Reeves Rubber, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1980

252 N.L.R.B. 134 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reeves Rubber, Inc. and Communications Workers
of America, Local 11511, AFL-CIO. Cases 21-
CA-17635 and 21-CA-17947
DECISION AND ORDER
On June 30, 1980, Administrative Law Judge
James T. Barker issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Reeves Rubber, Inc., San Clemente, California, its
'In the absence of exceptions thereto, Chairman Fanning and Member
Jenkins adopt, pro formna, the Administrative Law Judge's discussion of
the no-solicitation rule. See their dissent in Essex International Inc., 211
NLRB 749 (1974).
The Administrative Law Judge inadvertently stated that Respondent's
personnel administrator, Joan Dobbie, received no answer to two of the
telephone calls she made in an attempt to recall Thomas Jones. The
record shows that Dobbie did receive answers but Jones was unknown at
both numbers.
2 Respondent excepted to the portion of the Decision in which the Ad-
ministrative Law Judge found that Respondent's attempt to recall
Thomas Jones was not a valid recall effort and, therefore, not sufficient
to toll the backpay liability period. We agree with the Administrative
Law Judge's conclusion that the recall effort did not toll Respondent's
liability. The one-time telephone calls, none of which reached Jones,
were the total extent of Respondent's recall effort, and did not constitute
bona fide offers. Other sources were available which, if utilized could
have possibly provided information as to how to contact Jones. See, e.g.,
Marlene Industries Corporation, et al. 234 NLRB 285 (1978), where the
Board held that one letter, which an employer knew did not reach the
employee, did not constitute a bona fide offer of reinstatement. In that
case, the Board noted that the employer could have consulted the tele-
phone directory, the union, the employee's new employer, and other em-
ployees. See also Gladwin Industries. Inc., 183 NLRB 280 (1970); Monroe
Feed Store, 122 NLRB 1479 (1959). Likewise, in the instant case, Re-
spondent had the name of one of its employees whom Jones had listed as
a reference on his application. We also note that Respondent did not send
a letter to Jones or even contact his Union in an effort to notify him. We
do not hold that a bona fide offer necessitated Respondent's actual com-
munication with Jones, see Jay Company, 103 NLRB 1645, 1647 (1953),
enfd. 227 F.2d 416 (9th Cir. 1954), but rather that in order to toll its
backpay liability Respondent must make a a good-faith recall effort calcu-
lated to remedy the wrong which it initially committed by unlawfully
laying off Jones.
3 The Administrative Law Judge included a broad cease-and-desist
provision in his recommended Order. In Hickmott Foods. Inc., 242 NLRB
1357 (1979), the Board held that such an order is warranted only when a
respondent is shown to have a proclivity to violate the Act, or has en-
gaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights. We
find this case does not fall into the above category. We therefore substi-
tute a narrow cease-and-desist provision for the broad one in the recom-
mended Order and conform the notice accordingly.
252 NLRB No. 26
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as so modified:
1. Substitute the following for paragraph l(k):
"(k) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate our employees
concerning their union preference.
WE WILL NOT threaten the job interest or
tenure of our employees because they wear
union badges, buttons, or insignia.
We will not inform our employees that they
have lost pay increases and other benefits
which would have accrued to them if they had
not selected the Union as their collective-bar-
gaining representative.
WE WILL NOT disparage the Union as an ef-
fective collective-bargaining representative of
our employees.
WE WILL NOT inform our employees that
they would be better off to forget the Union
and vote it out.
WE WILL NOT request employees to wear
badges, insignia, and/or clothing bearing slo-
gans against the Union.
WE WILL NOT, through supervisory person-
nel, engage in distribution of badges or insignia
opposing the Union.
WE WILL NOT, through supervisory person-
nel, engage in the stenciling of clothing bear-
ing the slogans opposing the Union or favor-
ing ouster of the Union.
WE WILL NOT give disparate or discrimina-
tory application to our rule prohibiting solici-
tation or distribution of literature in the plant
on worktime by prohibiting said activities by
employees favoring the Union while permit-
ting solicitation and distribution of materials
134
REEVES RUBBER, INC.
opposing the Union during worktime in the
plant.
WE WILL NOT place employees in a position
of having to declare their union preference.
WE WILL NOT issue a warning notice to Ta-
filele Mauga, or any other employee, threaten-
ing termination for engaging in solicitation in
the work area of the plant on worktime, while
permitting similar activities on the part of em-
ployees opposed to the Union in the working
area during the worktime.
WE WII.L NOT effectuate the layoff of
Thomas Jones, or any other employee, because
of their support of, or activities on behalf of,
the Union, or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to join, assist,
or support Communications Workers of Amer-
ica, Local 11511, AFL-CIO, or any other
labor organization; to engage in collective bar-
gaining through representatives of their own
choosing; to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection; or to refrain
from such activities.
WE WILL offer Thomas Jones immediate
and full reinstatement to his former or substan-
tially equivalent position of employment, with-
out prejudice to his seniority or other rights
and privileges previously enjoyed and make
him whole for any loss of pay which he may
have suffered by reason of the discriminatory
layoff, with interest.
WE WILL rescind the disciplinary warning
issued to Tafilele Mauga on February 8, 1979,
and shall expunge from personnel and other
records all references to said notice. Written
notification of this action will be given to Tafi-
lele Mauga.
REEVES RUBBER, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This
case was heard before me at San Diego, California, on
January 28-30, 1980, pursuant to an order consolidating
cases, consolidated amended complaint, and amended
notice of hearing issued on August 24, 1979,' by the Re-
gional Director of the National Labor Relations Board
for Region 21. The consolidated complaint, as amended,
is based on charges filed by Communications Workers of
America, Local 11511, AFL-CIO, hereinafter called the
Unless otherwise specified, all dates herein refer to the calendar year
1979.
Union. The amended consolidated complaint alleges vio-
lations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended, hereinafter called the
Act. 2 The parties were provided full opportunity to ex-
amine and cross-examine witnesses, introduce relevant
evidence, present oral argument, and to file briefs. Coun-
sel timely filed briefs.
Upon the basis of the entire record, my observation of
the witnesses, and the briefs of the parties, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent Reeves
Rubber, Inc., has heen a corporation organized under the
laws of the State of California and operates a facility lo-
cated in San Clemente, California.
In the normal course of its business operations, Re-
spondent annually sells and ships goods and products
valued in excess of $50,000 directly from customers lo-
cated outside the State of California.
It is admitted, and I find, upon the basis of the forego-
ing facts, that at all times material herein, Respondent
has been an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that at all times ma-
terial herein, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are:
1. Whether Respondent violated Section 8(a)(5) and
(1) of the Act by:
(a) Prohibiting employees from engaging in activities
on behalf of the Union either in working or nonworking
areas of the plant while concurrently permitting and/or
assisting employees to engage in activities against the
Union during working time in working areas.
(b) Threatening employees with discharge or other re-
prisals for engaging in union or other protected concert-
ed activities.
(c) Placing employees in the position of having to de-
clare their union preference to representatives of Re-
spondent.
(d) Requiring employees to wear antiunion insignia on
their clothing.
(e) Encouraging employees to decertify the Union as
the collective-bargaining representative.
2 Testimony pertaining to a strike which commenced on April 9, 1980,
was offered but further litigation of the issue was precluded on represen-
tations by counsel for the General Counsel that, in substance, the evi-
dence was for the purpose of developing a complete record and was an-
ticipatory in nature in that the employees had not sought to end their
strike and return to work. The complaint does not allege an unfair labor
practice strike
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Making statements to employees which indicated
the futility of the collective-bargaining process.
(g) Informing employees that wage increases and other
benefits had been withheld because the employees had
selected the Union as the collective-bargaining repre-
sentative.
2. Whether Respondent violated Section 8(a)(3), (5),
and (1) of the Act by:
(a) Issuing an official disciplinary warning to employee
Tafilele Mauga, because he had engaged in union or
other protected concerted activities, and thereafter, fail-
ing and refusing to rescind said warning.
(b) Laying off Thomas Jones because he had engaged
in union or other protected concerted activities, and
thereafter failing and refusing to recall Jones.
B. Pertinent Facts
1. Background facts
Respondent is involved in the manufacturing of rubber
products, including gasket materials which are used as
sealing components for piping systems. Respondent oper-
ates three plants where approximately 350 employees
comprise the complement. At its San Clemente and
Laguna Nigel locations in the State of California, ap-
proximately 225 employees are employed, and the bal-
ance of the complement is employed at a plant in Ala-
bama. The production and maintenance employees at the
Alabama plant are represented by the United Rubber
Cork and Linoleum Workers of America. A collective-
bargaining agreement covering these employees has been
in effect at all relevant times.
At relevant times William Krames has been vice presi-
dent of Respondent's manufacturing operations with au-
thority over the manufacturing operations of the San
Clemente plant. Joan Dobbie has served at pertinent
times as personnel administrator with responsibilities in
the area of recruitment, layoff, recall, and discharge of
personnel. Harold Gangloff has been Respondent's tool
design engineer, and Ronald Doloquist has served as
production engineer. Like Dobbie, they report directy to
Krames. The supervisory status of these individuals is
not in issue. Dolquist has supervisory responsibility over
the mold operation, the two pressrooms and the related
support departments where approximately 65 unit em-
ployees are employed. Kenneth Jerue, Jim Deleo, and
Rocky Aukoso are the line supervisors who directed the
work of these employees. Four mold department em-
ployees reported directly to Gangloff.
Respondent operates three 8-hour shifts. The first shift
commences at 8 a.m., the second shift starts at 4 p.m.,
and the third shift reports at 12 midnight. During each
shift, the employees are accorded a lunch time and two
break periods. Jerue supervises the operations of the em-
ployees pertinent to this proceeding who were employed
on the first shift, Deleo is a supervisor on the second
shift, and Aukoso directs employees on the third shift.3
Dolquist's duty hours coincide essentially with the hours
of the first shift, and he is seldom in the plant during the
3 The credited testimony of William Krames supports the foregoing
findings, which are not in dispute.
other shifts, although he could be contacted by tele-
phone if the need arose.
On August 4, 1978, in a secret-ballot election conduct-
ed under the supervision of the Regional Director for
Region 21, a majority of the approximately 150 produc-
tion and maintanance employees at the San Clemente
plant selected the Union as their representative for the
purpose of collective bargaining, and on August 15,
1978, the Regional Director certified the Union as the
exclusive collective-bargaining representative in the fol-
lowing unit:
All production and maintenance employees em-
ployed by Respondent at its facility located in San
Clemente, California; excluding all other employees,
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
Commencing in October 1978 and continuing through
November 1979, representatives of Respondent and the
Union engaged in numerous formal collective-bargaining
sessions. 4
In the meantime, prior to the August 4 election,
Krames and legal counsel for the Company had met with
the managers and supervisors employed at the San Cle-
mente plant. The initial meeting lasted approximately 4
hours, and dealt with conduct permissible on the part of
supervision vis-a-vis employees during the course of an
organizing campaign. Impermissible conduct was also de-
lineated, and the supervisors were specifically instructed
not to encourage or participate in any organizing effort,
not to threaten employees with disciplinary action be-
cause of their organizing activities, and not to force em-
ployees to show their preferance with respect to a choice
of a bargaining representative. During the course of the
meeting, the Company's existing no-solicitation rule was
discussed.5 The rule provides:
1. No employee is allowed to solicit another em-
ployee or distribute literature to other employees or
sell merchandise to other employees during either
their work time or the work time of those employ-
ees to whom the selling distributing or soliciting is
directed.
2. Distributing of literature is prohibited at all times
in work areas of the plant. Employees are instructed
not to place literature or handbills in or on vehicles
parked on Company premises.
3. Solicitations for any purpose by non-employees
on Company property is strictly prohibited at all
times.
4. Occasionally small groups of employees may
wish to contribute to a joint gift for a co-worker
such as for retirement, going-away, baby or bridal
The pleadings and a stipulation of the parties establishes the forego-
ing.
I Prior to its promulgation, the details of the rule had been discussed
with supervision, and in January 1978 a bulletin defining Respondent's
policy controlling solicitations and distributions of literature on plant
premises was posted. Later, in June 1978, another bulletin was published
reiterating that policy.
136
REEVES RUBBER, INC.
shower. This practice will be allowed only as long
as it remains purely voluntary, occurs during breaks
or lunch periods and happens only occasionally.
Additionally, parties and luncheons for retirement,
going-away, bridal or baby showers should be
scheduled within normal breaks and lunch periods
allotted. Parties which will extend beyond such a
time limit should be scheduled after working hours.
In late July, Krames met again with the managers and
supervisors of the San Clemente operation, and the prog-
ress of the union organizing effort was evaluated and dis-
cussed. Respondent's counsel was present. The managers
and supervisors were instructed that they should engage
in no conduct which would jeopardize the Company's
position in the election and cause the election to be set
aside. The rules of proper conduct on the part of the su-
pervision toward employees during the organizing cam-
paign and the preelection period were reiterated and
reenforced.
On or about August 18, following the election in
which the Union prevailed, Krames met again with the
managers and supervisors of the plant, and, in essence,
informed them that the Company intended to bargain in
good faith with the Union and instructed them not to
engage in conduct which would reflect adversely upon
the Company. Krames admonished that he desired no
threats, interrogation, or reprisals against employees who
had openly declared their union preference and wanted
no supervisory interference with the wearing of insignia
or buttons partial to the Union. Krames also instructed
the supervisors and managers not to engage in any an-
tiunion campaign or to discourage the collective-bargain-
ing process or project the inevitability of strikes. Dol-
quist, Gangloff, Jerue, and Deleo attended this meeting.6
2. The alleged proscribed conduct
a. Deleo speaks with employees
In January, following a work-related conversation
with his leadman, Gene McKee, Deleo asked McKee
what he thought about the Union. McKee responded
that he had not made up his mind and was otherwise
noncommital. Nothing more was said on that occasion.
Later, during the month of February, while McKee
and Deleo were conversing together, the topic of con-
tract negotiations was broached, and Deleo stated that in
the negotiations the Union was conforming to the Com-
pany's handbook and was not doing the employees "any
good." Deleo asserted that the employees might as well
forget about the Union and would be "a lot better off" if
on "July 5" they voted the Union out.
In March and April Deleo engaged James Aderholt
and Daniel Acosta in conversation concerning the
Union. In general, Deleo conveyed his opposition to the
Union and spoke negatively concerning the need of the
employees for union representation. Neither Aderholt
nor Acosta declared their preference to Deleo. On one
specific occasion in mid-March, Deleo told Aderholt that
6 The foregoing is based on the credited testimony of William Krames,
which is supported by credited testimony of Ronald Dolquist. Kenneth
Jerue, Earl Gangloff, and Deleo
the employees would not get the pay raise in October,
which would normally have been granted, because they
had selected the Union. Deleo went on to state that the
supervisors had received their raise as well as a credit
union benefit which had not been given the employees
because they had selected the Union.
In February, approximately 2 weeks after having been
initially employed by Respondent, Thomas Jones began
wearing union buttons declaring his support for the
Union. On ebruary 20 Deleo called Jones into the
office and asked him how long he had been working
there. Jones responded that he had been employed ap-
proximately 2 weeks. Deleo commented, "two weeks
and already you want to join a union .. . ." Deleo then
asked Jones if he knew anything about the Union, and
when Jones answered in the negative Deleo stated that
the employees were represented by the Communications
Workers of America and asserted, in substance, that the
Union could not represent the employees of Reeves be-
cause it was not familiar with the operation of rubber
plants. Deleo further stated that the employees had not
been "very smart" because they had voted in favor of a
union in August and had thereby lost a profit-sharing
plan which they normally would have obtained. He
stated that a strike might occur and that if Jones joined
the union he could not cross the "strike line" without re-
ceiving a fine. Deleo told Jones he had "better think
about wearing that [union] button." Soon thereafter,
Jones took his break in the cafeteria and observed Deleo
and other supervisors talking together looking in his di-
rection and laughing. He could not hear what was being
said. Later the same day, Deleo approached Jones and
said, "don't let the conversation we had over there in-
timidate you. If you think the union is right wear the
button if not, don't wear it." Deleo then went to the
stenciling machine and experimented with some procom-
pany stenciling designs.
Aderholt was transferred in March from his truckdriv-
ing assignment to a machine operator's job. On the first
day of his job as an operator, Aderholt was wearing a
union button. Deleo observed this and told Aderholt that
if he wanted to "make it" and "have a career" with the
Company he should get rid of his union button. Aderholt
removed the button. However, after the passage of sev-
eral workdays, Aderholt began wearing the button again
and Deleo approached him and asked him for the button.
Aderholt gave it to him. Deleo soon returned with the
button on which he had superimposed the Company's
logo. Deleo told Aderholt to wear the button, and Ader-
holt did so.
b. The union insignia incidents
By February, the wearing of procompany badges and
insignia by employees in the plant became somewhat
commonplace. Buttons containing the slogan "Together
We Grow" or "Vote No" made their appearance. Simi-
larly, T-shirts and garments bearing the stenciled slogan
"No Way CWA" also came into prominence. Also in the
months of spring and early summer, some circulation
was given to slogans imprinted on pieces of flashing (un-
marketable, excess rubber material from the mold proc-
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ess) bearing an inscription "Reeves Rubber, C.W.A.
sucks!" or "July '5' dump the C.W.A." both slogans bore
the simulated signature "Ben & God."
In February, Beverly Herman, a packer on the first
shift and wife of a supervisor employed by the Compa-
ny, distributed approximatley 25 "Together We Grow"
buttons and approximately 10 "Vote No" buttons to
other employees. She was assisted by another rank-and-
file employee in distributing buttons. Herman distributed
some of the buttons on worktime approximately 10 min-
utes prior to the morning break. In March, Deleo handed
Danny Acosta a union button which had been modified
by superimposing the Company's logo on the face of the
button. He also pinned a button of this description on
Aderholt's work hat on this occasion. At approximately
this time Deleo also presented a button bearing a compa-
ny logo to Simeta. In late March, Acosta also observed
Deleo give "Together We Grow" buttons to employees
he identified as Richie and Santana. Herman distributed
some of the buttons during working hours, and Deleo
presented all of his during worktime. 7
In February, McKee observed Henry Cantu, a mainte-
nance man, and Jim Deleo preparing a stencil. This was
being done shortly before breaktime on the second shift.
Then, after the 6 p.m. break, McKee observed Cantu and
Deleo at the packers' table stencilling smocks worn by
the female employees with the slogan "Stay With The
Best Stay With Reeves Rubber."
On February 20, Jones observed Deleo stencil a
woman's shirt with the slogan "I'm For Reeves Rubber."
The stenciling was accomplished at approximately 8 p.m.
during the course of the second shift.
Approximately a month later, in seeking to speak with
Deleo on a work related matter, Aderholt observed
Deleo stenciling a T-shirt with the slogan "I'm For
Reeves No Way C.W.A." Aderholt observed Deleo sten-
cil three or four T-shirts with this slogan and this tran-
spired at approximately I 11 p.m. during the course of the
second shift.8
In February, Deleo approached Noela Simeta as she
was working and asked her if she wanted her T-shirt
stenciled. It was "almost" breaktime. Simeta answered in
the affirmative and made the garment available to Deleo.
He returned with the T-shirt in approximately 5 minutes
and the T-shirt had been stencilled with the slogan "I'm
For Reeves Rubber No Way C.W.A," A figure of a but-
terfly had also been stenciled on the T-shirt. Simeta had
made no request that her T-shirt be stenciled. Deleo
stenciled other garments worn by employees at work.
Beverly Herman and Nancy Matot, a rank-and-file em-
ployee, stenciled "No Way C.W.A," and "Stay With
The Best Stay With Reeves Rubber" slogans on 15 or 20
7 The record establishes that "Together We Grow" and buttons were
distributed at a company picnic held in the aftermath of a 1972 labor dis-
pute, and Beverly Herman testified that she obtained the buttons which
she distributed from a left-over supply found in an office on company
premises used by her husband in pursuit of his normal supervisory duties.
Herman testified that she frequently ate her lunch at her husband's desk
and extracted these buttons without his permission or knowledge. No
buttons of the type here involved were utilized by Respondent in connec-
tion with the 1978 organizing campaign.
8 Aderholt interpolated the slogan slightly, but I find this no basis for
rejecting his testimony.
garments worn by employees during the course of the
work. Herman prepared the stencil for the first of the
two slogans, and the stencils were kept in a cabinet in
the work area of the plant near Kenneth Jerue's office.
On February 21, Roberts observed Herman and Matot
stenciling clothing with the latter of the two above-men-
tioned slogans. Their stenciling activities continued after
the 8 a.m. starting time of the first shift and continued
intermittently in the vicinity of Jerue's office. The activi-
ties were punctuated by levity and animation, and Jerue
was in his office. Several items of clothing were stenciled
at which point Roberts went into Jerue's office and told
Jerue that Herman and Matot were not supposed to be
carrying on stenciling activities on company time, assert-
ing that employees favoring the Union were not allowed
"to do union things on company time." Roberts added
that if Jerue did not put a stop to this stenciling activity
she, Roberts, was going "to report him to the union."
Jerue responded, "I don't give a damn, go ahead. " Rob-
erts left Jerue's office.
Soon thereafter, Jerue spoke to Matot and told her
that no stenciling of this type could be done during
working hours. Jerue did not speak to Herman.
In the normal ourse of carrying out their work respon-
sibilities, rank-and-file employees frequently and routine-
ly used the stenciling materials and equipment available
and situated in the work area of the plant.
c. The flashing material
On March 28 a coworker brought Roberts some pieces
of flashing material on which slogans in opposition to the
Union had been imprinted over the appellation "Ben &
God." The following morning, Roberts was in the plant
when Earl Gangloff, Ben Matot's supervisor, passed by.
Roberts showed him some pieces of flashing bearing the
inscriptions and asked Gangloff if he was aware of their
existence. Later in the day, Gangloff issued a written
warning to Matot containing the statement: "Employee
was warned about stamping anything in molds about
C.W.A. Disciplinary action will he taken if this happens
again."
d. The prohibition against solicitations
Prior to January 1978, Krames had been made aware
of the practice of many employees soliciting fellow em-
ployees for contributions to several causes and offering
for sale miscellaneous items and merchandise. He re-
ceived complaints from other employees and, as found,
promulgated and posted the rule governing this type of
conduct which remained in effect at all times pertinent
herein. After January 1978, solicitations and activities
falling within the intendment of paragraph 4 of this rule
were permitted. On the third shift in January, collections
for participation in a Superbowl pool were made during
worktime, and in February on the same shit during work
time, contributions were solicited and collected on behalf
of an employee who was returning to Hawaii. The shift
supervisor was in the lunchroom when the first collec-
tion was made but was in the work area of the plant on
the second occasion. No warnings were issued. Howev-
er, on April 26 a written warning was issued to Nancy
138
REEVES RUBBER, INC.
Matot for selling eggs to employees on worktime. The
warning noted that the conduct could not "be tolerated"
and that any further occurrences would "result in addi-
tional disciplinary action."
In the meantime, during the month of March, Roberts
was wearing a button identifying her as a union ste-
ward.9 Jerue approached her and asked her how she
could be a union steward when her contract was in
effect. Roberts made no reply, and Jerue walked in the
direction of the main office. He later approached Roberts
again and stated that she could not pass out union litera-
ture or union cards during working hours.
On the night of February 5, Tafilele Mauga, an em-
ployee who worked on the third shift, entered the plant
approximately 10 minutes prior to the 12 midnight start
of the third shift. Upon entering the plant, Mauga
walked through the lunchroom and exited the door near
the trimming department. Mauga's intention in entering
the trimming department was to present a union mem-
bership card to Noela Simeta, a rank-and-file employee
on the second shift. However, the bell signaling the ter-
mination of the second shift and the start of the third
shift had not yet rung and the second shift employees
were lining up to clock out. At this juncture, Deleo ob-
served Mauga and told him that he must wait until 12
o'clock before he entered the work area of the plant. Ac-
cordingly, Mauga stood next to Deleo, and as Simeta
passed by him after clocking out, he presented her with a
union-membership card. The bell indicating the start of
the third shift had rung at the time Mauga presented the
authorization card to Simeta. Deleo admonished Mauga
that he should not be handing out cards on his worktime.
Mauga had been free to enter the lunchroom or walk in
the work area on previous occasions.
e. The disciplinary warning-Mauga
On the morning of February 8, Dolquist received a
note from Deleo with respect to Mauga suggesting that
Dolquist speak with Aukoso concerning Mauga. Dol-
quist spoke with Aukoso who stated that he had spoken
with Deleo concerning Mauga's activity in distributing
union-membership cards at the end of the second shift
and the start of the third shift. Aukoso also informed
Dolquist that he had received unsubstantiated reports
from rank-and-file employees to the effect that Mauga
had engaged in the distribution of literature on work
time on previous occasions. Aukoso and Dolquist decid-
ed that a written warning should issue based on a viola-
tion of work rule 16 which proscribes any "(F)ailure to
start work promptly at start of shift, or end of lunch
period or rest period." Aukoso prepared a written warn-
ing dated February 8 containing the following entry:
On numerous occasions during the past few days
you have been observed distributing union related
material to other employees during working hours.
You were verbally warned about this by a supervi-
sor on 2-7-79. Any further incidents of this nature
could result in your termination.
Roberts had received no official designation from the Union, but she
had served in a defacto capacity as a contact and conduit for employees.
Later in the day, when Mauga entered the lunchroom
at the beginning of his first break, Aukoso presented this
warning notice to Mauga together with another warning
slip and an excused absence document. Aukoso asked
Mauga to sign these documents, and Mauga signed the
excused absences document bt refused to sign the two
warning slips. The following day, Aukoso again ap-
proached Mauga and asked him to sign the February 8
warning notice and another warning slip. A discussion
ensued at which time Aukoso told Mauga to "watch"
out because the Company had learned that he was
"giving out cards." Mauga responded that before he'd
sign the warning slips he desired union representation.
Aukoso did not respond and walked away.
Dolquist testified, in substance, that rule 16 had been
consistently enforced at all times since its adoption, and
the warning notice of February 8 had issued because of
Mauga's failure to be at his work station when the bell
starting the third shift sounded. Dolquist also testified
that the first sentence of the warning notice of February
8 was based on information conveyed to Deleo by em-
ployees.
f. The layoff of Jones
Thomas Jones was employed by Respondent from
February 6 to February 23 when he was laid off. Jones
worked on the second shift in the trimming department
under the supervision of Deleo, who initially hired
Jones. Jones had learned of an employment opportunity
at Respondent's plant through a friend, Charles Powell,
an employee of Respondent, and after several contacts
was interviewed by Deleo who offered him employment.
Early in the course of his employment Jones signed a
union-authorization card and, as found above, during the
second week of his employment began wearing a union
button in the plant during duty hours. As found, Deleo
spoke to Jones concerning this on or about February 20.
On February 23, soon after the second shift com-
menced at 4 p.m., Deleo informed McKee that Jones
was being laid off. He stated that "the people in the
office" had instructed him to lay Jones off because there
was not enough work. McKee, who was Jones' leadman,
answered that the help was needed and Jones' layoff
would result in him performing "three jobs." Jones'
duties involved the operation of a large machine used by
trimming excess rubber from products and supplying
those products to inspection employees. In the perform-
ance of his duties, Jones assisted McKee, the leadman in
the trim department. Sometime later, Deleo approached
Jones and told him that it had become necessary to lay
him off. Deleo explained that there was insufficient work
for Jones, and Jones inquired if his lay off related to his
involvement with the Union. Deleo responded that the
Union had nothing to do with the decision, and Jones
would be recalled as soon as there was sufficient work.
In informing Jones of his impending layoff, Deleo
showed Jones the area where pending trim work was
normally stored. Jones inquired if there were another po-
sition in the extrusion department or on the press line in
which he could work. Deleo responded that there were
no jobs available in his department. However, Deleo
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transferred Jones to another job in order to provide him
with employment during the balance of the shift. At the
conclusion of the shift, Jones' layoff became effective.
Jones did not return to work in Respondent's employ.
From February 23 until approximately April 1, McKee
worked alone in the trimming department. Approximate-
ly I week after his layoff, Jones contacted Joan Dobbie,
Respondent's personnel administrator, by telephone and
inquired if there were any job openings. He was told that
there were none. Jones did not again attempt to contact
Respondent.
Respondent's layoff and recall procedures are defined
in its employee handbook. In pertinent part, the hand-
book provides:
When it is necessary to reduce the working force in
a department, probationary employees in the depart-
ment will be laid off first; thereafter, employees will
be laid off in the reverse order of their department
seniority. Laid-off employees shall be returned to
work in accordance with their seniority. Seniority
shall not be applied to the end that the Company is
unable to maintain an efficient working force. When
additional employees are necessary in any depart-
ment, and no employees having departmental se-
niority in such department are on layoff the Compa-
ny will recall laid-off employees from other depart-
ments. These employees will be recalled in the
order of their plantwide length of service to fill va-
cancies before hiring any new employees, provided
that such laid-off employees meet the job require-
ments and are capable of doing the work satisfacto-
rily, as determined by the Company.
Individual layoffs within a department are decided upon
by departmental management and supervision. Dolquist
reached the decision to effectuate a layoff in "the job
classification" occupied by Jones on February 23, and
conveyed this instruction to Deleo. In effectuating the
layoff of Jones, Dobbie followed normal layoff proce-
dures. In late March, a need for an employee in Jones'
former position recurred. Deleo instructed Dobbie to
recall Jones. On March 30, Dobbie placed telephone
calls to the three telephone numbers listed in Jones' em-
ployment application as telephone numbers at which he
could be contacted. One number was no longer in serv-
ice, and she received no answer to calls placed at the
other two numhers. Dobbie's only attempts at contacting
Jones telephonically were made on March 30. She did
not dispatch any written recall notice to Jones, nor did
she endeavor to effectuate notice to Jones through
Charles Powell, a pressman in Respondent's employ who
was listed as a reference on Jones' employment applica-
tion. Dobbie did not personally know that Powell had
referred Jones to the Company at the time of his initial
employment. Deleo did not recall that Powell had re-
ferred Jones. Dobbie testified that no written recall
notice was sent to Jones because he was a probationary
employee and under established routine consistently fol-
lowed no written notice of recall is given probationary
employees.
Deleo denies that Jones' union activity played any role
in his termination, and Dolquist denies any knowledge
that Jones had been active in behalf of the Union. Simi-
larly, Krames and Dobbie deny any knowledge of Jones'
union activity or any union-related considerations with
respect to his layoff or the failure of the Company to ac-
complish his recall.
Deleo, Dolquist, and Dobbie testified that a slowdown
in work in late February mandated layoffs on the second
shift under Deleo's direction. Neither Jones nor McKee
could detect any dearth of work for Jones to perform.
No documentary evidence was introduced in support of
the testimony that other layoffs were effectuated. Deleo
testified that vacancies did arise on the pressline during
March but that none existed or arose in the extrusion de-
partment between February 23 and late March when he
instructed Dobbie to recall Jones. Prior to February 23,
Respondent had employed pressline personnel who had
no previous pressline experience. However, the openings
which had arisen on the pressline in March were created
by the "short term" layoff of the incumbents and no con-
sideration was given to recalling Jones to those jobs.
Credibility Resolutions
The testimony of record, and specifically that of Wil-
liam Krames, Ronald Dolquist, Kenneth Jerue, Earl
Gangloff, and James Deleo, establishes the existence, at
all times subsequent to January 1978, of a rule limiting
solicitations and distribution of literature in working
areas of the plant during the worktime of employees.
Documentary evidence of record supports this testimo-
ny. While the record evidence establishes that collections
for floral offerings and football and baseball pools were
from time to time undertaken, I reject the testimony of
Freida Roberts and John Williams insofar as it may be
interpreted as exemplifying a permissive policy on the
part of supervision in tolerating substantial work time in-
terruptions for these purposes. I also reject the testimony
of Roberts to the effect that Nancy Matot sold cookies
on work time with the knowledge and acquiescence of
Jerue, and this rejection is based upon the credited testi-
mony of Matot and Jerue. However, I credit the testimo-
ny of John Williams with respect to collections undertak-
en in connection with the Superbowl, and the knowledge
attributable to supervision with respect thereto.
Additionally, the record testimony of William Krames,
as supported by credible testimony of other witnesses
called by Respondent, establishes the dissemination by
Krames of instructions to management and supervisory
personnel relating to conduct appropriate on the part of
company representatives in communicating and dealing
with employees concerning the question of representa-
tion by a labor organization, and the right of employees
freely to select their bargaining representative. I find,
primarily upon the basis of Krames' testimony, as sup-
ported by documents of record, that management and su-
pervisory personnel received specific instructions to
remain neutral and to engage in no threatening or coer-
cive conduct. I specifically credit Krames' denial that he
did not speak to Aderholt in the vicinity of the Banbury
mixer and did not comment to Aderholt concerning the
140
REEVES RUBBER. INC
wearing of a union badge, as testified by Acosta. On the
other hand, I find that, despite these instructions, on the
first shift, consistent with the credited testimony of Rob-
erts and contrary to Jerue's denial, Jerue tolerated some
duty time stenciling of antiunion clothing and intervened
to put a stop to it only after Roberts complained to Jerue
about the activities of Herman. Herman's testimony,
which finds support in that of Nancy Matot, establishes
that the stenciling of clothing was done in the plant and
proximate in time to the beginning of the first shift.
However, I reject the testimony of Herman and Matot to
the effect that they were circumspect in continuing their
stenciling activities to other than worktime. Rather, I
find, based on the testimony of Roberts, that stencilling
was carried on during duty hours. Moreover, I credit
Roberts, Vera Yslava, and Gertrude Estrada in finding
that "Together We Grow" buttons were distributed
during worktime by Herman. Further, I find, upon the
credited testimony of Gene McKee, James Aderholt,
Daniel Acosta, Noela Simeta, Thomas Jones, and Tafi-
lele Mauga, and contrary to the testimony of James
Deleo, that Deleo openly expressed his opposition to the
Union and that he engaged in overt conduct for the pur-
pose of limiting the particiption of employees in an effort
to counter an emerging, if subliminal, effort to decertify
the Union. '° In crediting the testimony of above-named
employee witnesses called by counsel for the General
Counsel with respect to the wearing of badges and the
stenciling activities which were carried out in the plant
on the second shift supervised by Deleo, I have carefully
scrutinized their testimony and have weighed that testi-
mony against denials and explanations proffered by
Deleo, and the testimonial representations of Helen
Nielo. Nielo's testimony to the effect that Simeta sten-
ciled her own T-shirt is rejected and Simeta's testimony
in this general vein is specifically credited. Moreover, in
rejecting the testimony of Deleo which is counter to the
findings above made with respect, (1) to conversations
which he had with employees, (2) the stenciling activities
carried on during the second shift, and (3) the display
and wearing of badges both in support of and in opposi-
tion to the Union, I act upon a conviction that Deleo lib-
erally rationalized his own conduct and entered denials
to involvement in specific events which run counter to
the weight of the credited testimony of record, and the
evidence generally. Moreover, Deleo's testimony with
respect to these matters appeared generally rationalized,
temporized, and evasive. Specifically, I reject Deleo's
testimony suggesting that his stenciling activities were
severely limited and undertaken during nonworking
hours and only at the request of two specific employees.
Moreover, I reject his testimony to the effect that he was
aware of no stenciling activities on worktime and had
not participated in the preparation of stencils or slogans
in opposition to the Union. Further, I do not credit
Deleo's testimony to the effect that in speaking with
Jones on February 20, he merely inquired if, as a new
10 The testimony of Daniel Acosta elicited on rebuttal to the effect
that Deleo told him that the Union was no good, and it would take 7 to
13 months to get the Union out through a vote is credited, but evaluated
merely as corroborative of evidence adduced by the General Counsel in
his case in chief.
employee, Jones "knew much about the Union." I credit
Jones in finding that Deleo's comments were not limited
to this inquiry but were more extensive, as found above.
The findings with respect to the limitation imposed by
Deleo upon Mauga's efforts to approach Simeta on the
night of February 8, and the related findings with re-
spect to the issuance of the disiplinary warning to
Mauga, are based upon Mauga's credited testimony eval-
uated in light of the testimony of Ronald Dolquist and
documentary evidence of record. I specifically reject
Deleo's testimony that when he spoke to Mauga about
wearing a union badge, he did so at a desk in the work
area and not in his office.
A composite of the testimony of Jones and Deleo
forms the basis for the findings relating to the layoff of
Jones. Deleo's testimony with respect to the sequence of
events on the day Jones was laid off has been credited
over that of Jones in those instances where variances
exist. However, I credit Jones in finding that when in-
formed of the impending layoff he specifically inquired
concerning openings in the extrusion department or on
the pressline and was told by Deleo that no openings ex-
isted and that to fill pressline jobs, prior experience was
necessary. On the other hand, I credit the testimony of
Deleo to the effect that no pressline jobs were open
when Jones was laid off and openings occurred only
later, during the month of March.
Conclusions
I find that at all times pertinent Respondent gave
effect to a rule which precluded solicitation and distribu-
tion of literature in the plant during work time. I find
also that in the aftermath of the August 4 election, at
which the Union was selected as the majority representa-
tive of Respondent's employees, William Krames, Re-
spondent's vice president of manufacturing operations,
met with supervisory personnel, including Jerue and
Deleo, and instructed them to do nothing that would in-
terfere with employee rights or serve to undermine the
Union. The record suggests that, for the most part, su-
pervision, including Jerue, complied with these instruc-
tions. However, Deleo was not as compliant. For what-
ever reason, whether because of his own predilections,
or because of the relatively free reign which appears to
have been his on the second shift which operated in the
late afternoon and evening hours until midnight, Deleo
became enmeshed in the competition between Union ad-
vocates and employees favoring defeasance of the Union,
and he took an active role in endeavoring verbally to
dissuade prounion employees from their allegiance to the
union cause, and in stenciling antiunion/procompany slo-
gans on clothing. Moreover, he participated directly in
the distribution of procompany badges in the plant
during worktime, and gave quiet passage, as it were, to
employees distributing those badges, while at the same
time, discouraging, both directly and indirectly, the
wearing of badges and buttons favoring the union cause.
For his part, Jerue, who supervised the first shift which
operated from 8 a.m. to 4 p.m., saw fit for a period of
time in February to close his eyes to the stenciling activi-
ties of Herman and her close associates. By virtue of this
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct on the part of Deleo and Jerue in the respects
below detailed, Respondent must be held to have violat-
ed Section 8(a)(l) of the Act.
Specifically, I find that in asking McKee in January
what he thought about the Union; by deprecating the
Union in his conversation with McKee in February, and
doing so in context of his assertion that the employees
would be better off to forget the Union and "vote [it]
out"; by speaking negatively in March or April to Ader-
holt and Acosta concerning the need of employees for a
union, and declaring, as he spoke, that employees had
lost a pay raise and benefits which would have accrued
to them had they not selected the Union; by making a
similar representation to Jones on February 20; and by
admonishing Jones and Aderholt on February 20 and in
March, respectively, against wearing prounion buttons,
in a context implying a threat to their job interests and
tenure, Deleo engaged in interrogation and/or threats
calculated to coerce employees in the exercise of their
Section 7 rights, in violation of Section 8(a)(l) of the
Act.
Similarly, by virtue of his participation in the cam-
paign of employees to achieve eventual decertification of
the Union at the conclusion of the certification year,
Deleo perpetrated serious violations of Section 8(a)(1) of
the Act, for which Respondent must be held legally ac-
countable. Thus, in addition to countenancing in-plant
stenciling activities utilizing company materials and
equipment in circumstances readily discernible to rank-
and-file employees on the second shift (itself an overt
manifestation of hostility to the Union and its advocates),
Deleo actively participated in the stenciling activities and
in the distribtution of procompany badges, thus clearly
conveying to employees an antiunion proclivity suscepti-
ble of ready interpretation on their part as mirroring the
official policy of management. Moreover, by placing em-
ployees in the position of having to declare their union
preferences by their willingness either to wear or refrain
from wearing procompany badges or stenciling slogans,
Deleo engaged in additional conduct violative of Section
8(a)(l) of the Act.
Moreover, in the face of the activities of Deleo and
the acquiescence of Jerue (to the extent above found) in
permitting protagonists of the Union's decertification to
carry out their stenciling activities on worktime, and to
permit the distribution of procompany badges in the
work areas of the plant during working hours, while rig-
idly enforcing its existing no-solicitation rule so as to
prohibit Mauga from entering the work area of the plant
during his own free time coinciding with the 10-minute
interval preceding the commencement of Mauga's shift,
Deleo gave disparate application to the no-solicitation
rule. This had the effect of precluding Mauga from en-
gaging in activities in support of the Union of the variety
that would have resulted from fulfillment of his intended
purpose to present a union membership card to Simeta.
Assuming, as I specifically do, the validity of the limita-
tion imposed by the rule upon solicitations during either
the worktime of the soliciting employee or the worktime
of employees being solicited, the rule was breached by
the discriminatory manner in which it was enforced. See,
Star-Brite Industries, Inc., 127 NLRB 1008, 1010 (1960);
Capitol Records, Inc., 233 NLRB 1041, 1045-46 (1977);
see also Harvey's Wagon Wheel, Inc., d/b/a Harvey's
Resort Hotel & Harvey's Inn, 236 NLRB 1670, 1676
(19 78 ).I"
Further, in agreement with the General Counsel, while
I conclude that Mauga was in technical breach of the no-
solicitation rule in the brief interlude after the beginning
of his shift when he handed Simeta a union membership
card, I find that Respondent violated Section 8(a)(3) of
the Act by virtue of issuing a warning notice to Mauga
threatening termination in the event of a recurrence of
his activity. I base this finding, in part, upon the evi-
dence above delineated establishing Respondent's hospi-
table tolerance of duty time activities by procompany
proponents, evidence of a character and quality suggest-
ing an antiunion purpose and motivation. Moreover, the
presence of a discriminatory motive in the issuance of
this notice is discernible also from the disciplinary action
threatened. The threat of termination contained in the
notice issued Mauga as a result of his solicitation effort is
singular in character when contrasted to the less strin-
gent wording of notices issued to Ben Matot and to
Nancy Matot for not conforming to the limitations of the
no-solicitation rule. Indeed, there is much in the record
to suggest that the warning notices issued to Ben and
Nancy Matot were mere window dressing, for they were
issued after the filing of the charge pertinent to the
Mauga incident. Respondent marshaled no documentary
evidence sufficient to establish that in threatening termi-
nation for a recurrence of worktime solicitation Re-
spondent was acting neither atypically nor disparately.
Cf. Dale's Electronics, Inc., 137 NLRB 1212, 1219
(1962).'2 Nor did Respondent adduce proof to establish
that the attributions contained in the warning notice to
Mauga relating to the "numerous occasions during the
past few days" in which he had been "observed distribut-
ing union-related material to other employees during
working hours" were grounded in truth. Mauga denies
this type of involvement, and, manifestly, the entry was
based on hearsay information and not the personal obser-
vation of Deleo or of Dolquist, who authorized the issu-
ance of the notice. Thus, in my view, this element of the
notice serves more to suggest a discriminatory motive
' Contrary to the General Counsel, I find neither the literal provisions
of the rule applying to solicitations on the part of employees nor Deleo's
application of that rule to Mauga's activities on February 5 warrants an
interpretation of the rule as prohibiting solicitation in working areas at all
times and not just during nonworking times. Cf. Champagne Color, Inc.,
234 NLRB 82 (1978). In my view of the record, contrary to the conten-
tion of the General Counsel, Simeta was still on the clock when Deleo
intervened. Cf. East Bay Newspapers, Inc., d/b/a Contra Costa Times, 225
NLRB 1148 (1976). 1 reach this determination on the merits of the issue
assessed in light of the evidence adduced at the hearing before me.
12 I predicate no violation of the Act, either in context with the disci-
plinary notice issued Mauga nor with respect to the application of the no-
solicitation rule, generally, upon the willingness of Respondent, under
controlled circumstances, to permit collection of money for floral offer-
ings or football and baseball pools. See Serv-Air, Inc. v. N.L.R.B., 395
F.2d 557 (10 Cir. 1968), cert. denied 393 U.S. 840; Atkins Pickle Company.
Inc., 181 NLRB 935 (1970). Cf. Emerson Electric Co., US. Electrical
Motors Division, 187 NLRB 294, 300 (1970). In any event, reliance upon
evidence of these relatively infrequent and testimonially ill-defined occur-
rences is unnecessary to a determination of the instant issue.
142
REEVES RUBBER, INC.
than to establish the existence of a sound basis for issuing
a notice threatening discipline.
Finally, I conclude and find that the General Counsel
established by the preponderence of the credible evi-
dence that the layoff of Thomas Jones resulted from his
support of the Union and not for economic reasons, as
contended by Respondent. Initially, I conclude that the
General Counsel established a prima facie showing that
the layoff was discriminatorily motivated. Jones worked
on the second shift under the direction of Deleo. Jones
was called by Deleo to his office and questioned con-
cerning his wearing of a union badge 3 days before his
layoff. On this occasion, Deleo admonished Jones in a
manner suggesting that Jones should be wary of display-
ing the badge in the future. That Deleo subsequently re-
canted from this admonition in no manner dilutes the in-
ference that emerges from this interlude. Thus, it is ap-
parent that Deleo believed the wearing of the union
badge by Jones, a relatively new employee, was suffi-
ciently noteworthy as to warrant a face-to-face discus-
sion of the matter in the privacy of his own office.
During the meeting, I conclude and find that Deleo took
steps to dissuade Jones, and no doubt exists that Deleo
catalogued in his own mind the fact of Jones' apparent
affinity for the Union. Within 3 days the decision was
reached to accomplish Jones' layoff. I conclude and find
that this was done in circumstances in which there was
no readily visible or discernible dearth of work available
in Jones' job category for Jones to perform. These con-
siderations, establishing Jones' undisguished declaration
of his union affinity, Deleo's knowledge of this fact, the
timing of Jones' layoff in relation to Deleo's conversa-
tion with him concerning the wearing of the union
badge, and Deleo's own involvement in the layoff proc-
ess, establishes the constituent elements of a violation of
Section 8(a)(3) of the Act. However, to meet the Gener-
al Counsel's evidence Respondent offered testimony
from Dolquist that he dictated the layoff in Jones' job
category solely for economic reasons and did so without
knowledge of Jones' affinity to the union. Significantly,
no documentary evidence was adduced establishing any
downturn in available work in Jones' job category and
neither McKee, with whom Jones worked, nor Jones,
himself, could discern any dearth of work at the time of
the layoff. Moreover, the only inferences to be drawn
from the testimony of Dolquist who assertedly made the
decision to accomplish the layoff, provide any basis for
Respondent's contention that layoffs elsewhere in the op-
eration were accomplished contemporaneously with the
layoff of Jones. Thus, having advanced an economic de-
fense in explanation of a layoff accomplished in the sus-
picious circumstances here extant, it was incumbent upon
Respondent in order to support his defense to proffer
more than oral testimony. None was offered. According-
ly, in my view, Respondent failed to adduce convincing
evidence that economic considerations necessitated
Jones' layoff.
Nor is Dolquist's denial of knowledge of Jones' union
affinity convincing. Clearly, Deleo, who supervised the
second shift on which Jones worked, had input into Dol-
quist's decision to effectuate the layoff in Jones' job cate-
gory. Normal procedure dictated supervisory involve-
ment, and the second shift was not one over which Dol-
quist, by his own admission, maintained direct, firsthand
oversight. His reliance upon Deleo in reaching his deci-
sion with respect to the layoff is thus inferable. Illegal
motivation in terminations arising from union activities is
seldom confessed, but must be inferred, and the reason-
able inference to be drawn in the instant circumstance is
that Deleo initiated and effectively participated in the de-
cision to accomplish Jones' layoff. It is clear from the
evidence of record that a campaign was in progress in
the plant to marshal employee support for an effort to
oust the Union at the end of the certification year. Jones
had shown that he was not in league with this effort.
Deleo, on the other hand, had actively supported the
ouster campaign and had assiduously advanced the cause
of employees opposing the Union. It is unlikely that, in
the circumstances, Deleo would have kept his own coun-
sel with respect to Jones' support of the Union. I find
that he did not.
This finding of a violation is not altered, in my view,
by evidence suggesting that Respondent attempted to
recall Jones in late March. Initially, it must be recog-
nized that, in effectuating Jones' layoff, Respondent had
effectively implemented Deleo's veiled threat to Jones
conveyed during their conversation 3 days prior to the
layoff, with the foreseeable consequence of chilling
Jones' enthusiasm in supporting the Union. In addition, it
must be recognized also that the recall effort, such as it
was, transpired after charges had been filed alleging vio-
lations of the Act arising from the warning notice issued
Mauga, and thus, when consideration was given to
Jones' status, Respondent knew that the investigatory
processes of the Board had been initiated. Moreover, the
effort undertaken to notify Jones was so ritualistic as to
suggest the absence of perseverance and good faith. The
testimony of Joan Dobbie to the effect that written
notice of recall is never dispatched to probationary em-
ployees was not convincing, and emerged from an effort
on Dobbie's part to extract herself from a testimonial
contradiction and dilemma and to carve out an exception
to the literal terminology of the work rules which allude
to written notice of recall for employees, without distinc-
tion as to whether or not they are probationary. In short,
I reject Dobbie's testimony that because Jones was a
probationary employee no written notice was dispatched
to him. I do find, however, that Respondent grudgingly
undertook to recall Jones as a tactical device in the face
of a viable, pending unfair labor practice charge, was sat-
isfied when its minimal, pro forma efforts were unsuc-
cessful in accomplishing personal contact, memorialized
this effort in writing against potential subsequent devel-
opments and refrained from dispatcaing notice of recall
to Jones because it welcomed the fortuity of Dobbie's in-
ability to make telephonic contact with Jones. Sincere
effort at recall, in the circumstances, would appear to
have encompassed, at the minimum, as an initial alterna-
tive to the dispatch of a written notice, delivery through
long-term employee Charles Powell of an oral message
to Jones soliciting his return to work. It must he noted,
in this regard, that Jones had listed Charles Powell as a
reference on the application form which Dobbie alleged-
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly consulted in locating the telephone numbers used in
her asserted effort to make telephonic contact with
Jones. Respondent failed to take this initiative through
Powell which was open to it, while abstaining also from
dispatching written notice. I find this conduct on the
part of Respondent supportive of the conclusion, which I
reach, that Respondent entertained discriminatory motive
in effectuating the layoff of Jones. I conclude therefore
that the layoff of Jones violated Section 8(a)(1) and (3)
of the Act.
The final question to be resolved in this case is wheth-
er Respondent's conduct, as found above, which tran-
spired in the plant and away from the bargaining table at
a time when agents of Respondent and the Union were
engaged in collective bargaining for an initial collective-
bargaining agreement, was also violative of Section
8(a)(5) of the Act. I find, in agreement with Respondent
that neither the Board's decision in Berbiglia, Inc., 233
NLRB 1476 (1977), nor its supplemental decision in
Safeway Trails, Inc., 233 NLRB 1078 (1977), warrants the
conclusion that the conduct of Respondent's agents away
from the bargaining table manifested an absence of good
faith in carrying out its bargaining table obligations, as
required by Section 8(d) of the Act. I conclude upon the
facts before me that an extension of the rationale articu-
lated by the Board in the Berbiglia and Safeway cases to
govern the instant case would constitute a distortion of
the intendment of the Board as articulated in those cases.
It is clear, of course, that an employer's statements and
conduct away from the bargaining table may be utilized
to explain otherwise ambiguous conduct at the bargain-
ing table. Baldwin County Electric Membership Corpora-
tion, 145 NLRB 1316, 1318 (1964). Moreover, if while
negotiations are in progress an employer undertakes ac-
tivities with respect to its employees away from the bar-
gaining table which are directed toward undermining the
bargaining representative of those employees, bad faith
and an 8(a)(6) violation is established even though overt
evidence of that bad faith does not appear at the bargain-
ing table itself. See N.L.R.B. v. General Electric Compa-
ny, 418 F.2d 736, 756 (2d Cir. 1969); United Transporta-
tion Union, Local 169 v. N.L.R.B., 546 F.2d 1038, 1041
(D.C. Cir. 1976). However, not all conduct of a serious
nature calculated to erode union support among the em-
ployees in the bargaining unit is sufficient to evidence
bargaining table bad faith, when bad faith is not other-
wise manifested by and through the bargaining table tac-
tics of the employer. See, Baldwin County Electric Mem-
bership Corporation, supra; cf., Safeway Trails, Inc., supra.
In my view, a fair reading of General Electric and United
Transportation, as well as Berbiglia and Safeway suggests
that a finding of bargaining table bad faith becomes
clearly appropriate upon a record establishing contempo-
raneous away-from-the-bargaining table conduct on the
part of an employer which is calculated or tends directly
to subvert or frontally assult the bona fide of the bar-
gaining process itself. Thus, conduct outside the confer-
ence room orchestrated at the management level through
participation of upper level managing agents tending to
drive a wedge between the unit employees and the desig-
nated bargaining agent of the Union, so as to undermine
and to subvert the authority of the bargaining representa-
tive, has been found sufficiently egregious to support a
bad-faith finding, without regard to whether or not bad
faith had been shown at the bargaining table. See
Safeway Trails, Inc., supra. Moreover, statements circulat-
ed by management personnel away from the bargaining
table but while bargaining efforts are in progress, con-
veying to employees the employer's intention not to
reach an agreement through the process of bargaining
negotiations, have been viewed as supporting a finding
of bad faith, when these statements transpire in conjunc-
tion with numerous other unlawful attempts to under-
mine the Union. See Berbiglia, Inc.. supra. In my view,
the instant case falls outside the parameter of both
Safeway and Berbiglia.
At the outset, from an analytical point of view, there
is no evidence in the record before me from which it
may be concluded that Respondent failed to meet and
bargain with the Union at all times. No allegations of
bargaining table misdeeds violative of the Act are before
me. Thus, viewing the 8(a)(5) allegations of this case in
the light most favorable to the General Counsel, bad
faith on the part of Respondent in fulfilling its obligation
under Section 8(d) of the Act emerges, if at all, from the
tolerance displayed by Deleo and Jerue in permitting
worktime stencilling and badge distribution activities on
the part of employees who did not favor the Union; from
Deleo's comments tending to disparage the effectiveness
of the Union as a bargaining representative; and, finally,
from other Section 8(a)(1) and (3) conduct which tended
to dissuade employees from support of the Union. How-
ever, in this connection, there is present in the record no
proof that the efforts on the part of employees to accom-
plish the decertification of the Union at the end of the
certification year were other than grassroots and sponta-
neously undertaken. Manifestly, the General Counsel un-
dertook no proof that the effort was management fos-
tered. Similarly, there is no evidence of a substantial
nature supporting the conclusion that the statements and
deeds on the part of Deleo and Jerue, all of which took
place from the bargaining table, were undertaken with
the knowledge, complicity, or acquiescence of Respond-
ent's upper level management; and there is countervail-
ing evidence that Krames, Dolquist, and Gangloff did
not condone this conduct and that it was contrary to
instructions specifically disseminated. Neither is there
support for a conclusion that from a distance, so to
speak, management orchestrated the statements or mis-
deeds of Deleo and Jerue, here found to be violative of
the Act. Further, there is present here no coordinated
campaign directed against or disparaging of the Union's
negotiators. Deleo's comments negating the potency of
the Union as a bargaining force, while in and of them-
selves violative of Section 8(a)(l) of the Act, must be
viewed as the expression of a line supervisor having no
collective-bargaining responsibility. Absent also from the
General Counsel's proof is any evidence of an effort on
the part of management agents to effectively drive a
wedge between the unit employees and the bargaining
agents of the Union conducting bargaining-table negotia-
tions. Management and supervision-Krames, Dolquist,
Gangloff-may have been permissibly tolerant and indul-
144
REEVES RUBBER, INC.
gent of the employees' perceived free speech rights to
proffer their preferences for and against the Union
through the wearing of insignia and clothing, but man-
agement is not shown by this record otherwise to have
fostered or been accountable for any subversion of the
bargaining process or initiative towards the decertifica-
tion of the Union. For the reasons stated, and the total
circumstances of this case, I find no basis for imputing
bad faith to Respondent in carrying out its bargaining
obligation as imposed by Section 8(d) of the Act.
Upon the foregoing findings of fact, and upon the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Reeves Rubber, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Communications Workers of America, Local 11511,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating employees concerning their union
preferences; by disparaging the need of employees for
union representation and urging employees to vote the
Union out, all in context of statements asserting that em-
ployees had forfeited pay increases and benefits which
would have accrued to them had they not selected the
Union; by articulating threats that wearing prounion
badges would jeopardize their job interests and tenure;
by giving disparate application to a rule prohibiting so-
licitation and distribution of literature in the plant during
worktime so as to impose limitations upon activities upon
employees who supported the Union, while permitting
employees to engage in activities against the Union
during worktime and in work areas in the plant; by solic-
iting employees to wear clothing bearing slogans oppos-
ing the Union and implicitly favoring decertification of
the Union; by requiring employees to wear antiunion in-
signia; by placing employees in the position of having to
declare their union preferences; and by warning and
laying off employees because they had engaged in pro-
tected concerted activity and/or supported the Union,
Respondent engaged in conduct in violation of Section
8(a)(1) of the Act.
4. By issuing a warning notice to Tafilele Mauga
threatening termination for engaging in solicitation and
activities on behalf of the Union during the worktime,
while tolerating worktime activities on part of the em-
ployees opposed to the Union and/or issuing warning
notices defining a lesser quantum of discipline for similar
activities on the part of employees opposed to the Union,
Respondent engaged in conduct in violation of Section
8(a)(3) and (1) of the Act.
5. By laying off Thomas Jones because of his activities
on behalf of the Union, Respondent engaged in conduct
in violation of Section 8(a)(3) of the Act.
6. Respondent did not engage in conduct in violation
of Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
8. Respondent engaged in no other conduct violative
of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found, in the circumstances described above,
that Respondent discriminated against Tafilele Mauga, in
violation of Section 8(a)(3) of the Act, I shall order Re-
spondent to rescind the disciplinary warning issued to
Tafilele Mauga on February 8, 1979, and to expunge
from its personnel and other records all reference to said
warning, and so notify Mauga, in writing.
Having found that Respondent discriminated against
Thomas Jones by laying him off on February 23, 1979,
because he had engaged in activities on behalf of the
Union, and having further found that Respondent failed
to make a good faith effort to recall Jones, I shall order
Respondent to offer Thomas Jones immediate and full re-
instatement to his former position of employment, or to a
substantially equivalent position of employment, without
prejudice to his seniority or other rights and privileges to
which he may have been entitled. I shall also recom-
mend that Respondent make Thomas Jones whole for
any loss of earnings he may have suffered by reason of
the discrimination against him. Backpay shall be comput-
ed in the manner prescribed in F. W Woolworth Compa-
ny, 90 NLRB 289 (1950), together with interest thereon
in accordance with the policy of the Board, set forth in
Florida Steel Corporation, 231 NLRB 651 (1977).'3
Having found that Respondent has maintained a rule
prohibiting solicitation and distribution of literature in
the plant during worktime, and having further found that
Respondent applied this rule to prohibit employees from
engaging in activities on behalf of the Union in the plant
during worktime while permitting employees who op-
posed the Union to do so, I shall specifically order Re-
spondent to cease and desist from enforcing said rule in a
manner which conduces to, accomplishes, or effectuates
this unlawful distinction.
Because the violations of the Act herein found to have
been perpetrated by Respondent go the the heart of the
Act, a broad cease-and-desist order shall be recommend-
ed.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER 14
The Respondent, Reeves Rubber, Inc., San Clemente,
California, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
t' See, generally. Isis Plumbing d Jleaoing Co., 138 NLRB 716 (1962)
14 In the event no exceptions are filed as provided by Section 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 deemed waived for all purposes
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Laying off or otherwise discriminating against em-
ployees because of their interest in, or activity on behalf
of, Communications Workers of America, Local 11511,
AFL-CIO, or any other labor organization.
(b) Issuing warning notices to employees because, on
behalf of the Union or any other labor organization, they
have engaged in solicitation in the work areas of the
plant during worktime, while permitting employees who
opposed the Union to engage in activities in opposition
to the Union in the plant during worktime.
(c) Threatening the job interest and tenure of employ-
ees because they wear union insignia.
(d) Interrogating employees concerning their union ac-
tivities or preferences.
(e) Soliciting employees to wear clothing bearing an-
tiunion slogans.
(f) Requiring employees to wear antiunion insignia.
(g) Placing employees in the position of having to dis-
close or declare their union preference.
(h) Disparaging the Union in conversations with the
employees and encouraging them to vote the Union out.
(i) Disparaging the effectiveness of the Union as a col-
lective-bargaining representative.
(j) Informing employees that wage increases and other
benefits which normally would have accrued to them
had been withheld because they had selected the Union
as their collective-bargaining representative.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
engage in self-organization, to bargain collectively
through representatives of their own choosing, to act to-
gether for collective bargaining in mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Post at its San Clemente, California, plant facility
copies of the attached notices marked "Appendix."'
lb In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Copies of said notice on, forms provided by the Regional
Director for Region 21, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(h) Offer Thomas Jones immediate and full reinstate-
ment to his former position of employment or, if that po-
sition is no longer available, to a substantially equivalent
position of employment, without prejudice to his senior-
ity or other rights and privileges and make him whole
for any loss of wages he may have suffered by reason of
discrimination against him, in accordance with the rec-
ommendation set forth in the section of this Decision en-
titled, "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the term of this recommended Order.
(d) Rescind the disciplinary warnings given to Tafilele
Mauga on February 8, 1979, expunge from all personnel
and other records all references to said warning, and
notify Tafilele Mauga, in writing, that said action has
been taken.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
Order of the National .abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board."
146