Deringer Mfg. Co.

National Labor Relations Board - Board DecisionsFeb 5, 1973

201 N.L.R.B. 622 (N.L.R.B. 1973)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Deringer Mfg. Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 13-CA-10904 February 5, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On August 30, 1972, Administrative Law Judge Benjamin A. Theeman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in the light of the exceptions and brief and has decided to affirm the rulings , findings and conclusions of the Administrative Law Judge and to adopt his recommended Order. DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN , Administrative Law Judge: The amended complaint herein ' alleges that Respondent, Deringer Mfg. Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151, et. seq. (the Act) by unlawfully (a) interrogating its employees concerning their union mem- bership and desires ; (b) forbidding its employees from engaging in prounion solicitation at its plant during nonworking time ; and (c) creating the impression that the Union and other concerted activities of its employees were being kept under surveillance.2 Respondent in its answer, amended at the hearing, denied committing the unfair labor practices. A hearing was held before me, the duly designated Administrative Law Judge , on March 29 and 30, 1972, in Chicago , Illinois, after due notice. All parties appeared and were represented by counsel . They were given full opportunity to participate , adduce evidence , examine and cross-examine witnesses , and argue orally . Briefs were submitted which have been fully considered. Upon the record in the case and from my observation of the witnesses ,3 I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 Based on a charge filed by the International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW) on September 23, 1971 . The complaint issued on January 18, 1972, was amended on February 23, 1972. 2 The complaint alleged that R. W. Lamm , Debs Pelkala (Pelkolo), Jack Dodson, John Corey, Charles Nordigan , Carl Koeneke , Dan Fellers, Vivian Nagy, and Dorothy Pasternack were supervisors within the meaning of Sec. 2(11) and (13) of the Act. Respondent denied that Nagy and Pasternack who are leadwomen were supervisors but admitted that the others were The complaint alleged that the above -named persons forbade employees from engaging in prounion solicitation at its plant . Also, the complaint alleged that Duell and Mary Violetto its agents and "other officers and agents" unlawfully interrogated Tina Pencak . It may be inferred that the "other officers and agents " might refer to some of the people listed in the first paragraph The General Counsel has offered no evidence to show that any of the above-named people performed any of the acts alleged The General Counsel's brief makes no reference to any of the above -named parties as doers of or participators in any unlawful actions Counsel for both parties elicited considerable testimony as to the duties and responsibilities of Nagy and Pasternack in an effort to show their supervisory capacity or lack of it . In view of the failure of the General Counsel to show what actions of Nagy and Pasternack were violative of the Act, it is considered unnecessary to determine their status . In the event a FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent, an Illinois corporation , has maintained a factory at 1250 East Town Lake Road , Mundelein , Illinois, where it is engaged in the manufacture and sale of electrical metal contacts; also included is the distribution of these products to firms outside the State of Illinois. During the year 1971, Respondent purchased and shipped from points outside of Illinois directly to its factory in Mundelein goods and materials valued in excess of $50,000. It is found that Respondent is now and at all times determination is considered necessary , the Administrative Law Judge on the basis of the record would have found neither Nagy nor Pasternack to be a supervisor within the meaning of the Act. In connection with the latter statement, the language of the Board contained in In. I of Montgomery Ward & Co , Incorporated, 198 NLRB No. 9, was considered especially pertinent: We agree with the Trial Examiner that Adams is not a supervisor within the meaning of the Act . In reaching this conclusion , we rely not only on the reasons set forth in the Trial Examiner 's Decision , but also on the failure of the record to show by a preponderance of the evidence that Adams either possessed or exercised the authority to "effectively recommend" or "responsibly direct" within the meaning of the Act, or was more than a leadman -type rank-and-file employee whose judgment was valued, sought, and considered. 7 The testimony of all witnesses has been considered . In evaluating the testimony of each witness , demeanor was relied on. In addition, inconsisten- cies and conflicting evidence were considered . The absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such did not occur . See Bishop and Malco, Inc. d/b/a Walker 's, 159 NLRB 1159, 1161. Further, to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness ' testimony." N LR B. v Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2) 201 NLRB No. 94 DERINGER MFG COMPANY 623 material herein has been an employer engaged in com- merce within the meaning of Section 2 (6) and (7) of the Act. II. THE UNION It is found that the UAW is now and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Statement of the Issues The issues are sufficiently set forth in the above statement of the case. occurred a few days later . They will be dealt with individually hereafter . Other than the above events, the record contains no evidence of any Respondent activity alleged as illegal under the Act,5 though Respondent continued to be actively opposed to the Union. Concededly, Respondent knew the union campaign had been going one Also admittedly , Respondent knew that employees Gordon LaFond,7 Tina Pencak , her husband Joseph Pencak , Thelma James , Edna Schaefer, and Russ Landt were active union supporters.s Other employees not named were also active. E. The Union Advised Employees They May Pass Out Cards and Literature During the 5-Minute Wash Period B. Background Respondent employs about 180 employees. It has three departments , brazing, inspection , and heading and the employees works in three shifts: first from 7 a.m. to 3:30 p.m.; second from 3:30 p.m. to midnight; third from 11 p.m. to 3:30 p.m. The last 5 minutes before each shift punched out to go home was known as "wash-up" time. A buzzer sounded and the employees were free to leave their work to use the washroom facilities . This proceeding deals mainly with employees of the first shift in the brazing department, their attempts to organize, and the solicitation by employees of signatures for union cards during washup time. C. The Union Organizational Campaign; the Union Loses the Election The UAW started organizing about April 1971 and continued until the election in December 1971. The organizational campaign was open and active among the employees and included the distribution of literature, solicitation of signatures on union cards , and urging of other employees to join the Union by union adherents .4 Respondent at all times was openly opposed to the Union. On November 11, a petition for certification was filed. On December 14, the election was held . The Union lost on a tally of: for-35 votes , against-86 votes, and 4 uncounted challenged ballots . No objections to the election were filed. D. The Events of August 1971 In August, four events occurred that are alleged herein as violations. Three took place at a meeting of employees called by Respondent on August 26 to discuss the union activities. The fourth, a conversation between Maintenance Supervisor Warren Stahnke and employee Joseph Pencak During the months of June , July, August , and September , the Union mailed to a number of Respondent's supervisors organizing material asking them to support the UAW drive. 5 Excepted from this statement is the continuing effect of Respondent's no-solicitation rule See sec. G below. 6 As shown below , J. Porter Duell , Jr, vice president and general manager, told the August 26 meeting, "We were aware that there was union activity in the plant." 7 In July 1971, LaFond told Arther John Corey, plant superintendent, that 10 employees were forming a committee to get a union in the plant. Corey voiced no objection and told LaFond to mention no names. During the second week in August , the Union held a meeting attended by about eight active union employees. Dorothy Pasternack9 leadlady in the brazing department, was also present . The union organizer told the meeting that it was all right to pass out union cards and to urge people to sign them during the 5-minute wash period. F. Pencak Unsuccessfully Tries To Get Violetto To Join the Union For the entire workday of August 24 Tina Pencak and Mary Violetto were working side by side in the brazing department. Tina continuously spoke to Violetto about signing a union card and urged her to join the Union. Finally, Violetto told Tina not to "bug" her about the Union; that if she wanted to join she would , and if she didn't she wouldn't; but she didn't know why they needed a union.10 There is no evidence that (1) Violetto informed Respon- dent of Tina's solicitation; (2) Respondent was aware of the solicitation; or (3) the Company took any action about Tina's solicitation during working hours. G. On August 26 the Company Holds Meetings With Employees By letter dated August 23, Respondent advised" the employees that it was concerned about the "outside union activities here at Deringer" which Respondent attributed to a failure of communications . The letter contained: So, we would like to sit down and talk with you later this week. We will have "no holds barred" meetings -where we can talk about anything in the world that you want to talk about. In the meantime, we would like to ask you only one thing. Please don 't jump the gun! Please hold off signing outside union cards and at least give us a 6 Duell told the August 26 meeting "I knew of some of the individuals involved." 9 She attended at the invitation of Tina Pencak. Tina also asked Pasternack to sign a union card . Pasternack also attended a union meeting in December prior to the election. io This was not the first time that Tina had asked Violetto to sign. Tina had asked her previously in June or July when union activities started. Russ Landt also had asked Violetto to sign a card. tt The letter was distributed to the employees by Lois Paulsen, personnel manager . There is no allegation that this letter was unlawful. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chance to talk things over. I am positive that this will be in the best interest of all of us. On August 26,12 a meeting was held in the plant's cafeteria attended by about 25 employees from the brazing and inspection departments working on the first shift. The meeting started about 1:30 p.m. and lasted till about 3 p.m. Duell, Pelkala,13 Nordigan,14 and Corey, were also present. The employees had been told they were supposed to attend the meeting. Duell was the main speaker. In essence , he advised the meeting that Respondent knew of the union activities and made a pitch for direct communication with the employ- ees. When he finished he asked if there were any questions. Edna Schaefer asked if it was all right for the union personnel to pass out literature and solicit cards during working hours. Duell said it was not. Schaefer asked if it was all right to pass out union literature during the 5- minute washup. Duell answered that this time was still company time and employees passing out union cards in that time were subject to dismissal.15 In the lull that followed Duell asked if there were any further questions. Then Mary Violetto pointed to a group of union sympa- thizers and told them, "You people that are telling us to sign union cards and everything, and telling us how, how good the union is, and what it could do for us, why don't you speak up now?" No one said anything. Violetto continued, "And Tina, (Pencak) you are the worst, you are trying to get us to sign union cards all the time , and telling us how good it is. Why don't you talk now? Why are you so quiet?" Tina answered her, "Mary, I wasn't the only one that approached you. There were other people, we're a group, and we work together." Violetto said, "Yeah, but you are the main one ... When Violetto finished Duell said, "Well, we are aware of all the . . . union activities in the plant, and when these people approach you, just tell them that you are not interested, and walk away." As stated above Duell also said that he knew some of the individuals that were involved in the union campaign. Employee Vi Louth then stated she could not understand why anybody would want a union at the plant. Duell responded he could not understand either and if he wasn't happy at any company that he worked he "wouldn't stay" or "would leave." After this statement the meeting closed.16 At the meeting, no comment was made nor was any action taken by any of the supervisory personnel present with regard to the Violetto conversation. There is no evidence in the record to show that any management personnel authorized Violetto to speak to Tina and the union group, that there was any communication between management and Violetto before or after the meeting with regard to union activity, or with regard to her attitude toward either the Union or the employees who were 12 This date has been adopted by the parties and used herein. Other specified dates are oriented to this one. 13 Quality control manager. 14 Foreman of the brazing department. 15 Duell admitted that at the time he made this statement he was under the impression that "wash -up" time was company time during which union solicitation could be prohibited. supporting the Union. Nor is there any evidence that any person in management knew that Violetto was opposed to the Union prior to her statement on August 26. H. Conversation Between Tina and Violetto After the August 26 Meeting The employees returned to the brazing department from the August 26 meeting. Violetto and Tina in the presence of some other employees had a conversation. Tina was in an "emotional" state. She thanked Violetto for mentioning her name and assured her that Duell knew she had been involved in union activity. Tina also told Violetto that she had done what she did because she thought Tina would be fired and she (Violetto) could move up in seniority. Tina called Violetto a name and told her that was as "low as she could get." Violetto said she was tired of Tina bothering her about the Union all the time . Tina asked Violetto, "how much did they pay you for saying this . . . because you wouldn't have thought of this on your own." 17 As with the conversation between Tina and Violetto before the meeting, there is no evidence that management was in anyway involved or aware of its existence. 1. Conversation Between Joseph Pencak and Warren Stahnke Joseph Pencak was the husband of Tina mentioned above. He had been an employee of Respondent for 8 years. He knew and was on friendly terms with Warren Stahnke, maintenance supervisor. The latter was employed by Respondent for 21 years. Pencak attended the August 26 meeting. A few days later, Pencak and Stahnke met in the men's washroom. Stahnke was there first. When Pencak entered, Stahnke said "Hey, Joe, can I ask you a question?" Pencak replied, "Sure, if I can answer it." Stahnke then said, "Why didn't you fellows ask questions at the meeting?" Pencak answered, "Now wait a minute, some of the guys did ask questions." Pencak further stated that the Company's president, Mr. Lamm, who had written the notice, was not at the meeting, and furthermore he (Pencak) felt that nothing ever developed from these meetings. Then Stahnke said "Well, if you don't like it here, why don't you leave?" Pencak replied, "Just because I don't like the way the country is run, doesn' t mean I should go back to Poland. You have to iron out your problem. My brother-in-law who works over at-Harpers." At this point Stahnke cut him off and said, "Well, if he liked it there so much, why doesn't he stay there?" The conversation ended. Stahnke testified that when he spoke to Pencak "it was in kind of a kidding or teasing manner." Pencak testified that Stahnke's voice was pleasant but that "he was harsh when he told me why don't I quit." Pencak did not think that Stahnke was threatening but said what he did because Stahnke "wasn't secure in what he was talking about." 16 The finding of the meeting and the conversations is based on the cumulative testimony of Tina Pencak, Whitmer, James , and LaFond. Counsel for Respondent in his brief uses a similar statement of fact as the basis for his argument. 17 The findings in the last sentence is made upon Violetto's credited testimony . Tina, after much equivocation, admitted she had said to Violetto. "somebody must have talked to [you ] about it " DERINGER MFG. COMPANY 625 After the conversation, Pencak went back to work. The record does not show that any other conversation of this kind occurred. Pencak continued openly to engage in union activities. At no time was he criticized or spoken to about them. J. Respondent Informs its Supervisors That Union Solicitation During the 5-Minute Washup Is Permitted and we had a lot of work to get on, and it didn't make any difference how the election turned out, that we still had to get the job done, and that everybody should put their shoulder to the wheel and do the job, if they always did the job, there would be no problems with anyone. L. Activities Until the Election Sometime in September or October, Respondent called a meeting of its management personnel.18 No lead people or employees were invited to or attended the meeting. The attorney for Respondent was also there. The latter told the meeting that solicitation of cards was allowed prior to the starting of work in the morning, or whatever shift they were on, on free coffeebreaks, during lunchtime, during washup time, and after employees punched out and completed their day's work. Further he told them it was allowed at anytime the employees had free time, or where it did not interfere with the working of another individual. The meeting was also told that if they "saw any infraction of the rules, just to let [Duell] know about it, that we weren't going to do anything about it." K. In November the Employees Are Told They May Solicit During the 5-Minute Washup Period In mid-November 19 Respondent held a series of meet- ings for all employees on all shifts. The attorney for Respondent was present at each meeting. Management employees were invited and attended. Not all the employ- ees were present. Each meeting opened with a statement by Duell and the attorney that "this was not a compulsory meeting, and that anyone that wished to leave could do so ...." The subject of umon activity was brought up. Duell commented that Respondent ... did urge the people to attend any umon meetings that were being held, if they were held, wherever they were held, and that they should listen to both sides of the story; that they should then, if they had any questions to ask of us, we would be holding meetings in the future, they could come back and we urged them to ask questions of the union people as well. In response to a question about union solicitation, Duell told the employees ... they were allowed to solicit before working hours, after working hours, during their lunchtime, during their coffee breaks, during their wash-up time, and anytime that they had free time. At each meeting Duell and Respondent's attorney told the employees the following or something similar to it: ... there would be no reprisals, that we had a job to do here at the company, that orders were pouring in, Is The charge in this proceeding was filed on September 23 19 The petition for certification was filed November 11. 20 The General Counsel cites Dean Industries, Inc, 162 NLRB 1078, no doubt only for the principle stated in the quotation . The facts in Dean are dissimilar to those in this case and do not support General Counsel's contention . In Dean, the supervisory personnel of Dean had knowledge of what the townspeople were going to do and attended meetings at which the actions to be taken were formulated. When taken the actions resulted from Until the election on December 14, the union supporters and Respondent carried on their activities for and against the Union without further incident. As already stated, the Union lost the election. The complaint was issued on January 18, 1972. Conclusion and Analysis 1. Nothing in the record shows that Violetto was an "agent" of Respondent There is no evidence to show impliedly or expressly that Violetto was Respondent's agent or that she was author- ized to act on behalf of Respondent when she spoke to Tina. General Counsel conceded (a) Violetto was a nonsupervisory employee; and (b) there was no evidence to show that Violetto's specific "questioning" of Tina was at the request of any company agent . Further, the record shows that none of Respondent' s representatives knew at or before the meeting that Violetto intended to speak to Tina as she did, or communicated with Violetto about the conversation before or after it occurred. The statement in section F, completely reports all conversation and action among all the persons participating in the Violetto and Tina setto. The General Counsel concedes that "Violetto's coercive conduct must be attributable to Respondent before an unfair labor practice will be found, necessitating considera- tion of agency principles." 20 In keeping with that thought the General Counsel asserts that "when Duell heard Violetto embark upon her questioning of Pencak, he should have indicated his protest to Violetto or assured Pencak of no reprisal." The General Counsel in support of his position argues that in "the application of the law of agency . . . . consent for a particular act may be indicated by inaction, and .. . an analogy can appropriately be drawn from its tort and contract area to the present situation ." He quotes from The Restatement of the Law of Agency Section 94 Failure to Act as Affirmance.21 The short answer to the General Counsel's position is that nothing in the Tina/Violetto exchange created an obligation on the part of the Respondent to act. The principles of affirmance enunciated by the Restate- the coordinated effort of the supervisors and the townspeople . Dean stands for the proposition that under such circumstances the townspeople 's actions were done as agents of the Company. 21 The quotations are (I) "An affirmance of an unauthorized transaction can be inferred from a failure to repudiate it"; and (2) "acquiescence can be inferred from silence , even though the purported agent was a stranger to the purported principal." 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment do not apply to the set of facts in this proceeding. Affirmance (one of the steps necessary to ratification 22) is "a manifestation of an election by one on whose account an unauthorized act has been done to treat the act as authorized." 23 This section continued that "An affirmance may be made by silence which indicates consent. See Section 94." 24 However before it is possible to discuss consent by silence, it is necessary to determine whether a set of facts exist to which such silence by consent may be given. The Restatement requires that an agency situation first exist; i.e., that Violetto have performed an unauthorized act on account of Respondent. Here the analogy hypothecated by the General Counsel fails. The record is clean of any evidence to show that Violetto was acting on account of Respondent. From the facts as stated no inference to that effect is warranted and cannot be made. Thus, there was nothing in the Tina/Violetto situation for Respondent to disavow. Respondent's silence did not establish something that did not exist. Accordingly, it is concluded the inaction of Duell or any other of Respondent's representatives in relation to the Tina/Violetto incident did not establish Violetto as Respondent' s agent. The General Counsel continues that the Restatement of Agency indicates the occurrence of "affirmance, if after learning that an unauthorized act was done on his account, the purported principal gives no indication of protest or disagreement as a normal person in his position would have done."25 The facts adduced in this case give no support to this quotation. Nothing in the record herein shows nor has the General Counsel pointed out that Respondent, particularly Duell, or any of its representa- tives had "[learned ] that an unauthorized act was done on their account ...." Absent this fact, there is nothing in fact or in law as stated above that required Respondent to affirm or deny the action of Violetto. Like beauty, agency in this case was only in the eye of the beholder, and the beholder was the General Counsel. None of the cases cited by General Counsel are apposite to the facts herein or support his position. The General Counsel places considerable reliance on American Leather and Suede Cleaners, Inc., 189 NLRB No. 95 . In that case the employer did not remain silent. There the employer had invited one of competing unions into its plant to speak with the employees. An organizer said he wanted to talk to an employee who had been called to the office. The employer told the organizer, "No, let her sign the papers. You don't need to talk." The finding made showed that the employer "participated in Local 46's effort to organize Respondent's employees by inviting them into their plant and acquiescing in their efforts to persuade the employees to choose Local 46's sales talk .... " The question of agency was not raised in the discussion. In Stewart & Stevenson Services, Inc., 164 NLRB 741, 22 See Restatement Sec 82 Comment (e) 22 See Restatement Sec 83(a) 24 Ibid Comment (b) Note that Sec . 94 is the section quoted by the General Counsel in his brief 25 The General Counsel did not give the citation for this quotation The Administrative Law Judge was unable to locate it in the Restatement Nevertheless it is being dealt with as cited 26 Under these circumstances it is considered unnecessary to determine 742, the Board specifically found that a foreman not only did not repudiate the remark of an employee but added a comment of his own to the employee 's remark . The Board stated The Trial Examiner found that Milton Gwosdz .. . engaged in group conversation with several employees and with his brother Ed Gwosdz , an admitted supervi- sor . . . We have found that Milton Gwosdz was not a supervisor . Nevertheless we find , as did the Trial Examiner, that this remark violated Section 8(axl). However , we base this finding not on Milton Gwosdz' alleged supervisory status, but on the fact that the remark was made in the presence of his brother, Foreman Ed Gwosdz , who not only did not repudiate it but said to Gonzales, "I didn't think you would stab me in the back." By his conduct Foreman Ed Gwosdz ratified the threat by his brother and justified the belief that Milton Gwosdz was voicing the position of management. In Rupp Equipment Company, 112 NLRB 1315, 1319, the 8(a)(1) finding is based on a set of facts showing advance knowledge by the Company of the remarks to be made and introductory remarks by the Company to the employees that "they should hear and be interested" in the forthcom- ing comments . The Company's silence thereafter was indicative to the employees of "acquiescence and agree- ment" with remarks. In view of the foregoing there is no support for a finding that Violetto was Respondent's agent. It follows that Respondent did not violate the Act by reason of any action on her part.26 2. Respondent did not give the employees the impression their union activities were under surveillance The General Counsel asserts that Respondent 's actions at the August 26 meeting gave the employees the impression that their union activities were under surveil- lance . This assertion is not borne out by the facts. From the start of the union campaign Respondent's opposition to the Union was well known to the employees and within its legal rights . 27 Similarly , the employees' activities were carried on openly and known to Respon- dent . By means not alleged to be illegal, Respondent became aware of the names of specific individuals who were active in the union campaign and a number of these employees were aware that the Company knew.28 On August 23, Respondent sent out its letter calling for its "no holds barred" meetings with employees to discuss openly the question of the Union.29 Thus, as the record discloses up to August 26, the union campaign was overtly whether the conversation between Tina and Violetto was violative of the Act. 27 See N L R B v. McGahey, 233 F 2d 406.409 (C A. 5). 28 Witness LaFond's statement to Corey in July and Tina's statement to Violetto after the August 26 meeting that Duell knew she was involved in union activities. 29 As stated , the General Counsel does not allege this letter to be illegal DERINGER MFG. COMPANY 627 carried on without any unfair labor practices on the part of Respondent.30 As shown above, it was the employees and not management that imparted unusual emotional quality to the August 26 meeting. It does not seem unreasonable that following the charges and countercharges that flowed between Tina and Violetto, Duell should inform the meeting that Respondent was aware of the union activities that had been going on, or that Respondent knew the names of some of the individuals involved. He knew and the employees knew that these were the facts. The circumstances of this meeting and the disclosures made there do not reasonably lead to the conclusion that Duell's remarks were improperly motivated or made to create an impression of surveillance or by their utterance did create an impression of surveillance. Duell's comments about knowledge followed his answers to the questions that pointed up his opposition to the Union. Duell's first statement telling the employees they could not solicit during working hours was legal. The second advising employees that solicitation during "wash- up" time was not permitted and could subject them to dismissal was incorrect and illegal. However, the record does not show that this statement was given with the knowledge that it was not as correct as the previous prohibition; that it was other than a good faith error furthering Respondent's otherwise legitimate opposition to the Union. The statements by Duell, that employees should tell union solicitors they are "not interested, and walk away" and if he wasn't happy at any company where he worked he "would leave" are not coercive in content, are expressions of opinion and are not violative of the Act.31 Absent other circumstances it is unreasonable to conclude that the Duell statements as to "union activities" and "union individuals" carried with them an aura of surveil- lance sufficient to alarm the employees, cause them to feel that their union activities would be a cause for discrimina- tion, or some other form of coercion prohibited by the Act.32 3. Stahnke did not threaten Joseph Pencak The General Counsel alleged in the complaint that the Stahnke Pencak conversation was illegal interrogation. This avenue was apparently abandoned, for in his brief, the General Counsel alleged that the conversation was "obvi- ously . . . a veiled threat" of discharge for union activities. It is found, however, that there is no substantial evidence to support this allegation. The parties admit that the conversation occurred as stated. It is considered significant that a somewhat similar statement was made in the August 26 meeting to the assembled employees. There, Duell, in response to Vi 30 The record contains no indication that Respondent had checked on the employee attendance at earlier union meetings 31 The General Counsel does not allege the Duell statements were threats or otherwise violative of Sec 8(a)(1) 32 Hendrix Manufacturing Company, Inc v. N LR B, 321 F.2d 100 (C.A. 5), and N LR B v. Prince Macaroni Manufacturing Co, 329 F.2d 803 (C.A. 1), both cited by the General Counsel deal with employer opposition to the union of different character and breadth than that shown by the Company in this case. 33 Pencak does not testify that the conversation was other than fnendly. Louth's question about having a union at the plant, told the meeting if he wasn't happy where he worked he "wouldn't stay" or "would leave." That statement was not alleged as violative of the Act. The Duell statement was less personal and less direct than the Stahnke statement. But as admitted by the parties , the relationship between Pencak and Stahnke was friendly before the conversation and continued friendly afterward. The conversation was conducted in a friendly manner.33 Respondent's opposi- tion to the Union was open and conceded but other than the prohibition of solicitation during the "wash-up" period34 Respondent 's opposition was not characterized by any other improper or illegal action . Stahnke's state- ment as it stands might possibly give rise to an inference that it was intended as an implied threat . But, the statement alone is insufficient support for a finding that Stahnke's remarks were illegally motivated . Consideration of the totality of the evidence does not support a finding that Stahnke 's remarks constituted a violation of Section 8(a)(1). 4. Respondent having revoked its illegal rule of no solicitation during "wash-up" no order is considered necessary Respondent in effect conceded that the prohibition against union solicitation during "wash-up" was illegal 35 Respondent contends, nonetheless, that no violation should be found because the rule has since been revoked and was never really applied. The charge in this case was filed on September 23. About this time Respondent started action to revoke the illegal no-solicitation rule. Discussions occurred between Duell and Respondent's attorney. Respondent called a meeting of supervisors and told them the rule was no longer in effect. In the November meetings with the employees, Respondent notified them the rule was revoked.36 The record shows that while the illegal rule was in effect the employees continued to solicit during "wash-up" time. The record does not show whether Respondent was aware of this activity or not. No action was taken against any employee because of such activity. Respondent at the meeting with the supervisors told them that if they saw any solicitation during working time to report it to Duell, but made it clear to the supervisors that Respondent was not going to do anything about it. There is no question that the rule was improper because it prohibited union solicitation by employees during nonworking time in nonwork areas . Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793; Cooper Tire and Rubber Co. v. N.L.R.B., 443 F.2d 338, 339 (C.A. 6); Stoddard Quirk Manufacturing Co., 138 NLRB 615. Nor is there any doubt that the employees knew of and felt the restraint of the He states that Stahnke's voice was fnendly, and not threatening . He does say that Stahnke 's voice became "harsh" when he told him "why don't you leave?" It is considered too uncertain to conclude on voice shadings subjectively determined , that an implied threat occurred. 34 As shown in the following section , there is evidence to show that this prohibition was set because Duell was mistaken in his opinion that "wash- up" time was working time. 35 The record evidence is open to the inference that the illegal rule was issued under the mistaken notion that it was proper. 36 The petition for certification was filed November 11. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD illegal rule after it was promulgated . Accordingly, it is found that the promulgation of the rule was a violation of the Act. It is also found that the Company within a reasonable time after the promulgation of the rule revoked it. No showing is made that during the time the rule existed, a period of approximately 2 months , the employees were adversely affected thereby. No showing is made that Respondent engaged in other activity than legal opposition to the Union . The record shows that after the November meetings Respondent engaged in no illegal activity, openly advised its employees that they may engage openly in legal union activities without fear of reprisal , but maintained it was still opposed to the Union. Under these circumstances , Respondent voluntarily put itself in compliance with the Act. It is considered that such voluntanly action should be encouraged . It is considered further that under the limited violations existent herein it would effectuate the policies of the Act to recommend that no order issue . N.L.R.B. v. Furnas Electric Co., 463 F.2d 665 (C.A. 7). Upon the foregoing findings of fact and on the record as a whole , I make the following: CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been , an employer within the meaning of Section 2(2) of the Act, 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. The evidence fails to show that Respondent has violated the Act as alleged in the complaint except as stated above with regard to the promulgation of the no- solicitation rule during "wash-up." Upon the basis of the foregoing findings of fact and conclusions of law , the entire record in this case, and to effectuate the policies of the Act , I hereby issue the following recommended: 37 ORDER The complaint shall be, and hereby is, dismissed in its entirety. 37 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board the findings , its findings , conclusions , and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.