Mitsubishi Aircraft International, Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1974

212 N.L.R.B. 856 (N.L.R.B. 1974)

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitsubishi Aircraft International, Inc. and Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 16-CA-5323
August 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On April 29, 1974, Administrative Law Judge
Frank H. Itkin 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Decision in light of the ex-
ceptions and brief and has decided to affirm the
Administrative Law Judge's rulings, findings, and
conclusions and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Mitsubishi Aircraft Interna-
tional, Inc., San Angelo, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd . 188 F.2d 362 (C A. 3, 1951) We have carefully examined the
record and find no basis for reversing his findings
We find without merit Respondent's allegations of bias and prejudice on
the part of the Administrative Law Judge . We have considered the entire
record and the Administrative Law Judge 's Decision, and we see no basis for
finding that he prejudged this case or demonstrated bias in his analysis or
discussion of the evidence.
(3), and (4) of the National Labor Relations Act by coer-
cively interrogating employees concerning their union
membership, activities, and desires and the union member-
ship, activities, and desires of their coworkers, by creating
the impression of surveillance of employee union and other
protected concerted activities; by threatening employees
with loss of existing benefits if they became or remained
members of the Union or gave any assistance or support to
the Union; by threatening employees with suspension and
discharge if they engaged in union or other protected con-
certed activities; by interfering with the Board's processes
during the investigation of the charges filed herein; by sus-
pending employee Harry Schneider for 3 days on October
2, 1973, because he had engaged in union and other protect-
ed concerted activities; and by thereafter discharging and
refusing to reinstate employee Schneider on November 8,
1973, because he had engaged in union and other protected
concerted activities. Upon the entire record, including my
observation of the witnesses, and after due consideration of
the briefs filed by counsel for General Counsel and Respon-
dent, I make the following findings of fact and conclusions
of law.
FINDINGS OF FACT
I JURISDICTION ; INTRODUCTION
The complaint alleges, the answer admits, and I find and
conclude that Respondent Company is engaged in the pro-
duction, assembly, and maintenance of aircraft at its factory
in San Angelo, Texas; that during the prior 12-month period
Respondent Company received goods and materials valued
in excess of $50,000 which were transported directly to its
San Angelo facility from States other than Texas; and that
Respondent Company is therefore an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. It is also undisputed and I find and conclude that
Charging Party Union is a labor organization within the
meaning of Section 2(5) of the Act.
The complaint alleges, the answer admits, and I find and
conclude that at all times material Mike Kuroiwa was com-
pany president; Tom Taylor was personnel manager; Lloyd
Hollis and Sylvester Garza were supervisors; S.D. Smith
was chief of quality control; Mike Tabor was foreman of
quality control; and Kuroiwa, Taylor, Hollis, Garza, Smith,
and Tabor were agents of Respondent Company, acting on
its behalf, and supervisors within the meaning of Section
2(11) of the Act.
II. THE UNION ATTEMPTS TO ORGANIZE THE COMPANY'S EMPLOYEES;
THE EVENTS ATTENDING THE SUSPENSION AND DISCHARGE OF
EMPLOYEE HARRY SCHNEIDER
DECISION
FRANK H. ITKIN, Administrative Law Judge. This case was
tried before me at San Angelo, Texas, on February 12 and
13, 1974. Unfair labor practice charges were filed by the
Union on October 24, 1973, and amended on November 28
and December 20, 1973. The unfair labor practice com-
plaint issued on December 20, 1973. The issues presented
are whether Respondent Company violated Section 8(a)(1),
A. Schneider Assists the Union; Company President
Kuroiwa Speaks to the Employees
Employee Harry Schneider, as he credibly testifed, start-
ed his employment with Respondent Company performing
sheet metal modification and repair work during November
1972. Thereafter, on or about August 5, 1973, Schneider was
transferred to an inspector's job which resulted in an in-
212 NLRB No. 124
MITSUBISHI AIRCRAFT INTL.
crease of two pay grades.' Shortly after Schneider was made
an inspector, he became involved in the Union's renewed
effort to organize the Company's employees? Schneider
went to union meetings, signed a union authorization card,
and urged other employees to sign union authorization
cards and attend meetings. Schneider obtained the signa-
tures of about 12 coworkers on union authorization cards.
Schneider credibly testified that about August 1973,
Company President Kuroiwa
came through [the plant] talking to different people and
talked to me [Schneider]; and somehow we got to talk-
ing about the Union and I told him I was going to the
Union meetings and he [Kuroiwa] says, "Was there a
good turnout?" I says, "Quite a few people went."
In addition, as Schneider recalled, about September 1973,
Schneider went to Personnel Director Taylor and asked
"why he [Taylor] would not let me [Schneider] have a merit
raise ...." During this discussion, Schneider and Taylor
"got off on talking about the Union." Schneider testified:
I [Schneider] just told him [Taylor] that I was going to
Union meetings and that I had signed a Union card.
About this same time, during either late August or early
September 1973, Company President Kuroiwa addressed
the plant employees. As employee Tom Martin credibly
testified:
Mr. Kuroiwa said that he had heard that a Union was
trying to organize in Mitsubishi and that if this organi-
zation continued he could no longer help us with bene-
fits and other things. . . . He also . . . mentioned the
fact that we had made many strides in new benefits and
such, but if this activity continued that he felt he could
no longer help us.
Employee Thomas Davis credibly recalled that Company
President Kuroiwa said:
if we had the Union he possibly couldn't give us .. .
like the Company parties and merit raises and parties
and things of that sort. . . . He also said he couldn't
give us days of . . . because if we had the Union he
couldn't do it... 3
i Schneider explained that the Company's top hourly rate for sheet metal
work was $3.68, whereas the top hourly rate for an inspector was $4 22
2 The parties stipulated that previously the Union had filed a representa-
tion petition in Board Case 16-RC-6005, that a Board-conducted election
was held on August 24, 1972, and that the Union lost the election
3 Employee Jim Ames testified, inter aria, that he started working with the
Company during late August, that during his initial interview with
management's representatives he "was asked primarily what [his] thoughts on
the Union was"; and that during late August or early September 1973 his
"leadman talked about his thoughts on it [union activity] and then the Com-
pany President made a speech one morning " According to Ames, Company
President Kuroiwa said, inter alia
857
B. The Company's Rules and Policies Pertaining to Solici-
tation and Distribution; The Suspension of Schneider on
October 2, 1973
The Company' s personnel manual , printed July 1, 1972
(Resp . Exh. 1), states in part-as follows (pp. 47-49):
PERSONAL CONDUCT
You should recognize that it is to your best interest to
maintain high standards of conduct. Occasionally it
becomes necessary to use disciplinary measures when
conduct is contrary to accepted practices. As a guide,
the following actions on the part of an employee may
be cause for termination of employment.
H. Distributing literature in the working areas of the
plant at any time. No solicitation, raffles, collection of
funds or other similar activities shall be permitted dur-
ing an employee's working time. This means the work-
ing time of the employee engaging in such activity or
the working time of the employee being solicited or
otherwise urged to engage in such activities as pro-
scribed by his rule.
The manual also provides in part as follows:
WARNING NOTICE
It is not M .A.I. policy to discharge an employee for a
first infraction of the rules of personal conduct unless
the offense is so serious that the company is left with
no alternative . Accordingly, a procedure for written
warning notices is followed.
Here is how it works:
A. The employee will receive a warning notice telling
him of his breach of conduct.
Since there are usually two sides to a story, the warn-
ing notice will request the employee's explanation and
comments.
C. The warning notice and the employee's response
thereto will be reviewed by the applicable department
head with the employee and the supervisor involved;
the personnel manager will review the warning notice
for appropriateness of action.
D. Both the warning notice and the details of the
resolution of the problem will be placed in the
employee's company personnel folder.
the promises he [Kuroiwa] had made the workers . . . he had fulfilled
.. and [he] would go on fulfilling and see that those promises would
be fulfilled and that he would fight the Union activity with all legal
means at his command to fight Union activity.. .
Ames noted that it "was quite a lengthy speech. ", and, at times there was
some difficulty understanding the president's remarks. Ames recalled that
Kuroiwa said " . . . the Union couldn't do us any good . " Company
President Kuroiwa did not testify.
858 DECISIONS OF NATIONAL
While the company endeavors at all times to follow a
system of warning notices, this procedure can be omit-
ted when circumstances warrant.
On or about September 15, 1973, the Company reprinted
its personnel manual (Resp. Exh. 2). The Company's new
manual states the rule pertaining to solicitation and distri-
bution, in part, as follows (pp. 47-49):
G. Distributing literature in the working areas of the
plant at any time. No solicitation, raffles, collection of
funds or other similar activities shall be permitted dur-
ing an employee's working time , except those previous-
ly approved by the Personnel Department. This means
the working time of the employee engaging in such
activity or the working time of the employee being
solicited or otherwise urged to engage in such activities
as prescribed by this rule.
The new manual also contains "Warning Notice" provi-
sions (ibid.).
In addition, on,or about September 21, 1973, Company
Personnel Director Taylor distributed to his supervisory
staff and posted the following memorandum:
I have been advised that occasionally solicitations have
been permitted in a few areas of the plant for good
causes such as gifts to sick employees. Like all other
solicitations, these cannot be permitted except before
or after work or during break time.
The reason for this position is after we permit these, we
cannot legally prohibit other solicitations which we do
not want to occur.
Additionally, I have been advised that there is a num-
bers game involving the payroll check numbers. This,
too, cannot be permitted on company premises. Do not
involve yourself in this activity and advise your person-
nel that this cannot be permitted.
I agree that it is a minor and insignificant activity but
it is inappropriate; rather than judge how much activity
can be permitted, the limit should be no activity in this
kind of area .4 [Emphasis in text.]
Employee Schneider credibly testified that on Tuesday,
October 2 , 1973, Foreman Tabor apprised him that Person-
nel Manager Taylor "wants to see him in the office ." Tabor
accompanied Schneider to Taylor's office . In the office,
Personnel Director Taylor stated to Schneider:
Harry, it's been brought to my attention that you have
been soliciting the Union members on Company time.
4 As discussed infra, the Company's no-solicitation rule was again clarified
(Resp Exh 4) on or about November 29, 1973. after employee Schneider's
suspension and discharge
LABOR RELATIONS BOARD
Schneider asked "if lunch time and break time" were "con-
sidered Company time" and Taylor said no. Schneider then
stated: "Well, you know, I haven't solicited on Company
time. I have got people to sign Union cards on break and
lunch and before work and after work and . . . I had not
talked to anybody on Company time." Taylor replied:
"Well, we have a man that says you approached him on
Company time ." Schneider responded: " ... the man's a
liar . . . I had never approached anybody on Company time
" Schneider asked for the name of the man that said I
approached him on Company time." Taylor answered "that
he wouldn't tell" Schneider-"he didn't have to tell"
Schneider. Schneider testified-
I [Schneider ] asked him [Taylor] if the man had a wit-
ness, and he says no, that they was going to take the
man's word over mine
Schnieder again protested to Taylor "that [he] didn't solicit
on Company time or talk to anybody on Company time."
Taylor thereupon notified Schneider that he "would be sus-
pended for three days beginning at that time and [he] would
come back on Friday morning, which was actually about
two and a half days." Schneider had not received any prior
written warnings from the Company; nor was Schneider
asked by Taylor to furnish a written statement of his version
of the alleged solicitation.
Schneider, as he credibly testified, telephoned Taylor on
Wednesday, October 3. Schneider explained:
Well, I [Schneider] again told him [Taylor] that I had
not solicited on Company time and that I didn't ap-
proach anybody on Company time; and he said, well,
that they had a reliable source of information that said
Idid. . . .
Taylor again declined to identify his "source" or indicate
"where" Schneider allegedly had "talked to this man."
Schneider returned to work on Friday, October 5. He
asked his leadman, Robert Rogers, to request that Taylor
give Schneider "a written statement as to why he was sus-
pended... ." Taylor, however, was not at the plant that
day. Thereafter, on Monday, October 8, Taylor asked
Schneider to come to the office. Taylor then gave Schneider
a written statement dated October 2, 1973. Schneider read
the statement and asked Taylor. "I would like you to put
in there for exactly what I was soliciting.. .." Taylor at
first asserted: ". . . you don't need that...." Schneider
persisted. Taylor then gave Schneider the following state-
ment, as amended: 5
October 2, 1973
NOTE TO THE FILE OF HARRY SCHNEIDER
Today at approximately 2:00 p.m., I suspended Harry
Schneider for the balance of the day and for October
3 and 4 because he violated the no solicitation rule and
The statement , although dated October 2 , was handed to Schneider on
October 8 The emphasized portion of the statement was added on October
8 by Taylor
MITSUBISHI AIRCRAFT INTL.
solicited employees in support of unionization during
productive time. Mr. Tabor, Quality Control Foreman,
was present as a witness.
Upon receipt of this statement, Schneider asserted:
"That's exactly what I wanted for me to go to the NLRB
...." Schneider testified:
Well, when I [Schneider] said that I was going to the
NLRB . . . he [Taylor] shook his finger in my face and
said, "You do that and you do any more soliciting and
I'll see to it that you are fired."
Schneider was also given a note , dated October 8 and signed
by Taylor, stating:
I have advised Mr. Schneider that any repeated viola-
tion of the no solicitation rule will result in his immedi-
ate termination.
C. Foreman Garza Explains Why Schneider Was Suspend-
ed. Schneider is Terminated on November 8, 1973
Employee Bobby Fiest credibly testified that "... we
were curious about what happened to Harry [Schneider], so
we inquired and they told us that he had been suspended."
In particular, Fiest asked Company Foreman Sylvester
Garza "about the terms of [Schneider's] suspension." Ac-
cording to the credible testimony of Fiest:
He [Garza] told us that [Schneider] had been suspend-
ed because of solicitation for the Union. . . . He told
us that if we were caught soliciting for the Union that
we would be dealt with very harshly.... He said it
could lead to a suspension or being fired. .. .
Employee Schneider had complained to the Union about
his October 2 suspension. The Union in turn filed an unfair
labor practice charge with the Board on or about October
24. Thereafter, on November 8, Company Foreman Tabor
instructed Schneider that Personnel Director Taylor wanted
to speak to Schneider in the office. In the office, Taylor
apprised Schneider: "Harry, you're terminated." Schneider
asked "what for:" Taylor replied: "Violation of Company
policy." Schneider asked "what policy." Taylor replied:
Oh, I [Taylor], don't have to tell you [Schneider] that.
All I have to tell you is that you are terminated and you
violated Company policy....
Schneider asked Taylor "for a written statement as to why
[he] was terminated." Taylor "said he didn't have to give
[Schneider] that; all he had to give [Schneider] was that
termination slip." The notice of termination, dated Novem-
ber 8 and signed by Foreman Tabor, Supervisor Smith, and
Personnel Director Taylor (G.C. Exh. 4), -states only that
employee Schneider had engaged in a "Violation of Compa-
ny policy." Taylor then apprised Schneider:
859
Mr. Tabor, my [Schneider's] foreman, would march me
out to the time clock or escort me to the time clock .. .
I would punch out, give Mr. Tabor my inspection
stamps; Mr. Tabor was to escort me out to my car and
I was not to return to Company property. He [Taylor]
said I could pick up my check when I returned my
uniforms... .
D. The Evidence Pertaining to Schneider's Alleged Viola-
tions of the Company's No-Solicitation Rule
Company Personnel Director Taylor was questioned at
length as to Respondent's alleged reason for suspending and
later discharging Schneider. Taylor testified in part as fol-
lows (Tr. pp. 258-262):
Q. (By Mr. Counts) On October the 2nd when you
suspended Harry Schneider, did you ask Mr. Schneider
for his version of the alleged solicitation?
A. I don't remember. I doubt it.
Q. Did you confront him with his accuser?
A. No.
Q. You did not give him the opportunity to say, "I
didn't solicit Christopher Parker during working time?"
A. No, he didn't know the name. I did give him an
opportunity to deny it.
Q. Did you ask Mr. Schneider for a written state-
ment as to his position in the alleged solicitation?
A. Not that I recall. If he had volunteered to give
one, I would have permitted him to put it in his own
file.
Q. You have a procedure in your personnel manual
for issuing written warning slips, do you not?
A. Yes.
*
Q. (By Mr. Counts) Did you at anytime consider the
issuance of a written warningrnotice to Mr. Schneider
for the alleged solicitation?
A. No.
Q. What was the basis for the October 2nd suspen-
sion of Mr. Schneider?
A. The statement by Christopher Parker.
Q. And just the statement of Christopher Parker.?
A. And the comments that I had picked up about
Harry in my wanderings around the plant.
Q. But nothing concrete other than that statement of
Mr. Parker?
A. Nothing written.
*
Q. Has anyone been disciplined for violating the no
solicitation rule prior to October the 2nd?
A. I'm only aware of one time that was six years ago.
Oh, no solicitation rule? I'm sorry.
Q. Six years ago you weren't employed by Mitsubi-
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shi, were you?
A. No. No one else has been disciplined.
Q. Have you since October the 2nd had occasion to
discipline any individual or individuals for violation of
the no solicitation rule.
A. No.
Q. Other than your November the 8th termination
of Mr. Schneider for violating the no solicitation rule,
have you ever discharged any employee for violating
the no solicitation rule?
A. No.
Q. (By Mr. Counts) What was the basis for the [No-
vember 8] termination of Mr. Schneider?
A. Violation of the no solicitation rule.
Q. What formed your, decision to discharge Mr.
Schneider?
A. The statement from Thomas Davis was the de-
ciding factor.
Q. You really weren't too concerned with Mr.
Wike's statement, were you?
A. The timing was bad.
In suspending Schneider on October 2, Taylor principally
relied upon Schneider's alleged solicitation of coworker
Christopher Parker, in violation of the Company's no-solici-
tation rule. However, Schneider credibly denied soliciting
employees on company time. And Parker, who assertedly
gave Taylor a written statement accusing Schneider of this
misconduct on or about September 27 or 28, 1973 (Resp.
Exh. 9), was not available to testify.6 In subsequently dis-
charging employee Schneider on November 8, Taylor relied
in significant part upon an alleged statement which he had
received from employee Thomas Davis. However, Schneid-
er credibly denied soliciting employee Davis on company
time and the credible evidence summarized below corrobo-
rates Schneider's denial.
The written statement which employee Davis gave to Per-
sonnel Director Taylor on or about November 7 (Resp. Exh.
5), states:
I, Thomas Davis were utilizing the mens rest room
at approximately 1 o'clock. Harry Schneider ap-
proached me asking me if I had heard about the meet-
ing at 7 o'clock tonight at the Jackson house at room
218. Giving me no information as to what the meeting
was about, but that everyone was invited. He told me
to spread the word around. Another individual whom
he just talked to about the meeting while I were there
6 Since Parker was not available for direct or cross-examination, his alleged
written statement of September 27 or 28 (Resp. Exh 9) was not received into
evidence to prove the truth of the matter recited therein Moreover, I note
that this written statement does not purport to be given under oath; contains
a number of deletions and changes , including changes in the dates from
October 27 and 28 to September 27 and 28, and is otherwise vague as to
incidents recited therein.
I couldn't identify.
Employee Schneider explained the incident in the rest-
room on November 7, as follows:
Well, it was getting close to break, so I started down
towards the restroom to wash my hands and get ready
for [the] break; and a man by the name of Bruce, some
wing and tail [worker], stopped me and asked me to
buy, off [approve] some work that he had done; and I
got over there and looked it over and bought it off, and
this made me late in getting to the restroom.
As I went into the restroom, I remember hearing the
whistle blow. A man by the name of Tony-I believe
it was Tony, Tony Garcia-was sitting on the stool and
Mr. Davis was standing at the wash basin, washing his
hands; and I asked Tony, I said, "I hear there's sup-
posed to be some kind meeting tonight at the Dobbs
House. Have you heard anything about it?"
He said no. I said, "Well, I hear it's supposed to be
Room 218; I'm not sure but I hear it is supposed to be
some kind of a meeting."
At this time, Mr. Davis had turned to dry his hands and
get the towel to dry his hands off. I turned to him and
I said, "Are you going?" He said, "I don't know."
I said, "Well, I heard there was supposed to be some
kind of refreshments. What kind of beer do you like?"
That was the extent of my conversation, and I went and
washed my hands and Mr. Davis left; and after I fin-
ished washing my hands, I went to break.'
Employee Thomas Davis recalled the incident, as fol-
lows:
Well, I was utilizing the restroom and I overheard
Harry Schneider and another individual at the other
end of the restroom talking, and they were talking
about a meeting that was going to be held that evening
at the Jackson House at, I believe, 7:30; and I hadn't
never heard anything about it so as Harry was passing
in front of me I asked him what the meeting was about
or asked him where the meeting was and he said at the
Jackson House but he didn't say what the meeting was
about.
He said to spread the word around and after I left
there I went back to work.
Davis further testified:
I went back to my working area and I told some of the
employees about-or asked them about the meeting, if
they had heard about it, and none of them that I talked
7 Schneider could not recall whether he also asked Davis "to get out and
spread the word . " about the meeting Schneider credibly testified that he
was in the restroom "just a couple of minutes" during this incident on
November 7. He then took his "break."
MITSUBISHI AIRCRAFT INTL. 861
to had heard about the meeting.
One individual said that the meeting was probably a
Union meeting. Until that, I hadn't realized it was a
union meeting , until later.
Later that same day, as Davis explained, Company Fore-
man Hollis approached Davis at work and asked Davis "if
somebody had talked to [him] about a meeting.... " Davis
said, "Yes, they did." Hollis asked: "Was it Harry Schneid-
er?" Davis said, "Yes, it was." Hollis asked Davis if he
would give or sign a "statement" to this effect. Davis agreed
to sign a statement because it appeared "that I [Davis]
should, for the good of the Company...." Davis was
taken to Personnel Director Taylor's office. There, Davis
"mentioned the fact that there was another employee in the
restroom...." Taylor showed Davis employee pho-
tographs in an attempt to identify the other employee.
While Davis was in Taylor's office, Davis overheard Taylor,
talking on the telephone to somebody else. . . . He
[Taylor] said that Harry [Schneider] had been warned
before and they thought he [Schneider] was silly to do
this again; and Tom Taylor agreed that . . . it was
grounds for firing Harry Schneider.
Davis "continued on writing [his] statement ..." (Resp.
Exh. 5). Taylor told Davis that Schneider "was silly to have
talked again after he had already been laid off before... .
Taylor asked Davis "about the meeting...." Taylor, at
the same time, apprised Davis, "it was a Union meeting and
he [Taylor] wasn't really interested whether [Davis] was
going to the meeting or not but he just talked briefly about
it."
Employee Davis credibly testified that during late No-
vember 1973, when an NLRB investigator visited the plant
in connection with this proceeding, Personnel Director Tay-
lor
told [Daivs] that the Labor Relations Board was
around the plant and they possibly would want to talk
to me, and he [Taylor] said that if they did come to talk
to me, to be sure and say that I went to them [Manage-
ment] to tell them about the meeting with Harry
Schneider... .
As Davis testified, Hollis in fact had "asked" Davis on
November 7 "to make the report." Taylor also instructed
Davis "to be sure and write everything down" if Harry
11Schneider "called [him] on the phone or anything... .
Employee Scott Landers credibly testified that following
Schneider's discharge in November 1973, Personnel Direc-
tor Taylor approached Landers at work and
asked me [Landers] if I ever heard Harry Schneider
solicit Union parties or any kind of solicitation during
working hours.
Landers said, "no." Taylor "mentioned that a Labor Rela-
tions man would be there that day and that he might talk
to one of the people there on the floor." In addition, Person-
nel Director Taylor admittedly questioned employees on or
about November 21 with respect to Schneider' s alleged so-
licitations. Taylor assertedly told-the employees:
There is a NLRB investigator here this morning. If he
were to ask you [the employee], "Did you have personal
knowledge of Harry Schneider's soliciting you for any-
thing during either your working time or his," would
you or could you say yes or no?s
8 I credit the testimony of employees Harry Schneider, Bobby Feist, Jim
Ames, Tom Martin, Scott Landers , and Thomas Davis as stated herein . Their
testimony is in part mutually corroborative Further , their testimony is in part
substantiated by the testimony of Personnel Director Thomas Taylor , as well
as testimony of Jerry Wike, Franklin Brooks , Jerry Ayers, Michael Walraven,
Danny Hughes , Michael Hamilton , Jolena Hawkins , James Eneff, Aubrey
Lloyd Hollis, and Kenneth Hoffman. Insofar as the testimony of Schneider,
Feist, Ames , Martin, Landers , and Davis as stated herein conflicts with the
testimony of Taylor, Wike, Brooks, Ayers, Walraven, Hughes, Hamilton,
Hawkins , Eneff, Hollis and Hoffman , I am persuaded , upon the entire record
including the demeanor of the witnesses , that the testimony of Schneider,
Feist, Ames, Martin, Landers , and Davis is more trustworthy , complete, and
accurate.
In particular, I do not credit the assertion of employee Jerry Wike that
Schneider discussed the Union with him on October 6 "in aircraft 607 inside
the hangar" while both employees were working . Wike at first testified:
Schneider "handed me a [union] card at that time." However, Wike's written
statement to management concerning this alleged incident, dated October 9
(Res. Exh 6), recites that Schneider asked Wike "if [he] had signed the card
[which Schneider] had given [Wike] earlier...." And, upon further exami-
nation , Wike acknowledged that Schneider had given Wike a union card,
"before 6 o'clock . .. not on the Job ... on another occasion. Wike at times
appeared evasive in his answers to questions . And, I note that Personnel
Director Taylor did not rely upon Wike's written statement in suspending
Schneider because assertedly "the timing was bad "
I do not credit the testimony of employee Danny Hughes that Schneider
"was trying to sell me the ideas on going to the Union at work." Hughes
acknowledged in his testimony that Schneider did not give him a union card.
Elsewhere in his testimony, Hughes could not remember whether Schneider
had offered Hughes a union card Hughes claimed that Schneider gave him
"literature while . working " Elsewhere in his testimony , Hughes acknowl-
edged that he had not been given literature by Schneider during working
time. Hughes' testimony was at times confused . When asked if he could
"remember specifically when" these "discussions " with Schneider occurred,
Hughes claimed : "To the day I couldn 't." Hughes, like Wike and others, had
been questioned by Taylor about Schneider's alleged "talking ... about the
Union during working hours. . " Finally , Hughes acknowledged that he
could recall witnessing Schneider distribute one union card "during a break."
Employee Michael Hamilton claimed that Schneider had solicited him
"during working hours " However, Hamilton explained that his alleged solic-
itation "was in the restroom and was right before our lunchbreak ..:',
"sometime in August 1973 ." Employees do not punch out for their lunch and
other breaks.
Jolena Hawkins, a secretary, asserted that Schneider had "approached"
her at work and "talked to [her] about the Union." Hawkins asserted that
she had been solicited on two occasions "during working time" by Schneider.
She placed both incidents about September 1973 However , upon the entire
record including demeanor, I am persuaded that Schneider 's recollection of
these alleged incidents is more trustworthy and credible. Schneider credibly
denied soliciting Hawkins . He recalled that Hawkins approached and ques-
tioned him about the Union and his union activities . In response to her
questioning , Schneider admitted that he had been to union meetings, he
supported the Union, and "the Union could help the people...:.
Employee James Eneff also claimed that he had been solicited by Schneid-
er on working time , Eneff placed this alleged incident in October or Novem-
ber, "just right before [Schneider] was fired ." Eneff explained:
Well, I was in the restroom. It was either right before dinner or right
before our break and Harry came in and said that the man was coming
and there would be a meeting that night....
Eneff was questioned concerning Schneider 's alleged solicitation "about the
Continued
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Company's Alleged Clarification of its
No-Solicitation Rule
On or about November 29, 1973-after Schneider had
been terminated and unfair labor practice charges had been
filed-Personnel Director Taylor distributed and posted
the following memorandum:
SUBJECT: Regarding Clarification of No Solicitation
Policy
Solicitation is asking any employee to support, contri-
bute to, or attend any organized function or cause.
Except for MEA business or United Fund and Blood
Bank dnves, solicitations are prohibited during work
time. Any other solicitations are permitted prior to
work time, during break and lunch periods and after
work time. Work time includes both the solicitor and
the solicitee.
employees had been solicited during company time to par-
ticipate in the company baseball and football teams; to give
to the United Fund Drive and the Blood Bank; to partici-
pate in the Mitsubishi Employees' Association and the cred-
it union; and to purchase tickets for church socials and
related activities. There was also credible testimony that at
times supervisory personnel were aware of and/or partici-
pated in various solicitations during company time. Em-
ployee Feist credibly testified that Supervisor Frank Brooks
participated in the "check pools." Feist credibly testified
that he purchased "Church raffle tickets from" Superinten-
dent of Grounds and Maintenance Wilbert Hoffman "dur-
ing working hours." Employee Martin credibly testified that
he was solicited for the credit union "just after work started
one morning ..." and that he had purchased items from
the Mitsubishi Employees' Association dunng company
time.
Employee Martin also credibly testified that about May
1973,
A violation of this rule reported to the Personnel Office
will automatically result in suspension of the employee
doing the soliciting. An employee who violates the rule
twice will be discharged.
Examples of unauthorized solicitations prohibited dur-
ing work time are:
1) Requests to attend parties (beer busts, farewell)
2) Requests to sign cards (Credit Union, union)
3) Requests for cash (presents, memorials)
4) Requests tojoin teams including Mitsubishi spon-
sored teams.
5) Requests to buy goods (tools, foods)
Please resolve any question about this rule in advance.
Mitsubishi does not want to lay-off any employee and
this memorandum is an effort to insure understanding
of this rule.
Supervisors of hourly rated employees should read this
to their employees (this is permitted during work time.)
There was credible testimony that employees had been
solicited for "football pools" and "check pools" during
"Company time." 9 There was also credible testimony that
Union " At the time of Schneider 's alleged solicitation , Eneff had gone into
the toilet "to wash my hands and go to the restroom before taking a break
to eat or drink a Coke" The restroom is "right next " to the "break" area
Further, I do not discredit the otherwise credible testimony of employee
Schneider because of an asserted act of misconduct stated on his military
discharge papers which had occurred some 12 years ago This asserted act
of misconduct was disclosed to the Company when it hired Schneider in
November 1972
9 As explained , the holder of a paycheck with a number making the "best
poker.hand" wins the "check pool"
There was a petition at work to work a four-day work-
week, ten hours a day during the summer months, be-
cause it had been done in prior years, or at least one
year that I know of, and the people enjoyed a three-day
weekend dunng the summer; and there was a petition
up and I carried the petition from the avionics shop to the
upholstery shop and gave it to somebody in therefor them
to sign, and I was caught doing it and at that point I was
warned that it was against Company policy .. . [Empha-
sis added.]
Martin received an oral warning for this conduct. And,
employee Davis credibly testified about November 1973,
his leadman , Orenbaum , read a memorandum to the em-
ployees stating , inter aha, that "we shouldn 't solicit during
working hours of any kind ...." About a week later, this
same leadman
.. . approached me [Davis] and asked me what kind
of booze I liked and he [Orenbaum] said that he was
thinking about having a Christmas Party... .
This incident was also dunng working time. And, as
Taylor's earlier memorandum to his supervisors stated
(Resp. Exh. 3, Sept. 21, 1973), "I have been advised that
occasionally solicitations have been permitted in a few
areas of the plant for good causes such as gifts to sick
employees . . . "; "Additionally, I have been advised that
there is a numbers game involving the payroll check num-
bers... . " Taylor's memorandum also stated:
I agree that it is a minor and insignificant activity but
is inappropriate... .
III DISCUSSION
A. The Suspension and Discharge of Employee Schneider
General Counsel contends that Respondent Company
MITSUBISHI AIRCRAFT INTL. 863
violated Section 8(a)(1) and (3) of the Act by suspending
employee Schneider on October 2 and, in addition, violated
Section 8(a)(1), (3), and (4) of the Act by terminating
Schneider on November 8, 1973. Respondent Company as-
serts that, in suspending and subsequently discharging
Schneider, management was lawfully enforcing its valid no-
solicitation rule. The pertinent legal principles are clear. As
the Eighth Circuit stated in Central Hardware Company v.
N.L.R.B., 439 F.2d 1321, 1325 (1971),10 both the Supreme
Court and the Board,
in balancing the respective rights of management to
conduct its own affairs and the employees to freely
organize, recognized that the employer may make and
enforce reasonable rules governing the conduct of em-
ployees on company time . Absent discriminatory fac-
tors, this would include prohibiting union solicitation
by employees during working hours; but an employee's
time outside working hours, even though on the
company's premises, as during the luncheon hour, rest
periods or after work, were his to use as he wishes, and
the employee's activities during the non-working peri-
ods may not be unreasonably restrained. Republic Avia-
tion Corp. v. N.L.R.B., supra, 434 U.S. at 803, 65 Sup.
Ct. 932. Therefore, any rule prohibiting employee
union solicitation outside of working hours is viewed as
an unreasonable impediment to self-organization and
discriminatory, absent evidence that such a rule is nec-
essary in order to maintain production or discipline.
Also, even a valid no-solicitation rule, properly cir-
cumscribed as set forth above, may be violative of
§8(a)(1) if the rule is enforced in a disparate or discrimi-
natory manner. [Citations omitted.]
In Talon, Inc., 170 NLRB 355 (1968), the Board found
that the employer violated Section 8(a)(1) and (3) of the Act
by discriminatorily discharging an employee "because she
had solicited her fellow employees to join or support the
union and, further, additionally violated" the Act "by ap-
plying discriminatorily a rule against solicitation during
working hours in order to discourage union activity among
its employees." The Board, in reciting its reasons for so
finding, noted, inter alia, that the solicitation by the dis-
charged employee "only took two or three minutes and in
no way interfered with [the employees'] production efficien-
cy or the cleanup of their machines"; the discharged em-
ployee was "summarily fired" by management "without
first giving her a warning" or "an opportunity to defend
herself"; "no one else had ever been discharged for solicit-
ing"; and "employees were permitted by management to
solicit freely for organizations..... The Board concluded
in Talon that, on the record before it, "the purpose of the
respondent in discharging" the employee "was not to main-
10 Enforcing in part 181 NLRB 491 (1970); vacated and remanded in part
407 U.S. 539 ( 1972), on remand 468 F.2d 252 (C.A 8. 1972)
tain the efficiency of production or discipline," but to use
the employee's "asserted violation of its no solicitation rule
as a pretext to mask its real purpose to discourage and stop
union activity in its plant" (ibid.). And see, Textron, Inc., 199 ,
NLRB 131 (1972), and Universal Cigar Corp., 173 NLRB
865 (1968), enfd. and denied in part 425 F.2d 867, 868 (C.A.
5, 1970).
In Roselyn, Bakeries, Inc., 192 NLRB 1165 (1971), en-
forcement denied in part 471 F.2d 165, 168 (C.A. 7, 1972),
the Board found that an employer violated Section 8(a)(1)
by restricting an employee' s use of the ladies' room. The
Board stated:
Respondent has no rule limiting the topics that one
may discuss while in the restroom and, insofar as the
record indicates, Respondent has never on any other
occasion sought to limit the use of its restrooms in
order to control the scope of restroom conversations.
Respondent does have a rule, which it contends was
applicable, prohibiting employees from engaging in
"any conversation or activities not directly related to
their work, including union activities" when employees
are "supposed to be at work." We agree with the Gen-
eral Counsel that time taken off for a trip to the rest-
room, not being contrary to any of Respondent' s rules,
is not a time when an employee is "supposed to be at
work." Consequently, we find the rule was not applica-
ble to the situation here under consideration. There-
fore, we find, as stated above, that Boeldt's restricting
Turner's use of the ladies' room was unlawful."
And compare ExideAlkaline Battery Div. of E.S.B., Inc., 177
NLRB 778 (1969), enfd. 423 F.2d 663 (C.A. 4, 1970), where
the employee "was discharged for engaging in union solici-
tation during alleged working time although the activity
occurred when [the employees involved] were both standing
in line at the timeclock to punch out for the day"; and
Daylin, Inc., 198 NLRB No. 40 (1972), where the Board
(Chairman Miller dissenting and Member Kennedy concur-
ring in part and dissenting in part) stated:
The Act establishes and protects [the employees'] right
to so engage [in union solicitation], even during work-
ing time, so long as there is no interference with pro-
duction. Only a substantial business justification, such
as genuine interference with the progress of the work,
justifies any restriction on this right of solicitation. A
no-solicitation rule is presumptively, and only presump-
tively, valid if it is limited to prohibiting solicitation
during the time an employee is expected to be working
and not during breaktime, lunch time, or the like... .
Such a rule is valid because it is presumed to be direct-
ed toward and to have the effect of preventing interfer-
ence with production.
The Sixth Circuit, in recently enforcing the Board's order in
Daylin, Inc. (N.L.R.B. v. Daylin, Inc., 496 F.2d 484 (1972),
stated:
11 The Board noted- "It is not alleged nor is there any evidence that Turner
had gone to the ladies' room for the purpose of engaging in pro-Local 372
talk."
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... Respondent's no-solicitation rule was invalid be-
cause of overbreadth and . . . it had been discrimina-
torily enforced. The plain language of the rule shows
that it could be enforced to bar solictation enroute to
and from the, timeclock, on break time, in the rest-
rooms. Such prohibitions are, as we view the matter,
barred by Republic Aviation, supra, and by much subse-
quent case law. . . . [Citations omitted.]
The validity of Respondent's written no-solicitation rule,
as printed in its 1973 personnel manual ," is not challenged
here. Rather, General Counsel argues that Respondent, in
assertedly enforcing this rule against employee Schneider,
acted in a discriminatory and disparate manner in violation
of Section 8(a)(1) and (3) of the Act. I agree. As the credited
evidence recited above shows, the Union renewed its orga-
nizational effort at the Company's San Angelo plant during
August 1973. The Company promptly made clear to the
employees its opposition to unionization. Company Presi-
dent Kuroiwa apprised the employees that he "would fight
the Union" assertedly "with all legal means at his command
to fight Union activity.... " At the same time , Company
President Kuroiwa warned the workers:
.if this organization continued, he could no longer
help [them] with benefits and other things... .
He stated: ". . . if [the employees] had the Union, he possi-
bly couldn't give [them] . . . parties and merit raises and
things of that sort.... He also said he couldn't give [the
employees] days off . . . because if they had,the Union he
couldn't do it.... "
Employee Schneider had started working for the Compa-
ny during November 1972. Subsequently, about August 5,
1973, Schneider was transferred by management to-a higher
paying position. About this same time, Schneider became
an active supporter of the Union. He signed a union author-
ization card and attended union meetings. He urged his
coworkers to join the Union and attend meetings. Schneider
obtained the signatures of some .12 employees on union
authorization cards. And, as detailed above, Company Pres-
ident Kuroiwa and Personnel Director Taylor were aware
of Schneider's interest in and support of the Union.
On or about September 15, 1973, while this organiza-
tional effort was in progress, the Company reprinted its
personnel manual including the proscription against "solici-
tation" "during an employee's working time," as noted su-
pra. Shortly thereafter, on September 21, Personnel Director
Taylor distributed and posted at the plant a memorandum
which stated, inter alia, "occasionally solicitations have
been permitted in a few areas of the plant for good causes
12 This rule proscribes:
G. Distributing literature in the working areas of the plant at any time.
No solicitation , raffles, collection of funds or other similar activities
shall be permitted during an employee's working time, except those
previously approved by the Personnel Department. This means the
working time of the employee engaging in such activity or the working
time of the employee being solicited or otherwise urged to engage in such
activities as prescribed by this rule
such as gifts to sick employees"; "Like all other solicitations,
these cannot be permitted except before or after work or
during break time"; ". . . after we permit these, we cannot
legally prohibit other solicitations which we do not want to
occur"; " . . '. there is a numbers game involving the payroll
check numbers";' and "This, too, cannot be permitted on
company premises...." The memorandum concluded:
I agree that it is a minor and insignificant activity but
it is inappropriate; rather than judge how much activity
can be permitted, the limit should be no activity in this
kind of area."
Shortly thereafter, on Tuesday, October 2, employee
Schneider was summoned to Personnel Director 'Taylor's
office. There, Taylor accused Schneider of "soliciting the
Union members on Company time." Schneider acknowl-
edged to Taylor: "I have got people to sign Union cards on
break and lunch and before work and after work . . . ";
however, Schneider explained: " . . . I had not talked to
anybody on Company time." Taylor claimed that he had "a
man that says [Schneider] approached him on Company
time." Schneider insisted that he had not solicited "on Com-
pany time." Taylor refused to identify to Schneider "the
man" or "where" this alleged solicitation had occurred.
Schneider was summarily suspended "for three days begin-
ning at that time...., Schneider had not received any
prior warnings from the Company. Schneider was not asked
by Taylor to furnish a statement of the employee's version
of this alleged solicitation. The Company did not utilize its
"Warning Notice" procedures as set forth in its personnel
manual (Resp. Exh. 1, p, 49; Resp. Exh. 2, p. 48). And, when
employee Feist thereafter asked Foreman Garza "about the
terms of [Schneider's] suspension," Garza warned Feist that
Schneider " . . . had been suspended because of solicitation
for the Union."
Garza also warned Feist:
... if we [the employees] were caught soliciting for the
Union that we would be dealt with very harshly... .
He [Garza] said it could lead to a suspension or being
fired.
Schneider returned to work on Friday, October 5. On
Monday, October 8, Schneider, at his request, was given a
statement indicating that he had been suspended on Octo-
ber 2 "because he violated the no solicitation rule and solic-
ited in support of unionization during productive time."
Schneider then revealed to Taylor that he was going to the
National Labor Relations Board with this statement. Taylor
"shook his finger in [Schneider's] face and said, `You do that
and you do any more soliciting and I' ll see to it that you are
13 As stated, this memorandum makes reference to "a numbers game."
Apart from the Company's proscription against "soliciti'solicitation," the
personnel manual (Resp Exh. 2, p 47, sec. I), forbids: "gambling in any form
on company property." The earlier manual (Resp Exh 1 , p. 48, sec. K)
contained a similar proscription
MITSUBISHI AIRCRAFT INTL. 865
fired.' "
Schneider complained to the Union about his suspension.
The Union, on October 24, filed with the Board unfair labor
practice charges on behalf of Schneider. Thereafter, on No-
vember 8 , Schneider was again summoned to the office.
Personnel Director Taylor apprised Schneider that Schneid-
er was "terminated" for assertedly violating "Company pol-
icy." Taylor refused to explain to Schneider "what policy"
or furnish the employee with a "written statement." 14
Schneider was then escorted by his foreman, Tabor, to the
timeclock and to his car, and instructed "not to return to
Company property." Personnel Director Taylor acknowl-
edged in his testimony that no one else had been disciplined
for violating the no-solicitation rule prior to October 2 and
no one else has been discharged for a violation of this rule.
The Company asserts in its brief (p. 12):
Schneider also states that he did not solicit employees
Wike, Parker, Eneff , Hughes, Hawkins or Hamilton
(R. 53). Yet each of these employees testified that they
were solicited by Schneider on at least one or more
occasions and employee Hughes testified that he was
solicited by Schneider on at least 12 occasions (R.
50-55, 186-190, 193-195, 200-203, 201-208, 230-239,
Resp. 9).
As stated previously , Personnel Director Taylor, in sus-
pending Schneider on October 2, relied principally upon a
statement allegedly obtained from employee Parker. Parker
did not testify . Parker's alleged statement was not received
into evidence to prove the truth of the matters recited there-
in (See Resp. Exh. 9, Tr. pp. 231-235). There is no compe-
tent credible evidence of record supporting the claim that
Parker was thus solicited by Schneider in violation of the
Company's rule. Further, Personnel Director Taylor, in
subsequently discharging Schneider on November 8, relied
principally upon employee Davis' statement . However, this
Schneider-Davis incident, as summarized above , occurred
on November 7 in the plant restroom . Schneider, as he
credibly testified, had gone into "the restroom to wash [his]
hands and get ready for the break...." While in the rest-
room , Schneider , Davis, and one other employee briefly
talked about a meeting scheduled for that evening at the
Dobb's or Jackson House. Following their talk, Schneider
left the toilet facility and went on his break. The credible
evidence of record does not establish that this brief discus-
sion in the toilet facility constituted a violation of the
Company's no-solicitation rule. As the Board stated in Ro-
selyn Bakeries, Inc., supra, 192 NLRB 1165:
... time taken off for a trip to the restroom , not being
contrary to any of Respondent 's rules, is not time when
an employee is "supposed to be at work ." Consequent-
ly, we find the [employer's rule prohibiting conversa-
tion not directly related to work] was not applicable to
the situation here under consideration.
14 Schneider received a termination slip asserting only that he had violated
company policy.
And see Daylin, Inc., quoted supra. 15
On this record, I find and conclude that Respondent
Company summarily suspended employee Schneider for 3
days on October 2 and thereafter terminated Schneider on
November 8 because the employee was engaging in protect-
ed union activities . Respondent's assertion that Schneider
was suspended and terminated because he violated the
Company's no-solicitation rule is not supported by the cred-
ible evidence of record and is pretextual. As stated,
Schneider 's brief conversation or conversations with em-
ployees in the plant restroom , under the circumstances pre-
sent here, were not in violation of any company rule and,
instead, were protected activity during employee, nonwork-
ing time. See Daylin, Inc., supra; Roselyn Bakeries, Inc.,
supra; and cases cited.
In addition, assuming that Schneider 's conduct was viola-
tive of the Company's no-solicitation rule, as alleged, I
would find and conclude on this record that Respondent's
application of its no-solicitation rule to Schneider was dis-
criminatory. The record establishes numerous instances
where employees engaged in conduct violative of the
Company's no-solicitation proscription. There was in fact a
football and check numbers pool in operation which appar-
ently was also violative of the Company's proscription
against gambling on the premises. And yet-despite the
numerous instances of conduct violative of the no-solicita-
tion rule where management did not even issue written
warnings to employees-the Company ignored its "Warn-
ing Notice" procedures and instead summarily suspended
and discharged employee Schneider. Schneider was not giv-
en an adequate opportunity to meet the alleged accusations
against him although he repeatedly asserted his innocence.
And, as Personnel Director Taylor acknowledged, no em-
ployee has been disciplined for violating this rule prior to
or since October 2. Respondent 's summary application of
its no-solicitation rule to Schneider , while not applying it in
a similar manner to numerous other instances of solicitation
for other purposes, demonstrates to me that the rule was
disparately applied and enforced against Schneider in an
attempt to prohibit employee protected union activities in
the plant.
Moreover , I find and conclude that the discharge of
Schneider on November 8 was also ' contrary to Section
8(a)(1) and (4) of the Act. As stated, on October 8 Schneider
revealed to Taylor that Schneider "was going to the" Na-
tional Labor Relations Board. Taylor warned: "You do that
and you do any more soliciting and I'll see to it that you are
fired." Schneider, through the Union, had filed unfair labor
practice charges with the Board on October 24. He was
discharged on November 8. I am persuaded that Schneider
was discharged , not only because he continued to engage in
protected union activities, but also because he caused unfair
labor practice charges to be filed and thereby invoked the
processes and protection of the National Labor Relations
Act. The "discharge of an employee because he has made
15 As for the alleged solicitations by Schneider of employees Wike, Haw-
kins, Hughes , and Eneff, also relied upon by the Company in its brief , I have,
as noted supra, discredited the testimony of Wike , Hughes , and Hawkins and
credited testimony of Schneider . Further , employee Hamilton acknowledged
that his alleged solicitation by Schneider "was in the restroom and was tight
before our lunch break .. ., "sometime in August 1973 " Employee Eneff
also explained that employee Schneider told him about a meeting "in the
washroom . . either tight before dinner or right before our break . .
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known a decision to seek Board assistance on behalf of
himself . . . is an independent violation of Section 8(a)(4)."
See, e.g., Hoover Design Corp, 167 NLRB 461, 462 (1967),
enforcement denied in part 402 F.2d 987 (C.A. 6, 1968).
B. The Company's Other Coercive Conduct
I find and conclude that Company President Kuroiwa's
statements to the plant employees during late August or
early September 1973 constitute proscribed threats in viola-
tion of Section 8(a)(1) of the Act. Kuroiwa warned the
workers, as the employee witnesses credibly testified, "that
if this organization continued he could no longer help us
with benefits and other things ...", "if we had the Union
he possibly couldn't give us . . . merit raises and parties and
things of that sort. . . . He also said he couldn't give us
days off . . . because if we had the Union he couldn't do
it... ." These statements were "not carefully phrased on
the basis of objective fact to convey an employer's belief as
to the demonstrably probable consequences [of unioniza-
tion] beyond his control ..."; rather, these statements were
threats of reprisal which clearly tended to interfere with
employee Section 7 rights. See N.L.R B. v. Gissel Packing
Co, Inc., 395 U.S. 575, 616-620 (1969). Equally coercive
was Supervisor Garza's statements to employee Feist fol-
lowing Schneider's October 2 suspension. Garza told Feist
that Schneider "had been suspended because of solicitation
for the Union...." Garza warned:
... if we [the employees] were caught soliciting for the
Union that we would be dealt with very harshly.. . .
He [Garza] said it could lead to suspension or being
fired.
I find and conclude that Garza thereby threatened employ-
ees with suspension or termination if they engaged in pro-
tected union activities, in violation of Section 8(a)(1) of the
Act. And, Taylor's warning to employee Schneider on Octo-
ber 8 that if Schneider went to the Labor Board and did any
more soliciting Schneider would be fired clearly tends to
interfere with employee Section 7 rights, in violation of
Section 8(a)(1) of the Act.
I also find and conclude that Supervisor Hollis and Com-
pany Personnel Manager Taylor violated Section 8(a)(1) by
their interrogation of employee Davis on or about Novem-
ber 7, 1973. As found above, Hollis approached Davis at
work and asked Davis "if somebody had talked to [him]
about a meeting...... Davis said yes. Hollis pointedly
replied: "Was it Harry Schneider?" Davis again said yes.
Davis then agreed to give or sign a statement to that effect
because, as Davis testified, it had been made to appear
"that I [Davis] should do this for the good of the Com-
pany . . ..16 Davis was taken to Taylor's office. Davis was
questioned by Taylor "about the meeting...." Davis was
asked to examine photographs of employees in an effort to
16 The subject of this inquiry was Davis' brief discussion with Schneider
earlier that day in the restroom, discussed supra
identify the other employee present during Davis' brief dis-
cussion with Schneider in the toilet. Referring to this "meet-
ing" which had been discussed by the employees in the
toilet, Taylor apprised Davis- ".. it was a Union meeting
.. .. Taylor, at the same time, made clear to Davis that
Schneider "had been warned before"; Schneider was "silly
to do this again"; and "it was grounds for firing Harry
Schneider.. . .
On this record, I find and conclude that Hollis and Taylor
coercively interrogated Davis about employee protected ac-
tivities. The Company states in its brief (p. 32):
The Company does not deny that it questioned some
of the employees about Schneider 's violations of the no
solicitation rule. The Company submits, however, that
there was a legitimate cause to make these inquiries
However, I am persuaded that, under all the circumstances
present here, the interrogation of Davis by both Hollis and
Taylor on November 7 "went beyond that legitimately nec-
essary for the preparation of Respondent's defense . . ." or
the lawful enforcement of its no-solicitation rule. Cf. Am-
box, Inc., 146 NLRB 1520 (1964), enforcement denied in
part N.L.R B. v. Ambox, Inc, 357 F 2d 138, 141 (C.A. 5,
1966).17 And, Taylor, in violation of Section 8(a)(1) of the
Act, unlawfully interfered with the processes of the Nation-
al Labor Relations Board when he subsequently told Davis
on or about November 21 "to be sure and say" to the Board
Investigator that Davis "went to them [management] to tell
them about the meeting with Harry Schneider.. .." This
was, as found, not what in fact had occurred on Novem-
ber 7. Cf. Certain-Teed Products Corp., 147 NLRB 1517,
1519-21 (1964).18
CONCLUSIONS OF LAW
1. Respo>dent Mitsubishi Aircraft International, Inc., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Charging Party International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employee Davis about protected
union activities ; by threatening employees with loss of ex-
17 In this context, Taylor also unlawfully created the impression of surveil-
lance of employee protected activities when Taylor told Davis it was a
Union meeting " to which Schneider was assertedly referring in the
restroom See, e .g, N L R B v Neuhoff Bros Packers, Inc, 375 F 2d 372, 374
(CA 5, 1967)
18 Counsel for General Counsel argues in his brief (p 7) that Respondent
also violated Sec 8(a)(I) when Taylor "engaged in a poll of their employees
to determine whether or not Harry Schneider had engaged in solicitation
regarding the Union during working time " This occurred on or about
November 21, 1973 Charges had been filed, a Board investigator was investi-
gating the charges, the complaint had not yet issued Upon the record before
me. I am not persuaded that Taylor's inquiries of the employees pending
Board investigation of the charges constituted a further violation of Sec
8(aXI) Cf Ambox, inc, supra
MITSUBISHI AIRCRAFT INTL.
isting benefits and other economic reprisals if they engage
in protected union activities; by threatening employees with
suspension and discharge if they engage in protected union
activities; by threatening an employee with discharge if he
sought the assistance of the National Labor Relations
Board; by creating the impression that employee union pro-
tected activities were under surveillance; and by interfering
with the processes of the National Labor Relations Board
during the investigation of the unfair labor practice charges
filed herein.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by suspending employee Harry Schneider on October 2,
1973, because he had engaged in protected union activities.
Respondent further violated Section 8(a)(1), (3) and (4) of
the Act by discharging employee Schneider on November
8, 1973, and thereafter refusing to reinstate him, because he
had engaged in protected union activities and had sought
the assistance of the National Labor Relations Board.
5. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. And, as the unfair labor
practices committed by the Respondent are of a character
striking at the core of employee rights safeguarded by the
Act, I shall recommend that Respondent cease and desist
from in any other manner infringing upon rights guaranteed
employees in Section 7 of the Act.
It has been found that Respondent, in violation of Section
8(a)(1) and (3) of the Act, unlawfully suspended employee
Schneider on October 2, 1973. In addition, it has been found
that Respondent, in violation of Section 8(a)(1), (3), and (4)
of the Act, unlawfully discharged Schneider on November
8, 1973. It will therefore be recommended that Respondent
offer to employee Schneider immediate and full reinstate-
ment to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings suffered by reason of his unlawful
suspension and termination by payment to him of a sum of
money equal to that which he normally would have earned
from the dates of Respondent's discrimination to the date
of Respondent's offer of reinstatement, less net earnings
during such period with backpay computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950). Backpay shall
carry interest at the rate of six percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Further, it will be recommended that Respondent preserve
and make available to the Board, upon request, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
useful to determine the amount of backpay due and the
rights of reinstatement under the terms of these recommen-
dations.
j
ORDER19
867
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in the case,
Respondent, Mitsubishi Aircraft International , Inc., San
Angelo, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees about protected
employee union activities.
(b) Threatening employees with loss of existing benefits
or other economic reprisals if they engage in protected
union activities.
(c) Threatening employees with suspension or discharge
if they engage in protected union activities or if they seek
the assistance of the National Labor Relations Board.
(d) Creating the impression that employee, union protect-
ed activities are under surveillance.
(e) Interfering with the processes of the National Labor
Relations Board during the investigation of unfair labor
practice, charges.
(f) Discouraging memberhip in International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, or
in any other labor organization, by discriminatorily sus-
pending or discharging any of its employees, or in any other
manner discriminating against them with,repsect to their
hire or tenure of employment or any term or conditions of
their employment.
(g) Applying discriminatorily a rule against solicitation
during working hours in order to discourage protected
union activity among its employees.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to employee Harry Schneider immediate and
full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without preju-
dice to his seniority or other rights and privileges and make
him whole for the loss of earnings in the manner set forth
in this Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in this
Decision.
(c) Post at its offices and facilities in San Angelo, Texas,
copies of the attached notice marked "Appendix." 20 Copies
of said notice, on forms provided by the Regional Director
for Region 16, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof, in con-
spicuous places, and be maintained by it for a period of 60
19 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
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days. Reasonable steps shall be taken to insure
that notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that the Mitsubishi Aircraft International, Inc.,
violated the National Labor Relations Act and has ordered
us to post this notice. We therefore notify you that:
WE WILL NOT coercively interrogate employees about
protected union activities.
WE WILL NOT threaten employees with loss of existing
benefits or other economic reprisals if they engage in Dated By
protected union activities.
WE WILL-NOT threaten employees with suspension or
discharge if they engage in protected union activities or
seek the assistance of the National Labor Relations
Board.
WE WILL NOT create the impression that employee
protected union activities are under surveillance.
WE WILL NOT interfere with the processes of the Na-
tional Labor Relations Board during the investigation
of unfair labor practice charges.
WE WILL NOT discourage membership in International
Association of Machinists and Aerospace Workers,
AFL-CIO, or in any other labor organization, by dis-
criminatorily suspending or discharging any of our em-
ployees or in any other manner discriminating against
them with respect to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT discriminatorily apply a rule against so-
licitation during working hours in order to discourage
protected union activities among our employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL offer employee Harry Schneider immediate
and full reinstatement to his former job, or if that job
no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
pnvileges and make him whole for his loss of earnings,
as provided in the Board's Decision and Order.
MITSUBISHI AIRCRAFT INTERNA.
TIONAL, INC
(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 concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office 819 Taylor Street, Federal Office
Building, Room 8-A-24, Fort Worth, Texas 76102, Tele-
phone 817-334-2921.