Pennco, Inc.

National Labor Relations Board - Board DecisionsJul 31, 1974

212 N.L.R.B. 677 (N.L.R.B. 1974)

PENNCO, INC. 677 Pennco, Inc. and International Association of Machin- ists and Aerospace Workers, AFL-CIO. Case 9- CA-7839 July 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 6, 1973, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Respondent filed cross-exceptions and an answering 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 at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his recom- mended Order as modified. 1. Respondent excepts to the Administrative Law Judge's denial of its motion to dismiss certain of the complaint allegations on procedural grounds. It con- tends that all of the complaint allegations, other than the refusal to furnish information, are unrelated to the allegations in the amended charges and therefore must be dismissed. We find that the 8(a)(1) and (5) allegations of the complaint are related to the charge but we dismiss the 8(a)(3) allegation. The initial charge, filed June 14, 1973, alleged a violation of Section 8(a)(3), and a derivative 8(a)(1), in the discharge of employee Gary Henry on or about June 6, 1973. It also contained the printed language "By the above and other acts, the above-named em- ployer has interfered with, restrained and coerced em- ployees in the exercise of the rights guaranteed by Section 7 of the Act." An amended charge, filed June 20, 1973, added an 8(a)(5) allegation in Respondent's refusal to bargain with the Union by refusing to fur- nish information to the Union on or about May 13, and it repeated the 8(a)(3) allegation and printed words in the initial charge. After investigation the Regional Director dismissed the 8(a)(3) allegation concerning the discharge of Henry. Thereafter on July 31, 1973, the complaint issued, alleging the 8(a)(5) violation in refusal to furnish in- formation and independent 8(a)(1) acts of interfer- ence, as found herein. At the hearing the General Counsel amended the complaint to allege that certain conduct, alleged as a violation of Section 8(a)(1) and (5) (i.e., unilaterally changing terms of employment without consulting the Union), also violated Section 8(a)(3). While we find that the complaint allegations of 8(a)(5) and (1) violations by unilateral establishment of production quotas and restroom restrictions are closely related to the 8(a)(5) violation alleged in the amended charge, we hold that the General Counsel's amendment to the complaint at the hearing to allege that this conduct is violative of Section 8(a)(3) is not supported by the amended charge. The only 8(a)(3) allegation originally in that charge was a specific alle- gation concerning the discharge of employee Henry, which the Regional Director dismissed and which was not, therefore, a subject of the complaint. The 8(a)(3) allegation subsequently added to the complaint could not relate back to a viable 8(a)(3) subject covered in the charge since the only 8(a)(3) allegation originally in the charge had been specifically dismissed. In these circumstances we find the unilateral establishment of production quotas and restrictions on use of the rest- room to be violations of Section 8(a)(1) and (5), but not violative of Section 8(a)(3). Accordingly, we delete Conclusion of Law 5 and renumber the remaining Conclusions of Law, seria- tim. 2. The Administrative Law Judge found that Re- spondent violated Section 8(a)(5) of the Act by refus- ing to furnish the Union with data requested that was necessary to the Union for use in drafting contract proposals. Respondent argues principally that it did not refuse the Union's' request, but was delayed in furnishing the material awaiting only clarification of the request by the Union. It further argues that, as it complied with the Union's request shortly after the filing of the charge and before the hearing, no remedi- al order is warranted. Our examination of the facts convinces us that Respondent's long delay in re- sponding to the Union's request for information was tantamount to a refusal and justified the cease-and- desist order. The Union began to organize Respondent's em- ployees in March'1973 and won a Board-conducted election on May 4. The Board certified the Union as the employees' collective-bargaining representative on May 14. On May 13, 1973, Union Representative Harbron wrote to Respondent's attorney, Hughes, re- questing information which would enable the Union "to intelligently draft its contract proposals for the employees. ..." The information requested was: Seniority roster, rates and classification of all bargaining unit employees, all fringe benefits 212 NLRB No. 101 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presently covering same employees, the cost of all fringe benefits, broken down benefit by bene- fit and how the costs are paid and by whom: entirely by the employer or the employee, or are the costs paid jointly? The Union received no reply. Harbron renewed the Union's request in a letter to Attorney Hughes, dated May 23, 1973, and in a telephone conversation a few days later. Neither communication produced results or any response. The parties had somewhat different versions of the telephone conversation. Union Representative Har- bron testified to Hughes' telling him that Respondent President Pennington's position was that he "was not going to do the Union's work," that Harbron then insisted that Respondent was obligated to furnish the information, and Hughes did not answer. Respondent's attorney, Hughes, testified to telling Harbron that he thought that the Union had some of this information and had requested more than it need- ed. Hughes said that he asked Harbron to check and determine what information was actually needed, to let him know and Respondent would provide it, and that Harbron agreed. Hughes acknowledged that he might have stated President Pennington's position, that the Company was not going to do the Union's work (a view expressed by Pennington when Hughes advised him that he thought the Union had requested more than it needed). Respondent took no action to supply the informa- tion for more than a month. It was only after the Union filed an amended charge in this case, alleging a violation in Respondent's refusal to furnish the in- formation previously requested, that Respondent took any action. On June 29, a few days after service of the amended charge, Respondent furnished some of the information. The list of employees on the se- niority roster furnished was incomplete in that it omit- ted the names of employees who were then on strike. The Union made a further request for the complete seniority roster when the parties met on July 3. Re- spondent supplied it a week or 10 days later. Respondent's attorney admitted at the hearing that he had no doubt as to the kind of information sought by the Union: that he understood the request. The failure to respond was therefore not due to any ambiguity in the request. Respondent's position was that it knew that the Union had a list of employees which the Company had supplied for purposes of the May election, and therefore the Union did not need all the information that it had requested after the election. This does not explain, however, why Re- spondent did not furnish the remainder of the infor- mation sought, which it had not previously supplied. It does not explain why Respondent did not make any response to the Union's letter of May 13 and the Union's letter of May 23. It does not explain why the material eventually supplied-after the Union filed an unfair labor practice charge in the matter-was incomplete. There was no showing that production of the information when requested was unduly burden- some. As the Union was entitled to the information at the time it made its initial request, it was Respondent's duty to furnish it as promptly as possible. Aero-Motive Manufacturing Company, 195 NLRB 790, 792, enfd. 475 F.2d 27 (C.A. 6). We view the delay in supplying relevant information as warrarting a conclusion that Respondent violated Section 8(a)(5) of the Act. De Palma Printing Co., 204 NLRB 31; Florida Machine & Foundry Company, 174 NLRB 1156. We also hold that the Administrative Law Judge correctly found that Respondent's ultimate compliance with the Union's request for information, after an unfair labor practice charge was filed in this case, does not render unneces- sary our Order to cease and desist from like conduct in the future. 3. The Administrative Law Judge found that the strike of Respondent's employees, which the employ- ees voted for on June 6, 1973, was caused by the nondiscriminatory discharge of employee Henry. He found that Respondent's unfair labor practices did not form the basis of the employees' strike vote. The General Counsel in his exceptions and brief contends that the evidence demonstrates a causal connection between the two. We find no merit in this argument and affirm the Administrative Law Judge's assess- ment of the evidence, which rests principally on credi- bility resolutions. The evidence bearing on the issue is the testimony of Union Representative Harbron (corroborated in pertinent part by Respondent's attorney, Hughes) and of employees who attended the meeting at which em- ployees voted to strike. While the record shows Respondent's unlawful conduct preceding the strike, it lacks a solid showing of connection between Respondent's unfair labor practices and the subse- quent strike. According to Union Representative Harbron the main purpose of calling the union meeting of June 6 was to obtain membership approval for a proposed union contract to be negotiated with Respondent. During the meeting members discussed working con- ditions and their dissatisfactions. Harbron introduced Henry, a member of the negotiating committee who had been discharged on June 5. Henry spoke about his discharge and, sometime after Henry's presenta- tion, the members voted to strike. The record does not show how the strike issue was put to the membership. After the members voted, PENNCO, INC. 679 however, Harbron called Respondent's attorney, Hughes, to tell him of the vote and to ask what could be done to get Henry reinstated. Harbron acknowl- edged that he could have told Hughes that the mem- bership had voted to strike because of Henry's discharge, that the two talked only of Henry's rein- statement, and that he gave Hughes no reason for the strike, then or later, other than Henry's discharge. There were two other occasions when Union Rep- resentative Harbron revealed the strike's purpose. One was on June 7 when he and discharged employee Henry met with Hughes, who advised them that Re- spondent considered Henry to have quit. There is no showing that the parties discussed employee dissatis- factions other than Henry's discharge. At another meeting between Hughes and Harbron on July 3, Harbron declined to enter into negotiations because Respondent would not meet the Union's basic condi- tions for negotiation: resolution of the dispute over the discharge of Henry and reinstatement of the strik- ers. Hughes' testimony was to like effect-that on June 6 and 7 Harbron informed him that the member- ship had voted to strike because of Henry's discharge. The testimony of the three employees who were at the June 6 union meeting, to the extent that it attribut- ed the strike vote to the unfair labor practices, was not credited by the Administrative Law Judge. This was largely because of the witnesses' contradictory state- ments at the hearing or contradictions between their testimony at this hearing and at related state court or administrative proceedings. Employee Pickett, who testified to strike talk sever- al weeks before the June 6 meeting due to the "new rules," said that Henry's discharge was "all the more reason to go ahead and strike," and that she "proba- bly" would have struck had Henry not been dis- charged. Pickett, however, had given testimony the previous day in a state unemployment compensation hearing in which she attributed the strike vote to Henry's discharge. Pickett also testified at the hearing in the subject case that, at the conclusion of the June 6 union meeting, Harbron said that he was going to contact Hughes for the purpose of getting Henry back to work, and that she reported for work on June 7 with her lunch expecting to go to work if Henry were re- hired. Employee Stogsdill testified to general employee discontent expressed before and at the June 6 meet- ing. She said that these complaints and Henry's dis- charge were discussed before the strike vote. In her deposition presented in a state court injunction pro- ceeding, Stogsdill gave varying replies as to the reason for the strike. At first she attributed the strike to Respondent's failure to furnish wage information and to Henry's discharge, then seemed to say that the first issue was not put to the membership, and later indi- cated that the issue and reason for the strike was Henry's discharge. Employee Queen also testified to similar discus- sions among employees in the weeks preceding June 6. Queen said that employees were concerned about not having wage information but that no one said to strike about it and that the strike vote was taken with- out specific limitations as to Henry or any other sub- ject. In a deposition in the state court proceeding, Queen attributed the strike vote to Respondent's re- fusal to furnish information and Henry's discharge. However, she also answered in the affirmative to questions whether the vote was to strike, until Respon- dent rehired Henry and whether the pickets were to protest Henry's discharge. The Administrative Law Judge found that the cause of the strike, as expressed by Harbron to Re- spondent, was grounded in Henry's discharge. He found unreliable the employees' testimony which sought to impute the strike to a variety of other, caus- es. We have no basis to reverse his credibility resolu- tions or to draw contrary inferences from the facts as found.' Our difference with Member Jenkins' contrary con- clusion rests on our affirmance of the Administrative Law Judge's credibility resolutions. We intend no change in long-established rules governing Board de- termination as to whether there is an unfair labor practice or economic strike. All we hold is that the General Counsel has not shown by a preponderance of the evidence that Respondent's unfair labor prac- tices were a motivating cause in the employees' deci- sion and authorization to the Union to strike. There is inadequate proof of a causal relationship between those practices and the strike. On this basis, we affirm the Administrative Law Judge's conclusion that the June 6 strike was an economic and not an unfair labor practice strike. i The Administrative Law Judge found that Union Representative Har- bron told Hughes after the strike vote on June 6 that the strike was over the discharge of Henry and indicated that the strikers would be willing to return to work if Henry were reinstated Although Harbron admitted talking to Hughes about reinstating Henry, he asserted that he never said that, if Henry were reinstated, the employees would go back to work. The Administrative Law Judge apparently discredited this assertion, properly inferring that the parties would not be talking about reinstating Henry if the strike was going to continue The Judge 's conclusion is supported by employee Pickett's testi- mony that Harbron told the employees at the end of the June 6 meeting that he had been in contact with Hughes for the purpose of getting Henry reinstat- ed and the employees should be ready to work the next day as Henry might be reinstated. Pickett reported ready to work on June 7 Our dissenting colleague disregards the Administrative Law Judge's find- ing and accepts as fact Harbron 's assertion that he did not indicate any connection between the reinstatement of Henry and the strikers' return. But whether Harbron ever indicated that reinstatement was a condition of em- ployees returning to work, the credited evidence as a whole supports the Administrative Law Judge's finding that the employees did not authorize the strike on account of the unfair labor practices 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as modified herein, and hereby orders that Respondent, Pennco, Inc., Ashland, Kentucky, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraph 1(f) and reletter paragraph 1(g) as 1(f). 2. Strike the words "because of your union activi- ty" from the last paragraph of the notice. MEMBER JENKINs, dissenting in part: In finding the strike not to be an unfair labor prac- tice strike, my colleagues seem to be adopting the novel principle that if a strike is caused only in part by unfair labor practices, it is not an unfair labor practice strike. Until now, this principle has been steadfastly rejected by the Board, in this as well as other areas of causation. Respondent committed several unfair labor prac- tices, including unilaterally increasing production quotas, unilaterally restricting restroom privileges, and refusing to furnish information to the Union which was necessary to collective bargaining. Strike talk began among the employees several weeks before the strike occurred, and centered upon the new pro- duction quotas and restroom restrictions? The unrest continued up to the time of the strike vote meeting on June 6, with the Union attempting up to that point to avoid having the employees strike. At the strike vote meeting, the employees again discussed the produc- tion quotas and the restroom restrictions. They also discussed Respondent's delaying and obstructing bar- gaining by unlawfully refusing to furnish information to the Union which had prevented the Union from formulating a complete bargaining proposal. In addi- tion, they discussed the discharge of employee Henry earlier that day, a discharge which was not an unfair labor practice. From these undisputed facts, it is clear that employ- ee discontent which finally led to the strike had its origin in Respondent's unfair labor practices, and that that unlawful conduct played a very substantial, and I think major, role in causing the strike. The fact that the employees also felt aggrieved over Henry's dis- charge, and that this also contributed to causing the 2 One of the employees (Queen) who testified about these conversations and employee attitudes was characterized by the Administrative Law Judge as "vague." What she testified was "they [employees] would all mention these production quotas" and "of course the girls would mention the restroom." Why this is "vague" escapes me. strike, does not eliminate the part of the cause attrib- utable to the unfair labor practices. The Administra- tive Law Judge, whom my colleagues affirm, relied principally on Union Agent Harbron's testimony to establish that the strike was caused solely by Henry's discharge. But Harbron testified, as recounted by the Administrative Law Judge, that all the foregoing items were discussed in connection with the strike vote; that he attempted to forestall the strike by de- manding Henry's reinstatement as part of the Union's contract proposals; and that he attempted to negoti- ate Henry's rehire with Respondent's counsel, Hughes. Harbron's statement to Hughes in these ef- forts that the employees voted to strike because of Henry's discharge does not purport to do more than represent one of the causes of the strike, particularly in view of Harbron's additional testimony that he "never once stated that if Gary [Henry] was reinstated that we'd go back to work." The Union's offer a month later, on July 3, to resume bargaining if Henry were rehired and the strikers taken back at once is hardly evidence of what caused the strike on June 7. To conclude, as do my colleagues, in the face of these undisputed facts that the strike was "caused" by Henry's discharge and is therefore not an unfair labor practice strike means that where unfair labor practic- es and other events combine to produce a strike, the contributing cause of the unfair labor practices is dis- regarded. Our rule heretofore has been just the con- trary, in assessing the discriminatory quality of discharges under Section 8(a)(3) and 8(b)(2), the sec- ondary quality of conduct prohibited by Section 8(b)(4), the recognition objective under Section 8(b)(7), or other areas of mixed cause and purpose. It is no answer to these objections to assert that the strike would not have occurred "but for" Henry's dis- charge. The record discloses no support for this asser- tion; but in any event, the "but for" approach is overly simple, because where multiple causes are in- volved, each of them can be eliminated one by one by such analysis, and the cause disappears. My col- leagues cite the evidence that the strike vote was taken on consideration of all the employee dissatisfactions and "without specific limitations as to Henry or any other subject." But they then conclude that the Union's effort to get Henry reinstated proves that the strike was caused solely by Henry's discharge. The Union may have hoped that if Henry were reinstated, the employees would consider calling off the strike, a strike of which the union representatives were not in favor. But this hardly amounts to proof that it was Henry's discharge which alone caused the strike. I cannot join my colleagues and the Administrative Law Judge in making this leap to a non-sequitur. My colleagues are departing from our long-estab- PENNCO, INC. 681 lished and correct rule that where unfair labor practic- es are in part, but not solely, the cause of a strike, then the strike is an unfair labor practice strike. I therefore must dissent on this issue. DECISION SIDNEY SHERMAN , Administrative Law Judge: The instant charge was served upon Respondent on June 18, 1973,1 the complaint issued on July 31, and the case was heard on September 5. Briefs were filed by Respondent and the Gen- eral Counsel. The issues litigated related to alleged violations of Section 8(a)(l), (3), and (5) of the Act. Upon the entire record,2 the following findings and rec- ommendations are made: addressing a plantwide meeting, announced a general wage increase. That evening, the Union held its first organiza- tional meeting for Respondent's employees. The Union thereafter filed with the Board a petition for an election, which was held on May 4, and was won by the Union. It was certified on May 14. On May 13 and 23, and on or about May 25, the Union requested certain data from Re- spondent relating to job classifications, pay rates, etc. None of the requested data was furnished until June 26, a week after the Union added to the charge herein an allegation that Respondent unlawfully refused to furnish such data. In the meantime, on June 6, at a union meeting, certain of the employees voted to strike the next day and the strike was still in effect at the time of the instant hearing. B. Discussion 1. RESPONDENT'S BUSINESS Pennco, Inc., herein called Respondent, is a Kentucky corporation and is engaged at its plant in Ashland, Ken- tucky, in the manufacture of aluminum windows and patio doors. It annually purchases from out-of-state suppliers ma- terials valued at more than $50,000. It is engaged in com- merce under the Act. II THE UNION International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III. THE MERITS The pleadings, as amended at the hearing, raise the fol- lowing issues: 1. Whether Respondent violated Section 8(a)(l) of the Act by threats of reprisal for union activity, anticipatory refusals to negotiate a contract with a Union, announce- ment of a wage increase, and solicitation of employees to form an independent union? 2. Whether Respondent violated Section 8(a)(1), (3), and (5) of the Act by unilateral changes in working conditions after certification of the Union? 3. Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union data relating to pay rates, job classifications, seniority and fringe benefits? 4. Whether the strike that began on June 7, was caused by Respondent's unfair labor practices? A. Sequence of Events At its Ashland, Kentucky, plant, Respondent has about a hundred employees, many of them females. In the af- ternoon of March 12, Respondent's president, Pennington, 1 All events herein occurred in 1973, unless otherwise indicated. 2 For corrections of the transcript, see the order of September 28. See also the orders of October 25 and November 12. A motion to amend the com- plaint filed at the hearing has been marked as ALJ's Exh. 4, and is incorporat- ed in the record. 1. The procedural issue At the threshold, Respondent contends that the charge here is not sufficiently specific to support the complaint. The original charge, which alleged only a violation of Sec- tion 8(a)(3) and (1) by the discriminatory discharge of one employee, was amended on June 20, to allege a, violation of Section 8(a)(1), (3) and (5) and in support thereof cited the foregoing discharge and a refusal by Respondent to furnish certain wage and job information requested by the Union. The charge concluded with the allegation that "by the above and other acts" Respondent had interfered with the employ- ees' statutory rights. After investigation, the Regional Di- rector dismissed the allegation of a discriminatory discharge. The Respondent contends that the surviving alle- gations of the amended charge do not afford a valid, legal basis for litigating any of the matters set forth in the com- plaint other than the refusal to supply information. A simi- lar contention was considered and rejected in Cromwell Printery Incorporated 172 NLRB 1817, 1821-22. For rea- sons there stated, the instant contention is also rejected. 2. The threats Stogsdill testified that at the plantwide meeting held on March 12, Respondent's president, Pennington, declared that he had heard that there was to be a union meeting; that they could go and sign "pledge cards" if they wished; that he would know how many attended the meeting; that the employees did not need a union; that he could give them whatever a union could; that, if anyone did not want to work for him, "there's the door, but don't come in here and tear down my playhouse"; that he alone would run the plant and, when he could no longer do so, he would close the door; and that he would not sign a contract with a union. Stogsdill added that at several subsequent plantwide meet- ings held during the election campaign Pennington repeated the foregoing remarks, including the threat that he would close the plant before he would sign a union contract. Justice testified that at the March 12 meeting Pennington declared that he had heard rumors about a union, that the employees did not need one, and that either on that occa- sion or at the next plant meeting Pennington averred that he would shut the plant before he would sign a contract. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Justice, Pennington added on that occasion, "Nobody comes in here and tears my playhouse down. I built this place and I'll run it. I'm the boss and I'll be the boss." She testified further that Pennington reiterated the same remarks at later meetings, including the threat to shut down before he would sign a union contract. While acknowledging that he had stressed the shortcom- ings of unions in his preelection speeches, Pennington de- nied that he asserted that he would not sign a contract with a union or that he would close the plant rather than deal with a union. According to Pennington, he pointed out only that unions do not run plants and that contracts have to be negotiated. However, the witness finally conceded that he might have said that it was "management's prerogative to run its own business, and I'm the boss and I'll run this plant, I must run it," and that he thought he remembered saying that, "when the time comes that I can no longer run my own business we are probably under Communist rule and it is time for everybody to quit." Cheap, a supervisor, corroborated the employee testimo- ny to the extent of acknowledging that in his preelection speeches Pennington threatened that he would shut down the plant before he would sign a contract that was not agreeable to him. In view of this, the version of Stogsdill, as corroborated by Justice, is credited, and it is found that at the March 12 meeting and at subsequent plant meetings Pennington made the remarks attributed by her to him, including his assertions that he would never sign a contract with the Union, and his threats to close the plant rather than sign such a contract. By such statements, Respondent vio- lated Section 8(a)(l) of the Act. Stogsdill testified that about a week before the election Pennington passed by her work station and remarked that after a little while Justice and Queen would not be "around." Pennington professed not to be able to recall the incident. It was stipulated that he had been apprised by the Union about March 15 that Justice was a member of the Union's organizing committee and he admitted that he had heard a rumor that Queen was involved in union activity, but he insisted that he had not put any stock therein. At any rate, even if Stogsdill be credited, she did not say that Pennington's remark was made in the context of a discus- sion of the Union nor that he linked the imminent departure of Queen and Justice to their union activity. (Queen and Justice were still in Respondent's employ on June 7, when they Joined the strike.) The General Counsel would have the Board find such a link because of the proximity of the Board election and Pennington's alleged reference to the iminence of the departure of Queen and Justice. However, that cir- cumstance alone does not seem sufficiently cogent to sup- port a finding of an unlawful threat of reprisal here. McCalvin testified that a few weeks after the election it was reported to Pennington that the witness had been "causing trouble on the line," whereupon Pennington called him aside, and declared that he believed the witness favored the Union and that Pennington would "ram the Union up" his posterior.3 3 At first, McCalvin gave a more genteel paraphrase of this remark. but later asserted that the statement described in the text was the one actually made and that the paraphrase had been suggested to him by a Board agent Pennington's version of this incident was that McCalvin had displayed an insubordinate attitude toward his foreman and Pennington had merely reprimanded him therefor, ad- monishing him to "straighten up" and do his job, and Pen- nington denied that he threatened McCalvin with any reprisal for his union activity. However, McCalvin's fore- man, Kelly, who, according to McCalvin, was present on that occasion, was not called by Respondent and no expla- nation was offered for that omission. In view of this, the inference is warranted that Kelly's testimony would not have aided Respondent. Accordingly, it is found that Pen- nington did make the remark attributed to him and, in view of the implication therein of untoward consequences to Mc- Calvin in the context of a reference to his union activity, it is found that such remark tended to deter McCalvin from engaging in such activity, and that Respondent thereby vio- lated Section 8(a)(1).4 3. Solicitation for independent union There was no substantial dispute that a week or two be- fore the election Cheap told Young, Justice, and Queen, among others, that Pennington would not have any traffic with the Union, and urged them to form their own union, offering to act as the spokesman for such a union in dealing with management. By thus soliciting employees to form their own union rather than support the instant Union, Respondent violated Section 8(a)(1) of the Act. 4. The unilateral actions The General Counsel contends that shortly after the elec- tion Respondent unilaterally (a) imposed certain re- strictions on the employees' use of the plant restrooms, (b) established new production quotas, and (c) adopted a new policy of laying off employees, instead of transferring them, when there was no work for them on their primary jobs. Respondent denies that there was any departure in the fore- going respects from preexisting practice. a. The restroom restriction Stogsdill testified that about 3 days after the election her foreman, McKinney, told the employees in her department that Pennington had decreed that they could visit the rest- room only during their lunch periods and coffeebreaks. The witness insisted that in the past there had been no limit on the frequency of trips to the restroom, so long as the privi- lege was not abused. Justice testified that about May 7 her foreman, Cheap, announced the imposition of various new restrictions on the employees, including a prohibition against visiting the rest- rooms except during lunch and coffeebreaks; Cheap added that if an employee wished to use the restroom at any other time, she would have to clock out for 2 hours and go home; as more appropriate language for a Board proceeding The aforecited avowal to McCalvin by Pennington of his awareness of McCalvin's union sentiments would seem , in itself , unlawful, since it con- veyed an impression of surveillance of union activity However, since it was not alleged in the complaint, and the General Counsel does not request such a finding in its brief, none is here made PENNCO, INC. 683 several days after the election plant superintendent Hmdery stopped her on the way to the restroom and ordered her to clock out, and go home for 2 hours but she refused to com- ply; that the next day, when she suffered an attack of diar- rhea and vomiting and told Cheap of her plight, he refused her permission to use the restroom; when she persisted, pleading illness, he suggested that she go home; and that she did so, losing a half day's work. Queen, who worked in the glassmaking department, testi- fied that several days after the election her foreman, Lowe, apprised the employees in that department of a rule limiting the use of restrooms to coffeebreaks and lunch periods. In rebuttal, Pennington testified that because of the as- sembly line nature of Respondent's operations it has always been its policy to require employees to limit their restroom visits to lunch and coffeebreaks, except that in case of an "emergency" they might leave work with the permission of the foreman; shortly before and after the election there was a general exodus to the restrooms; on the advice of counsel, Respondent began to keep a record of such visits in the form of "transfer slips";5 the object of this was to "slow down" the disruption of work; and no employee has ever been denied permission to go to the restroom. Justice confirmed that her supervisor, Cheap, did adopt a practice of recording trips to the restroom on transfer slips, but insisted that this did not happen until about 2 weeks after the election, during most of which period the aforedescribed restriction was in effect.6 Plant superintendent Hindery testified that before the Board election the only limitation on use of the restrooms was that an employee give advance notice to his foreman and that the only change instituted after the election was that Respondent made a record of trips to the restrooms and employees were informed of that change and ordered to comply with the advance notice requirement, which previ- ously had not been strictly enforced. With regard to the incident described by Justice, Hindery at first pleaded a lack of recollection but later acknowledged that there had been an occasion when she told him that she wanted to use the restroom and he remarked that the privilege was being abused. However, he denied that he had ever ordered any- one to clock out, if he or she wanted to use the restroom, or that anyone had ever been refused that privilege. Cheap did not dispute Justice's testimony that he an- nounced to his department of ter the election that trips to the restrooms would be limited to coffeebreaks and lunch pen- ods and that anyone going there at other times would have to clock out for 2 hours and go home.? He acknowledged, moreover, that he had a discussion with Justice about going 5 These had formerly been used only to record transfers of employees from one department to another 6 According to Justice, in announcing the "transfer slip" procedure, Cheap said that ,thereunder the employees might go to the restroom between breaks a limited number of times , but did not specify what that limit was 7 Cheap denied only that he actually sent Justice or anyone else home for going to the restroom. However , this was not in conflict with her testimony that he warned employees they would be sent home nor was it necessarily inconsistent with her further testimony that on the occasion described above Cheap, in effect , offered her the alternative of foregoing a visit to the rest- room and staying at work or using the restroom and taking the rest of the day off, and the she chose the latter. In any case , insofar as there is any conflict, Justice is credited in view of the circumstantiality of her testimony to the restroom and that he told her he "could not" give her permission to do so.' None of the other foremen who, according to the employ- ee witnesses, announced the new restroom policy was called to testify and no reason was given for that omission. Upon consideration of all the foregoing matters, it is found that, while, as Pennington and Hindery testified, Re- spondent adopted a new practice of recording all trips to the restroom on the "transfer slips," it adopted, also, for a peri- od of nearly 2 weeks after the election, a new policy of limiting the use of the restrooms to coffeebreaks and lunch periods .9 It is found further that Hindery attempted to en- force such policy in the case of Justice by telling her she would have to clock out for 2 hours, if she went to the restroom, and that the next day Cheap, pursuant to such policy, refused permission for her to attend to her needs. It is found, finally, that such change in policy affected the employees' working conditions, and that, by adopting such a change unilaterally 10 after the election, Respondent vio- lated Section 8(a)(5) of the Act. b. The production quotas Stogsdill, who worked on the panel assembly line, which involved attaching various accessories to glass panels, testi- fied that her daily quota had been 125 assemblies until about 3 days after the election, when her foreman, Mc- Kinney, announced to the employees on her line that they would have to produce 160 assemblies or be replaced. Al- though acknowledging that the employees in her depart- ment had in the past been exhorted to increase their output during the busy season (in spring and summer), she denied that they had ever before been warned of discharge for inadequate production. Justice, who, in conjunction with Young, performed the final operation on the door assembly line, testified that a few days after the election her foreman, Cheap, raised the quota for that operation from 50 frames per day to 100. This was corroborated by Young. - In like vein, Queen testified that several days after the election, Lowe, her foreman in the glassmaking department, apprised the employees therein of It departmental quota of 1,600 pieces of glass per day, warning that they would have to meet that quota "or else," and that on one occasion Pennington, himself, adjured them to meet their quota or "get out." As against the foregoing employee testimony, Pennington testified that production quotas had been set long before the 8 Justice confirmed that he made such a statement to her 9 The latter finding is based not only on the employee testimony but also on Cheap's admission that he told Justice he "could not" permit her to visit the restroom, which implies a lack of authority on his part under company policy Implicit in this finding is a rejection of Pennington's testimony that Respondent had always limited use of the restrooms to coffeebreaks and lunch periods, except in case of emergency Such testimony is clearly in conflict not only with that of the employee witnesses but also with that of Hindery that before the election there was no restriction on the use of restrooms other than a requirement of advance notice to the foreman It is, also, difficult to reconcile with Pennington's own, final assertion that no one had ever been denied the use of the restroom. 10 There was no evidence nor contention that , Respondent consulted the Union about such change, Respondent's only defense being that there was, in fact, no change in preexisting practice. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advent of the Union and had never been increased. Thus, he averred that the quota for the glass panel assembly line had been set 4 years ago at 150 pieces for the busy season and 125 pieces for the slack, winter period; this quota had never changed and no one had ever been threatened with, nor subjected to, discipline for not meeting it; with respect to the glassmaking department, it is necessary to produce 1,600 pieces of glass per day in order to supply the require- ments of the rest of the plant; early in May, due to a general slowdown, that department was producing only 500 to 800 pieces of glass; the witness exhorted the glassmaking em- ployees to increase their output, threatening them with dis- charge if they did not do so; and these measures had an immediate, salutary effect. With regard to the door line, Pennington asserted that Justice and Young, who worked as a team on that line, were jointly required to perform the final operation on only 50 doors per day and there was no change in that respect after the election. Cheap corroborat- ed Pennington's testimony as to the production quota for Justice and Young, asserting that it had always been 50 per day and denying that he had ever announced any increase, and plant superintendent Hindery denied that there had been an increase in any of the production quotas in the plant. However, McKinney, the foreman on the glass panel as- sembly line, was not called to testify, and, absent any denial by him, it is necessary to credit Stogsdill's testimony that a few days after the election McKinney announced that the employees on her line would have to produce 160 items per day or be replaced. Thus, even if one credits the testimony of Pennington that the preelection quota was 150, Mc- Kinney's announcement represented an increase in that amount, as well as the first notice to the employees, accord- ing to the credited testimony of Stogsdill, that failure to produce at a specified rate would lead to disciplinary ac- tion. i i Moreover, since Lowe, the glassmaking foreman, was not called to contradict Queen's testimony that his postelection announcement of a quota of 1,600 pieces per day was the first notice given the employees of the existence of such a quota and that he warned of disciplinary action for failure to meet it, such testimony is credited. It is therefore found that, if there was any such quota for that department before the election, it was not communicated to the employees but was merely a standard used by management for its own guidance and not as a basis for disciplinary action, and that it was first represented to the employees as the basis for such action a few days after the election. As to the postelection increase in the quota for door production, there is a sharp conflict between the foregoing testimony of Justice and Young, on the one hand, and Cheap, on the other, as to any announcement by him of such an increase . Although Cheap appeared to testify with some degree of candor as to other matters, it has already ii Although, as noted above, Stogsdill agreed with Pennington that there had been a preelection quota for the panel assembly line, differing with him only as to the amount thereof , Pennington did not specifically dispute her denial of anypreelection warning of disciplinary action for failure to meet the quota He , in fact, acknowledged , as noted above , that there had not in the past been any threat of disciplinary action for failure to meet the quota on that line been found that Justice was a credible witness and this court was favorably impressed by the circumstantiality of her testimony regarding the discussion that attended Cheap's announcement of a new quota. Accordingly, Justice and Young are credited here, and it is found that the door line employees were told after the election that Respondent had raised from 50, to 100 doors per day the production quota for those, who, like Justice and Young, performed the final operation on that line. While they acknowledged that Cheap did not threaten any discipline for failure to meet the new quota, there can be little doubt that the mere announcement of the quota tended to exert pressure on the employees to meet it. When management tells an employee he is required to achieve a certain result, there is no need to spell out the probable effect of failure to do so on the employee's pros- pects of advancement or of receiving merit increases, if not on his job security. It follows that, by announcing, under the circumstances described above, postelection production quotas for the glassmaking department, the glass panel assembly line and the door assembly line, without first consulting the Union, Respondent violated Section 8(a)(5) and (1) of the Act.12 In contending that the establishment of the new quotas also violated Section 8(a)(3) and (1) of the Act, the General Counsel relies on the proximity of such action to the elec- tion, as well as on the union animus displayed by Respon- dent. The record contains no evidence of any business justification for the announcement of the new quotas, ex- cept in the case of that for the glassmakmg department. There was no contradiction of Pennington's testimony about a sharp drop in glass production about the time of the election and the need for heroic measures to restore such production to its former level of about 1,600 pieces per day. In view of this, it is found that there was adequate business justification for notifying the glassmaking employees that they would have to produce 1,600 pieces a day or risk disci- plinary action. However, absent any similar showing with respect to the other two departments involved, it is found that the announcement of new, substantially higher produc- tion quotas only a few days after the Union's election victo- ry was in reprisal for such victory and was reasonably calculated to dampen the employees' enthusiasm for the Union. It follows that Respondent thereby violated Section 8(a)(3) and (1) of the Act. c. Layoff policy As for the alleged change in layoff policy, Stogsdill testi- fied that at the plant meeting of March 12 and subsequent meetings with employees Pennington warned that with a union in the plant there would be less flexibility and, as a result, Respondent would not be free to continue its policy of transferring employees to a different job when no work was available on their regular jobs, but would have to resort to layoffs. Since Pennington admitted that he did stress in his speeches that unions have "hard and fast" rules and did 12 While Pennington demed that he had authorized his foremen to estab- lish new production quotas after the election, it seems unlikely that all three foremen involved would have taken essentially the same action at the same time without any authorization from higher management Accordingly, such denial is not credited. PENNCO, INC. not specifically deny telling the employees that under a union Respondent would no longer be free to transfer em- ployees from one job to another to avoid layoffs, Stogsdill is credited. As to Respondent's preelection layoff policy, the record shows that, when work was slack on an employee's regular lob, he would be transferred to other work, if any was avail- The record shows, also, that there were, in fact, some individual layoffs after the election. 14 Pennington attributed such layoffs to machine breakdowns, a sharp drop in glass production caused by a general slowdown in the glassmak- ing department, and the unavailability of any other work. As against this, the General Counsel sought to adduce testi- mony from Queen, Stogsdill, and Young to show that the layoffs had occurred at a time when there was ample work for the affected employees. However, the testimony of Queen and Stogsdill did not relate to their own layoffs but to those of other employees, and, when it was indicated to the General Counsel by this court that it would be prefera- ble to prove such layoffs and the surrounding circumstances through the testimony of the affected employees, he indi- cated no objection to this procedure. In the expectation that this would be done, the cross-examination of Stogsdill and the examination of Queen was curtailed. However, no other witnesses were called with respect to the foregoing layoffs Accordingly, it is apparent that the matters about which Queen and Stogsdill testified in this area were not fully litigated and no finding may be made with respect thereto on the present state of the record. Young, however, testified about a 1-day layoff on May 21, affecting both herself and her work partner, Justice. Young insisted that there was in fact a backlog of work at the time and that, upon being recalled, she found that the backlog was still there. Pennington acknowledged that there had been a few layoffs in Young's department during the period to which she referred, but attributed them to machin- ery breakdowns, coupled with the unavailability of other work. Since Justice failed to corroborate Young as to the circumstances of the May 21 layoff, Pennington is credited, and it is found that such layoff was for legitimate, business reasons and consistent with Respondent's past practice of laying off employees only if no work could be found for them anywhere in the plant. In view of the foregoing considerations, it will be recom- mended that the allegation as to the change in layoff policy be dismissed. 5. The wage increase As already noted, at the March 12 plant meeting, which, as noted above, was held only a few hours before the first union meeting for Respondent's employees, Pennington an- 13 Pennington so testified , and, although some employee witnesses asserted that they had been transferred to other jobs, whenever their regular work ran out, there was no evidence that Respondent ever retained an employee dur- ing a lull in his regular work even though no other chore could be found for him or that no one was ever laid off before the election (Young acknowl- edged that before the election there were plantwide layoffs at inventory- taking time) 14 Queen, Stogsdill, and Young so testified and Pennington acknowledged that such had been the case 685 nounced substantial across-the-board raises. The General Counsel alleges that this was done to chill the employees' interest in the Union. A prima facie case to that effect is made out by the timing of Respondent's action in relation to the first union meeting, as well as the fact that the raises were announced in the context of an antiunion speech. Re- spondent contends that its action was in conformity with its past practice and that not only had the decision to give the raises been reached before Respondent was aware of any union activity but even the announcement, itself, was made before Respondent learned of such activity Thus, Penning- ton testified that Respondent's fiscal year ends on February 28; that in the past, before the introduction of wage con- trols, Respondent had been in the habit of granting semi- annual, plantwide raises in the spring and fall; in 1971 and 1972 because of the advent of wage controls, it was neces- sary to depart from this pattern and grant raises only in November of those years; the witness began to work on the latest raise about February 1 (which was well before any overt union activity on the part of Respondent's employ- ees), and he did not learn about the March 12 union meet- ing until several hours after he announced the increase. However, on the basis of the credited testimony of Justice and Stogsdill, it is found that in his March 12 speech, in which he announced the wage increase, Pennington indi- cated that he was aware of the initiation of the Union's campaign to organize the employees. Moreover, in a stipulation submitted by the parties after the hearing," it was agreed that over the past 5 years plant- wide increases were granted by Respondent on the follow- ing dates: April 1, 1968 March 1, 1969 October 15, 1969 June 1, 1970 October 1, 1970 May 8, 1971 (to one-half of the employees) July 17, 1971 (to balance of employees) November 22, 1971 November 20, 1972 March 24, 1973 16 On its face, the foregoing stipulation does not establish a consistent pattern of granting raises in or about the month of March, particularly if one considers the experience in 1970 and 1971, and does not suffice to negate the inference arising from the timing of Respondent's action in relation to the date of the union meeting that the raise was designed to diminish the appeal of the Union to the employees. While it may well be, in view of Respondent's past practice, that it would have granted a raise later in the spring of 1973, even if there had been no union campaign, and all that Respon- dent did was to accelerate the increase by several weeks or months, even such conduct would suffice to establish a violation. Thus, in Laars Engineers, Inc., 142 NLRB 1341, 15AU Exh 3 16 There was no dispute at the hearing that the effective date of the 1973 increase was March 12. The reason for the March 24 date in the above stipulation is not clear 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1344, enfd. on this point 332 F.2d 664 (1964), cert. denied 379 U.S. 930 (1964), the Board said: .. . the question is not whether the Company would at one point or another have increased wages . . . but whether the Respondent put the increase into effect when it did because the Union had begun a campaign to organize the employees.17 6. Refusal to furnish data There was no dispute that by letter of May 13, Union Agent Harbron asked Hughes, Respondent's counsel, for certain data with respect to the unit employees, for use in drafting the Union's contract proposals. The data requested included a seniority roster, pay rates, job classifications, and fringe benefits. Having received no reply, Harbron by letter of May 23, renewed his request. His next communication with Respondent about the matter occurred several days later, when, in the course of a telephone call he had made to Hughes about a different matter, Harbron asked whether Respondent would furnish the requested information. Ac- cording to Harbron, Hughes rejoined that it was Pennington's position that he was not going to do the Union's work for it, and, when Harbron insisted that the Union was entitled to the data, Hughes made no "affirma- tive answer or response." About a month later, shortly after the instant charge had been filed, Respondent supplied to the Union all of the data sought, except that there was omitted from the seniority roster all the employees who were then on strike, and it was not until several weeks later that this omission was remedied. Pennington testified that after receipt of one of the fore- going letters Hughes told him that Respondent was required to supply some of the requested data but some of it need not be given, since the Union already had that information. According to Pennington, he then remarked: Well, I don't see any sense in doing their work if they've already got some of the material. Whatever we have to provide, we will provide. Hughes confirmed that he voiced the opinion to Penning- ton on that occasion that the Union had asked for more than it needed , which prompted Pennington to remark that he would not do the Union 's work , and that Hughes ac- knowledged that he might very well have reported that re- mark to Harbron in their telephone conversation. Hughes added , however , that in that conversation he, also, asked Harbron to determine what information he "actually need- ed" and let Respondent know and it would be forthcoming, and that , although Harbron agreed to this procedure, he failed to utilize it. It is clear from Board precedent that a union is entitled to data such as was sought here , regardless of the possible 17 See also Pyne Moulding Corporation, 110 NLRB 1700 (1954), Belber Manufacturing Corporation, 146 NLRB 358, 369-370 (1964) availability thereof from employee sources.18 Even if one assumes, contrary to the testimony of Har- bron, that there was such a conditional offer to furnish the data as is described by Hughes and that the Union assented thereto, it may not be inferred that the Union thereby waived its statutory right to any of the information listed in its May 13 letter. It is well settled that such a waiver must be clear and unequivocal and the Union's acquiescence in a condition insisted upon by Respondent as the only basis for release of any of the data sought may hardly be regarded as an unequivocal reflection of the Union's desires or as a clearly voluntary relinquishment of its rights under the Act. In its brief, Respondent appears to contend that it did not reject the Union's request for information but merely with- held compliance therewith for a reasonable time pending clarification of the scope of the request, and that, on obtain- ing such clarification from the contents of the amendment to the charge, it made full disclosure. However, even if one credits his version of his conversation with Harbron, Hughes' request for disclosure was in essence an assertion that Respondent would not honor such request until after the Union had made a bona fide effort to obtain the data in question from the employees. Since, as already noted, Re- spondent was not entitled so to condition the performance of its duty of disclosure, such a response to the Union's request would be tantamount to a rejection thereof. It is accordingly found that, whether one credits Harbron's or Hughes' version of the matter, there was, in effect, a rejection by Respondent on or about May 25, of the Union's request for disclosure and that Respondent thereby violated Section 8(a)(5) of the Act.19 7. The cause of the strike An unspecified number of employees struck on June 7, and have been replaced by Respondent. The General Coun- sel contends that the strike was caused, at least in part, by Respondent's various unfair labor practices. Respondent rejoins that the strike was caused solely by the discharge of Henry, a member of the Union's negotiating committee'20 is While a certain amount of information about wages, fringe benefits, etc., is presumably always obtainable from the employees, the Board has held that a Union is not required to exhaust that source before seeking such informa- tion from the employer S H Kress & Co, 108 NLRB 1615, 1621 (1954); Twin City Lines Inc, 170 NLRB 625, 629 (1968) There is good reason for this ruling Where, as here, the unit contains a substantial number of employ- ees, it would normally be less onerous for the employer to supply the informa- tion than for the union to interrogate each employee about such matters as his pay rate, j ob classification, fringe benefits, and hiring dates Moreover, information from the employer's records is more likely to be accurate than that elicited from employees, even on such matters as their own pay rates or hiring dates This was strikingly illustrated by Harbron's testimony as to the difficulty he encountered in attempting to obtain information from the em- ployees, themselves , on the subjects enumerated in his May 13 letter it is not hard to credit such testimony, in view of the problems frequently encoun- tered at hearings in attempting to obtain such information from employee witnesses 19 The fact that Respondent ultimately furnished the data sought did not cure the violation nor make the issue moot Peyton Packing Co, Inc, 129 NLRB 1358, 1362 (1960), Florida Machine & Foundry Company, 174 NLRB 1156 (1969); The Rangaire Corporation, 157 NLRB 682, 684 (1966). 20 There was no contention at the instant hearing that such discharge was discriminatory PENNCO, INC. which occurred on June 6, the same day that employees at a union meeting voted to strike. In support of his position , the General Counsel adduced evidence of strike talk among the employees even before Henry's discharge . Thus, Stogsdill testified that about 2 weeks before the strike she discussed strike action with two other employees , which discussion was prompted , inter alit, by resentment of the limitation on the use of restrooms and the new production quota for her assembly line. Justice related that strike talk among the employees began several weeks before June 6, and was inspired , inter alia, by the limitation of restroom privileges , which was particularly irk- some to the female employees . Queen , likewise , attested to strike talk a few weeks before June 6, but was vague as to what grievances were discussed in that connection . Pickett referred to strike talk before June 6 that was prompted by the "new rules" in the plant?' However, she admitted that the day before the instant hearing she had testified at a State unemployment compensation proceeding that the strike was due to Henry's discharge and that she reported for work on June 7 because of her expectation that Heny might be reinstated and the strike ended. Justice and Young testified that there had been strike talk several weeks before June 6 , which they attributed in part to the restroom restriction . However, although both joined the strike, neither attended the strike vote meeting. With regard to the events at that meeting, Stogsdill testi- fied that there was a discussion of a contract proposal that had been drafted by the Union for submission to the em- ployer ; it was explained that the proposal was incomplete because of Respondent 's refusal to furnish data about wag- es and employee benefits ; the employees approved such proposal ; there was, also, a discussion of various other mat- ters, including the production quotas, the restroom re- striction, and Henry's discharge; and the witness believed that the reasons for the vote to strike were the restroom restriction and Respondent 's withholding of information needed to complete the Union 's contract proposals. When it was pointed out to her that the strike was still in progress, even though Respondent had already furnished the infor- mation sought by the Union , and she was asked why she was still striking, she gave various conflicting answers, in- cluding a plea of ignorance on the point and an assertion that the strike was for recognition of the Union (although there was no evidence of any postelection refusal of recogni- tion by Respondent). Finally, it was shown that in a deposi- tion given by the witness in a state court injunction proceeding she answered in the affirmative, when asked, if the "real issue put before the membership was whether or 21 She did not explain what those rules were There was considerable, undenied , employee testimony that a few days after the election Respondent adopted restrictive rules with regard to matters other than restroom privi- leges, such as smoking and sitting down at work. However, these were not alleged in the complaint as violations of the Act and the General Counsel disclaimed any contention that they were , explaining that the testimony with respect to those matters was being offered only as background. Although Pickett did not explain to which of these new restrictions she was referring , she did venture the opinion at a later point in her testimony that, even if Henry had not been discharged, the employees would probably have struck eventually because of the restroom restriction It may be inferred from this that this was one of the "new rules" to which she attributed the strike talk. 687 not to strike because of' Henry's discharge. In her testimony about the June 6 meeting, Queen related that complaints were voiced, inter alia, about the restroom restriction and that her own reasons for striking included that matter and the new production quota. However, she was not certain that she would not return to work if all issues were satisfactorily resolved except for those two, and in a deposition given by her in the injunction proceeding she made no reference to those two matters in enumerating the causes of the strike, but stated that (1) the strike was voted because of the discharge of Henry and the refusal to furnish wage data , and (2) the membership voted to strike until Respondent rehired Henry. The most cogent evidence as to the cause of the strike was supplied by Union Agent Harbron, who was present when the strike vote was taken . He related that at that occasion there were discussed (1) the Union's contract proposals, (2) the new restroom rule, (3) Respondent's layoff policy, (4) Respondent's antiunion attitude , and (5) Henry's discharge. Harbron added that he attempted to dissuade the employ- ees from striking, suggesting as an alternative to strike ac- tion that a demand for Henry's reinstatement be included in the Union' s contract proposals . Harbron added that after the strike vote he called Respondent's counsel, Hughes, notifying him thereof and inquiring if there was any way to get Henry reinstated . Under cross-examination Harbron ac- knowledged that he might have told Hughes the employees had voted to strike because of Henry's discharge , that the reinstatement of Henry was the only issue discussed by the witness with Hughes , and that he gave Respondent no rea- son for the strike other than Henry's discharge . Harbron admitted also that at a meeting with Hughes on July 3, the witness insisted that, as a condition precedent to the Union's entering into contract negotiations , the dispute over Henry's discharge be resolved and the strikers taken back at once, and that, when Respondent would not agree, Harbron broke off negotiations and has not attempted to renew them. Hughes testified that in his June 6 telephone call Harbron stated that the employees had voted to strike because of Henry's discharge and that this as reiterated by Harbron the next day at a meeting with Hughes. It is clear from the foregoing that there is no serious dispute that the discharge of Henry was the only cause of the strike mentioned to Hughes by Harbron, that he indi- cated that the strikers would be willing to return to work if Henry was reinstated, and that contract negotiations are presently in abeyance because of Respondent's' refusal to agree to that condition. In view of this, one could hardly find that Henry's dis- charge was not the sole cause of the strike , without also finding that the Union's agent on the scene was incorrect in his assessment of the reasons for the strike.22 Moreover, to make such a finding one would have to overlook the patent deficiencies in the efforts of the employee witnesses to im- 22 The General Counsel would presumably have the inference drawn that the Union had strategic reasons for pressing for the reinstatement of Henry, to the exclusion of the other demands that allegedly entered into the employ- ees' decision to strike. However , Harbron did not testify that he acted for any such reason and it seems inconceivable that the General Counsel would not have elicited such testimony from Harbron if he did in fact act for strategic reasons 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pute the strike to Respondent's unfair labor practices, par- ticularly the conflicts between their testimony to that effect and their depositions in the injunction case. All things considered, the evidence does not seem to pre- ponderate in favor of a finding that the strike was due in whole or in substantial part to such unfair labor practices rather than to the discharge of Henry. IV. THE REMEDY It having been found that Respondent violated Section 8(a)(1), (3), and (5) of the Act, it will be recommended that it be required to cease and desist therefrom and to take appropriate, affirmative action, including the rescission, if still in effect, of any restriction adopted on or about May 7, 1973, with respect to restroom privileges23 and of any pro- duction quotas announced on or about that date. CONCLUSIONS OF LAW 1. The Union is the statutory representative of the em- ployees in the following , appropriate unit: All production and maintenance employees at Respondent's Ashland, Kentucky, plant, including plant clerks and truck drivers, but excluding all office clerks, professional employees, guards and supervisors, as defined in the Act. 2. Respondent has violated Section 8(a)(1) of the Act by threatening that, if it is required to bargain with the Union, it will not negotiate with it and will shut down its plant, and by announcing wage increases in order to discourage union activity. 3. Respondent has violated Section 8(a)(1) of the Act by soliciting employees to form their own union instead of giving support to the instant Union. 4. Respondent has violated Section 8(a)(5) and (1) of the Act by imposing restrictions on the use of restrooms and announcing new production quotas without consulting the Union, and by refusing to supply information requested by the Union as to wage rates, job classifications, seniority rankings, and fringe benefits. 5. Respondent has violated Section 8(a)(3) and (1) of the Act by adopting restrictions on the use of restrooms and announcing new production quotas, in reprisal for the em- ployees' union activity. 6. The strike initiated on June 7, 1973, was not caused by Respondent's unfair labor practices. 7. The unfair labor practices found above affect com- merce within the meaning of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record and pursuant to Section 10(c) of the Act, there is issued the following recommended: 23 While there was testimony, cited above, that the new restroom re- striction was removed after a few weeks, it is not clear whether this was true of all departments in the plant. ORDER 24 Respondent, Pennco, Inc., Ashland, Kentucky, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Modifying existing terms and conditions of employ- ment of the employees in the unit described below, without first having bargained about such changes with Internation- al Association of Machinists and Aerospace Workers, AFL-CIO, as the joint representative of such employees: All production and maintenance employees at Respondent's Ashland, Kentucky, plant, including plant clerks and truck drivers, but excluding office clerks, professional employees, guards and supervisors as defined in the Act. (b) Refusing to furnish to the above-named Union, upon request, information about the seniority, wage rates, job classifications, and fringe benefits of the employees in the above-described unit. (c) Threatening that it will never negotiate a contract with the above Union, and that it will shut down its plant rather than bargain with it, or threatening any other repri- sals against its employees for seeking union representation. (d) Soliciting employees to form their own union rather than seek representation by the aforenamed Union. (e) Announcing wage increases or any other benefits in order to discourage union activity. (f) Discriminating against employees with respect to rest- room privileges, production quotas, or any other terms or conditions of employment because of their union activity. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of any of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which is neces- sary to effectuate the policies of the Act: (a) To the extent it has not already done so, rescind the restriction imposed on or about May 7, 1973, with respect to use of restrooms by the employees in the above-described unit and the new production quotas announced on or about that date for such employees. (b) Post at its place of business in Ashland, Kentucky, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms to be provided by the Regional Director for Region 9, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that such notices are not altered, de- faced, or covered by any other material. 24 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. 25 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " PENNCO, INC. 689 (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the com- plaint not sustained herein be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT change existing terms or conditions of employment of our employees in the unit described below, without first having bargained about such changes with International Association of Machinists and Aerospace Workers, AFL-CIO. The unit is as follows: All production and maintenance employees at our Ashland, Kentucky, plant, including plant clerks and truck drivers, but excluding office clerks, profes- sional employees, guards and supervisors as defined in the Act. WE WILL NOT refuse to furnish the afore-named Union, upon request, information about the wage rates, seniority, job classifications, or fringe benefits of the employees in the above unit. WE WILL NOT threaten that we will never negotiate a contract with the above-named Union, -that we will shut down our plant rather than deal with it, or that we will take any other action against your interests be- cause of your union activity. WE WILL NOT urge you to form your own union, in- stead of supporting the above-named Union. WE WILL NOT grant you wage increases or other bene- fits to induce you to give up your union activity. WE WILL NOT place any new restrictions on your use of the restrooms or establish new production quotas because of your union activity, and, to the extent we have not already done so, we hereby rescind the re- strictions and quotas that were announced on or about May 7, 1973. All our employees are free to join or not join Internation- al Association of Machinists and Aerospace Workers, AFL-CIO. Dated By PENNCO, 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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3621.