Hyland Machine Co.

National Labor Relations Board - Board DecisionsMay 30, 1974

210 N.L.R.B. 1063 (N.L.R.B. 1974)

HYLAND MACHINE CO. Hyland Machine Company and Jim L. Barnett. Case 9-CA-7905 May 30, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 9, 1974, Administrative Law Judge Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, Respondent 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 light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Administrative Law Judge and hereby orders that the Respondent, Hyland Machine Company, Dayton, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting: For reasons fully set forth herein, I do not agree with my colleagues' decision to adopt the opinion of the Administrative Law Judge. Instead, I would dismiss the complaint in its entirety. The Boggs Incident On June 3, 1973, employee Boggs found a union handbill on his motorcycle parked near a plant entrance. He put the handbill in his lunchbox and placed the box on his bench top with the leaflet sticking out the top. Later on, the shift foreman, Snyder, came to Boggs, said he had seen another employee reading the handbill, and told Boggs to take it out of the shop. Boggs refused and said that i We note the Administrative Lau Judge's inadvertent reference in In 3 of his Decision to "Hyland, Jr.," rather than Hyland, Sr 2 Contrary to our dissenting colleague, we do not regard a rule which requires that the employees, while at the plant, must "devote your efforts here only to Company business" as plainly permitting union solicitation during nonwork time Also contrary to our dissenting colleague, we do not regaru Respondent's admission at the discharge interview that Ba r,: i"s union activity was "what brought it [Barnett's discharge ] all on" as an ambigious phrase susceptible 210 NLRB No. 148 1063 he had a right to have the handbill on company property. Snyder replied "it was OK on your time but you cannot have it on company property during company worktime." When Boggs again refused, Snyder discharged him. However, Snyder said that Boggs could talk to President Forrest Hyland, Sr.3 At the end of his shift, Boggs had his interview with Hyland, Sr. Boggs explained what had happened and asserted that he had the right to solicit in the plant for the Union. Hyland, Sr., agreed to this statement, adding that he would defend Boggs ' right to organize and belong to a union, and that Respondent could not interfere with that right, but Respondent had a simple rule that workers could not solicit for the Union on worktime, because worktime was for work, that was what the employees were paid for, but they could solicit in the plant on their own time, like at lunch and break time. Boggs asked if he could go back to work. Hyland, Sr., replied that he could, that he deserved the benefit of the doubt. Boggs was immediately reinstated to his fob with full backpay. During a discussion of the Union, Hyland, Sr., said he felt that each plant had to be considered individually, that he did not think a union was right for his plant since he was a good employer and unions were for bad employers. He also expressed the opinion that his employees would vote against the Union. After this incident, Boggs saw union literature in the plant and also talked to workers about the Union during his break periods. There is no evidence of interference with such activities. Respondent had a plant rule which reads as follows: Devote your efforts here only to company business-personal work or soliciting the help of other employees in the performing of personal work is banned. The Administrative Law Judge found that this rule has never been applied to solicitation in the plant, but was instituted and designed only to prevent workers from using company machines and work- time to make personal items or small parts for personal equipment. The Administrative Law Judge also credited Hyland, Jr.'s testimony that during his 9 years with the Respondent, there have been no occasions when the rule had to be enforced and that at the present time there is no rule prohibiting union of an interpretation that the discharge was caused by factors other than Barnett 's union activity In our view , the statement clearly means that, notwithstanding Barnett's other faults, but for his union activity, he would not have been terminated 3 The Administrative Law Judge states that the company president is Forrest Hyland, Jr This is an error Forrest Hyland , Jr., is a vice president of Respondent. He was not involved in the Boggs' incident Boggs' interview was with Hyland, Sr. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solicitation in the plant. The Administrative Law Judge also specifically found that "it is a permissible inference that employees generally were aware that Respondent was not prohibiting union solicitation at any time or place during the 1973 campaign." Notwithstanding the above findings, the Adminis- trative Law Judge concluded that the rule was invalid because it was "vague and ambiguous" and might be interpreted in such a way as to cause employees to refrain from exercising their statutory rights. He also found that the suspension of Boggs amounted to an "instant application" of the unlaw- fully broad rule and that Hyland, Sr.'s prompt corrective action of that suspension did not dissipate the effect of that suspension on other employees since there is no proof that Hyland, Sr., gave his corrective action "the same publicity that the suspension received." I do not agree either that the rule was invalid or that Hyland, Sr.'s corrective action did not undo the effect of Boggs' suspension. The language of the rule is not on its face ambiguous in my opinion. It prohibits the performance of "personal work" on company time. The Administrative Law Judge's own findings are that the rule was applied only to prohibit employees from using company machines and time to make parts for personal use, that it has never been used to prevent employees from soliciting in behalf of a union, and that employees understood that they were not forbidden to engage in union solicitation at any time or place during the 1973 organizational campaign. There is absolutely no evidence that any employee interpreted the rule as placing restrictions on union campaigning. The meaning which the Administrative Law Judge placed on the rule is a product entirely of his own thinking and is not based on the evidence. Under these circumstances, I reject the Administrative Law Judge's finding that the rule was violative of Section 8(a)(1) of the Act.4 As to the Boggs' suspension, Hyland, Sr., promptly rectified the action taken against Boggs by reinstat- ing him with full backpay and assuring him that he had the right to engage in union activities in the plant during nonworking time. The Administrative Law Judge found, however, that this corrective action was not effective because there was no proof that it was as widely publicized as the suspension. The trouble with this finding is that there is no evidence as to the publicity given either the suspension or the corrective action. If we are to rely on speculation rather than on evidence, there is reason to believe that the suspen- sion did not have any lingering effect because Boggs 4 See Sterling Faucet Company, 203 NLRB No 144 In finding that the rule was unlawful , the Administrative Law Judge cited Solo Cup Company, 144 NLRB 1481 The rule in that case forbade "unauthorized solicitation on company property " The Board found that the wording of the rule was testified that after his reinstatement he saw union literature in the plant and he talked about the Union to other employees as he pleased, without hindrance. In addition, the Administrative Law Judge himself found that "employees generally were aware that Respondent was not prohibiting union solicitation at any time or place during the 1973 campaign." I would, therefore, find that the Boggs' disciplinary action was corrected by Respondent's prompt remedial action and hence warrants no remedial action by this Board. Discharge of Jim L. Barnett Barnett was employed on April 30, 1973, as a parts inspector. He was hired by Quality Control Supervi- sor Poft who told him on hiring that he would be on probation for 90 days in which period Poft would check his work closely as Poft had to decide at the end of the probationary period whether to retain him as a permanent employee. During the employment interview, Barnett mentioned that he had been an officer of a labor organization and that he had been discharged from his previous employment because of an argument with a supervisor. Poft said that he did not care about Barnett's union membership, all that he was concerned with was Barnett's doing a good job. Barnett performed satisfactorily during his initial 30 days of employment when he worked under Poft on the day shift. He was then transferred to the night shift under Foreman Snyder. While on that shift, he was active on behalf of the Union. He was also the recipient of a number of justified reprimands. As found by the Administrative Law Judge, on the night of June 7 Barnett inspected and passed as satisfacto- ry two groups of machine parts which the day inspector found were defective. Superintendent Barnes reprimanded the machine operators who had produced the parts and Barnett who had improperly - inspected them. Barnett got angry with the repri- mand, raised his voice in speaking with Barnes, and said he would go home. Barnes replied that was Barnett's decision. Barnett remained after Foreman Snyder said he needed Barnett for inspection work. Barnett's duties required him to move about in a large area and to talk to employees about the quality of their production. In early June Snyder reprimand- ed Barnett for talking to one employee in a part of the plant where no machines were running and no inspection was necessary. About a week later, Snyder again warned Barnett about spending too much time talking to operators, after he observed Barnett ambiguous and could be misinterpreted by the employees in such a way as to cause them to refrain from exercising their statutory rights The rule in the present case is much more specific and does not lend itself readily to the same sort of interpretation HYLAND MACHINE CO. talking about 45 minutes to one employee, and about 30 minutes to another; there was no need for Barnett 's extended conversations with either of these employees. During the first week in July, Snyder found Barnett talking to a worker running a machine in an area where Barnett had no business being; Barnett was on his lunch period at the time, but the other employee was working. Snyder ordered Barnett out of the area. On July 12, Barnett reported for work at 10:58 p.m., his regular reporting time being 11 p.m. Apparently he brought in with him union pencils, pencil holders, and buttons which he had received at a union meeting earlier that evening. On clocking in, he walked to the shipping area to make a telephone call. Foreman Snyder saw a box of union buttons and literature at a machine and dumped it into a trash can with a remark to a fellow foreman that it did not belong on company property. Snyder then began assigning jobs to workers as they clocked in. About 11:05 p.m. he saw Barnett talking to another worker in the grinding room. He then saw Barnett remove the union materials that Snyder had previ- ously dumped in the trash can. After he finished his assignments , Snyder looked for Barnett to instruct him on the inspection of a new part dust starting production. About 11:15 p.m. Snyder finally found Barnett talking on the telephone in the shipping room where he had no right to be. After Snyder had explained the inspection of the new part, Barnett walked away. As Barnett was walking toward his work station, another employee asked him for a union button like the one Barnett was wearing. Barnett removed his own button and gave it to the other employee. Snyder observed the incident. He asked this employee whether Barnett had given him union material and received an affirmative reply. About 11:20 p.m. Snyder walked over to Barnett who was talking to still another employee and told Barnett that if he did not get back to work and stop soliciting for the Union on company time , Snyder would have to send him home. Barnett replied that he was not soliciting and knew his rights. Snyder repeated his order and again warned that he would fire him. Barnett replied loudly that he had not given out union literature, only a union button to an employee who had asked for it and dared Snyder to go ahead and fire him. Snyder replied that he would do dust that. He then reported the incident to Superintendent Barnes saying he intended to fire Barnett . Barnes agreed with the decision. At 11:29 p.m. Snyder punched Barnett out and told him to go 5 The Administrative Law Judge again confused the two Hylands Hyland , Sr, was involved in the Boggs incident , Hyland, Jr, was the official 1065 home. He also told Barnett that he could come in and talk to Vice President Hyland, Jr.,5 the next morning about what had happened. Pursuant to company policy giving a discharged employee the right to appeal to Hyland, Sr., Hyland, Jr., or Superintendent Barnes, Barnett appeared at Hyland, Jr.'s office on the morning of January 13. Hyland, Jr., called in Poft. Barnett then related his version of what had happened during the previous evening. Hyland, Jr., said that Snyder had reported that Barnett had been talking too much with other workers, that his work was unsatisfactory, and that he had been insubordinate. Hyland, Jr., asked Poft to explain the quality problems with Barnett's inspec- tion. Poft reported on Barnett's poor work and instances of long unnecessary discussion with other workers. Hyland, Jr., then decided to uphold the discharge. His reasons for so doing, he testified, were Barnett's insubordination to Snyder, the poor quality of his work, and the fact that he was a probationary employee. On his examination by the General Counsel, Barnett testified that at this interview with Hyland, Jr., he asked Hyland, Jr., if he had been fired for union solicitation in the shop and union activities and that Hyland, Jr., replied that "this is what brought it all on." According to Barnett, Hyland, Jr., also said "this wasn't the only reason they were firing me; they were firing me because they had some complaints on my work and my work wasn't satisfactory and I was insubordinate to the foreman the night before." Hyland, Jr., was not asked specifically whether he had made the remark about the union activities bringing it all on. The Administrative Law Judge found that the General Counsel had proved a prima facie case of discrimination against Barnett based on "Hyland's opinions stated to Boggs at his reinstatement" about the undesirability of union representation at the plant, and the failure to overcome the effect of this hostile attitude by publication of a valid no-solicita- tion rule based on the theory of "working time for work." I have several criticisms of this rationaliza- tion. In the first place, the Administrative Law Judge failed to note that there are two Hylands involved in this case: Hyland, Sr., was the official who handled the Boggs matter, and Hyland, Jr., was the official who discharged Barnett. Moreover, I cannot agree that Hyland, Sr.'s expressions or conduct relative to Boggs showed an inclination to "take affirmative steps to prevent workers from assisting the Union's campaign to organize the plant." I think his entire conduct shows the reverse. Not only did he revoke the disciplinary action against Boggs, he also iterated that Boggs had the right to engage in union activities who handled the Barnett matter 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except on worktime. And while he did say that a union was not right for his plant because he was a good employer, his expression of opinion was of the mildest kind. It certainly is not the kind of expression which in our experience may be expected to lead to unlawful conduct. Regardless of whether Respondent has published a valid no-distribution rule, this fact does not preclude a supervisor from lawfully admonishing an employee against distributing a union button to a fellow employee on his working time when he is supposed to be working.6 This was merely a reasonable exercise of managerial prerogative. It required no formal preexisting rule to validate such an admoni- tion by a supervisor to an employee who was supposed to be engaged in performing his assigned duties. Although the Administrative Law Judge credited Barnett 's testimony that Hyland, Jr., said at the discharge interview that Barnett's union activity "brought it on," the phrase is ambiguous.? It could mean nothing more than that Barnett's union activities were responsible for the chip on the shoulder attitude which brought on the confrontation with Snyder. As against this testimony of Barnett, there is the testimony credited by the Administrative Law Judge that shortly after he began working by himself on the third shift, Barnett began to spend unnecessary long periods of time talking to other employees, his inspections became spotty with several glaring errors of passage of defective parts which led to reprimands by the plant superintendent, all of which were recorded by Snyder and led him to conclude about the time of the discharge that he would be compelled to recommend dismissal of Barnett when his 90-day probation was completed. In addition, according to the Administrative Law Judge, Barnett, considered that his position as a union member and official, in a nonunion plant, gave him special status and perhaps immunities from the ordinary rules of discipline applying to other employ- ees. Finally, the Administrative Law Judge said that if Respondent had a "well-publicized and valid no- solicitation rule which limited the prohibition of union solicitation to employees' working time, and working areas, Snyder's order to stop the solicitation would be valid, whether standing on its own or considered as the last straw in a lengthening record of poor performance by Barnett culminating in his rank insubordination toward Snyder." As I pointed out above, an employer has the right to reprimand an employee for engaging in union activity on working time regardless of whether there is in existence a well-publicized and valid no-solicita- tion rule. Working time is for work with or without a written rule. And insubordination to a supervisor as a rejoinder to such reprimand is not any less insubordination because such a written rule is not in existence. It is difficult for me to understand the critical importance which the Administrative Law Judge attributes to the existence of a written valid no-solicitation rule in determining the lawfulness of the discharge of Barnett in view of his own findings as to the defective work of Barnett, his wastage of time, his insubordination, and his probationary status. I cannot conclude that "but for" Barnett's union activities, he would not have been discharged. The conclusion of the Administrative Law Judge that these reasons were pretexts is not supported by substantial evidence. It is drawn out of the air to meet the formula necessary to establish a discrimina- tory discharge based on pretext. I therefore dissent. 6 S & H Grossinger 's Inc, 156 NLRB 233, 247, Addison Shoe Corporation, 151 NLRB 65,71 7 I would note that the Administrative Law Judge did not find Barnett an entirely credible witness. (See fns. 5 and 9 of the Administrative Law Judge 's Decision .) The Administrative Law Judge specifically credited the accounts of the July 13 interview by witnesses Hyland, Jr., Snyder , and Poft. He added (fn. 9) Testimony of [Barnett] in conflict therewith is not credited , in large part because of his self-contradictions on the events of the 12th and other facts and other admissions noted hereafter which indicate that he felt he had special rights and immunities in the plant as a union member and official. DECISION STATEMENT OF THE CASE EUGENE F. FREY, Administrative Law Judge: This case was tried before me on due notice to all parties on October 17, 1973, at Moraine, Ohio, with General Counsel and Respondent appearing by counsel and the Charging Party, Jim L. Barnett, appearing only as a witness, after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (herein called the Act). The issues are whether or not Respondent Hyland Machine Company, interfered with employees' statutory rights by maintaining and enforcing an unlawful no-solicitation rule, in violation of Section 8(a)(1) of the Act, and suspended employee Willard Boggs and dis- charged Barnett because of their sympathy for and activities on behalf of International Association of Ma- chinists and Aerospace Workers, AFL-CIO (herein called the Union), in violation of Section 8(a)(3) and (1) of the Act.' At close of the testimony all parties waived oral argument, but General Counsel and Respondent have filed written briefs with me which have been carefully consid- ered in preparation of this Decision, which was signed and released by me on January 2, 1974, for distribution to the parties in the usual course. Upon the entire record in the case , observation of i The issues arise on a complaint issued September 5, 1973. by the Board's Acting Regional Director for Region 9, after Board investigation of a charge filed by Barnett on July 16, 1973, and answer of Respondent admitting jurisdiction but denying the commission of any unfair labor practices HYLAND MACHINE CO. 1067 witnesses on the stand, and consideration of the oral statements at the trial and written briefs, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND STATUS OF THE UNION Respondent is an Ohio corporation engaged in the manufacture of automatic screw machine parts at its plant in Dayton, Ohio. In course of its business in the past 12 months Respondent has had a direct outflow of goods and products valued in excess of $50,000. Respondent admits, and I find, that it is and has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES 2 Barnett was hired by Respondent on April 30, as a machine parts inspector and was in that job at his discharge on July 13. When hired he was vice president and a member of Local 225, and also vice president of District 13, of the Union. In his hiring interview with Mel Poft, quality control supervisor and first shift foreman and admitted to be a supervisor within the meaning of the Act, they discussed Barnett's duties, past experience and qualifications. During discussion of his duties , Poft told Barnett he was on probation for 90 days, in which period Poft would check his work closely, as he had to decide at end of the probation period whether he would be kept on as permanent employee, or let go. In reviewing Barnett's qualifications and past experience, Poft learned in one employment Barnett had been discharged for an argument with a supervisor. Barnett explained what occurred and mentioned that he had been an officer of District 13 of the Union in that plant, but assured Poft that his membership would have no "bearing" on his desire to work here. Poft replied that Respondent did not have a union in its shop, and Respondent did not want any trouble with a union, but as far as Poft was concerned, he did not care if Barnett was a union member or not, that "would not have any bearing on his employment, that all he was concerned with was Barnett doing a good job," and he hoped everything would work out for Barnett in the shop. Upon his hire, Barnett became a probationary employee for 90 days. After training the first 30 days on first shift under Poft and a day inspector, he was transferred to third shift on May 27, working as the sole inspector under Foreman Frederick E. Snyder, an admitted supervisor. While on that shift, he talked to employees about his membership and offices in the Union, and some workers asked him to help them get a union in the plant. He procured union literature and authorization cards from his local, distributed literature from his car to employees, and got some to sign union authorization cards in the plant. On June 3, Willard Boggs, a third shift screw machine 2 All dates stated herein are in 1973 , unless otherwise noted 3 The above facts are found from a composite of credible testimony of operator, found a union handbill shortly after 1 a.m., on his motorcycle parked near a plant entrance . He put it in his lunchbox and placed the box on his bench top with the leaflet sticking out the top . Later in the shift Foreman Snyder came to him, said he had seen another employee reading the handbill , and told Boggs to take it out of the shop . Boggs refused , saying Snyder should read it, because part of it stated an employee did not have to take it off company property. Snyder replied he knew about that, and that "it was OK on your time but you cannot have it on company property during company worktime." Snyder again told him to take it outside , saying that if he did not, Snyder would have to ring him out. Boggs told him to "go ahead and punch the s-o-b out," so Snyder punched out his timecard about 2 a .m. and Boggs gathered his clothing and left the building. As Snyder walked out with him to the parking lot, Boggs asked if he was discharged, and Snyder said he was, as far as Snyder was concerned . Boggs said he did not think it was fair, that if Snyder had looked at the handbill he would see; Boggs had a right to keep the handbill in the plant. Snyder replied that Boggs could return that day and talk to President Forrest Hyland, Jr. Snyder reported the incident to Hyland that night or early Monday. After he finished hi shift on Monday morning, Boggs talked to Hyland, who asked him what had happened. Boggs explained the incident , saying he had a right to solicit in the plant for the Union, according to the leaflet. Hyland agreed, saying he would defend his right to organize and belong to a union , and that the Company could not interfere with that right, but that it had a very simple rule that workers could not solicit for the Union on worktime , because worktime was for work, that was what employees were paid for, but they could solicit in the plant on their own time, like at lunch and break times. He added that he did have a right to run his plant and get the work done, and if anyone did not measure up on his work, he had a right to let them go. Boggs asked if he could go back to work. Hyland said he could, that he deserved the benefit of the doubt. In discussion of the Union, Hyland said he felt that each plant had to be considered individually in deciding whether a union was good for it, and he did not think it was right for his plant, and that the Union would not get into it, because unions were for "bad employers," and he was a good employer and felt his employees would vote against the Union . Boggs was immediately reinstated to his job, with full backpay. After this incident , Boggs saw union literature in the plant and also talked to workers about the Union during his break periods.3 There is no proof indicating Respondent's attitude toward employees' distribution of union literature or union solicitation in the plant in 1973, other than the Boggs incident and its treatment of Barnett which is considered below. The Performance and Discharge of Barnett Since Respondent claims one of the main reasons for discharge of Barnett was his poor work while a probation- er, a preliminary description of his duties is proper. As sole Boggs, Snyder and Hyland, Jr. Testimony of any of these witnesses in conflict therewith is not credited. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inspector on third shift, Barnett was required to inspect all parts made by automatic screw machines, of which 17 to 22 usually on his shift operated, and determine if the form and dimensions of the parts were correct. Inspection consisted of examination of random samples from each pan or lot of parts made by each machine, the exact number inspected depending generally on the size of the part and number contained in each pan or lot. Normally he checked parts from each machine once or twice a night. If he found only one or two parts bad in a lot, he would discard them and tell the operator what was wrong so that he could adjust his machine and continue production. If he found a substantial number of bad parts, he would tell the operator to shut down and adjust his machine, and would then inspect parts again after the adjustment, usually tying up the bad parts in a bag with a red tag on them to alert the day inspector and Poft to examine the whole lot; if most of the run was bad he would have the operator shut down the machine for the rest of the shift. If a lot of parts measured within allowable tolerances, he would put a yellow tag on the lot for attention of the day inspector, who usually okayed his inspection pro forma. When inspected parts are found only slightly off specification (called "on the high limit") he merely tells the operator to correct the error and continue production. In all instances, he records the results of each inspection for each machine on an inspection card for the attention of the day inspector and Poft. The day inspector rechecks all lots which have red tags so that Respondent can determine whether they can be reworked or must be scrapped. If third shift production which is bad has been passed by Barnett, and errors are caught by the day inspector, he puts his own red tag on the worksheet for that lot, for Barnett's attention when he comes to work that night.' On the night of June 7, Barnett passed a run of aluminum hex nuts made on machine 12 by operator Harry Bucholz, and a run of No. 48 hubs (a repeat of previous orders for the same part) on machine 14 by operator Ronald Flagg. When day inspector Lambert checked both runs on the mori1Ing of the 8th, he found ali of four pans of hex nuts oversize. He also found six pans of the No. 48 hub off in one dimension, so that these parts could not seat properly when screwed into another part. He noted the errors on the inspection sheet, red-tagged both lots, and told Poft about them. The hex nuts were so bad they had to be scrapped. The hubs were later reworked and sold to the customer who accepted them "on deviation." Poft reported the errors to William Barnes, superintendent of screw machine operations. That night Barnes came in on third shift and personally reprimanded both operators for running bad parts. He then reprimand- ed Barnett for poor inspection of the two parts in question. Barnett's reply was that he could not possibly check these machines every 15 minutes, or watch each one all night, as he had from 17 to 22 to inspect each night . Barnes replied 4 These facts are found from a composite of credible testimony of Barnett, Poft, and Barnes Testimony of any of these witnesses in conflict therewith is not credited 5 I find this incident from credible testimony of Snyder, Barnes , Poft and documentary proof, as corroborated in part by admissions of Barnett Testimony of Barnett in conflict therewith is not credited, as he was significantly vague about many details of this incident that the operators were at fault in running bad parts, but Barnett should have caught the errors. Barnett got angry, raising his voice in talking to Barnes , accused him of trying to tell him he did not know how to do his job. Barnes replied that any inspector who let bad parts get by as he did was doing a bad inspection job, just as he told the operators they were doing a bad production job. Barnett angrily said he would go home. Barnes told him that was his decision. Barnett asked Snyder if he should go home, and Snyder said he would rather he stayed at work, as he needed him for inspection. Barnett did not go home but continued work.5 Consistent with Poft's initial remarks to Barnett about observation of his work, his supervisor, Snyder, watched his performance rather often on third shifts Barnett's inspection duties required him to move constantly from one machine to another in a 100-foot long area, and in course of inspection he often talked to operators about the quality of their production. Hence, Snyder often saw him moving in the area and talking to operators. In the early part of June, Snyder saw Barnett talking to one employee early in the shift in a part of the plant where no machines were running and no inspection was necessary, and reprimanded him for being away from his work. A week or so later, Snyder again warned Barnett about spending too much time talking to operators, after he observed him talking about 45 minutes to one, and about 30 minutes to another. There was no trouble with parts production on either machine at the time, and Barnett 's inspection work and talk to operators about errors did not require discussions of such length. Snyder reported both instances to Barnes. About a week before July 12, Snyder again found Barnett talking to a worker running a machine in the general shop area, which was outside the screw machine area. At the time Barnett was on his lunch hour (about 4 a.m.), but the other employee was working. Snyder asked Barnett why he was in that area, and Barnett replied they were talking about baseball. Snyder ordered him to get out of the area and stop bothering another employee while he worked. Barnett went back to his own area to finish his meal. During this period, Barnett once accused Snyder of following him everywhere he went in the plant, and asked if it was because the Union was trying to get into the shop, and he thoug.°' Barnett had some part in it. Snyder replied "the Union will do you like it did me once; I tried to organize a union in here myself, and when the time comes they will let you down." 7 In the third week in June, Barnett learned there was union literature on employees' cars in the parking lot, so on his break he checked his own car but found no literature on it or other cars. As another worker said Snyder had taken the papers from the cars, he sought out Snyder and asked if he had taken the literature. Snyder asked what literature. Barnett said he would appreciate it if Snyder would put it back, as Barnett wanted to read it. Snyder 6 Poft normally worked the day shift, but he kept constant records of Barnett's performance on which he could base his decision at end of the probation period whether to retain him or let him go. Since there is no proof that he personally observed Barnett on third shift himself, it is inferable and logical that he would rely largely on observations and reports of Snyder. T There had been two prior unsuccessful attempts by a union to organize the shop in 1964 and 1966. HYLAND MACHINE CO. 1069 replied: "If there was union literature on your car it will be there tomorrow morning when you get off work." On July 12 Barnett attended a union meeting at which he received union pencils, pencil holders, and buttons for distribution. When he reported for work that night, he wore a union button on his shirt. He clocked in at 10:58 p.m., and then walked about 150 feet through the shop to the shipping area to make a phone call. Just before the shift bell rang at I1 p.m., Snyder was talking to second shift Foreman Daniel Murphy near screw machine 11, and saw a box of union buttons and literature at that machine. On query Murphy said they were not his, and he did not know whose they were. Snyder said they did not belong on company property, so dropped them in a nearby trash can. Snyder then began assigning jobs to workers as they clocked in, and about 11:05 p.m. he saw Barnett talking to another worker in the tool grinding area. He then saw Barnett come up to machine 11, look around, take the union literature out of the trash can, and walk away. After he finished his assignments, Snyder looked for Barnett to instruct him on inspection of a new hub part just starting in production, because it had an unusual shape and size, with special cuttings. About 11:15 p.m., Snyder finally found Barnett talking on the phone in the shipping room. Snyder told him that when he was through, he wanted to see him at the rear of machine 12. Barnett came to him shortly and Snyder explained the inspection on the new part and then walked away. As Barnett walked toward his work station, he passed employee Robert Henn who asked him for a union button like Barnett wore. Barnett said this was the only one he had, took it off and gave it to Henn. Snyder noticed him talking to and passing the button to Henn. As Barnett walked away from Henn, Snyder walked after him, and as he passed Henn, asked the latter if Barnett had given him union material. Henn said he had. Snyder about 11:20 p.m. then walked over to Barnett who was talking to employee Ronald Flagg at machine 9, and told Barnett that if he did not get back to work and stop soliciting for the Union on company time, he would have to send him home. Barnett replied that he was not soliciting, and knew his rights. Snyder repeated the order and warned he would "fire your "M-F- ass." Barnett replied loudly "I was not giving out union literature, but just gave Henn my union button," that Henn had asked for it, and "go ahead and fire my "M-F- ass." Snyder replied that he would do that, would punch his card out. He removed Barnett's card from the timeclock rack about 11:25 p.m. and went into the office to call President Hyland. Barnett followed him in. When Hyland's phone did not answer, Snyder walked out of the office, told Barnett to wait outside, and went back to the office and called Barnes, to whom he reported the incident, saying he intended to fire Barnett. Barnes agreed with this decision. Snyder then came out, told Barnett he was punching him out, and he should go home. He punched Barnett out at 11:29 p.m. As he did so, Barnett told him to be sure he knew what he was doing, that he was making a mistake, and that Barnett would "have your job." Snyder told him he could come in and talk to President Hyland the next morning about it. Barnett asked if he could use the phone, and Snyder told him to use the one in the grinding room. Shortly after Barnett left the plant, and Snyder called Hyland and reported the whole incident to him. When Barnett came to Hyland's office on the morning of the 13th, as Poft suggested8 Hyland asked what had occurred the night before, and Barnett began to relate his version of the discharge and the events leading to it. Hyland interrupted him and excused himself to talk to Barnes on the phone and find out what he had learned about the discharge. He then asked Poft to come to the office, telling Barnett he had called for Poft because he was quality control supervisor and also an inspector. After Poft came in, Barnett related the whole incident, indicating he had had a rather loud argument with Snyder just before his discharge. He asked Hyland if he was discharged for union activity, indicating he felt it was because he had given the union button to Henn. He also charged that Snyder had been following him around the shop, and ever since he came on third shift, he and Snyder did not "hit it off." Hyland said Snyder reported that Barnett had been talking too much with other workers, that he had reports Barnett's work was not satisfactory, and that he had been insubordi- nate to Snyder the night before. He indicated that the delivery of the button to Henn was "what brought it all on," but that it was not the only reason for discharge, citing his unsatisfactory work and alleged insubordination to Snyder. Hyland then asked Poft to explain the quality problems with Barnett's inspection. Poft referred to daily records he had kept on Barnett's performance, citing specifically the instances of the two defective parts passed by him as found above. He also explained to Barnett other instances of poor work, and also some reported instances of long unnecessar- y discussion with other workers. After hearing these reports, Hyland told Barnett that he concluded this conduct was the reason why Barnett and Snyder had the argument the night before, and that he had decided to uphold the discharge. Barnett argued about the reasons for discharge given, indicating he felt it was for union solicitation. He reminded Hyland he was a vice president of District 13 of the Union, and "I have the Union behind me on this, and I have taken some labor courses, and f believe I am right, and I will see you in court." Hyland replied that was his right as an American citizen, and Hyland had no reason to "block" that right. Barnett asked Hyland for a payoff slip stating the reason for discharge, as he felt he had been treated unfairly and was going to the Board about it. Hyland told him to come back at 3 p.m. for it, that it would take some time to get it ready. When Barnett returned that afternoon, Hyland told him he was not discriminating against him, but it was not company policy to give payoff slips, that Respondent had never done that before, that their only records on the separation would be his final paycheck and reasons for discharge stated in his file, which was available to the state unemployment compensation agency, and Respondent would also state the reasons on any forms requested by that agency. He did say the reasons noted in his file would 8 The interview with Hyland was pursuant to company policy which gave any discharged employee the right of appeal to either Hyland or Superintendent Barnes. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be that he was a probationary worker whose work was not up to standards, and that he had been insubordinate to Snyder. Barnett then left the plant, and has not been reinstated .9 Arguments of the Parties and Conclusions Thereon General Counsel contends that the suspension of Boggs and discharge of Barnett was due to their actual or suspected union activity, and both actions stemmed from Respondent's maintenance and enforcement of an unlaw- ful broad no-solicitation rule in the plant which was in itself violative of Section 8(a)(l) of the Act. The rule in question is rule E, 6 in the employees' handbook of plant rules which reads as follows: Devote your efforts here only to company business -personal work or soliciting the help of other employees in the performing of personal work is banned. The record shows that: This rule has been in existence since 1964 and is brought to the attention of employees when a copy of the plant rules is given to them when hired. The rule has never been applied to union solicitation in the plant, but was instituted and designed only to prevent workers from using company machines and worktime to make personal items or small parts for personal equipment. During Hyland Junior's 9 years of employment with Respondent, Respondent has never found it necessary to enforce this rule. Hyland, Junior, also testified without contradiction that: Respondent presently has no rule prohibiting union solicitation in the plant. During union campaigns in 1964 and 1966, however, it posted a rule prohibiting union solicitation on worktime, but when the 1973 campaign began, it did not post or announce a similar rule although it had advice of counsel that union solicitation could not take place on worktime, on the theory that "work time is for work," but only on employees' own time, such as lunchtime, break periods, and before and after work hours, and company counsel actually instructed supervisors to this effect. The wording of rule E, 6 relating only to "personal work" and Hyland's testimony about its purpose afford some support for the claim that it was not intended or reasonably to be construed to prohibit union solicitation in the plant at times other than worktime. Recognizing this, General Counsel argues that since the rule in terms does not limit its operation to "working time in work areas," it is vague and ambiguous, such ambiguity should be resolved against Respondent, the author of the rule, and hence it must be considered reasonably susceptible of interpreta- tion by employees as prohibiting solicitation during nonworking hours in nonworking areas , citing N.LR.B. v. Harold Miller, d/b/a Miller Charles & Co., 341 F.2d 870, 873, 874 (C.A. 2, 1965), and The J.L Hudson Company, 198 NLRB No. 19. In this connection, I note that the rule in terms does not define "personal work ," nor distinguish between "personal work" on worktime as against nonwork- time, nor does it limit its prohibition to the use of company machinery. Hence, it can reasonably be construed to apply to all personal activity at any time in the plant, whether it involves use of company machinery or tools or otherwise. An inference that Respondent intended to control all employee personal activity in the plant at any time can also be drawn from its written rule E, 18 which requires employees to "obtain authorization for solicitation of funds or contribution on company premises." J.R. Simplot Company Food Processing Division, 137 NLRB 1552, 1553. Hence Respondent must prove words or conduct which would prevent any inference by employees that rule E, 6 applied to union solicitation, and specifically that the words "company business" and "personal work" did not apply to such solicitation. Leaving aside Hyland's subjec- tive testimony that the rule was never intended to cover union solicitation (since there is no proof that this limitation of the rule was made known orally or in writing to employees), the admitted absence of actual application or enforcement of the rule does not overcome the presumption of invalidity. The specific publication of a rule against union solicitation on worktime, aside from rule E, 6 in 1964 and 1966, was some indirect notice to employees at that time that rule E, 6 did not cover such activity, and since it appears about 75 to 80 percent of the workers then employed were still at the plant in 1973, when a similar rule was not posted, it is a permissible inference that employees generally were aware that Respondent was not prohibiting union solicitation at any time or place during the 1973 campaign. The same inference is supported by Boggs' testimony that, Respondent at his reinstatement outlined to him a presumably valid no-solicitation policy, and thereafter he saw union material in the plant and talked about the Union to other employees as he pleased, without hindrance. However, I am not satisfied that Hyland's prompt but private corrective action in Bogg's case was sufficient to overcome any coercive effect upon employees arising from the open suspension of Boggs by Snyder in the plant, or any restraining effect which the broad terms of rule E, 6 might have on workers. It is clear that Snyder suspended Boggs for mere possession , without more, of union literature in the plant, which is an instant application of a far more restrictive rule than Hyland announced to Boggs, stated in his testimony, or had ever applied in the plant.10 Respondent argues that Boggs was disciplined for insubor- dination in failing to obey an order of Snyder to remove the literature physically from the plant, but it is obvious that, if union solicitation in the plant on employees' own time was permitted , as Respondent now claims , suspension of an employee for mere possession of union literature in the plant, which is a necessary prerequisite to any permitted distribution thereof on nonworking time, is a bald negation of the claimed permission of union solicita- tion on nonworktime, hence is patently destructive of that 9 The above facts are found from credited testimony of Hyland, Snyder, and immunities in the plant as a union member and official. and Poft, as corroborated in part by admissions of Barnett Testimony of '° Respondent's only printed rule bearing on personal possessions in the the latter in conflict therewith is not credited, in large part because of his plant is rule C, 4, which only requires employees to "keep to a minimum the self-contradictions on the events of the 12th and other facts and other carrying in or out of the plant of personal packages, parcels, boxes. etc." See admissions noted hereafter which indicate that he felt he had special rights also references thereto in C, I and 3. HYLAND MACHINE CO. protected right. This makes the claim of insubordination for failure to obey a patently illegal order without merit. Hence , I must find that, while Hyland promptly made amends for Snyder's unlawful action, the reversal did not serve to dissipate any coercive effect of the suspension on other employees, since there is no proof that Hyland gave his corrective action the same publicity that the suspension received. Hence, I must find that the suspension of Boggs amounted to an instant application of an unlawfully broad rule prohibiting actual possession of union material in the plant, in violation of Section 8(a)(1) of the Act,ii and that the defense of insubordination is without merit. Since Hyland did not publicize his private announcement to Boggs of a presumably valid rule permitting union solicitation in the plant except on worktime, his corrective action did not serve to overcome any presumption of invalidity attaching to the broad but ambiguous rule E, 6. In this connection, I also note an absence of proof that, when newly hired employees received the rule book, the purpose and scope of rule E, 6 was ever explained to them, so as to make it clear that it did not apply to union solicitation on nonworking time. Lacking such explana- tion , the ambiguous language might be interpreted by workers in such a way as to cause them to refrain from exercising their statutory rights, hence the rule is invalid even if Respondent intended or interpreted it privately otherwise. See Solo Cup Company, 144 NLRB 1481, 1482. General Counsel also argues that the discharge of Barnett demonstrates a continued enforcement of an invalid no-solicitation rule, arguing that he was never apprised of any rule or practice on that subject other than rule E, 6, and that Barnett, like Boggs, was disciplined for mere possession of union literature and refusal of orders to remove it from work areas. However, it is clear that Barnett did openly distribute union material in the plant on worktime, and this would be a clear violation of a valid rule that "worktime is for work," if Respondent actually had or enforced one. But I have found that Respondent had no rule directly dealing with this subject, and the ambiguous rule E, 6 was such that it could reasonably be construed as prohibiting union activity even on nonwork- ing time , absent any effective explanation to employees which would publicly limit its effect to worktime only and exclude union solicitation from its scope, as Respondent now contends. Hyland's opinions stated to Boggs at his reinstatement about the undesirability of a union in the plant, coming right after Respondent's unlawful suspension of Boggs, show that Respondent was averse to unions and inclined to take affirmative steps to prevent workers from assisting the 11 Even if it were assumed that Snyder was only trying to prevent union activity on company time , as Hyland indicated to Boggs when reinstating him, there is no proof that the mere presence of the union material in Boggs' lunchbox interfered in any way with plant production or discipline, hence the instant application of the oral rule, even if valid, would appear to have no other purpose than to impede workers' possible union activity See Dixie Wire Corporation, 182 NLRB 211 12 Credible testimony of company witnesses , documentary proof, and admissions of Barnett, tend to establish that, shortly after Barnett began work by himself on third shift, he began to spend time talking to other workers for periods longer than necessary for his inspection work, his own inspections became spotty, with several glaring instances of passage of defective parts which led to reprimands by the plant superintendent, all of 1071 Union's campaign to organize the plant. In light of this attitude and unlawful action, and Respondent' s signal failure to overcome its effect by publication of a valid no- solicitation rule based on the theory of "working time for work" I must conclude that General Counsel has presented a substantial prima facie case of discrimination against Barnett, in that (1) Snyder was closely watching the work and movements of Barnett, a known union official, (2) saw him give union material on worktime to another worker, (3) ordered him to stop on pain of dismissal, (4) dismissed him after an angry argument about his right to do that, and (5) the dismissal was upheld by Hyland, who admitted his union activity "brought it on." While Snyder's action on its face appeared to be an application of a valid unwritten rule that "worktime is for work," and Barnett 's angry and vulgar response was a form of defiant insubordination openly in the plant, which would ordinarily justify instant discharge, Hyland's confirmation of the discharge, while at the same time admitting that Barnett 's union activity "brought it on," affords strong proof that the passing of the union button to Henn was the action which motivated Snyder's instant order and led to the argument and summary discharge. If the record established that Respon- dent had a well-publicized and valid no- solicitation rule which limited the prohibition of union solicitation to employees' working time, and working areas, Snyder's order to stop the solicitation would be valid, whether standing on its own or considered as the last straw in a lengthening record of poor performance by Barnett culminating in his rank insubordination toward Snyder.12 However, while Respondent argues that its only practice was to require that employees use working time for work, that practice is not in any written rule, and had never been made clear to the workforce, either in writing or orally, in 1973. While Respondent had posted notices to that effect in union campaigns, 7 and 9 years before, it failed to publicize a similar rule in 1973. Hyland testified that he did not do so because Respondent felt that all workers knew what the rule was, and only about 20 to 25 percent of the workforce was new since 1966. This is a weak justification for failure to clarify an ambiguous situation by refreshing employees' minds on this subject, after a lapse of 7 years, by the simple expedient of posting a new valid no- solicitation notice, particularly where Hyland admits (1) he well knew the basic rule that "working time is for work" from his experience in the two past campaigns and (2) Respondent's counsel specifically advised supervisors in 1973 that employees could talk or solicit for the Union on their own time, as at lunch, break times, and before and after work, but could not do it on worktime. There is no which were recorded by Snyder as part of his observation of a probationary employee and led him to conclude about the time of the discharge that he would be compelled to recommend dismissal of Barnett when his 90-day probation was completed In addition, Barnett's constant reminders to management of his union membership , alleged knowledge of his rights as a union member , and his defiant remarks both to Snyder and Hyland on July 12 and 13 premised on his union membership raises a strong inference that he considered his position as a union member and official , in a nonunion plant , gave him some special status and perhaps immunities from the ordinary rules of discipline applying to other workers Of course, under settled law he has no such special rights or immunities from discipline. N L R B v Local 1229, International Brotherhood of Electrical Workers, [Jefferson Standard Broadcasting Co 1346 U S 464.476. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proof that supervisors relayed this advice to employees, formally or informally. Barnett testified credibly, with some support from Hyland and no denial by Poft, that: He never received a copy of the rule book when hired, and no official had ever told him about a rule prohibiting union solicitation or distribution of union material. In his discharge interview with Hyland, the latter asked him if he had not read the plant rules, he replied he never received a copy, and when Hyland asked Poft about that, the latter replied that when Barnett was hired the supply of rule books was exhausted and none had been procured since. It is significant that Hyland did not explain what rule he referred to, point it out to Barnett , or explain how he violated it, hence it is inferable that he had in mind rules E, 6 or E, 18, the only ones in the rule book which appear to deal in any way with employees' personal activities in the plant. As noted above, both rules, singly or together, tend to negate the contention that Respondent maintained or enforced a valid no-solicitation rule.13 Hence, this testimo- ny further supports the conclusion that in 1973 the employees were never effectively advised of Respondent's professed rule or practice prohibiting union solicitation only on worktime, and that during the 1973 campaign they had no guidelines to follow in the union activity in the plant, except the ambiguous rule E, 6. It follows that when Respondent suddenly applied to Union Official Barnett during the campaign a new oral rule based on the theory of "worktime is for work," the conclusion is inescapable that it did so for the purpose of restraining the union activity of employees, and not for any legitimate purpose of maintain- ing production or discipline.14 I must conclude that, although there is cogent proof that Barnett had accumulat- ed a record of poor performance during his work on third shift in the latter portion of his 90-day probation period, and that he had a defiant, insubordinate and disruptive confrontation with Snyder on July 12 dust before his final discharge, the event which in part triggered his discharge was his single distribution of union material to a worker on July 12, without apparent disruption of his own work or that of others, which was not in violation of any known and effective rule prohibiting union solicitation on work- time, and that Respondent seized upon his conduct and applied an ostensibly legitimate no-solicitation rule to get rid of a known union adherent, under the pretext of firing him for poor performance during his probationary period. Hence, his discharge was discriminatory and in violation of Section 8(a)(3) and (1) of the Act.is In support of its defense, Respondent points to rule E, 18 of its plant rules, providing that an employee must obtain permission "for solicitation of funds or contributions on company premises," to prove that it exercised control over only charitable and like solicitations on company time and property, but not over union solicitations, and that by process of exclusion this rule did not apply to union 13 Contrary to his open discussion of the obvious "worktime is for work" policy with Boggs, Hyland did not expand on his reference to Snyder's report that Barnett bad been talking too much to other workers, by referring to sec A of the plant rules, detailing in various ways the requirement that workers were expected to stay on the job at all times during the scheduled working day 14 There is no proof that Barnett's single delivery of a union button to Henn affected that employee's production, or delayed Barnett in the solicitation on the employees' own time. However, this rule tends to prove the opposite, for it makes it clear that Respondent was trying thereby to control personal activities of employees on nonworktime as well as worktime, so that existence of the rule tends to show a desire and policy to control employees' actions at all times in the plant. As there is nothing in the rule or otherwise to indicate that it specifically excluded union solicitations on worktime or company premises, that rule, like rule E, 6 is also ambiguous and would support an inference that Respondent was not limiting its control of actions of employees to worktime and working areas, just as much as it warrants an inference otherwise . In its ambiguity it ranks alongside rule E, 6, and does not support Respondent's defense of the latter rule, or justify the discharge of Barnett. 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 opera- tions described in section I, above, have a close, intimate, and substantial 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 unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and also take certain affirmative action which is necessary to effectuate the policies of the Act. Since the unlawful conduct involved discriminatory suspension and discharge of employees, which strike at the fundamental rights of employees under the Act, a broad order is required. As Respondent unlawfully discharged Jim L. Barnett for his union activity, and failed to reinstate him, I shall recommend that it offer him immediate and full reinstate- ment in the usual manner, with backpay from the date of the unlawful discharge to the date of a proper offer of reinstatement, the amount to be computed under the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with proper interest added, Isis Plumbing & Heating Co., 138 NLRB 516. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By its suspension of Willard Boggs , and discharge and refusal to reinstate Jim L. Barnett, because they accomplishment of his own work that night Compare Veeder-Root Company, 192 NLRB 973 15 Ward Mfg Co, 152 NLRB 1270, Quality Production Co, 162 NLRB 1459, Dixie Wire Corp, 182 NLRB 211,212, Werthan Bag Corp, 167 NLRB 11, 27, C P Lesh Paper Co, 187 NLRB 359, 363: and compare Veeder-Root Company, 192 NLRB 973, where republication of a valid no-solicitation rule at the start of a union campaign was considered a significant factor by the Board in finding that republication a valid act. HYLAND MACHINE CO. 1073 engaged in activities on behalf of the above-named Union, Respondent has discriminated against employees in regard to their hire and tenure of employment, in violation of Section 8(a)(3) of the Act. 3. By the above conduct, and by enforcing and applying its plant rules in a manner which tends to prohibit employees from engaging in union talk , solicitation or other concerted activity protected by the Act on nonwork- time in nonworking areas of its plant, and by instituting, maintaining and enforcing a plant rule which prohibits union talk or solicitation or other protected concerted activity , for the purpose of retaliating against employees for, and discouraging them from , engaging in such activity on nonworking time and in nonworking areas of its plant, and to impede union organization of its employees, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. By the above conduct Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing 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 recommend- ed: ORDER 16 Hyland Machine Company, of Dayton, Ohio, its officers, agents, successors and assigns , shall: 1. Cease and desist from: (a) Suspending, discharging, failing to reinstate, or in any other manner discriminating against employees in regard to their hire or tenure of employment or other terms and conditions of employment, because they engaged in activity on behalf of the above-named Union or any other labor organization, or in other concerted activities for purposes of collective bargaining or other mutual aid or protection. (b) Enforcing or applying its plant rules in a manner which tends to prohibit employees from engaging in union talk or solicitation or other concerted activity protected by the Act on nonworktime in nonworking areas of its plant. (c) Instituting , maintaining, and enforcing an otherwise valid plant rule which prohibits union talk or solicitation or other concerted activity protected by the Act, for the purpose of retaliating against employees for, or discourag- ing them from, engaging in such activity on nonworktime in nonworking areas of its plant, or to impede union organization of its employees. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Jim L. Barnett immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by him as a result of Respondent 's discrimina- tion against him, in the manner set forth in the Section hereof entitled "The Remedy." (b) Preserve and, upon request , make available to the Board and its agents , for examination and copying, all payroll records , social security records , timecards , person- nel records and reports , and all other records relevant and necessary to a determination of the right of reinstatement and the amount of backpay due, as provided under the terms of this recommended Order. (c) Post at its Dayton , Ohio, office and place of business copies of the attached notice marked "Appendix." 17 Copies of said notice , on forms provided by the Regional Director for Region 9, shall , after being duly signed by Respondent 's authorized representative , be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 16 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 17 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend , discharge , fail to reinstate, or in any other manner discriminate against our employ- ees in regard to their hire , tenure of employment, or other terms or conditions of employment, because they have engaged in activity on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of our employees , or in other concerted activities for purpose of collective bargaining or other mutual aid or protection. WE WILL NOT enforce or apply our plant rules in a manner which tends to prohibit employees from engaging in union talk or solicitation or other concert- ed activities protected by the Act on nonworktime in nonworking areas of our plant, or to impede union organization of our employees. WE WILL NOT institute , maintain , or enforce an otherwise valid plant rule which prohibits union talk or solicitation or other concerted activity protected by the Act, for the purpose of retaliating against our employ- ees for, or discouraging them from , engaging in such 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity on nonworktime in nonworking areas of our plant , or to impede union organization of our employ- ees. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL offer to Jim L . Barnett , immediate and full reinstatement to his former or a substantially equiva- lent position , without prejudice to seniority or other rights and privileges previously enjoyed , and will make him whole for any loss of pay he may have suffered by reason of our discrimination against him. HYLAND MACHINE COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, Federal Office Building , Room 2407 , Suite 3003 , 550 Main Street , Cincinnati , Ohio 45202 , Telephone 513-684-3686.