Imco Container Co.

National Labor Relations Board - Board DecisionsFeb 1, 1974

208 N.L.R.B. 874 (N.L.R.B. 1974)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Imco Container Company and International Printing Pressmen and Assistants ' Union of North America. Case 5-CA-6024 February 1, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 24, 1973, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a reply 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 briefs and has decided to affirm the rulings, findings, and conclusions 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 recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Imco Container Company, Harrisonburg, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case brought under the provisions of Section 10(b) of the National Labor Rela- tions Act, herein called the Act. 29 U.S.C. 160(b). It was commenced by a complaint issued on April 25, 1973, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director of Region 5 (Baltimore, Maryland), naming Imco Container Company as the Respondent. That complaint is based on a charge filed on March 19, 1973, by Internation- al Printing Pressmen and Assistants' Union of North America, herein called the Union. In substance said complaint alleges that Respondent violated Section 8(a)(1), and that such conduct affects commerce within the meaning of Section 2(6), of the Act. Respondent has answered admitting some of the allega- tions of the complaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, at Harrisonburg , Virginia , on May 31 and June 1, 1973. All parties were represented at and participated in the trial, and had full opportunity to adduce evidence , examine and cross-examine witnesses , file briefs , and offer oral argu- ment . Briefs have been received from all parties. This case presents the issues of whether Respondent: (a) issued warning slips to its employees because of their activities on behalf of the Union ; (b) threatened to close its art department "because of, and in order to discourage," the activities of its employees on behalf of the Union; and (c) interrogated its employees concerning the umon activities. Upon the entire record in this case , and from my observation of the demeanor ' of the witnesses , I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Delaware corporation, is engaged at Harrisonburg, Virginia, in manufacturing plastic bottles. During the year preceding April 25, 1973, a representative period, Respondent sold and shipped products valued in excess of $50,000 directly to points outside the Common- wealth of Virginia. I find that Respondent is an employer as defined in Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Case Phyllis Rinaca, formerly employed as a bottle washer by Respondent until about 3 weeks before the trial herein, but now an employee of Dunn and Bush, testified substantially as follows. While employed by Respondent her supervisor, whom I find to be a supervisor under Section 2(11) of the Act, was Donald Curry. On February 28, 1972, she wrote to Robert Obenour, an organizer for the Union, requesting him to "come back again" to try to organize Respondent's plant. (See G.C. Exh. 2.) Between March 1972 and March 15, 1973, Rinaca signed a union card, attended union meetings, served on its organizing committee, campaigned for the Union, talked union in the plant, and distributed union literature during nonworking time. However, on one occasion, in about April 1973, at the request of another employee, Rinaca handed said employee some union literature on working time. Rinaca also during working hours, "normally" at her work station, discussed the Union, but she did so only because to her knowledge no rule existed in the plant forbidding talking on the job during working time. In fact she often talked on other subjects during working hours prior to the times when she discussed the Union during 208 NLRB No. 133 IMCO CONTAINER CO. such hours, but was never reprimanded for it. She also observed other employees talking during working hours, but they were not to her knowledge reprimanded for such conduct. Rinaca also testified that solicitations were made on company time by employees for the flower fund, Christmas gifts, and showers. On March 14, 1973, Supervisor Don Curry handed her a written reprimand and warning signed by Plant Manager J. R. Fredrickson. It "concerns your union activities during [emphasis in original] working hours. This is, and always has been, prohibited . . . During [emphasis in original] working hours what you do is our business. This is a warning-if you continue to conduct union matters during working hours, our next disciplinary action will be to place you on a 3-day disciplinary layoff. Further infractions after that will result in your termination." (See G.C. Exh. 3.) When Curry asked her to sign General Counsel's Exhibit 3. Rinaca wrote on it, "I do not agree with this" and then signed it. She ai'so told Curry, when on this occasion he accused her of passing out union cards on Company time, "That is a lie. I have not passed out any." Thereafter Rmaca continued to "talk" during working hours without being reprimanded therefor. In addition Rmaca noticed that after March 14, 1973, other employees who "talked" during hours were not reprimanded for doing so. On cross-examination Rinaca admitted that when Respondent hired her she received from Respondent and read a booklet in evidence as Respondent's Exhibit 1. At p. 11 thereof may be found the following language: Solicitation There shall be no solicitation of any kind on Company property except for charitable purposes, and then only with the written permission of the Manager. Notice of granting such permission will be placed on the Bulletin Board. However, on redirect she claimed that to her knowledge said rule had never been enforced. Arvella Kohne a machine operator for Respondent in its art department since about 1959, also testified for the General Counsel . An adequate abridgment of her testimo- ny is related here . Donald Curry is her supervisor. In December 1972 , she became aware that the Union was conducting an organizing campaign at the plant . Thereaft- er, but prior to March 15 , 1973, she attended all the union meetings, signed a union card , and joined the Union's organizing committee . In addition , she talked about the Union "in a general sort of way" during working hours. On March 15 , 1973, Supervisor Donald Curry handed her a written reprimand and warning identical to that given to Phyllis Rinaca (G.C. exh. 3) and signed by Plant Manager J. R. Fredrickson . (See G.C. Exh. 4.) Curry asked her to sign it. She did so but added thereto the words "I deney [sic] the above accusations as being completely false ." Then Curry asked her why she wanted the Union "so bad ." Upon replying that she need the Union, Curry commented that he did not understand why the employees needed a union because he considered the plant "a good place to work" and "was the best place he had ever worked ." He also remarked that "it was a known fact that 875 all unions were corrupt." Continuing, Curry told Kohne that the decoration department was the "worst shift" and "had always caused a lot of trouble . . . because they were always wanting a union and that it [the decoration department] did not make any money anyhow and he did not understand why they did not close it down and if it were up to him he would." He also accused Kohne of being the "ring leader" of this "trouble." Kohne further testified that to her knowledge the Company permitted employees to talk on the job during working hours. But no employees who spoke under these circumstances were ever reprimanded prior to March 15, 1973, by Respondent. Also, during working hours employ- ees were allowed to solicit, without being reprimanded, for the Community Chest, Red Cross, flower fund, "punch board" lotteries or raffles, betting on the World Series, Avon, Stanley products, Tupperware products, special sick fund collections, and Christmas gifts for the foremen, foreladies , and their assistants . Some of said solicitations were made by foreladies. (Respondent makes bottles for Avon and Stanley.) Finally, Kohne asserted that she was never given a copy of the booklet in evidence as Respondent's Exhibit 1, but noticed that other employees had one and that she has "glanced through" such a booklet but without reading it. Since September 1972, Syvilla A. Riddle has been employed by Respondent as a machine operator under Supervisor Gene McEnemey, who I find is a supervisor as defined in Section 2(11) of the Act. A sufficient summary of her testimony ensues. In December 1972, she became aware that the Union was attempting to organize Imco. Shortly thereafter she became a member of the Union's in- plant organizing committee, and still later passed out, but not during working time, union cards and literature. She also signed such a card herself. On March 19, 1973, Supervisor McEnerney handed Riddle a written reprimand and warning, signed by Plant Manager J. R. Fredrickson, and worded like that received by Rinaca and Kohne (G.C. Exh. 3 and 4) described above. (See G.C. Exh. 5.) Riddle claims she wrote on it that she "had not made any remarks during working hours about the Union" and then signed it, but neither said writing nor her signature appear on General Counsel's Exhibit 5. However, Respondent's Exhibit 2 does contain said denial by Riddle. She also maintained that to her knowledge Imco had no rule against talking during working hours. Further, she stated that other employees as well as she engaged in such talk without being reprimand- ed therefor by their employer. Riddle also insisted that during working time employees were solicited for Christmas gifts to foreladies and suppers for employees, and that on company time the tables for said suppers were set and later cleaned. But she was firm in her testimony that she never distributed union literature or cards, or talked about the Union, during working hours. Another witness for the General Counsel, Lucy Nazel- rod, testified substantially as follows. She works in Respondent's plastic bottle department. While so em- ployed she has been solicited during work time by employees to make contributions of money for various social purposes, which she named, and gifts. Also, during 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work time arrangements are made to hold suppers about once a month at the plant ; and, after such suppers are completed , the cleaning up of the tables by employees occurs on company time. B. Respondent's Defense Paul Foltz, an employee in Respondent 's decorating department , works under supervisors Donald Cur ry and Charles Bolton . In January 1973, he learned that the Union was engaged in a campaign to organize the plant. About this time employee Arvella Kohne urged him to join the Union, but he was unable to state whether this took place dunng working hours. In March 1973 , employee Phyllis Rinaca also asked him to join the Umon but he was not sure whether it occurred during working time. Another witness for Respondent is Ida Layman, an employee in its secondary department , whose supervisor is Gene McEnerney . An abstract of her testimony follows. In January 1973, she became aware of the Union 's activity at the plant , and that Syvilla Riddle was participating in said activity . In fact , during working hours Riddle invited her to attend union meetings, and also talked a lot about the need of having a union in the plant . Layman reported Riddle's said soliciting to her supervisor , McEnerney , claiming that she "did not want to be bothered with it ," and "wanted [Riddle] to leave me alone . . . [and] stay away from my machine ." Some time thereafter McEnerney presented Riddle with a written notice. Riddle told Layman that said notice warned Riddle "not to talk about the Union in the plant with us girls." At no time did Layman request Riddle not to bother her with talk about the Umon. Anne Painter , a hot stamp machine operator in Respon- dent 's decorating department, offered the following testi- mony. On one occasion Arvella Kohne talked to her "about Union matters" while Painter was being relieved at Painter's machine by Kohne dunng working time. But Painter did not complain about this to any of her superiors. At another time during working hours Kohne asked her to sign a union card. Neither event was reported by Painter to management. Neola Joyce Bauserman , employed by Respondent as a packer in its decorating department , testified substantially as follows. Early in 1973 she learned that the Union was seeking to organize the employees and that Arvella Kohne "was taking a pretty active part" in its activities . At times she heard Kohne during working hours discussing the Union with other employees . And she "never had occasion to complain to anyone that she was being bothered by" Kohne . Sometimes Bauserman "collected for the World Series pools at the plant during work time , but she obtained the foreman 's permission to do so and it did not interfere with her work." Claire Phillips, a packer in Respondent 's decorating department, gave testimony substantially as follows. Early in 1973 it "came to her attention" that there was union activity at the plant and that Arvella Kohne "was involved in that activity ." Although when Kohne worked "side by side" to her Kohne several times talked to her about the Union at Phillips' work station during working hours, Phillips never complained to Respondent about it. Some- times Phillips talked during work time about "other subjects at work-family and that sort of thing . .'. . It is permissable in our plant for us to talk when we are working side by side with someone." Another witness for Respondent , Gloria Crider, em- ployed as a packer of bottles in its secondary department, testified substantially as follows. Sometime since February 1973, she became "aware of Union activities going on at the plant" and that "Syvilla Riddle is engaged in that activity ." Once Riddle came to Cnder 's machine while the latter was working, talked to Crider "about Umon activity," and asked Crider to sign a card "about the Union ." Crider refused to sign . Later that day Crider reported this incident to her assistant leadlady, Emma Whitty or Wittig , and also told Whitty that she, Crider, "would not touch" the card . However, Cnder also admitted that she and the other employees do talk on company time. Still another employee witness for Respondent is Emma B. Wittig, an assistant leadlady in its secondary depart- ment . An ample summary of her testimony is here set forth . Employee Gloria Crider once asked her if she, Cnder , would get into trouble for accepting a "paper or something" which employee Syvilla Riddle offered Crider. Wittig replied Crider would not get into trouble by taking it but "might get into trouble if you were to sign something. If you sign your name on anything , you could get into trouble" Sometime later Wittig reported Crider's said conversation with her to Gene McEnerney, Wittig's supervisor. Employee Judy Road Cap once complained to Wittig that employee Syvilla Riddle asked Cap, as Cap clocked in but before working time , about the Union and gave Cap a card to sign , and that Cap refused to sign it but would "look at it ... over the week-end." Wittig then reported this to supervisor McEnerney . Finally, Wittig declared that employees Martha Conley and Nancy Gibson told her that Riddle "during working time ," i.e., "at the time clock," accosted them about the Union and signing a union card. However, Wittig referred to "working time " as "already clocked in but it was not 3 : 00 o'clock," the starting time for the shift . She also testified that Conley stated she was accosted "at the time clock" but Wittig was not sure whether this meant before or after 3 p.m. Wittig also reported these two incidents to supervisor McEnerney. Wittig did not discuss any of the incidents involving Cap, Conley , Crider, and Gibson with Riddle before calling them to McEnemey 's attention because "it is not my position to do so" However , Wittig stated it was "her position to report it to McEnerney if it comes up in a conversation." Thelma Barkley , an employee on the second shift in Respondent 's decorating department , in substance gave the ensuing testimony. "Sometimes " she worked at the same table with employee Phyllis Rinaca . While working Rinaca and Barkley "talked about quite a few things and quite often the Union ." Rinaca "initiated the conversations concerning the Union ." "After a while" Barkley com- plained about Rinaca's conversations with her to Webb, counsel for Respondent , to supervisor Curry, and still later to Plant Manager Fredrickson . This caused Rinaca to "stop it." After this Rinaca told her that the latter "was IMCO CONTAINER CO. 877 issued a letter ," but Rinaca added that said letter contained "false statements about ... talking about the Union" because Rinaca claimed she did so only "on her break periods or when she was off from work but not on Company time." Continuing , Barkley testified that employee Callie Lambert complained to Plant Manager Fredrickson, in the presence of Barkley , that Lambert "was not happy because this Union talk was still going around . . . [and] she objected to it . She . . . was not Union and they had tried to get her to sign a card-efferent ones-and she did not want any part of it and she had told them so from time to time . . . these matters . . . occurred during working time . . . at the work stations." On cross-examination Barkley testified that (a) Rinaca during work time asked her to sign a union card, (b) Respondent's Attorney Webb and Plant Manager Fre- drickson asked her if employee Rinaca "was still going around talking to the girls and asking them to sign cards," (c) Fredrickson would see what he could do about Rinaca's union activity , (d) five other employees , one of whom was Anna Davis , "irritated her about the Union ," and that although she reported them to her supervisor she did not ask any of them to leave her alone , (e) she never told Rmaca to leave her alone because she was not interested in the Union , and (f) on March 19 , 1973, she took a union authorization card from the pocketbook of Anna Davis to consider signing it. Dorothy Gilkerson, an employee engaged as a machine operator in Respondent 's decorating department, testified in substance as fellows. She became aware that "there was some Union organizing activity at the plant " and that employee Phyllis Rinaca was "the person . . . the most active in that organization." While at work Gilkerson and employee Linda Wolfe were invited to union meetings and both were also asked by Rinaca to sign a union card. Rinaca also handed Gilkerson some union literature. But Gilkerson responded by telling Rinaca that Gilkerson was not interested. Later Gilkerson told Plant Manager Fredrickson that she was tired of "being bothered and being asked about this and all this talk about it and I wanted to be left alone as I could work andjust forget about it." After this Fredrickson asked her "if things had cleared up," and she replied in the affirmative . However , Gilkerson admitted that "there was no rule against talking on Company time"; and, in fact. she, as well as ocher employees, talked while on the job without being reprimanded therefor . She also stated that part of her irritalion from union talk resulted from such talk during nonworking hours in the ladies ' room and the cafeteria. Gene McEnerney, a supervisor in Respondent 's second- ary department, and a supervisor within the meaning of Section 2(11) of the Act, gave testimony for it in substance as follows. Several employees complained to his "lead people" and to him, also, about "Union activity in the plant." As a result he handed one of such employees about whom complaint was made , Syvilla Riddle , a letter given to him by Plant Manager Fredrickson . (See Resp. Exh. 2, but marked Resp . Exh. 3 at 263 of the transcript . This "letter" was issued because employees complained that Riddle "was bothering them at their work stations ." Among such employees McEnerney identified were Mrs. Layman, Ruby Whitelaw, Ruby Strutterman , and Fay Vaughn . In fact, Riddle "was disrupting the shifts . . . and . . . was upsetting the people ." He told Riddle to sign General Counsel 's Exhibit 5 and to make any notations she desired on it . She wrote on it "I have not made any remarks on the union during working hours" and then signed it . Another employee who complained to McEnemey "relative to union activities" is Mae Vaughn . She protested about "basically the same thing ... why do we need to be disturbed ." So did employee Ida Layman several times complain of being talked to about the Union while she was working. When cross-examined McEnemey testified that the employees presented a $40 gift certificate to him, and that he knew "they went around soliciting" for it, but he did not issue any written reprimands on account of such soliciting. Further, he claimed he did not know if company rules forbade soliciting of this nature . Additionally , he admitted that during work time "the lead people" "set up the suppers" which employees attended . He also stated that he reported the complaints about Riddle to Plant Manager Fredrickson and Attorney Webb, but did not himself make the decision to issue any written reprimand to Riddle. However, he did not discuss such complaints with Riddle before relating them to his superiors. Finally, he testified "there is no Company rule against talking" although "there is a Company policy not to talk other than business." But he was unable to state how he ascertained such policy existed. Another witness for Respondent , Donald E . Curry, a supervisor in its decorating or art department, testified essentially as follows. From January to March , 1973, he was cognizant of activities by the Union in the plant. Such activities caused "disruption ," and some employees asked him what he was going to do about it. Employee Mrs. Kohne told him that when she sought to "take up a collection for her daughter's wedding" she was not allowed to do so by Plant Manager Fredrickson. Employee Grace Reedy complained to Curry that Phyllis Rinaca engaged in union activity during working hours which produced "a state of unrest ... of the people." Other employees made similar protests to him . So Curry transmitted this information to Plant Manager Fredrick- son. Later Fredrickson directed Curry to hand Rinaca a written reprimand prepared by Fredrickson. See General Counsel 's Exhibit 3, erroneously described as General Counsel 's Exhibit 5 at 286 of the transcript . When Rinaca refused to sign it Curry insisted that she had to sign or be suspended until she did but could write "her comments on it." However, Curry denied that he discussed with Rinaca whether the Company's art department was profitable, or the possibility of shutting down such department, or interrogated Rinaca "about her union involvement." On March 15 , 1973, Curry also handed employee Arvella Kohne a written reprimand identical to that given to employee Riddle . It was "based on reports I [Curry] had been receiving." (See G.C. exh . 4.) Although Kohne asked Curry where he obtained his "information" he declined to disclose his source because it "was confidential informa- 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion ." Kohne signed said reprimand, but also wrote on it "I deny the above accusations as being completely false." Curry further denied that he "indicated to [Kohne] anything about the profitability " of the department which he supervised , or that he was going to close the art department , or interrogated her regarding her or any other employee's union activities . In addition , Curry stated that he was "instrumental in making the decision to issue these [reprimands ] to Riddle and Kohne"; i.e., General Coun- sel's Exhibits 4 and 5. Nevertheless he never discussed Riddle's or Kohne 's conduct or sought their versions with either of them before handing each the above-mentioned written reprimands. However, Curry also stated that , notwithstanding that he received no complaints regarding Kohne he discussed Kohne with Plant Manager Fredrickson because Kohne "was an in-plant organizer ." He also verified that "there is no Company rule against talking on Company time," whether such talk related to "family . . . politics .. . union . . . anything they want to as long as they can do their job ." He also conceded that , when he presented the written reprimand to Kohne he asked her why she wanted a union and that he told her "that the art department was the trouble spot within the plant." Respondent 's final witness was James R. Fredrickson, its plant manager . An adequate synopsis of his testimony follows. On one occasion employee Arvella Kohne asked for his permission to "post an announcement of her daughter 's wedding," but he denied this request. However, he authorized her to "put it on the bulletin board where notices of this type were placed ." In addition he explained to her that "we allowed things to go on such as the flower fund [because ] . . . no one seemed offended by it." Fredrickson became aware of "the existence of a union organizing situation" in November 1972, when employees told him "they had been approached by union organizers." He wrote the reprimand given to Syvilla Riddle (G.C. Exh. 5) "because of the complaints that were being given to me by the department supervision and by the employees in the department itself . . . [that] they were being bothered and harrassed and just did not feel comfortable at work any more because they were always being hounded by Syvilla Riddle ." He identified employees Layman and Wittig as among those employees who so complained to him. Fredrickson further stated that employees and Supervi- sor Curry also complained to him that Arvella Kohne was "going around" during working hours. In addition some employees conveyed to Fredrickson information that Phyllis Rinaca was engaged in "union type activities" and was "wandering around the plant talking union" during working hours. Fredrickson also said that some "were wanting to leave the Company due to the harrassment." Such complaints about Riddle , Kohne , and Rinaca "seemed to stop" after the written reprimands to them were issued . In fact, productivity which was "lowered" by such conduct , improved after the reprimands. As a result of such complaints Fredrickson decided , after talking the situation over with counsel and the home office , to issue warning letters or reprimands to those employees, ie., Riddle , Kohne, and Rinaca, engaged in conduct which was considered objectionable. On cross-examination , Fredrickson denied that the following employees did complain to him : Layman , Wittig, Bauserman, Phillips, and Painter ; and that Barkley was wrong in testifying that she spoke to him just before April 17, 1973. He also admitted that Respondent had no rule prohibiting talking during company time , and that employ- ees "could talk about the Union" during working hours without being reprimanded therefor . And it was he who made the decision to reprimand in writing employees Rinaca, Kohne , and Riddle (see G.C. Exh. 3, 4, and 5) because "these employees were engaging in union activities ... [and] these people under my supervision had been reporting to me . . . of harassment" But he "did not investigate the allegations against these individuals" nor speak to them about the same prior to issuing the said reprimands to each of them. C. Concluding Findings and Discussion 1. As to the reprimand or warning slip given to Phyllis Rinaca It is my opinion, and I find, that in reprimanding Rinaca in writing for "umon activities during working hours" (see G.C. exh. 3) Respondent interfered with, restrained, and coerced her in the exercise of rights guaranteed to her in Section 7 of the Act. This ultimate finding is derived from the entire record in this case and the following subsidiary findings , which I hereby find as facts . I do not credit Fredrickson that union adherents threatened and har- rassed employees and interfered with production. a. It is true , and I rule, that an employer may prohibit employees from engaging in activities not associated or connected with their work tasks during working hours; but this rule is subject to the modification that such prohibition must comprehend all activities of this type. But when such employer allows employees to become involved in nonoc- cupational functions other than union activities on company time, at the same time denying employees the privilege of engaging in union activities on such time, it constitutes a discriminatory application of the rule forbid- den by Section 8(a)(1) of the Act. Talon, Inc., 170 NLRB 355, fn. 1. b. Although I find that Rinaca engaged in some umon activity during working hours I find that it did not interfere with or impede her performance of her duties or the performance of the duties of those employees to whom she directed her proumon conduct, or that it harassed any employee . Testimony inconsistent with this finding is not credited. But I further find that Respondent not only had no rule against talking or soliciting on the job , but also actually permitted employees to talk on thejob about any subject, including unionism , so long as it did not hinder them in their work . In fact Plant Manager Fredrickson expressly acknowledged that employees "could talk about the union" during working hours with impunity . And I find that his contention that profits declined has not been creditably connected to union activity at the plant. c. Further, I find that employees did talk during working hours without being warned that such was forbidden . In addition , I find that Respondent allowed employees , on their working time, to solicit for the flower IMCO CONTAINER CO. 879 fund, Red Cross, Community Chest, lotteries or raffles, Christmas gifts, and showers, and occasionally to prepare suppers in the cafeteria ..Patently granting such permission while denying it for union activities amounts to disparate treatment against the latter activities . In addition, I find that the booklet given by Respondent to Rinaca (see Resp. Exh. 1) on its face is discriminatory when it sanctions solicitation on Company time for charitable purposes but denies this right to employees soliciting for the Union. d. Finally, I find that no supervisor proffered Rinaca an opportunity to give her version of her conduct encompassed by the complaints against her nor even discussed such complaints with her prior to issuing the written reprimand or warning to her . This failure of Respondent to impartially investigate the complaints received by it regarding Rinaca; i.e., not affording Rinaca an opportunity to present her account of the events attributed to her or to defend herself, is evidence of a discriminatory antiunion intent (Norfolk Tallow Co., Inc., 154 NLRB 1052 , 1059), and I find such an intent . N.L.R.B. v. Robertshaw Controls Company, Lux Time Division, 483 F.2d 762 (C.A. 4, 1973). Accordingly,, I find that the facts set forth above demonstrate that the giving of a written warning or reprimand to Rinaca contravenes Section 8(a)(l) of the Act. 2. As to the written warning or reprimand given to Arvella Kohne Upon an assessment of the entire record I find that the written warning or reprimand given to Arvella Kohne (see G.C. Exh. 4) interferes with, restrains , and coerces her in the exercise of rights guaranteed to her by Section 7, and, therefore, contravenes Section 8(aXl), of the Act. This finding is based upon the entire record herein and the following subsidiary findings, which I hereby find as facts. a. Initially I rule that an employer may restrict employees to performing only the duties connected with their occupations during work time. But he may not allow them to engage in nonwork activities and at the same time interdict union activities during work time, as this amounts to discriminatory treatment proscribed by Section 8(a)(l) of the Act. In addition, I find, on supervisor Curry's own testimony, that no employee complained to him about Kohne. b. Crediting Kohne, and not crediting evidence incon- sistent with her testimony, I find that she engaged in union activity at the plant during working hours. But as set forth herein I find that discriminatory antiunion considerations induced Respondent to issue the written reprimand to her. c. Additionally, as in the case of Phyllis Rinaca, I find that Respondent not only lacked a rule circumscribing talking or soliciting on the job, but rather did permit employees to talk on the job about any topic, including the Union, so long as it did not interfere with their work. And I find that, prior to the issuance of said reprimand to Kohne employees did converse during working hours without being admonished that such conduct was forbidden. d. Also, I find that Respondent sanctioned solicitations of various kinds during working hours and approved of suppers prepared during such hours. According such solicitation privileges to nonunion matters while withhold- ing them when union activities were involved is disparate treatment forbidden by the Act. Cf. Monterey Life Systems, Inc., d/bla Bellaire General 'Hospital, Inc., 203 NLRB No. 151. e. Also, as in the case of Rinaca, I find that no supervisor extended Kohne a chance to defend herself before issuing the written reprimand to her. For the reasons expressed in connection with Rinaca 's reprimand I conclude that this is evidence of a discriminatory intent, and I find such an intent prompted such reprimand. Cf. Robertshaw Controls Co. v. N.LRB., supra . f. Finally, I find that Kohne's union activity did not interfere with the performance of her work duties or those of any other employee, and that it did not harass any employee. Testimony contrary to this finding is not credited. 3. As to the reprimand or warning slip given to Syvilla A. Riddle I am convinced , and find, that in reprimanding Riddle in writing for engaging in union activities on company time (see G.C. exh . 5) Respondent did so because of union animus and thus violated Section 8(axl) of the Act. Although this finding is derived from the entire record, it is also based upon the following additional findings , which I hereby find as facts. a. Initially I rule that an employer may insist that working time is for work and may interdict during work hours activities unrelated to an employee's job; but he may not debar union activities while authorizing other non- work-connected acts without transgressing Section 8(aXI) of the Act. b. Riddle engaged in some union activity during work hours . Evidence not consonant with this finding is not credited. But I specifically find that such conduct did not hamper her or any other employee in executing their work functions, that it did not harass or bother any employee, and that it did not interfere with production. Additionally, I find that prior to issuing said written reprimand Respondent had not communicated to employees any rule against soliciting on company time but did permit employees to talk on the job regarding any matter, including unionism. Respondent also permitted soliciting during work hours for charitable purposes. Denying such a privilege for union activity is discriminatory, and I so find. c. Further, I find that Respondent tolerated talk during working hours without admonishing employees that such action was forbidden . This demonstrates, and I find, that the sudden decision in March 1973, to ban union activities on company time but not to enjoin all other nonwork activities during working time, was inspired by union animus. d. Finally, I find that Respondent failed to seek Riddle's account of the events ascribed to her or to let her explain or defend such conduct . Such deficiency on Respondent 's part is evidence of an antiunion intent, and I find such intent under the circumstances. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. As to other alleged violations of Section 8(a)(1) of the Act a. Interrogation of employees When on March 15, 1973, supervisor Curry handed Arvella Kohne a written reprimand he asked her why she wanted the Union "so bad." Curry's denial that he so questioned her is not credited. In the context of the unfair labor practices found above, I find that this interrogation contravenes Section 8(a)(1) of the Act. Continuing, Curry remarked that he did not understand why the employees needed a union because he considered the plant "a good place to work" and "was the best place he ever worked" Then he added that "it was a known fact that all unions were corrupt." His testimony gainsaying these statements is not credited. But I find they merely express his opinions without containing a threat of reprisal or promise of benefit. Accordingly, I find that these latter utterances by Curry are protected by Section 8(c), and do not violate Section 8(a)(1), of the Act. In this same conversation Curry declared that the decoration department was the "worst shift" and had always caused "a lot of trouble . . . because they were always wanting a union." I do not credit his contradictory testimony. Nevertheless I find that this observation does no more than disclose his dislike of unions. Yet the Act does not preclude an employer from pronouncing his antipathy or opposition to umons. N.L.R.B. v. Threads, Incorporated, 308 F.2d 1, 8 (C.A. 4, 1962). Hence I find that Curry's said expression does not infringe upon Section 8(a)(1) of the Act. his said statement amounts to no more than portraying of an antiunion animus protected by Section 8(c) of the Act. Accordingly, I find that Section 8(a)(1) of the Act has not been transgressed on this branch of the case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occurring in connection with its operations described in section 1, 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. V. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. Such affirmative action consists of the posting of an appropriate notice and revoking the written reprimands to Rinaca, Kohne, and Riddle. As the record does not disclose that Respondent exhibited a general hostility to the Act, I conclude, and therefore recommend, that a broad remedial order against it is not warranted. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: b. Threats to close the Art Department to discourage unionism On the above occasion on March 15, 1973, when Supervisor Curry delivered the written reprimand to Arvella Kohne, he also apprised her that the decoration department did not make any money, that he "did not understand why they did not close it down," and that "if it were up to him he would" abolish said department. His testimony denying this utterance is not credited. Relying on Dixie Cup Division of American Can, 157 NLRB 167, 203-204, Respondent contends that Curry's said remark did not contravene Section 8(a)(1) of the Act. However, in that case the Board refused to infer that the supervisor's words amounted to a threat to close the plant. Those words were, "If the union gets in ... I will put my house up for sale and request a transfer." I find that American Can, supra, is inapposite on its facts. Nevertheless I find that Curry's said statement is not clothed with a threat that he will actually close or take steps to cause to be closed the art department. At most it implies that he would abolish said department if he were invested with the power to do so; but patently he lacked such power. And I find his words did not convey the impression that he would cause or try to induce his superiors to close down said department. Hence I find that CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By (a) issuing written reprimands to employees Rinaca, Kohne, and Riddle, and (b) asking said Kohne why she wanted the Union "so bad," Respondent has engaged in unfair labor practices condemned by Section 8(a)(1) of the Act. 4. The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 5. Respondent has not committed any other unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDERI Respondent, its officers , agents, successors , and assigns, shall: I In the event no exceptions are filed as provided by See. 102.46 of the 102.48 of said Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findmgs, 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. IMCO CONTAINER CO. 1. Cease and desist from: (a) Issuing written reprimands to employees for engaging in union activities during working time so long as it does not prohibit during such time nonunion activities uncon- nected with an employee's lob; provided, however, that such reprimands may issue if the employee's umon activities interfere with his or other employees' production, or annoys or harasses any other employee. (b) Interrogating employees as to why they want a umon. (c) In any like or similar manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them in Section 7 of the Act. 2. Take the following action designed to effectuate the policies of the Act: (a) Revoke and withdraw the written reprimands issued to employees Rinaca, Kohne. and Riddle. (b) Post at its premises at Harrisonburg, Virginia, copies of the notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 5, after being signed by a duly authorized representative of Respondent, shall 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. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 2 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeal.;, 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 " 881 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT issue written reprimands to employees for engaging in activities on behalf of a union during working time so long as we allow during such time nonunion activities not connected with an employee's job; but such reprimands may issue if an employee's union activities interfere with his or other employee's production or annoys or harasses any other employee. WE WILL NOT ask employees why they want a union. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them in Section 7 of the Act. WE WILL revoke and withdraw written reprimands issued to employees Phyllis Rinaca, Arvella Kohne, and Syvilla A. Riddle in March, 1973. All our employees are free to become, remain, or refuse to become or remain, members of International Printing Pressmen of North America or any other union. Dated By IMCO CONTAINER COMPANY (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Rm. 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962-2738.