North American Philips Corp.

National Labor Relations Board - Board Decisions

Apr 18, 1975

217 N.L.R.B. 435 (N.L.R.B. 1975)

OHMITE MANUFACTURING COMPANY
Ohmite Manufacturing Company, Subsidiary of North
American Philips Corporation and United Automo-
bile, Aircraft, & Agricultural Implement Workers of
America. Case 13-CA-13282
April 18, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On October 15, 1974, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge only to the
extent consistent herewith, and to adopt his recom-
mended Order as modified herein.
1. We agree with and adopt the Administrative Law
Judge's findings that Respondent violated Section
8(a)(1) of the Act by (a) threatening to discharge em-
ployees Duncan and Ceasor for engaging in the distri-
bution of union literature during their nonworking
time and in nonworking areas, and (b) interfering with
the distribution of union literature by employees in
nonworking areas of its property. We also concur with
and therefore adopt the Administrative Law Judge's
findings that the Respondent violated Section 8(a)(3) of
the Act by discharging Jeanice Wells because of her
union activities.
2. We do not agree with and therefore do not adopt
the Administrative Law Judge's findings that Respond-
ent violated Section 8(a)(1) of the Act by (a) distribut-
ing; a "serious harm" letter on April 5, 1974, to its
employees expressing its antiunion sentiment and (b)
Foreman Harold DeWinter stating to employees Wells
and Galicia, regarding union activities, that "they
knew all about it, who was going and passing out and
everything."
On April 5, 1974, a letter signed by Charles Dillon,
director of industrial relations, was attached to each
employee's check and posted on the plant bulletin
1 'The R espondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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.
435
boards. Essentially, the letter outlined the Respon-
dent's position on the ongoing union organizational
campaign. That section of the letter alleged to be
threatening and coercive reads as follows:
2. This matter is one of concern to your company.
It is also a matter of serious concern too you and
your family. It is my sincere belief that if this
union were to get in here it would not work to your
benefit but to your serious harm.
We find that the Respondent's letter of April 5, 1974,
did not constitute a threat of retaliation against em-
ployees and therefore was not a violation of Section
8(a)(1) of the Act. In Liberty Mutual Insurance Com-
pany, 194 NLRB 1043 (1972), we found that the state-
ment, "[t]hat forming and selecting a union and/or
association for the purpose of representing you to the
company would not be to your best interest and, in fact,
could deter and hamper your personal relations with
your company," was not coercive nor did it contain a
threat of reprisal. As in the present case, the record
failed to reveal any relationship between the letter and
any concurrent unfair labor practices. Similarly, we
find that since the Respondent's letter of April 5 itself
was not inherently threatening and the record does not
reveal that a relationship existed between the notice
and the subsequent discharge of Jeanice Wells, we do
not adopt the Administrative Law Judge's finding that
the let-ter violated Section 8(a)(1) of the Act.'
On April 26, 1974, just prior to the 4 o'clock starting
time of the second shift, union literature was dis-
tributed outside the plant building. Shortly thereafter,
Foreman DeWinter appeared in the work area of em-
ployees Jeanice Wells and Reba Galicia holding a
2 Contrary to our dissenting colleague, we fmd that the Respondent's
communique, viewed in the entire context in which it appeared, falls within
the protection afforded by Sec 8(c) of the Act The Board in Greensboro
Hosiery Mills, Inc., 162 NLRB 1275, 1276 (1967), enforcement denied 398
F.2d 414 (C.A. 4, 1968), while finding an 8(a)(1) violation, set forth its
criteria- in evaluating "serious harm" statements*
We have not ordinarily found such notices to be illegal in and of
themselves, for the bare words, in the absence of conduct or other
circumstances supplying a particular connotation, can be given a non-
coercive and nonthreatening meaning Even the simultaneous existence
of other unfair labor practices may not render the notice coercive,
unless these practices tend to impart a coercive overtone to the notice
Where we have noted that other unfair labor practices have been found,
our decisions have been bottomed on the premise that there is a direct
relationship between the notice and the total context in which it has
appeared, including unfair labor practices, which serves to give a "sinis-
ter meaning" to what otherwise might be viewed as innocuous or am-
biguous words.
Our colleague has failed to link the Respondent's letter to those condi-
tions, evidenced by related unfair labor practices, that would cause one to
interpret the letter as "sinister," threatening, or coercive It would appear
reasonable to assume that, in the absence of accompanying circumstances
that would "tend to impart a coercive overtone to the notice," the Respon-
dent's communication is privileged under Sec. 8(c).
217 NLRB No. 80
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union leaflet . Employee Galicia commented on
DeWinter's possession of the pamphlet to which he
replied, "everybody has one." Employee Wells then
produced a similar leaflet and stated that she also had
one. DeWinter responded that she should have lots of
them . Employee Galicia interjected that Wells was not
involved in their distribution . DeWinter then stated
that "they knew all about it , who was going and passing
out and everything ." Wells said that she was in fact
involved in passing out union literature but only on her
breaktime . DeWinter informed her that it was all right
on breaktime, but if she was found doing so on com-
pany time , she would be discharged.
The Administrative Law Judge found that DeWin-
ter's comments created an impression of surveillance of
union activities in violation of Section 8(a)(1) of the
Act.
We disagree with the Administrative Law Judge's
findings that DeWinter's casual remarks, which were
in response to employees' comments and were about
union literature which had just been openly distributed
outside the plant 30 minutes earlier that day, created an
unlawful impression of surveillance of union activities.
Those employees involved in the dissemination of
union literature made no attempt to conceal their iden-
tities . In Sys-T-Mation, Inc., 198 NLRB 863 (1972), we
held that conversations with employees in which the
union was discussed and wherein company officials
indicated that they knew the identities of union advo-
cates did not constitute violations of Section 8(a)(1) of
the Act where , inter alia, the identity of the advocates
was common knowledge . Accordingly, we do not adopt
the Administrative Law Judge's finding and therefore
dismiss that portion of the complaint that alleges that
Respondent created an impression of surveillance in
violation of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended order of
the Administrative Law Judge as modified below and
hereby orders that Respondent, Ohmite Manufactur-
ing Company, Subsidiary of North American Philips
Corporation, Skokie, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended order, as so modified:
1. Delete subparagraph 1(b) and reletter the remain-
ing subparagraphs accordingly.
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
IT IS FURTHER ORDERED that the allegations of the com-
plaint herein above found to have been unsupported by
the evidence be, and they hereby are, dismissed.
MEMBER JENKINS, concurring in part and dissenting in
part:
I concur in the majority's decision to the extent that
it affirms the decision of the Administrative Law Judge
but dissent from its reversal of his findings and conclu-
sions with respect to (1) the coercive effect of the Em-
ployer's notice to its employees of its "sincere belief"
that "serious harm" would befall them if the union
organization drive were successful, and (2) the impres-
sion of surveillance created by a supervisor's comment
to an employee of knowledge of the employees support-
ing the Union.
1. In my view, the suggestion of "serious harm" to
employees "if this union were to get in here," in a notice
which was attached to their paychecks and posted on
the plant bulletin boards, is inherently threatening in
the practical world of employees' dependence on their
employer for their economic security. In the employ-
ment situation, the most obvious connotation of a pre-
diction of "serious harm" to an employee, unless fur-
ther explained, is loss of his job or other grave adverse
effect on his employment by some such action, in the
sole control of the employer, as discharge, plant clos-
ing, or transfer of work.' These implicit consequences
of union organization are obviously of a different kind
and quality from the implications of the statement to
employees in Liberty Mutual Insurance Company, 194
NLRB 1043 (1972), upon which the majority relies,
that a union "would not be to your best interest" and
"could hamper your personal relations with your com-
pany." The-latter clearly do not suggest the threat to
job securitywhich "serious harm" connotes.' Thus, in
N.L.R.B. v. Southwire Company, 352 F.2d 346, 348
(C.A. 5, 1965), the court-held it did not need to decide
the threatening effect of the employer's use of "serious
harm" language because "Respondent has, wisely we
think, eliminated this critical language" in favor of a
statement of the employer's opinion that "a union
would not work to our employees' benefit."
An employer's suggestion of possible job loss, which
I believe is inherent in a prediction of "serious harm,"
3 The "serious harm" notice has become boilerplate in employer antiunion
campaigns and in the context of such campaigns has been consistently held
by the Board to be a violation of Sec 8(a)(1) because of the implied threat
that the "serious harm" would be inflicted by the employer See, e g., White
Oak Acres, Inc., 134 NLRB 1145, 1150 (1961); M. Lowenstein & Sons, Inc,
150 NLRB 737, 746 (1964); J.P. Stevens and Co., Inc, 157 NLRB 869, 872
(1966); Serv-Atr, Inc., 161 NLRB 382, 411 (1966), Greensboro Hosiery
Mills, Inc., 162 NLRB 1275 (1967), J.P. Stevens & Co., Inc., 167 NLRB 266,
302 (1967); Holly Farms Poultry Industries, Inc., 194 NLRB 952, 954
(1972). Board orders holding "serious harm" notices violative of Sec. 8(a)(1)
have received varied treatment in the courts of appeals With N.L.R.B. v.
Greensboro Hosiery Mills, Inc, 398 F 2d 414 (C A 4, 1968), and Surprenant
Manufacturing Co. v N.L.R.B., 341 F.2d 756 (C A. 6, 1965), compare J.
P. Stevens & Co. v. NLRB, 380 F 2d 292 (C A 2, 1967), and Serv-Air, Inc
v N.L.R.B., 395 F.2d 557 (C.A. 10, 1968).
4 The Board has previously recognized this difference Just 3 days before
its decision in Liberty Mutual it held a "serious harm" letter in Holly Farms
Poultry Industries, Inc., supra, to be a violation of Sec. 8(a)(1)
OHMITE MANUFACTURING COMPANY
even when phrased in terms of a prediction rather than
a threat, has been held by the Supreme Court to have
minatory overtones and therefore coercive effect in vio-
lation of Section 8(a)(1). N.L.RB' v. Gissel Packing
Co., 395 U.S. 575 (1969). One of the decisions reviewed
by the Supreme Court in Gissel was N.L.R.B. v. The
Sinclair Company, 397 F.2d 157 (C.A. 1, 1968), in
which the court of appeals upheld a Board finding that
the employer violated Section 8(a)(1) by communica-
tions during a union organizational campaign which
predicted the possible loss of employment as a result of
strikes and the employer 's precarious financial condi-
tion . In response to the employer 's claim that it was
merely informing its employees of the facts, the court
of appeals observed that "Conveyance of the em-
p foyer's belief, even though sincere , that unionization
will or may result in the closing of the plant is not a
statement of fact unless , which is most improbable, the
eventuality of closing is capable of proof. The em-
plioyer's prediction must be in terms of demonstrable
`economic consequences"' (397 F.2d at 160). The court
therefore sustained the Board 's finding of a violation of
Section 8 (a)(1) in that the employer's communications
conveyed to employees the impression that selection of
the union would result in the loss of their jobs and
interfered with their exercise of a free choice in the
election, holding that the employer, "having made
threats of economic consequences to its business in case
of unionization," had not met its "burden of proving
justification." 397 F.2d at 161.
The Supreme Court in Gissel, supra, affirmed in all
respects the First Circuit's evaluation of the employer's
prediction of job loss in Sinclair as coercive and its
conclusion that this violated Section 8(a)(1). Address-
ing itself to the employees' right to be free of threats of
reprisal, the Supreme Court noted that any balancing
of respective rights "must take into account the eco-
nomic dependence of the employees on their employ-
ers, and the necessary tendency of the former, because
of that relationship, to pick up intended implications of
the latter that might be more readily dismissed by a
more disinterested ear." 395 U.S. at 617.
Acknowledging the employer's right to "make a pre-
diction as to the precise effect he believes unionization
will have on his company," the Supreme Court pointed
out that, to avoid a threat of reprisal or force, "the
prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his con-
trol." 395 U.S. at 618. Accordingly, conveyance of the
employer's sincere belief that unionization will or may
result in job loss through a plant closing , unless capable
of proof, "is no longer a reasonable prediction based on
available facts but a threat of retaliation based on mis-
437
representation and coercion , and as such without the
protection of the First Amendment ." Ibid.
Fortifying its conclusion 'that the employer's com-
munications were properly interpreted as a threat of
retaliatory action , the Supreme Court further stated
that "the Board could reasonably conclude that the
intended and understood import of that message was
not to predict that unionization would inevitably cause
the plant to close but to threaten to throw employees
out of work regardless of the economic realities ," rely-
ing, among other things , on the fact "that the Board
has often found that employees , who are particularly
sensitive to rumors of plant closings, take such hints as
coercive threats rather than honest forecasts ." 395 U.S.
at 619-620.
In the absence of any explanation by the Employer
in the present case of what it meant by its prediction
of "serious harm" from unionization (compare Surpre-
nant Manufacturing Co. v. N. L.R.B., supra), the natu-
ral import of the prediction encompasses loss of em-
ployment from a variety of possible causes . Since this
was not a prediction "carefully phrased on the basis of
objective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his con-
trol," as required by Gissel, supra, it is properly con-
strued under the rationale of that case , as found by the
Administrative Law Judge , to be "a threat of retalia-
tion" not privileged under Section 8(c) and a violation
of Section 8(a)(1). 395 U .S. at 618.5
2. I also disagree with the reversal by the majority of
the Administrative Law Judge's finding that the state-
ment of Foreman DeWinter, relating to distribution of
union leaflets , that "they knew all about it, who was
going and passing out and everything ," created an im-
pression of surveillance of union activities in violation
of Section 8(a)(1). This statement , whether made casu-
ally or formally , clearly conveyed the message that
company officials were keeping a close watch over
union activities . Such a message in the midst of an
organizational campaign to an employee actively en-
gaged in union efforts would obviously tend to have a
coercive effect and the Board so held in Gerbes Super
Markets, Inc., ,176 NLRB 11, 12 (1969), upon which
the Administrative Law Judge relied . In that case the
Board found the employer "created an impression of
surveillance in violation of Section 8(a)(1)" in the state-
ment to an employee, "Don't think we don't know
what you are doing." The content of the statement in
the present case is substantively indistinguishable from
that in Gerber On the other hand , Sys-T-Mation, Inc., _
198 NLRB 863 (1972), the only case relied on in the
5 The Supreme Court's holding in 1969 in Gissel, supra, that an employer's
prediction of job loss, without economic justification, is inherently threaten-
ing completely undermines the rationale of the Board's earlier decision in
Greensboro Hosiery Mills, Inc., 162 NLRB 1275 (1967), upon which the
majority relies in its fn 2.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority opinion , does not support its conclusion. In
Sys-T-Mation, Inc., in which the complaint was dis-
missed in its entirety , the Board affirmed the Adminis-
trative Law Judge's finding of no violation of Section
8(a)(1) in a statement by the employer that it was aware
of the identity of leaders in the union campaign . But the
Administrative Law Judge in that case expressly predi-
cated his conclusion on the circumstances that (1) the
election campaign which the union lost was over, (2)
the-employer had promised there would be no reprisal
against union leaders, and (3) the identity .of the union
leaders was common knowledge because of the small
work force and other factors. This finding obviously
has no relevance to a statement made in the present
case in the throes of an existing organizational drive by
an employer that has shown its union animus in other
unfair labor practices during the campaign.
I would affirm, in toto, the findings and conclusions
of the Administrative Law Judge and adopt his recom-
mended Order..
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity
to present their evidence, the National Labor Relations
Board has found that we- violated the law and has or-
dered us to post this notice; and we intend to carry out
the order of the Board and abide by the following:
WE WILL NOT discourage membership in or ac-
tivities on behalf of United Automobile, Aircraft,
& Agricultural Implement Workers of America,
or any other labor organization, by discharging
employees , or in any other manner discriminating
in regard to their employment or any term or
condition of employment.
WE WILL NOT prohibit employees from distribut-
ing union literature during their nonwork time in
nonwork areas of the company premises, includ-
ing entrances to the plant.
WE WILL NOT threaten employees with discharge,
or other punishment, for lawfully distributing
union literature , or for other protected union or
concerted activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of the rights
guaranteed employees in the National Labor Rela-
tions Act, which are as follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL offer Jeanice Wells immediate and full
reinstatement to her former job or, if such job no
longer exists, to a substantially equivalent job,
without prejudice to her-seniority or other rights
or privileges.
WE WILL pay Jeanice Wells for the earnings she
lost because of the discrimination against her, with
6-percent interest.
All our employees are free to become, or remain, or
refrain from becoming or remaining, members of
United Automobile, Aircraft, & Agricultural Imple-
ment Workers of America, or any other labor organiza-
tion.
OHMITE MANUFACTURING COMPANY,
SUBSIDIARY OF NORTH AMERICAN
PHILIPS CORPORATION
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: A trial in
this case was conducted before me on July 22 and 23,
1974,1 in Chicago , Illinois, upon a complaint ' by the Gen-
eral Counsel alleging that Respondent committed certain in-
dependent acts of coercion , and discharged Jeanice Wells, in
violation of Section 8(a)(1) and (3) of the Act. Respondent
denies all alleged violations.
Upon the entire record, after considering the briefs filed by
General Counsel and Respondent, and from my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
Respondent manufactures electrical components at a plant
in Skokie, Illinois, which is the sole facility involved herein.
During the year preceding issuance of the complaint, Re-
spondent had a direct outflow in interstate commerce valued
in excess of $50,000. Respondent admits, and I find, that it
is engaged in commerce , and that the Union is a labor organi-
zation , within the meaning of the Act.
II THE UNFAIR LABOR PRACTICES
A. Organizational Background
From the end of January and continuing to date, the Union
has been engaged in an intensive campaign to organize about
1 All dates are 1974, unless otherwise specified.
2 The Union's charge was filed on May 15 and served on May 17, the
complaint was issued on June 20.
OHMITE MANUFACTURING COMPANY
60D production and maintenance employees of
Respondent . ' Union representatives stationed outside the
plant distributed a large variety of handbills, as well as au-
thorization cards to be signed and mailed to the Union. On
March 21, April 4 and 17, and May 2, union meetings with
employees were held at a location near the plant. Particularly
after the first of such meetings , certain of the employees were
active outside and within the plant distributing the Union's
literature and soliciting authorization cards.
B. Restraint and Coetcion
1. Alleged interrogations
Billy J . Duncan is a night janitor working on the second
shift, from 4 p.m. until midnight . His nmmediate supervisor
is Joseph McDowell, in charge of janitorial employees on this
shift. Beginning in late March, Duncan actively engaged in
distributing literature and soliciting support for the Union.
On two occasions, when Duncan reported to work shortly
after he attended the union meetings on April 4 and 17, he
was questioned by McDowell in the locker room. He was
asked "how was the union meeting?" He replied, "okay."
Then he was asked "how many people were there?" And he
said , "well, a few , you know." As part of the April 4 conver-
sation, McDowell indicated that he was for the Union but, as
a supervisor, if he joined they would fire him.4 McDowell
was already aware of Duncan 's union activity, as Duncan
conceded on cross-examination that he had previously asked
McDowell to sign a union card.
In my view, this is not the type of situation in which the
inquiries would reasonably tend to cause fear of reprisal re-
sulting from any revelation of the identities of prounion
employees.' The questions asked were quite general in na-
ture, rather than the kind which appear to be seeking infor-
mation on which to base taking action against individual
em ployees . 6 In the particular circumstances and the entire
context, I do not find that the interrogations by McDowell
had a tendency to coerce Duncan or were violations as al-
leged.
2. The "serious harm" letter
On April 5 , a letter signed by Charles A. Dillon , director
of industrial relations , was appended to each employee's pay-
check and also posted on the plant bulletin boards as follows:
To: All Employees
There appears to be some type of union campaign going
on within our company . A good many questions have
been asked by our employees . Therefore, here is your
company's position and attitude toward the union and its
organizing drive:
3 Prior to the active campaign, the Union had received telephone calls
from a number of employees seeking its organizational assistance.
4 The foregoing is based on Duncan's credited testimony , McDowell
denied these conversations , or ever having talked about the Union with
Duncan in the locker room
5 See Struksnes Construction Co., Inc., 165 NLRB 1062 (1967).
6 Bonnie Bourne, an individual d/b/a Bourne Co. v N.L.R B., 332 F.2d
47, 48 (C.A 2, 1964)
439
1. We do not want a union , and we do not need a union
here at Ohmite: -
2. This matter is one of concern to your company. It is also
a matter of serious concern to you and your family. It is
my sincere belief that if this union were to get in here it
would not work to your benefit but to your serious harm.
[Emphasis supplied.]
3. It is not necessary and it is not going to be necessary
for anyone to belong to this union or any other union in
order to work for Ohmite.
4. Those who might consider joining or belonging to this
union are not going to get any advantages or any pre-
ferred treatment of any sort over those who do not join
or belong to the union.
While I recognize the privilege of individuals to join a
union if they want to, it is a step I hope our employees
will think about seriously before they allow something
like this to be put over on them.
I guess it boils down to the question of whether you
really need the union . . . . or the union needs you and
your dues?
Consistent with the Board's recent holding in the Holly
Farms case,' I find that this letter constituted a threat to the
employees that they would suffer "serious harm" from Re-
spondent if they persist in union organization , and violated
Section 8(a)(l)-in the context of Respondent 's other unfair
labor practices, particularly the discharge of Jeanice Wells on
May 1. Within the contemporaneous period of the Union's
campaign, the employees had reasonable cause to believe that
these various demonstrations of coercive and discriminatory
conduct lent substance and fulfillment to Respondent's ear-
lier prediction of "serious harm ." Respondent provided no
clarification or basis for inference in the letter itself, or else-
where, that the intended meaning was other than the ordi-
nary connotation of the words "serious harm ." In this con-
nection, it is observed that many of the employees are
Spanish-speaking and not literate in the English language. As
to such unsophisticated employees, it may fairly be consid-
ered that they would be even less prone to understand that
this message delivered directly to them by their employer was
other than coercive.'
While it is respectfully recognized that, in Holly Farms and
other cases involving such "serious harm" statements in par-
ticular factual situations , the Board 's findings of violation
had not been upheld in certain of the circuit courts, I am
nonetheless bound to adhere to the Board 's decision.'
Many of the older cases of the Board and the courts10 an-
' Holly Farms Poultry Industries, Inc, 194 NLRB 952 (1972), enforce-
ment denied 470 F.2d 983 (C A 4, 1972).
8 It is also noted that the critical paragraph (numbered 2) in the above-
quoted letter is virtually identical with that involved in Holly Farms, and
thus indicates a deliberate use of this language in facepf the serious question
of its legality.
9 E g, Novak Logging Company, 119 NLRB 1575, 1576 (1958)
io E.g., N.L R.B v. Greensboro Hosiery Mills, Inc, 398 F.2d 414 (CA
4, 1968), enforcement denying in part 162 NLRB 1275 (1967), and cases
cited in the Board's comprehensive decision, 162 NLRB at 1276. See also
J P. Stevens & Co., Inc v. N.LR.B, 406 F.2d 1017 (C A 4, 1968), enforce-
ment denied in part 167 NLRB 266 (1967) and 167 NLRB 308, Serv-Air,
Inc. v. XL R B., 395 F 2d 557 (C A 10, 1968 ), enforcement denied in part
(Continued)
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tedated the definitive opinion of the full Supreme Court in the
Gissel case," which is especially pertinent to the present is-
sue. The Gissel decision sets out fairly clear guidelines. As to
conduct generally which employers can "easily avoid" such
as discharge, surveillance, and coercive interrogation,,the ex-
isting distinctions in the case precedents are not "unreasona-
bly difficult to follow." However, where an employer's anti-
union efforts consist of speech alone, the employer's rights
under Section 8(c) cannot outweigh the employees' equal
rights under Section 7 and 8(a)(1) to associate freely. In the
balancing alignment of those rights, account must be taken
of "the economic dependence of the employees on their em-
ployer, and the necessary tendency of the former . . . to pick
up intended implications of the latter that might be dismissed
by a more disinterested ear." Additionally, the employer's
statement must be assessed in the context of its labor relations
setting, such as the existence of a union organizing campaign
and the commission of other unfair labor practices reflecting
the employer's union animus. An employer is free to com-
municate to its employees its views concerning union organi-
zation "so long as the communications do not contain a
`threat of reprisal or force or promise of benefit."' However,
an employer's prediction concerning the results of unioniza-
tion , necessarily as affecting the employees, "must be care-
fully phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable consequences
beyond his control.... If there is any indication that an
employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities and
known only to him , the statement is no longer a reasonable
prediction based upon available facts but a threat of retalia-
tion based on misrepresentation and coercion , and as such
without the protection" of Section 8(c) of the Act. (All em-
phasis above has been supplied.) Thus, the burden is clearly
placed on the employer to demonstrate that its prediction of
adverse effects of unionization was "carefully phrased" or
explained to the employees and was reasonably based on
available facts relating to economic necessities beyond his
control. In the present instance of Respondent's prediction of
"serious harm," it plainly failed to carry the prescribed bur-
den or to meet the objective standards delineated by the
Supreme Court . For all the reasons indicated above, the Sec-
tion 8(a)(1) violation is sustained.
3. Impression of surveillance
On April26, union literature had been distributed by union
representatives outside the plant before the start of the second
shift at 4 p.m. About 4:30 p.m., Foreman Harold DeWinter
appeared in the work area of employees Reba Galicia and
Jeanice Wells. Galicia called him over and commented on the
fact that he was holding a union leaflet. DeWinter replied
that "everybody, has one." Thereupon Wells produced a leaf-
let from her pocket and said, "Harold, I have got one, too."
DeWinter remarked, "oh yes ... you should have lots of
them." Galicia interjected that Wells "was not the one that
161 NLRB 382 (1966); J. P. Stevens & Co., Inc. v. N.L.R.B., 380 F 2d (C.A.
2, 1967), enfg. as modified 157 NLRB 869 (1966); N.L.R B. v. Lyman
Printing Co., Inc, 356 F.2d 844 (C.A. 4, 1966), setting aside 150 NLRB 737
(1964).
11 N.L.R.B. v. Gissel Packing Company, Inc, 395 U.S 575 (1969).
called them in, she's not the one that's passing them." At this
point, Galicia returned to her work. DeWinter then stated
that it did not matter because "they knew all about it, who
was going and passing,out and everything." Contradicting
Galicia, Wells asserted that she had in fact been passing out
union material , but only on her break time. DeWinter told
her that it was all right on break time, but if he caught her
doing it on company time, she would be fired." In the cir-
cumstances described , I find that Respondent created an im-
pression of surveillance in violation of Section 8(a)(1) by the
remarks of DeWinter indicating that Respondent knew the
identity of employees who were engaged in union
activities."
4. Prohibiting distribution of union literature
About 3:30 p.m. on May 3, employees Billy J. Duncan and
Lowrece Ceasor undertook to -distribute union handbills im-
mediately outside the door which is the employee entrance to
the plant building. They were due to report for work on the
second shift at 4 p.m. For several minutes, they handed the
literature to individual employees entering and leaving the
building during the change of shifts. Duncan gave one of the
handbills to Supervisor McDowell as he was coming into the
plant. McDowell stated they would be fired if they did not
stop passing out the literature." Shortly thereafter, Person-
nel Manager James S. Waites emerged from the building. He
told them that they could not pass the literature at this loca-
tion as they were on private property and were trespassing,
and ordered them to move to the parking lot.. Duncan and
Ceasor then proceeded to the entrance of the driveways lead-
ing into the employees' parking lot from the public road.15
There, for a brief period, they distributed the leaflets to sec-
ond-shift employees inside automobiles which were entering
the driveways . Some of the cars passed through the points of
entry without stopping ; and as to those cars which stopped
momentarily , Duncan and Ceasor were effectively unable to
talk to the individual employees in solicitation of their sup-
port.
Respondent had no rule against solicitation or distribution
of literature which was disseminated to the employees in any
12 DeWinter testified that he could recall only one conversation concern-
ing the union that he had with Wells, which took place 1 or 2 weeks before
May Wells had stopped him and asked if he was angry with her because
she was working with the Union , and he replied , no Wells described sub-
stantially the same conversation "around April the Ist," in which she asked
DeWmter why he had changed his attitude toward her Galicia testified that
she heard Wells speak to DeWinter in support of the Union several times
in the plant . I credit the testimony of Wells and Galicia as related above.
13 E.g., Gerbes Super Markets, Inc., 176 NLRB 1112 (1969).
14 McDowell 's denial that he made such a threat is not credited.
15 James A Anderson , a security guard employed by an independent firm
under contract with Respondent , gave testimony for General Counsel with-
out contradiction He witnessed the activity of Duncan and Ceasor at the
building entrance and the instruction by Waites that they "move out on the
street " At this time , Dillon came to the doorway , looked in the direction
that Duncan and Ceasor were moving , and went "inside the factory en-
trance," where he was joined by two gentlemen. Anderson overheard por-
tions of the conversation among these two unidentified men and
Dillon-that there were "some troublemakers" within the plant and "there
were some terminations going to happen " As Anderson "couldn't say" that
Dillon was the speaker or identify the speaker as an agent of Respondent,
I am disposed to reject General Counsel's argument that such evidence
constitutes a threat attributable to Respondent.
OHMITE MANUFACTURING COMPANY
form.16 The application of a no-distribution rule, even if one
existed, would be presumptively invalid in the present cir-
cuinstances as the distributions in question took place in a
nonworking area during nonworking time:" Respondent
has not established, nor even contended, that its banning of
the distribution at the building entrance was necessary for
legitimate business reasons, such as to control any serious
littering problems, or to maintain discipline. The statement of
Personnel Manager Waites to Duncan and Ceasor that they
were trespassing was patently unjustified. Thus, Respondent
has not evidenced or asserted the existence of any rule re-
stricting employee access to outside areas of the plant prem-
ises. Moreover, the distribution which was halted by Re-
spondent occurred during a change of shifts shortly before
the distributors reported for work and did not involve em-
ployees on the premises at times totally outside their working
hours.18 It is immaterial whether Duncan or Ceasor, after
being ordered away from the building entrance, could or did
accomplish their distributions at the driveway entrances with
equal effectiveness. At the first location, Respondent in-
stituted a significant restriction upon employee rights which
itself must be judged and could well have more pervasive
effects. Accordingly, I find that Respondent, by interfering
with the distribution of union literature and by threatening
discharge of the employees engaged in such activity, in each
instance violated Section 8(a)(1) as alleged.19
C. Discharge of Jeanice Wells
In March 1973, she was hired by Personnel Manager
Waites as a molder on the second shift. Following her attend-
ance at the first union meeting on March 21, 1974, she was
"pretty constantly" active in the union campaign distributing
union cards and literature throughout the plant. At various
times, she had solicited virtually all the 60 employees on the
second shift. Waites and DeWinter admitted they were aware
she was a promoter of the Union but indicated that they
obtained such information from other employees. Certain
incidents were adduced by General Counsel to show that
Respondent had more direct knowledge of Wells' union ac-
tivities. Around April 1, Wells openly revealed that she was
actively supporting the Union when she asked DeWinter
whether this was the reason he had changed his attitude
toward her. On April 4 in the plant, employee Ida Rice20
accosted Wells, in the presence of Charles Dillon, the indus-
t6 Indeed, General Counsel adduced without dispute numerous instances
of unrestricted solicitations and distributions to employees for charitable
and other private purposes in work areas on working and nonworking time
However, it is unnecessary to consider the instant issue on a theory that
Respondent engaged in a discriminatory practice of restraining only the
distribution of union literature.
17 Walton Manufacturing Company, 126 NLRB 697 (1960), relying on
Supreme Court decisions And see in particular, N.LR.B. v LeTourneau
Company of Georgia, 324 U S 793, 796, 797 (1945), and Stoddard-Quirk
M%g., Co., 138 NLRB 615, 618, 620 (1962), as to the illegality of preventing
employee distribution of union literature on a company parking lot. Cf.
N.L.R B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1965), involv-
ing an employer's prohibition of distributions on company property by
union agents or nonemployees.
18 Cf. GTE Lenkurt, Incorporated, 204 NLRB 921 (1973)
19 Bulova Watch Company, Inc., 208 NLRB 797 (1974); Stoddard-Quirk,
M(g Co., supra
20 At times referred to as Ida White.
441
trial relations director. Rice said, "Oh, I know where you
have been . . . how many persons were there." Wells admit-
ted she had been at a union meeting,,held that day, and
invited Rice to go see for herself" On April 26, the union
representatives were distributing literature at the plant drive-
ways to employees arriving for the second shift. Wells
stopped her car to allow a representative to speak in Greek
to employees she was transporting to work. After parking her
car, Wells encountered Rice, and they became engaged in a
heated controversy concerning the Union. When both ap-
proached the plant building, Dillon was standing outside the
employees' entrance. Pointing to Wells, Rice called out to
Dillon, "there's the one that's for the Union." For several
minutes thereafter, in Dillon's presence, Rice and Wells
debated on the subject of the Union. Employee Rusty del
Greco, entering the discussion, asked Wells whether the em-
ployees would receive a cost-of-living raise. Wells said she
would check into it at the next union meeting. Then Dillon
told Wells the Union could get the employees nothing that
the Company did not want them to have. Wells openly disa-
greed. In the argument which continued, Rice challenged
Wells to "go out in the back" and fight. Wells refused and
went in to work.22 It has already been described that, on
April 26, in a conversation on the plant floor, DeWinter
created the impression that Respondent was engaged in sur-
veillance of employee union activities, specifically directed to
Wells. Also on April 26, Waites was observed by Wells in the
work area holding a union pamphlet distributed that day.
Wells "jokingly said you have come over to my way of think-
ing." He replied that "everybody has a right to have them and
he walked off laughing."23
Friday, April 26, was Wells' last day of work. She was first
apprised of her discharge by Foreman DeWinter on May 1,
for the given reason that she violated one of Respondent's
general rules. The rule in question is set forth in the official
handbook distributed to employees, viz:
Absence for three consecutive working days without
permission, or without a satisfactory explanation, will be
considered a voluntary termination.24
About 6:30 p.m. on April 26, Wells spoke to DeWinter in the
presence of employees Reba Galicia and Derail Gayle. She
related at some length a sudden necessity to vacate her apart-
ment before May 1 and find new quarters. She told DeWinter
she definitely would not be in to work on Monday and was
not sure about Tuesday. DeWinter said, "all right." Before
the end of the shift, about 11:45 p.m. that day, in the presence
of Galicia and Lowrece Ceasor, she reminded DeWinter that
she had to look for an apartment, would definitely be out on
Monday, and was uncertain about Tuesday. Again he said,
"all right." In one of these conversations on April 26, Wells
21 Uncontradicted testimony of Wells.
22 In his testimony, Dillon admitted that he overheard this conversation
but said nothing himself other than "hello." Rice was not called to testify.
Wells is credited
23 Waites denied the question of Respondent's counsel that he ever had
conversations with Wells regarding distribution of literature Wells, cor-
roborated by Galicia, is credited.
24 On the back of identification cards issued to employees, it is stated
among the rules "All employees must notify the Company when absent.
Unexcused absences for 3 consecutive days will be considered a voluntary
termination."
442 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said she would call in if she was not back by Wednesday, and
DeWinter told her to be sure to call on Wednesday if she was
not in by then. Wells was absent on Monday and Tuesday.
On Wednesday, May 1, between 5:30 and 6:30 p.m., she
telephoned DeWinter and explained that she had just finished
moving and would report forwork at the start of her evening
shift the next day. DeWinter then informed her that she had
been fired, that the "people in the office" told him to dis-
charge her for being absent 3 days without permission if she
did not call in by 4 p.m. that day. When she protested that
she had his permission, DeWinter said (in Wells'
words)-"I really don't know why you was fired. I can't tell
you no more. I was told and instructed from the office to let
you go."25
Shortly after 4 p.m. on May 2, after attending a union
meeting, Wells came to the plant for her paycheck and had
a long discussion with Personnel Manager Waites. She
wanted to know the reason she was discharged. Waites in-
dicated she had been off 3 consecutive days without permis-
sion. She said DeWinter had told her on the telephone the
previous day that she was fired because she did not call in
before 4 p.m. But she insisted that DeWinter had given her
advance permission to be absent and she could prove it. She
repeatedly requested that he summon DeWinter to the office.
Waites indicated that she did not have permission, that De-
Winter had told him so, and he refused t call DeWinter.
Wells asked to see employee Galicia concerning a personal
matter. Galicia was paged and then appeared. Wells related
that she had been fired because they said she had been off for
3 days without permission. Galicia declared-"something
about that's a lie, I heard you tell DeWinter you wouldn't be
in on Monday."26 (Galicia left the personnel office at this
time.) Wells told Waites,-"There is your proof." She asked
to be put back on the job as if she was never fired. Waites
replied that "they did not reinstate employees fired from
Ohmite," and that they can sometimes overrule the foreman
if they do not think the employee's excuse is "good enough."
Wells departed after being given her check.27
About 9 p.m. on May 2, DeWinter spoke to employee
Galicia at her machine. He told her that "all the girls were
on him for firing Wells on the phone." He accused her of
spreading such information, particularly to Ida Rice, which
25 DeWinter testifed that on April 26, between 4 and 8 p.m, Wells told
him she "might not be in on Monday" because she "was going to move "
He replied that "she could, if she wasn't in on Monday," and then stated,
"if you are here on Monday, it's okay, if you are not here, please let me
know " He could not recall a second conversation with Wells that day
concerning permission to be absent Ceasor and Galicia both verified the
second conversation at about 11.45 p.m Ceasor testified that Wells asked
to be off on Monday and probably Tuesday, to which DeWinter responded,
"okay." Galicia testified Wells stated she would not be in on Monday
because she had to find an apartment; and DeWinter said, it was okay for
her to be off as long as she called or let him know." Gayle did not testify.
26 Galicia's version, which is in accord with that of Wells Galicia further
testified that Wells then told Waites she had also informed DeWinter she
was not sure she would be in on Tuesday.
27 In the version given by Waites, he questioned Wells at length as to the
reasons she could not call in sooner than she did. He ruled that her explana-
tion was unsatisfactory, and that she did not have permission to be absent.
He could not recall that Wells had requested DeWinter to be summoned to
prove she had been granted the permission, nor that Galicia asserted in his
presence that-Wells had received permission from DeWmter. Initially he
testified that Wells never said she had permission, but later shifted
to-"I cannot recall."
Galicia denied. Then both approached employee Ceasor. De-
Winter stated, "I want to clear up something ... I want you
to understand I didn't fire Jeanice." Ceasor asked, "Who-
did?" DeWinter replied, "They did." She challenged him,
"Did you go to her defense?" He said, "No, there was nothing
I could do. They had already pulled her card." And he in-
dicated that "he was told to let Jeanice go from
personnel.""
The foregoing chronology of events is based principally on
the direct and corroborating testimony of Wells, Galicia, and
Ceasor, which I have credited after consideration of the total
record. The countervailing evidence given by DeWinter,
Waites, and Dillon distinctly impressed me as consisting sub-
stantially of mutual contradictions, equivocations, and dis-
simulations.
The action initiated by the foreman to terminate an em-
ployee, by filling out a personnel "green sheet" for the em-
ployees, is subject to the approval of Dillon, the industrial
relations director. Dillon testified that, in his 8 years of expe-
rience with Respondent, he knows of no instance that an
employee was not terminated pursuant to the rule, where the
employee was absent for 3 days (without permission) and did
not call in "before the shift." He averred that the rule goes
into effect on the third day that the employee fails to show
up, that the rule is enforced on such basis automatically and
without exception, and that the recall of an employee so
terminated is "never allowed."29 DeWinter testified
ultimately30 that the rule requires the employee to call in no
later than the third consecutive day of an unexcused absence.
If the employee is on the morning shift, the call may be made
at any time during that shift; but a second-shift employee, as
in Wells' case, must call in by 4:30 p.m., or one-half hour after
the shift starts. He stated that, even where an employee ini-
tially notifes Respondent of an absence due to illness, the
employee is supposed to call in again on the third day. Thus,
there are patent inconsistencies in the interpretation and ap-
plication of this termination rule as between Dillon and
DeWinter.31 It is plainly shown, and undisputed, that the
employees were never apprised by Respondent, directly or
indirectly, of any change in the rule, as quoted supra, which
refers to an absence for 3 consecutive days-commonly
meaning full days-"without permission, or without a satis-
factory explanation." What constitutes a satisfactory expla-
nation is, of course, subjective and discretionary with Re-
spondent.
28 DeWinter denied the substance of this testimony by Galicia and Cea-
sor,and in general effect that he made a similar statement to Wells when
she telephoned on May 1 He stated that he alone made the decision to
discharge Wells. In later testimony, he admitted that, after he made out the
termination (green) sheet and before Dillon entered his approval, he dis-
cussed with Waites and Dillon his reasons for releasing Wells. He had never
previously followed such a procedure. For their part, Dillon and Waites
firmly denied that they had such a discussion with DeWinter.
29 Notwithstanding the provision for a "satisfactory explanation" in the
published rule, Dillon would have it believed that Respondent maintains the
policy of refusing reinstatement even if it is aware that the discharge was
clearly unwarranted or a mistake.
30 His testimony was shifting, and prompted at tunes by leading questions
of Respondent's counsel
31 Other inconsistencies exist For example, Dillon testified that, about
4:30 p in., on May 1, DeWinter asked him if he heard anything from Wells,
while DeWinter specifically denied that he approached Dillon with such a
question
OHMITE MANUFACTURING COMPANY 443
Respondent introduced numerous "green sheets" of for-
mer employees, extending from January 1973 to the date of
the hearing, for purpose of showing that all such employees
were terminated for violating the absentee rule.32 Neces-
sarily, these exhibits do not reflect any cases in which a
"satisfactory explanation" from the employee was accepted
by the foremen, or other officials, or where the rule, although
breached, was not invoked for some other reason . Illustra-
tively, on one of the green sheets, that of Ilona
Steenholdt-DeWinter effected her termination on April 4,
for the reason indicated that she had not shown up for work
for 2 weeks. During this period, Steenholdt never notified
Respondent concerning her absence, and it made no effort to
communicate with her. DeWinter testified that on the first
day of Steenholdt's absence, he approached Wells, because he
knew they were friends, and Wells said Steenholdt was
ill.33 On two occasions thereafter, Wells gave him the same
answer when he questioned her. After 2 weeks, Wells told
him that Steenholdt "was quitting" and at this point he made
out the green sheet. The approach taken by DeWinter in
Steenholdt's case is completely at variance with the routine
which he described that he follows in checking on absent
employees and in strictly enforcing the absentee rule. I find
incredible and without support Respondent's attempts to es-
tablish that its rule, as defined by Dillon or by DeWinter, was
automatically and immediately applied, without exception, to
terminate the absent employee.
Wells did not violate the absentee rule as it actually existed
in the handbook distributed to the employees, or even as it
was modified in the testimony of Dillon and DeWinter. As
testified by three witnesses and credited, Wells had advance
permission from DeWinter to be absent at least on Monday,
April 29-the important factor upon which Wells reasonably
relied in her timing. Thus, she would not in any event have
been required to call in before Thursday, the third day of her
unexcused absence. She was notified of her discharge on
Wednesday, when she telephoned DeWinter that she was
ready to report on Thursday. As DeWinter testified, it was
"close to 5 o'clock" on Wednesday, May 1, when he made out
the green sheet for Wells' termination, or within 1 hour after
the start of her shift on the third day of her absence. While
she remained away for an additional day beyond the Monday
and possibly Tuesday which she initially indicated, this could
not be construed as an infraction of the 3-day termination
rule. Having already received- the permission to be absent for
personal reasons, there was no longer a question whether her
explanation was satisfactory-as Waites undertook to ex-
plore on May 2. Waites was not interested in the proof offered
by Wells that she had prior permission . And he repeatedly
rejected her requests to summon DeWinter. It may reasona-
bly be inferred in these circumstances that Waites already
knew, despite his contrary testimony, Wells had received the
32 It appears that the exhibits mainly involved relatively new employees,
that in many instances the actual reason for the severance was a voluntary
quit by the employee, and that many of these green sheets were filled out
substantially later than the third day of the employee's continuous absence.
It is also noted, concerning Respondent's purported policy of refusing rein-
statement to terminated employees, that many green sheets indicate that the
foieman would recommend rehiring of the affected employee
33 DeWinter made no effort to ascertain the source of Wells' knowledge,
nor was it elsewhere revealed
permission as she was insisting. And he chose-to ignore the
"proof' declared in his presence by Galicia.
Conclusions
The alleged infraction of the absent rule by Wells was
clearly not the fact. Respondent's evidence is of a character
which does not permit an inference that it believed in good
faith that she breached the rule. In light of the entire record,
I find that this asserted ground was not the real reason for
her discharge, but rather that Respondent was attempting to
conceal its true motive. Wells was discharged during the heat
of the union campaign. Respondent's antagonism toward the
Union is well evident, as in its unlawful prevention of em-
ployees from passing literature outside the plant, coupled
with a threat of discharge by Supervisor McDowell, and in
creating the impression that the employee's union activities
were under surveillance. Even apart from the question of
legality, the "serious harm" letter, pointedly placed in the
hands of each employee, manifests Respondent's strong
union animus. Wells was particularly active throughout the
plant campaigning for the Union. Respondent was fully
aware of her activities, as highlighted by the separate inci-
dents with Dillon, Waites, and DeWinter on April
26-the very day she obtained leave for a brief absence from
work which became the ostensible reason for her termination.
Previously, DeWinter had threatened to fire Wells if he
caught her passing union material on company time.34 Al-
though DeWinter testified that he alone decided to discharge
Wells, there is significant evidence of his admissions to Wells,
Ceasor, and Galicia that the decision was dictated to him by
higher management , e.g., Waites and Dillon. Accordingly, I
conclude that Respondent discharged Wells in order to dis-
courage the employees from joining or supporting the Union,
thereby violating Section 8(a)(3) as alleged.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with Respondent's operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Particularly in view of the
discriminatory discharge of Wells, a broad cease and desist
order is warranted .31
It has been found that Respondent unlawfully terminated
Jeanice Wells as of May 2, 1974. It will therefore be recom-
34 While no violation is alleged or found in this statement, DeWinter's
threat regarding such union activity is contrasted with the extensive evi-
dence that Respondent tolerated other private solicitations on company
time.
35 N.L.R.B. v. Express Publishing Co., 312 U S 426 (1941), N.L.R.B. v.
Entwistle Mfg. Co., 120 F 2d 532 (CA 4, 1941).
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that Respondent offer her immediate and full rein-
statement to her former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to the seniority or other rights and privileges she pre-
viously enjoyed, and make her whole for any loss of pay
suffered as a result of the discrimination against her, by pay-
ment to her of a sum of money equal to that which she
normally would have earned, absent the discrimination, with
backpay and interest computed under the established stand-
ards .of the Board.36 It will be further recommended that
Respondent preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
useful to determine the amounts of backpay and the right of
reinstatement under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Jeanice Wells, thereby discouraging
membership in the Union, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
4. By the foregoing, and by other specific acts and conduct
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and the
entire record in the case, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
36 F.W Woolworth Company, 90 NLRB 298 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962)
37 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
deemed waived for all purposes
ORDER37
Respondent, Ohmite Manufacturing Company, Subsidiary
of North American Philips Corporation, Skokie, Illinois, its
officers, agents , successors , and assigns, shall:
1. Cease and desist from.
(a) Discouraging membership in United Automobile, Air-
craft & Agricultural Implement Workers of America, or any
other labor organization, by discharging employees, or in any
other manner discriminating in regard to hire or tenure of
employment or any term or condition of employment.
(b) Creating the impression of surveillance of union activi-
ties.
(c) Prohibiting employees from distributing union litera-
ture during their nonwork time in nonwork areas of the
company premises, including entrances to the plant.
(d) Threatening employees with discharge, or other repris-
als, for engaging in the lawful distribution of union literature,
or for other union or concerted activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Offer Jeanice Wells immediate and full reinstatement to
her former position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights or privileges, and make her whole for
any loss of earnings, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all-payroll and other records, as set forth
in "The Remedy" section of this Decision.
(c).Post at its Skokie, Illinois, plant and facilities, copies of
the attached notice marked "Appendix."38 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 13, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof in conspicuous
places, and be maintained for 60 consecutive days. Reason-
able steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
31 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "