increase because of the "activity going on at that
time." Also, according to employee Mark Frankart's
credited and undenied testimony on or about October 30,
Foreman Renkenberger4 told Frankart that the Respond-
ent was withholding a 50-cent wage increase from its
employees "because of the union activity in the plant."
Employee John W. Smart , Jr., testified credibly that
Supervisors Frank Retael and Ralph Thomas made like
remarks to Smart and other employees .5 In a conversation
with employee Smart during the week of October 15,
Foreman Frank Retael stated that the employees "should
have waited a little while before [they ] got started with this
union ." When Smart asked "Why?" Retael replied: "You
lost a big raise because of it ...." During the following
week , Foreman Thomas in conversation with Smart, in the
presence of two other employees , declared that the
employees had "lost a big raise because of union activity."
The credited and undenied testimony of employee Roger
Witham reveals that in conversation 1 or 2 weeks before
the representation election , Thomas told Witham that
Respondent had frozen the employees ' wages "because of
the union activity ." I also credit Witham's undenied
testimony that a few days later , Foreman Thomas told
employees Frankart and Witham that the employees had
lost a wage increase "because of the union activity."
Finally, on November 26 or 27, Respondent Vice President
Farris told a meeting of 12 to 15 employees that "all wages
and everything else would be frozen until the union
business is settled." 6
I find the foregoing remarks made plain that Respondent
was penalizing and would continue to penalize its
employees because of their union activity . Accordingly, I
find that by these remarks , Respondent violated Section
8(a)(1) of the Act . Sinclair Glass Co. v. N.L.R. B., 465 F.2d
209, 210 (C.A. 7, 1972); Goodyear Tire & Rubber Co., 170
NLRB 539, 547-548 (1968).
2. Interrogation
Employee Roberta Fischer credibly testified that in late
October or early November, Dwight Busche, who was
second shift production manager until November 1, when
he became second shift superintendent, asked her if she
had received a union authorization card. When Fischer
replied that she had, Busche asked if she had signed it.
Fischer responded that she had not yet decided whether to
sign the card.?
This questioning was coercive . Busche, a middle rank
supervisor, gave no assurances that Fischer's response
would not affect her employment. Further, Busche's
inquiry into Fischer's union sentiment occurred against a
background of hostility to union organization , as eviden-
ced by Respondent's resort to the unfair labor practices
testimony . Farris' testimony reflected uncertainty as to what he told the
employees in responding to their questions regarding wages. While his
testimony tends to contradict Smart, Farris was not given an opportunity to
deny and did not deny making the statement attributed to him by Smart.
r Busche denied having any conversation with Roberta Fischer regard-
ing union cards or union activity during October and November. However,
as Fischer impressed me as a more forthright witness, I have credited her
testimony.
PHILLIPS INDUSTRIAL COMPONENTS 889
found elsewhere in this Decision . Therefore I find Busche's
interrogation of Fischer violative of Section 8(a)(l) of the
Act. Lowry Trucking Company, 200 NLRB 672 (1973).
3. Threats
On October 25, Respondent's drivers, who were repre-
sented by Local 414, began an economic strike which
persisted until December 7. Respondent concedes that on
the evening of October 25, Samuel Wang, the industrial
relations representative of its parent corporation, an
admitted supervisor, told the second-shift employees that
Respondent would impose disciplinary action "up to and
including dismissal" upon employees who honored the
picket line. Respondent also concedes and Plant Manager
James M. Cauhorn's testimony shows that he voiced a
similar warning to Respondent's first shift employees at a
second meeting on the morning of October 26. At the same
time , Supervisor Ralph Thomas admittedly warned em-
ployees "that if they walked off their job, they could be
terminated . . . ." It is well settled that such warnings
infringe on employee rights to engage in concerted activity
protected by Section 7 of the Act, and therefore violated
Section 8(a)(1) of the Act. Nuodex Division of Tenneco
Chemicals, Inc., 176 NLRB 611, 612-613 (1969).
B. The Alleged Unlawful Discharge of Arthur Orts
1. The facts
Respondent employed Arthur Ort on its second shift
(3:30 p.m. to midnight) from March 13 until his discharge
which was effective on November 1. During the last 3
months of his employment, Ort worked in the stamping
department directly under Foreman Wayne Thompson.
On October 11, Ort signed a Local 414 authorization card,
and thereafter wore a Local 414 button on his shirt for 2 or
3 weeks.
Foreman Wayne Thompson credibly testified that on
November 1, early in the second shift, Ort told Thompson
that he, Ort, was dissatisfied with his job, adding that he
wasn't making enough money and then asserted that he
was "afraid of the picket line because he didn't want to get
his head busted." Ort also expressed his view that "there
wasn't enough material to run on." At 8 p.m., a half hour
before his scheduled lunch break, Ort left the plant after
deciding that he "was wrong for crossing Local 414's picket
line." Supervisor Thompson observed Ort moving toward
the timeclock and asked him if he was leaving. Ort replied
"yes," clocked out and left the plant. That same evening
between 6 and 8:30, 10 or I I second shift employees left
the plant and thereafter refused to cross Local 414's picket
line. Respondent began processing discharges for these
employees. However, on receiving advice that such
discharges would be unlawful, Respondent discontinued
the process and rescinded such terminations as had been
documented . Ort returned to the plant on November 9, to
pick up his weekly paycheck and to make a claim under
8 Respondent sought to impeach Ort's credibility in introducing into
evidence certified copies of his six convictions between 1969 and 1973. The
only conviction involving moral turpitude or dishonesty was Ort's 1969
conviction for larceny . In light of that conviction , and Ort's evasive and
untruthful responses when cross -examined about his criminal record, I find
Respondent's medical insurance policy . At this point, Rita
Hoover, Respondent 's personnel secretary , told Ort he had
been terminated on November 2, and that he was ineligible
for coverage under Respondent 's insurance policy. She
then completed Ort's termination, giving him his last pay.
That evening, Ort went to Superintendent Busche's office
and protested that he had been absent from work "because
he was honoring the picket line." Busche admittedly
replied that Ort's explanation came too late . Ort again
explained that "he was scared to cross the picket line."
Busche held firm to his response that Ort's explanation
came too late . Respondent has not yet reinstated Ort.
2. Analysis and conclusions
General Counsel contends that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Arthur
Ort on November 2 because he honored Local 414's picket
line. Respondent asserts that Ort abandoned his job on the
night of November 1 for reasons other than the picket line,
and argues that his discharge was therefore lawful. I make
no finding that Ort's discharge was motivated by union
considerations . However, I do find that his discharge
violated Section 8(a)(1) of the Act, for the following
reasons:
Contrary to Respondent' s claim, the record pursuades
me that Ort's departure from the plant at 8 p.m. on
November 1 was in response to Local 414's picket line.
Supervisor Wayne Thompson's account of Ort's remarks
earlier that evening reveals Ort's concern about the picket
line. This expression of concern lends substantial corrobo-
ration to Ort's testimony that he left in the middle of his
shift out of deference to Local 414's picket line. Ort's
testimony is also supported by the timing of his departure.
For it is undisputed that between 6 and 8:30 p.m. that
same evening 10 or 11 other second shift employees
admittedly left the plant for that very same reason . I find,
therefore, that by his departure from the plant on
November 1 Ort had "in effect plighted his troth with the
strikers . . . [and was] therefore entitled to all the
protection due under the . . . Act to those strikers with
whom he has joined cause." N.L.R.B. v. Southern Grey-
hound Lines, 426 F.2d 1299 (C.A. 5, 1970), enfg. 169 NLRB
627 (1968). That Ort may have joined the strike out of fear
that working behind the picket line would subject him to
reprisals by the strikers does not remove his conduct from
the Act's protection. Congoleum Industries, Inc., 197 NLRB
534,547-548(1972).
Finally, in the 8(a)(1) posture in which I view this case,
Respondent's motive in discharging Ort is of no moment.
For as the Supreme Court has recognized: "Defeat of
[Section 7] rights by employer action does not necessarily
depend on the existence of an antiunion bias." N.L.R.B. v.
Burnup and Sims, Inc., 379 U.S. 21, 23 (1964). Here, the
very conduct for which Respondent punished Ort was
wholly protected by Section 7 of the Act. Accordingly, I
find that by discharging Ort for leaving in the middle of his
him to be an unreliable witness. I have, therefore credited his material
testimony only to the extent it was corroborated by the credited testimony
of Respondent 's witnesses and surrounding circumstances generally. See
Winston Rose and Mary Louise Rose, a partnership, d/b/a Ideal Donut Shop,
148 NLRB 236, fn. 1 (1964).
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift on November 1, Respondent violated Section 8(a)(1)
of the Act.
V. THE ALLEGED UNFAIR LABOR PRACTICES IN CASE
25-CA-6118
A. Alleged Interference, Restraint, and Coercion
1. Prohibitions against union activity9
On the evening of October 15, employees John W.
Smart, Jr., Roger Witham, and Mark Frankart attended a
Molders meeting in Kendallville , Indiana . During the
meeting, Smart received blank authorization cards, a
Molders committee button, prounion bumper stickers, and
matches. At this meeting, Witham and Frankart also
received prounion bumper stickers.
The following morning, during the 15 minutes immedi-
ately preceding that start of his shift, Smart began
soliciting signatures on the Molders' authorization cards.
Soon after Smart began his solicitation and before the start
of the 7 a.m. shift, Foreman Bill Granger approached
Smart and asked him what he was doing. Upon hearing
that Smart "was signing up union cards ," Granger told
Smart he "couldn't do it." Smart argued that he had a right
to engage in solicitation before his shift began. Granger
replied that he was required to report Smart's activity.
Following this encounter, Smart's shift began its workday.
In a short while Granger approached Smart and took him
to Production Manager Terry Mendenhall.'° Mendenhall
asked Smart what he had been doing before the beginning
of the first shift. When Smart reported that he "was getting
union cards signed up," Mendenhall said he couldn't do
that on company property. Smart insisted that he could
solicit signatures on authorization cards "before work,
during breaks, at lunch hour and after work." Neverthe-
less, Mendenhall directed Smart to "cease and desist" until
Mendenhall could "find out for sure ." Later that same day,
Mendenhall notified Smart that he could solicit signed
union cards "before work, during breaks . . . at the lunch
hour, and after work."
Also on October 16, employees Frankart and Witham
attached the Molders' prounion stickers to their respective,
individually owned toolboxes. Upon seeing Frankart's
toolbox so adorned, Foreman Frank Retael directed him
to remove it. When Frankart refused , Retael removed it
and took the employee to Terry Mendenhall's office. There
is no showing that Mendenhall disciplined Frankart or
prohibited him from putting a sticker on his toolbox.
Thereafter Smart put another union sticker on his toolbox,
without further response from Respondent . Retael re-
moved Witham 's sticker that same day. However, Witham
heard no more about the matter . Although Retael later
apologized to Witham, it does not appear that he or any
member of Respondent's management advised the employ-
ees that they could attach prounion bumper stickers to
their toolboxes.
On December 17, Respondent promulgated a set of
general plant rules including the following:
Y There are no factual issues raised in this portion of the case.
10 On or about November 1, Respondent changed Mendenhall's job
No employee shall distribute written or printed
literature of any type , kind or description on the plant
premises or Company property without specific written
authorization from the Plant Manager.
No solicitation of any type or for any purpose may
be conducted on Company property without the
written permission of the Plant Manager.
On May 4, 1974, after receipt of the amendment to the
complaint in Case 25 -CA-6118, alleging that the above-
quoted rules violated the Act , Respondent promulgated the
following substitute rules:
There is to be no solicitation for any cause or
purpose , made during the working time of either the
person doing the soliciting or the person being solicited.
There is to be no distribution of any written or
printed material in work areas at any time.
I find that, Respondent's interference with John W.
Smart's solicitation on behalf of the Molders, during
nonworking hours and the unwarranted removal of
prounion signs from Witham's and Frankart 's tool chests
were both violative of Section 8(a)(1). Central Soya of
Canton, Inc., 180 NLRB 546 (1970), enfd . 433 F.2d 347
(C.A. 5, 1970). See also Serv-Air, Inc. v . N.L.R.B., 395 F.2d
557, 563 (C.A. 10, 1968), cert. denied 393 U.S. 840. I also
find that Respondent violated Section 8(a)(1) of the Act by
promulgating on December 17, and thereafter maintaining
rules prohibiting solicitation and distribution of any kind
on its premises without the plant manager's permission,
Central Soya of Canton, Inc., supra, Stoddard-Quirk
Manufacturing Co., 138 NLRB 615, 621 ( 1962). I reject
Respondent's suggestions that it effectively revoked the
October 16 prohibitions , and substituted valid rules
regarding solicitation and distribution and thereby cured
the antecedent unfair labor practices . In light of Respond-
ent's other violations of Section 8(aXl) during the
organizing campaign, and its neglect to advise all of its
employees that they could affix prounion bumper stickers
to their toolboxes, I reject Respondent 's suggestion. These
other unfair labor practices and the silence on the bumper
stickers cast doubt on the remedial effect of Respondent's
retraction of the unlawful restraints on distribution and
solicitation , and its tacit permission to exhibit prounion
bumper stickers . Accordingly I shall recommend the
remedial provision usually applied to such prohibitions.
2. Surveillance
During the second shift's lunch hour, on the evening of
October 16, employees David Cole and John W. Smart, Jr.,
and a Molders representative, Henry White stood on the
edge of the management parking lot in front of Respond-
ent's plant offering Molders authorization cards to second-
shift employees for signature . Dwight Busche, who was
then Respondent's second-shift production manager, came
out of the plant and, after learning White's identity and
purpose, asked him to leave Respondent 's property.
Whereupon , White and the two employees left Respond-
classification to first-shift superintendent.
PHILLIPS INDUSTRIAL COMPONENTS 891
ent's property and moved to the shoulder of the public
road running past the parking lot. Busche remained outside
the plant , standing in the management parking lot during
most of the time White and the two employees were thus
engaged . It is also undisputed that Foreman Wayne
Thompson and Ernest Knox, respectively, accompanied
Busche for 10 or 15 minutes during this time . Busche does
not deny Smart's and Cole's credited testimony that he was
outside the plant, within eyeshot of the union activity, for
about 1 hour on October 16. Busche's and Knox's
testimony established that Busche was away from the
management lot for not more than 10 minutes. While
conversing with a police officer in the management lot for
5 or 10 minutes , Busche observed that he was only about
100 feet from the union activity. Finally, Foreman
Thompson admitted that he and Busche stood in the
management parking lot for about 10 or 15 minutes after
White, Cole, and Smart had retreated to the nearside of the
adjacent road.
The following evening, employee Roger Witham and his
wife joined Molders Representative White and employees
Cole and Smart just beyond the management parking lot to
solicit signed authorization cards from second-shift em-
ployees.11 While White, Cole, Smart and the Withams were
thus engaged, Busche and Knox stationed themselves in
the management parking lot for 15 or 20 minutes.
Absent evidence showing an intent to intrude upon its
employees' union activity, Respondent had the right to
observe employee conduct on its premises . Georgia Hosiery
Mills, 207 NLRB 781 (1973). Here, Respondent's intent to
intrude upon its employees union activities was evidenced
on the morning of October 16, when Foreman Granger
and Superintendent Mendenhall prohibited Smart from
soliciting signed union authorization cards and Foreman
Retael removed prounion signs from employee-owned
toolboxes.
The length of time Busche remained in the area of the
union activity also supports the thesis that he was there for
unlawful purposes . Surely Busche's successful and lawful
attempt to remove the Molders representative from
Respondent's premises on the evening of October 16 did
not require him to remain in the vicinity of the union
activity more than a few moments . Yet he remained for
approximately 1 hour, departing only when the union
activity ceased . Again , the following evening, he observed
the union activity for an unnecessary length of time after
learning that the Molders representative was not trespass-
ing.
The foregoing and Respondent 's failure to offer any
other explanation for Busche 's conduct convince me that
he was not simply observing employee conduct . Instead, I
find that Busche was seeking to interfere with the
employees' union activity by his presence, and also sought
the identity of those employees who were union activists
and supporters . Accordingly, I further find that by
Busche's conduct in this regard , Respondent violated
Section 8(axl) of the Act.
11 Except as otherwise noted, my findings regarding the October 17
incident are based on Smart'a and Witham 's testimony. Busche did not deny
their assertions and conceded an uncertain recollection of that evening's
incident . Knox flatly denied that he accompanied Busche during the
October 17 incident . However, as both Smart and Witham appeared certain
B. Alleged Discrimination Against John W.
Smart, Jr.
The Facts 12
Respondent hired John W. Smart, Jr., on May 3 as a
machine operator in its paint department, at $2.60 per
hour. After 12 days, Respondent promoted Smart to group
leader with a 20-cent hourly wage increase. Thereafter, on
July 9, Respondent granted Smart a second such increase.
Finally, on January 7, 1974, Smart received a 10-cent
hourly wage increase. From October 1973 until February
25, 1974, Foreman William Holt was Smart's immediate
supervisor.
Smart assisted both Local 414 and the Molders in their
organizing campaigns at Respondent's plant. On October
10, he executed an authorization card for Local 414. Smarr
also solicited 20 or 30 fellow employees on behalf of Local
414. However on October 15, Smart changed allegiance by
signing a Molders authorization card.
On the morning of October 16 Smart began openly
campaigning for the Molders at Respondent's plant. As
found above, Foreman Granger stopped Smart's union
activity shortly before the beginning of the day shift and
reported Smart to Production Manager Mendenhall, who
told Smart to abstain from such activity until he,
Mendenhall, could ascertain Smart's right to do so.
Smart worked until 11:30 a.m., at which time, without
seeking permission from his supervisor, he went to lunch
downtown with Foreman Frank Retael. Smart's scheduled
lunch period was from noon to 12:30 p.m. While on his
October 16 lunchbreak, Smart telephoned the Molders to
confirm his right to solicit authorization cards during
nonworking time. He returned to work at noon.
Mendenhall, who also took his October 16 lunchbreak
downtown between 11:30 a.m. and noon, saw Smart. As
soon as he returned to the plant, Mendenhall investigated
the circumstances surrounding Smart's early lunchbreak.
Mendenhall quickly learned that Smart had not received
permission from his foreman to take the unscheduled
break. The following day, Smart received a written
reprimand from Mendenhall for his unauthorized lunch-
break. On two prior occasions, Smart had taken similar
early lunchbreaks with the permission of his then foreman,
Retael. In early 1973, employee Frankart received an oral
reprimand from Foreman Ralph Thomas for taking his
lunchbreak at 11:30 a.m. instead of noon, as scheduled.
On the evenings of October 16 and 17, employee Smart
solicited the signatures of second shift employees, just
outside Respondent's plant. On or about October 19,
Respondent received a letter from the Molders which
announced the names of an in-plant organizing committee
of nine employees. "John W. Smart, Jr." was the first name
listed on the committee roster. As found above, at this time
Foreman Retael told Smart: "You should have waited a
little while before you got started with this union." When
Smart asked "Why?" Retael responded that Smart had
of Knox's presence, and impressed me as conscientious about providing
honest recollections , I have credited their testimony.
12 Except as otherwise stated my findings of fact regarding this portion
of the case are based on a composite of the testimony and evidence
introduced by the parties.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"lost a big pay raise because of it." I have also found that
Foreman Ralph Thomas remarked to Smart I week later
that Respondent had withheld a wage increase for its
employees because of union activity.
In mid-November, Smart and employee David Cole
conferred with Plant Manager Cauhorn regarding the
possibility of improving wages and working conditions at
the plant . Cauhorn remarked that he had more authority
than his predecessor had and could improve wages and
"get the place cleaned up." Smart replied that the
employees wanted other benefits such as a pension plan
and a grievance procedure. Cauhorn also stated that an
unidentified individual had suggested that he "fire some-
body in the plant for union activity" and that, he, Cauhorn
had rejected the proposal . In a second conversation
between Cauhorn, Smart , and Cole, I week later, Cauhorn
repeated the story of the recommended discharge. This
time he revealed that the employee suggested for discharge
was Smart.
In mid-December, Smart requested Foreman Holt's
permission to leave work early because of illness. Holt
replied that he would check with higher supervision. Holt
finally gave permission for Smart's early departure, but
directed him to "bring in a doctor 's slip before you return."
Smart had received permission to leave work early because
of illness on two previous occasions-once in August and
once in September . In both instances, his foreman, Retael,
granted the permission immediately on request and
without the requirement of a doctor's slip. In January 1974,
Smart had a similar experience when he asked his then
foreman Granger for permission to leave work because of
illness.13
Employee Roger Witham, in Respondent's employ since
the spring of 1973, credibly testified that his supervisor
advised him of Respondent 's requirement of a doctor's slip
to support sick leave request . However, his credited and
undisputed testimony also shows that Respondent request-
ed a doctor's slip from him on one of the three occasions he
had taken sick leave during his tenure with Respondent.
On another occasion, within the 12 months preceding the
hearing, Foreman Ralph Thomas required a doctor's note
from employee Frankart upon the latter's return from a
few hours' sick leave.
On January 23, 1974, Respondent issued two written
warnings to Smart . The first warning alleged "Absenteeism
and tardiness high." The second warning charged that
Smart 'Id ]id not obey reasonable order given by foreman. "
In explanation of the absenteeism and tardiness allega-
tion , the first warning notice declared:
This employee has missed 4 working days and was late
once this month . This is equal to 32% of his working
time. This cannot be tolerated. If this employee does
not improve his attendance record, this will result in a
higher penalty.
Respondent's records show, and Smart conceded in his
testimony that he was absent from work on January 7, 8,
10, and 21 , 1974, and that he was late for work on the
13 I have attached no probative value to employee Cole's testimony in
response to the General Counsel 's vague , leading questions regarding
morning of January 23, 1974. General Counsel through
Plant Manager Cauhorn's testimony and Respondent's
records showed that during the period from February 1973
through and including January 1974, 13 of Respondent's
production employees with monthly records of absence
and tardiness similar to or worse than John Smart 's record
for January 1974 received no written warnings from
Respondent . In response, Respondent introduced evidence
showing that during the same period , 12 other employees,
whose records of absences and tardiness were equal to or
lower than John Smart 's January 1974 record received
written warnings.
The details recited in Smart's second reprimand were as
follows:
On 1-22-74 this employee was told by his foreman to
clean up around the paint line and also to bring in a
barrel of gray paint. He did neither.
Holt, who was Smart's foreman at this point, testified
credibly in greater detail about this incident and confirmed
the foregoing report . In his testimony , Smart conceded that
he protested against Holt 's direction to bring a barrel of
paint into the plant, and did not comply with it. Smart did
not dispute the remainder of the reprimand . Also Smart
conceded that he had caused another employee to receive a
similar reprimand for failing to comply with Smart's
instructions.
On or about February 15 Superintendent Mendenhall
directed Smart to fill out job analysis cards showing the
amount of time required to perform the tasks making up
his machine setting job . Mendenhall also assured Smart
that Jack Mosier, the machine setter on the second shift,
would receive a similar assignment . When Smart inquired
as to the duration of the job analysis, Mendenhall replied:
"[U ]ntil we fmd out." Plant Manager Cauhorn credibly
testified that the job analyses were required for budgetary
purposes . During early February 1974, Foreman William
Holt requested transfer to an hourly production position.
Holt's last hourly position had been as group leader, the
position -held by Smart on the day shift and by employee
Mosier on the night shift.
Plant Manager Cauhorn's undisputed and credited
testimony shows that with respect to job bumping and shift
preferences among its production employees , seniority
based on length of service with Respondent is the
determinant.
In this instance, Cauhorn made the decision , knowing
that Smart had the least seniority of the three. Plant
Manager Cauhorn was aware of Smart 's union activity and
of the unfair labor practice charge filed in Case 25-CA-
6118 on February 18, 1974, which alleged that Respondent
had previously discriminated against Smart . Cauhom
feared that notwithstanding the seniority factor , Smart's
demotion would trigger another such allegation. He
therefore sought and received advice from Respondent's
home office which he followed in satisfying Holt's request.
On or about February 20, Superintendent Mendenhall
advised Smart of Respondent's decision to replace him
Respondent's sick leave policies.
PHILLIPS INDUSTRIAL COMPONENTS 893
with Foreman Holt. Smart complained , "I don't think it is
very fair that you are doing this." Mendenhall replied that
Holt had "more time" than Smart . At this, Smart conceded
in substance that he would withdraw his protest if Holt had
"more time on set up." Mendenhall said he would
investigate this point . Soon thereafter , Mendenhall conced-
ed to Smart that he had 2 more months on set-up than Holt
did. In the ensuing argument, Mendenhall also declared in
substance that Holt would be transferred into Smart's job.
On February 21 or 22, Respondent's home office directed
Cauhorn to begin a general layoff on February 25.
Cauhorn complied with that directive. On February 25,
Respondent began a general layoff, which , for Smart,
ended on March 25, 1974. Holt's layoff was of 3 days
duration . Respondent recalled Smart as a bullard operator
at $3.30 per hour. However, the day after he appeared for
work , Respondent changed his assignment to that of
custodian at $2.40 per hour. At the time of the hearing
Smart was a material handler earning $3 per hour.
2. Analysis and conclusions
General Counsel contends that Respondent's treatment
of Smart as detailed above was "a pattern of discrimination
... in violation of Section 8(a)(1) and (3) of the Act."
Respondent argues that its treatment of Smart was
motivated by factors unrelated to his union activity or
sentiment . There is no question that Smart suffered at
Respondent's hands . However, I find that the General
Counsel has failed to sustain his burden of showing
Respondent 's intent to punish Smart for his union activity
by resorting to disparate treatment.
In light of Respondent 's unfair labor practices as found
above in this Decision, I have little doubt that Respondent
was hostile toward Smart's union activity which surfaced
on the morning of October 16. However, I find no
substantial disparity between the treatment Respondent
accorded Smart , as detailed above, and that accorded
other employees in similar circumstances.
Turning to the first of his written reprimands , I find little
to cast suspicion on its issuance . Smart admitted that
Respondent had advised him prior to October 16 that his
authorized lunch period was from noon to 12:30 p.m.
Foreman Ralph Thomas admonished employee Frankart
for taking an unauthorized lunch period 6 months earlier.
It thus appears that Respondent was enforcing a standing
policy when it also reprimanded Smart for taking an
unauthorized lunch period on October 16. That a written
rather than a verbal reprimand was issued to Smart does
not impress me as a substantial difference in treatment.
I also find nothing suspicious in Respondent 's insistence
that Smart supply a doctor's note to support his request for
sick leave in December . Counsel for the General Counsel
has not demonstrated that this was a unique or rare
incident . Instead, it appears from the record that Respond-
ent's policy is to require such notes when employees
request time off from work due to illness . However, it also
appears that Respondent's supervisors, including Superin-
tendent Mendenhall , have not enforced the policy uni-
formly. Indeed , on two previous occasions, and again in
January 1974, Respondent granted Smart's requests for
such leave without requiring such a note . On the other
hand, the record shows that during the year preceding the
hearing, Respondent required employees Witham and
Frankart, respectively, to submit doctor's notes on their
return from sick leave. Thus, Respondent's request for such
a note from Smart in December was not without
substantial and recent precedent.
Nor do I find the issuance of reprimand to Smart for
excessive absence and tardiness on January 23, 1974, a
remarkable departure from Respondent's practices. For,
while General Counsel introduced evidence showing that
employees with worse records of absence of tardiness than
Smart's did not receive written reprimands, Respondent
countered with evidence showing a considerable number of
employees with the same or less absences and tardiness
also received written reprimands. It thus appears that for
some reason not shown on the record, Respondent is
inconsistent in its treatment of absenteeism and tardiness.
Against this backdrop, Smart's reprimand for three
absences and one instance of tardiness in January 1974
appears as an example of Respondent's inconsistent
practice.
Smart's second reprimand on January 23 was wholly
warranted. The allegation of disobedience has been firmly
established on the record. Further, Smart himself spon-
sored a similar reprimand for an employee who neglected
to carry out one of his instructions.
The evidence does not support a finding that Respond-
ent displaced Smart from his position as set-up man in
reprisal for his union activity. There is no evidence to cast
suspicion on Foreman Holt's request for transfer to rank-
and-file status . Thus, the focus of concern falls on the
Respondent's selection of Smart for demotion. However,
General Counsel has not shown that Smart's selection was
a departure from Respondent's usual practice in job
bumping among its production employees. Further, Plant
Manager Cauhorn's credited and unchallenged testimony
evidences a good-faith effort to deal with Holt's request in
accordance with Respondent's policy. Holt's last job
before his elevation to foreman had been as a paint line
group leader . It was entirely within reason for Respondent
to restore him to that job. After that decision was made,
Respondent's seniority policy dictated Smart's selection as
the one to give way to Holt. That Smart suffered a 1-month
layoff as a result of this job transfer does not provide
ground for finding unlawful discrimination. For it appears
that Cauhom was unaware of the pending layoff at the
time of his decision, and Smart's fate was shared by other
employees.
Finally, I see no ground for rejecting Respondent's
reasonable explanation for requiring Smart to fill out job
analysis reports. General Counsel has not attempted to
refute this explanation but challenged Smart's selection for
that task . The assignment of that same task to Mosier, the
only other paint line group leader, coupled with Respond-
ent's unchallenged need for the information overcomes the
suggestion that this assignment was designed to burden
Smart in reprisal for union activity.
In sum, I find that the record as a whole does not
support the General Counsel's thesis that Respondent
singled Smart out for a 5 -month campaign of harassment
designed to punish him for his part in the union organizing
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign . Accordingly, I shall recommend dismissal of
this portion of the complaint.
VI. REPORT ON OBJECTIONS AFFECTING THE RESULTS
OF THE ELECTION IN CASE 25 -RC-5517
Having found that during the critical period between the
filing of the representation petition on October 15, and the
date of the election , November 30 (Ideal Electric Company,
134 NLRB 1275, 1278 ( 1961)), Respondent violated
Section 8(a)(l) of the Act, as set forth in section IV of this
Decision, it follows that the election must be set aside, and
I so recommend . Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-87 (1962); Leas & McVitty, Incorporat-
eL 155 NLRB 389, 390-391 (1965). Accordingly, I shall
recommend that the election held on November 30, in
Case 25-RC-5517 be set aside , and that said case be
remanded to the Regional Director for Region 25 with
directions to conduct a new election at an appropriate
time.
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and
coercing the employees, as found herein, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not violated Section 8(aX3) and (1)
by discriminating against John W. Smart, Jr.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having found
that Respondent, by terminating Arthur Ort's employment
and thereafter failing and refusing to reinstate him,
interfered with, restrained, and coerced him in the exercise
of rights guaranteed by the Act, I shall recommend that
Respondent be ordered to offer Ort immediate reinstate-
ment to his former position or, if it no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights and privileges . I shall recommend
that Respondent make him whole for any loss of earnings
he may have suffered by reason of his discharge. Such
backpay and interest shall be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest at 6 percent per annum as prescribed
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order , and all objections thereto shall be
The Respondent , Phillips Industrial Components , Inc., a
wholly-owned subsidiary of Phillips Industries , Inc., its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employees in regard to hire or tenure of employment or
any term or condition of employment for engaging in any
activity protected by Section 7 of the Act.
(b) Advising employees that Respondent is withholding
wage increases or other improvements in the employees'
wages , hours, or conditions of employment because of their
activities in support of, or adherence to Local 414,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or International
Molders and Allied Workers Union , AFL-CIO-CLC, or
any other labor organization.
(c) Coercively interrogating employees regarding their
union membership, activities , or sympathies.
(d) Engaging in surveillance of the union activities of its
employees or in conduct which gives the impression of
such surveillance.
(e) Promulgating , maintaining, or enforcing any rule
which prohibits employees from engaging in union
solicitation during nonworking time or from distributing
union literature in nonwork areas during nonworking time.
(f) Prohibiting or otherwise restricting or interfering in
any manner with the display of prounion bumper stickers
by its employees on their toolboxes , or other personal
property.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form , join, or assist the
above-named labor organizations , or any other labor
organization , to bargain collective ly through representa-
tives of their own choosing , and to engage in other
concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection or to refrain from any
or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Arthur Ort immediate and full reinstatement to
his former job or , if that job no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights or privileges , and make him whole
for any loss of pay he may have suffered as a result of his
unlawful discharge in the manner provided in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination or copying, all payroll
records , social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order.
(c) Post at its plant at Albion , Indiana , copies of the
attached notice marked "Appendix ." 15 Copies of said
notice , on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
deemed waived for all purposes.
rs In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
(Continued)
PHILLIPS INDUSTRIAL COMPONENTS
authorized representative, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places , includ-
ing places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
16 In the event Respondent fails or refuses to comply with the terms of
895
IT IS FURTHER ORDERED that the complaints be, and they
hereby are, dismissed insofar as they allege unfair labor
practices not specifically found herein.
IT IS FURTHER ORDERED that the election held on
November 30, 1973, in Case 25-RC-5517 be, and the same
is hereby set aside, and said case is hereby remanded to the
Regional Director for Region 25 to conduct a new election
at such time as he deems that the circumstances permit the
employees to express their free choice regarding the
selection of a collective-bargaining representative.16
the Order in Case 25-CA-5992 , the Regional Director is authorized to
conduct the new election upon written request of the Union. Ideal Baking
Company of Tennessee, Inc, 143 NLRB 546, 554, fn. 9 (1963).