Rich's Precision Foundry, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1317 (N.L.R.B. 1980)

RICH'S PRECISION FOUNDRY, INC.
Rich's Precision Foundry, Inc. and Felix Birt. Case
25-CA- 10431
August 1, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 7, 1980, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and General Coun-
sel filed a brief in answer to Respondent's excep-
tions.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Rich's Preci-
sion Foundry, Inc., Yorktown, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In agreeing with the Aministrative Law Judge that Respondent's shop
rule 19 violates Sec. 8(aX1) of the Act, Member Jenkins relies on his dis-
senting opinion in Essex International. Inc., 211 NLRB 749, 752 (1974)
Member Truesdale notes that the prohibition against distribution and so-
licitation "during working hours" is unlawful under both the majority
and the dissenting views in Essex.
I We have modified the Administrative Law Judge's notice to conform
to his recommended Order
250 NLRB No. 173
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL ATIONS BOARD
An Agency of the United States Government
WE WIt L NOT discourage membership in
United Glass and Ceramic Workers Union of
North America, AFL-CIO, CLC, or any
other labor organization, by discharging or
laying off any of our employees or in any
other manner discriminating against them in
regard to their tenure of employment or any
term or condition of employment.
WE WILL NOT maintain in effect or enforce
any rule which tends to prohibit employees
from engaging in union talk or solicitation or
other concerted activity protected by the Act
on nonwork time in nonwork areas of our fa-
cility.
WE WILL NOT interrogate our employees
concerning their or other employees' union ac-
tivities, membership, or desires.
WE WILI NOT threaten our employees with
discharge or closure of our facility, or other
reprisals because they engage in union activi-
ties.
WE WILL NOT solicit our employees to
engage in antiunion activities.
WE WILL NOT condition employment on en-
gaging in antiunion activities.
WE WILL NOT grant benefits to our employ-
ees in order to induce them to refrain from
union activities.
WE WILL NOT make statements or engage in
conduct that is reasonably calculated to give
you the impression we are surveying your
union meetings or activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE HEREBY NOTIFY YOU that we have with-
drawn and abolished shop rule 19.
WE WILL offer to Homer Acres and Felix
Birt immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings they
may have suffered as a result of the discrimi-
nation against them, with interest thereon.
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL. make Kurt Elder and Greg Shu-
maker whole for wages lost by reason of their
unlawful layoff, with interest thereon.
All our employees are free to join United Glass
and Ceramic Workers Union of North America,
AFL-CIO, CLC, or any other labor organization.
RICH'S PRECISION FOUNDRY, INC.
DECISION
CLAUDE R. WOLFE, Administrative Law Judge: This
case was heard before me at Muncie, Indiana, on Sep-
tember 17 and November 26, 27, and 28, 1979, pursuant
to charges filed on December 11, and served on Decem-
ber 12, 1978, and complaint issued on June 29, 1979. The
complaint, as amended, alleges the layoffs of Homer
Acres, Felix Birt, Kurt Elder, and Greg Shumaker in
violation of Section 8(a)(3) and (1) of the Act, and var-
ious independent violations of Section 8(a)(1) of the Act.
Respondent denies the commission of unfair labor prac-
tices.
Upon the entire record and my observations of the de-
meanor of the witnesses as they testified, with due con-
sideration given the able briefs of the parties, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is an Indiana corporation with principal
office and place of business at Yorktown, Indiana, where
it is engaged in the manufacture, sale, and distribution of
brass and aluminum castings, and related products.
During the year preceding the issuance of the complaint,
a representative period, Respondent, in the course and
conduct of its business operations, purchased, transferred,
and delivered to its Yorktown facility goods and materi-
als valued in excess of $50,000 which were transported
to said facility directly from States other than the State
of Indiana. During the same representative period, Re-
spondent, in the course and conduct of its business oper-
ations, manufactured, sold, and distributed at said facility
products valued in excess of $50,000 which were shipped
therefrom directly to States other than the State of Indi-
ana. Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
United Glass and Ceramic Workers Union of North
America, AFL-CIO, CLC, herein referred to as the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11l. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Chronological Development'
In May or June 19782, the employees, at the request of
Richard Reece, Respondent's owner and president, elect-
ed departmental representatives. Homer Acres and Felix
Birt were nominated to represent the molding depart-
ment and Birt was elected. Thereafter Birt on several oc-
casions acted as spokesman for the department asking for
raises, changes in the workweek, and other benefits.
I credit Birt's testimony3 that Reece said in mid-June,
about 2 weeks before the first week in July, that anyone
caught talking about a union would be fired, and previ-
ously said in May that he would close rather than have a
union. The May incident is outside the 6-month statutory
limitation period but may be considered as background
evidence shedding light on matters within the statutory
period. 4 The June statement, which is prima facie within
the period, is a plain threat to discharge for union activi-
ties and violates Section 8(a)(l) of the Act.
In November, all molders ceased work s in protest of
Respondent's failure to build an overhead shield against
falling sand. Birt was the spokesman for the molders in
seeking adjustment of the problem from the employer.
Reece promised a correction of the sand problem and a
future pay raise. Birt announced that if Respondent did
not do this the employees would organize a union. This
incident made Respondent aware that Birt was a leader
among the employees and a union was being contemplat-
ed by the employees.
There was some discussion among employees about a
union commencing some 3 or 4 months before the first
t The facts round herein are a distillation of credible testimony, the ex-
hibits, and stipulations of fact, ic.cd in the light of logical consistency
and inherent probahility Although I will not in the course of this Deci-
sin refer to every bit if record iestimiony or documentary evidence. I
have weighed and considered it. It the extent that any testimony or
other evidence not mentioned might appear to contradict my findings of
fact, I have not disregarded that evidence but have rejected it as incredi-
ble. la king in probatlic worth. surplusagc, or irrelevant I will set forth
certain specific crdibhiiltl findinlgs as they may be required
With respect to the credihility oif Richard Reece, the General Counsel
proffered. and I reeclted, a record lf a guilty plea before the Ulnitcd
States I)itrict (C urt foir the SOil lhern )istrict of Indiana to a charge of
failure it pay wilhholding taxes collected i violation of 07215, Internal
Revenlue Code. 26 U S C ()7215 F urther consideration con,,Linces me that
my ruling at the hearing was correct because the offense in question is
denominated a misdemeanor in 07215, is not punishable by imprisonmenl
in excess of I year, and does not involve dishonesty or false statement
Accordingly, the evidence proffered is not admissible under Federal Rule
609 Genleral Counsel does not argue to the contrary in his post-hearing
brief
All dates herein are 1978 unless otherwise indicated.
: Although Plant Manager Bailey and Foreman Miller testified that
Reece did not make any statements of the type attributed to him by Birt.
I found little to choose from between them and Birt in terms of compara-
tive demeanor. Recognizing that different witnesses to the same circum-
stances not uncommonly hear and see things differently and the truth is
therefore difficult to ascertain, I am persuaded that Reece's failure to
deny these statements warrants a fair inference that he made them and
supports Birt's credibility
' Local Lodge No. 1424. International Asociation of Mauchinisr, Al'L-
CIO. et a. v. N.L. RB., 362 U.S. 411. 416 (190)
' Although Birt is vague on the month and testified that he thought
June, he concedes it could have been November. I credit Acres. a
straightforward and impressive witness and in most instances with a
better memory than Birl. that it was November
1318
RICH'S PRECISION FOUNDRY, INC.
week in December. About December 1, Acres distribut-
ed to employees, outside the plant, a document bearing
the seal of the United Auto Workers and setting forth
acts of interference, restraint, or coercion that an em-
ployer or its agents could not lawfully do. On or about
December 1, a number of molding department employees
were talking to Foreman Miller about their desire for a
contract6 and equal pay and equal work. Birt told Miller
that if the employees' pay and work demands were not
met they would get a union. Miller said that if they did,
Respondent would close the door.7 This statement of
Miller's constitutes a threat of plant closure and/or dis-
charge violative of Section 8(a)(1) of the Act.
On December 5, Foreman Miller and Plant Manager
Bailey searched Birt's locker. Bailey concedes he was
told by Miller that he believed Birt had something in his
locker that would be a "detriment to the company."
Miller suggested the search. The two went to Birt's
locker and told him8 an employee had been seen reading
a paper which they believed had something to do with
the Union and could hurt the Company, therefore they
wanted to search his locker.9 Miller searched the locker
and pulled out a piece of paper which he read. It turned
out to be a warning slip Birt had previously received for
violation of a shop rule. Bailey apologized and said they
had been sure it was something that could harm the
Company. Bailey testified that he was "very disappoint-
ed." He does not say why, but I am persuaded that he
and Miller were indeed disappointed because they did
not find a union document. Respondent's vague sugges-
tions that the search was occasioned by narcotics or al-
cohol problems are not believable. Miller's act in taking
and reading the paper shows he was looking for a paper,
not contraband substances or alcohol, and corroborates
Birt's testimony that he was told a union paper was
sought. There was no union paper other than that dis-
tributed by Acres then circulating so far as the record
shows. I conclude that is the document they were look-
ing for.
Upon reconsideration, I am convinced that my action
at the hearing in dismissing the complaint paragraph per-
taining to this incident was hasty and ill-advised. Ac-
cordingly, I hereby reverse my prior ruling, reinstate the
complaint allegation, and find that Respondent, by its
agents Bailey and Miller, by searching Birt's locker for
union documents, did interfere with, restrain, and coerce
employees in the exercise of their right to engage in
union activity, and thereby violated Section 8(a)(1) of
the Act. Moreover, I find that Miller's prefatory state-
ment that the search was prompted by Respondent's ob-
servation of another employee reading a union paper
conveyed the impression to Birt that employees' union
activities were under surveillance, and thereby violated
Section 8(a)(1) of the Act.
They were apparently requesting an agreement between them and
Respondent. rather than a union contract.
I Miller does not deny this statement
a I conclude Miller did the talking at the outset
9 I credit Birt's version. which is partially corroborated by Elder's tes-
timony, that he heard Miller say he wanted to see the paper someone had
been reading in the factory. I do not credit Bailey's testimony that Miller
did not tell him what they were looking for.
Between December 5 and 7, Birt, Acres, and other
employees discussed the upcoming meeting. On Decem-
ber 7, Bailey called employee Anna Caldwell into his
office and asked what she had been talking to Acres
about in the lounge. She answered "bootlegging," and
told him that if his questions were going to be about the
Union she would be the first to sign a union card. Re-
spondent presents no reason for this inquiry, though
Bailey considered it important enough to call Caldwell
into his office. The most likely explanation for Bailey's
questions, occurring as they did shortly after the locker
search which betrayed Respondent's particular interest in
union-related communications, is that they were designed
to ascertain whether Acres and Caldwell had been talk-
ing union. Viewed in that light Bailey's questions consti-
tute impermissible interrogation in violation of Section
8(a)(1) of the Act. Caldwell's reference to the Union
shows that she viewed Bailey's questions as union relat-
ed. Whether all, some, or none of the other employees
would have so viewed them is a matter of speculation,
but I believe it can be fairly inferred that an impression
of surveillance of union activities was conveyed to Cald-
well. This is not the strongest case for an allegation of
impression of surveillance, but, considering that it oc-
curred in the midst of other unfair labor practices and
takes color therefrom, I conclude the evidence is suffi-
cient to warrant a finding that such an impression was
given to Caldwell in violation of Section 8(a)(1).
A number of Respondent's employees attended a union
organizational meeting on the evening of December 7.
Several, including Birt, Acres, Elder, and Shumaker,
signed authorization cards. There is no showing that Re-
spondent found out at any time during the events in-
volved herein the identity of the card signers.
At about 1 p.m. on December 8, Birt and Acres were
summoned to the office where they met with Miller,
Bailey, and Metal Foreman Bennett. They both had
work to do at the time. The following account of what
transpired is a fair composite of the credited portions of
testimony of each participant who testified about the
event.' ° Miller, with Bennett, went to Birt's work sta-
tion shortly before I p.m. and told him Respondent knew
about the meeting the prior evening and Birt was to
clean out his locker and go to the office. Miller, with
Bennett along, also told Acres to get his tools, clean his
locker, and go to Bailey's office. Bailey and Miller told
Acres and Birt they were being laid off so they could
draw unemployment benefits. Acres protested that they
were being fired. Miller said it was better to be laid off
than fired and that he had warned he would get them
sooner or later. I conclude he was referring to his De-
cember I threat. Acres and Birt were given no other
reason for their termination, and had received no prior
warnings for unsatisfactory work performance either in
terms of work quality or work production.
Bailey concedes that Miller told Acres and Birt the
layoff was for lack of work because Reece had so in-
structed, and Bailey further concedes that this reason per
0o Bennett gave no testimony on this meeting, Miller merely tesfified
that he said nothing to Acres and Birl immediately before they left or as
they left, and made no threats to them
1319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reece's instruction was not true. This untruth was per-
petuated in the Eligibility Information Report forms on
Acres and Birt executed by Bailey on December 22 and
forwarded to the Indiana Employment Security Division.
Moreover, contrary to Respondent's implied promise
that they could draw unemployment benefits, Bailey cer-
tified on the forms that Acres and Birt were ineligible
for such benefits because they were laid off "partially
due to lack of work" and would not be reemployed due
to "insubordination, poor performance, refusal to accept
supervision, and in general, his defiant attitude." I am
persuaded that the employees were not only told an un-
truth about the reason for their separation, but were also
deliberately and falsely told they could draw unemploy-
ment benefits. I find that Respondent planned to dis-
charge them and then seek to deny them unemployment
benefits. There is no convincing evidence of either insub-
ordination, poor work performance, or refusal to accept
supervision. "Defiant attitude" describes what I believe
to be the true motivation for the discharges, union activi-
ty with which Respondent was displeased and which it
had attempted to discourage.
The reasons advanced by Respondent's testimony are
diverse and pretextual. Respondent's owner, Reece, first
ventured that the reason for the discharge of Acres and
Bird was that they were molding line leaders and there
was an "automatic slowdown" in production. He then
stated he was aware of an intentional work slowdown a
couple of months before the discharges, and tried to cor-
rect it by "morale and management." He avers that
Bailey and Miller talked to Acres and Birt about this
"slowdown," but I find they did not. t Reece claims he
examined production records before making the Decem-
ber 8 decision to discharge, but then claims no compari-
son can be made between the production records of
Acres and Birt and other molders because all the mold-
ers were engaged in a "coup" to slow down production.
No other molder was discharged. Further pressed, Reece
testified that he picked Acres and Birt to discharge be-
cause they were line leaders who were not fulfilling their
responsibilities to instruct and assist other molders. This
reason fails because Reece concedes Foreman Miller was
present throughout the alleged slowdown period and it
was his responsibility to help molders with problems. If
Miller was absent, Birt and Acres would help the others,
but he never was during this period. It is obvious Acres
and Birt could not have failed in leader duties they were
not called upon to perform during this period. On an-
other tack, Reece averred that he selected Acres and
Birt because they did not keep up the morale of the
others and act as leaders.
After all of Reece's evasive answers, admittedly false
reasons, and tentative efforts by Respondent to raise
drinking and narcotics questions, the defense boils down
to two contentions, supervisory status of Acres and Birt
and a deliberate slowdown in production. With respect
to the supervisory issue, the only matter raised of any
substance was instruction and assistance rendered to
newer molders. The record indicates such instruction
II Neither Bailey nor Miller corroborated this claim
and assistance was minimal 12 and establishes that Birt
and Acres are journeymen molders with no statutory su-
pervisory responsibilities. Any control they may have
over other molders when training or giving them assist-
ance is derived from their superior experience rather
than supervisory status. '3
There is some evidence that Acres and Birt did at var-
ious times tell other employees that the molders would
slow down if Reece did not meet their demands, but
there is no evidence this was reported to the Company
before the discharges, and Respondent has not shown by
any reasonable modicum of evidence that they in fact
either deliberately slowed down themselves or enticed
others to so do. After examining Respondent's records in
evidence, which both parties cite to support their respec-
tive arguments, I conclude that they give no support to
Respondent's slowdown theory.
I am convinced that Respondent had none of the rea-
sons it now advances in mind when it fired Acres and
Birt. This conviction appears to be endorsed by Re-
spondent itself in its post-hearing brief where it is stated:
Formal settlement was once effected in this matter
and subsequently withdrawn' 4 upon Respondent's
realization that the Complainant and Acres were guilty
of conduct which constituted legitimate defenses to the
charges and constituted just cause for the discharge
of Birt and Acres. [Footnote and emphasis sup-
plied.]
This sudden discovery of alleged defenses months after
the discharges, combined with the shifting, inconsistent,
and transparently preposterous and pretextual nature of
those defenses, all warrant a strong inference of discrimi-
natory motivation.
In addition to the inference thus created, Respondent's
overt statements before and after the discharges indepen-
dently establish unlawful motivation. Reece's June threat
and Miller's December I threat were followed by Mill-
er's statement to Birt, on December 8 when Birt was
called to the office, that Respondent knew about the
union meeting.
After the discharges, Acres returned to the plant on
December 15 to pick up his last check. He met with
Reece who asked him why employees were engaging in
union activity, how many people were at a union meet-
ing, and if Acres would ask Miller for his job back and
then tell other employees that the Union was no good.
All three requests were unlawful interrogation under
Section 8(a)(l) of the Act, and the third also violated
Section 8(a)(1) for the further reasons that Reece was so-
liciting Acres to engage in antiunion activity, and was
conditioning Acres' return to employment on his accept-
ance of this unlawful request. When Acres did not
accept the offer, Reece asked Acres to come again that
afternoon and meet with him, Bailey, and Miller. Acres
2 Respondent's witness Dasid Mills credibly testified that Birt and
Acres helped other molders on "rare and few occasions," and it was rare
that less experienced molders would take a problem to Birt or Acres
I3 See, e.g.. Caoe. Inc., 237 NLRB 798, 805 (1978).
1 This case was settled on May 22, 1979. The settlement was set aside
by the Regional Director on June 29. 1979.
1320
RICH'S PRECISION FOUNDRY, INC.
did so and convincingly testified that Reece (1) told him
in the second meeting of the day that he would close the
doors before he would have a union; (2) asked why he
was involved; (3) told him he was following Birt and the
others were following Acres as their leader; and (4) re-
peated the offer to take Acres back if he would work
against the Union. All four items violated Section 8(a)(1)
of the Act.
On the same day, December 15, Geraldine Cook, who
shares a residence with Acres which is rented from Re-
spondent's President Reece, went to the plant to pay the
rent. She gave uncontroverted testimony, which I credit,
that Reece (1) inquired what the trouble was with Acres;
(2) told her he did not want a union and wanted to
straighten things out; (3) told her that she should tell
Acres he could come back to work if he promised to
talk against the Union, explaining that Acres was a
leader whom the employees would follow and listen to if
he talked the Union down; and (4) advised, employing a
derogatory racial epithet, that Felix Birt was not coming
back to work. Reece was clearly attempting to use Cook
as a conduit to influence Acres, her close companion, to
assist him in defeating the Union. These efforts and state-
ments were obvious interference with employee rights in
violation of Section 8(a)(1) of the Act, and show his con-
tinuing opposition to employing Birt. The reason for this
opposition is explained by his statement to Acres, on the
same day, that Acres was following Birt in his union ac-
tivities.
In January 1979, when Acres went to the plant to pick
up his W-2 forms, Reece again solicited him to come
back to work and work against the Union, and thereby
again violated Section 8(a)(1) of the Act on two grounds,
by soliciting him to engage in antiunion activity and by
conditioning reemployment on such activity.
The foregoing statements of Miller and Reece are suf-
ficient to establish by a preponderance of the evidence
that Respondent knew Birt and Acres were leaders in
the union movement, and that their separation was moti-
vated by that knowledge. The fact that Reece wanted
Acres back to talk against the Union and never referred
to his work performance when so soliciting him also sup-
ports my conclusion above that work performance was
not a factor contributing to his separation on December
8. When all of this evidence of unlawful statements di-
rectly concerning the reasons for discharge is combined
with the inference to be drawn from Respondent's prof-
fer of shifting defenses and pretextual reasons, together
with the precipitous termination of Birt and Acres with-
out prior warning in the middle of the workday, within
hours of the preceding union meeting, when they in fact
had work to do, and the shutdown of two molding lines
due to their separation at a time Respondent complains it
was not getting enough production from its molders, the
conclusion is inescapable that Birt and Acres were dis-
charged in order to discourage union activity among Re-
spondent's employees. The discharges therefore violated
Section 8(a)3) and (1) of the Act.
Unlike Birt and Acres, both Elder and Shumaker were
permitted to work until the end of the workday on De-
cember 8. Both were then laid off. They were subse-
quently recalled. Their layoff was caused by the dis-
charge of Birt and Acres which cut off production on
the molding lines to which Elder and Shumaker were as-
signed. When Respondent elected to discharge Birt and
Acres in reprisal for their union activities, it well knew
that this would necessitate the layoff of their helpers.
The layoffs of Elder and Shumaker were thus part and
parcel of Respondent's discriminatory acts, and but for
the unlawful discharge of Birt and Acres there would
have been no layoff of Elder and Shumaker. I therefore
find that Elder and Shumaker were laid off in violation
of Section 8(a)(3) and (1) as part of Respondent's effort
to discourage union activities.
Shortly before Christmas Respondent on two occa-
sions furnished free coffee and doughnuts. I am not con-
vinced that such minor gratuities in the holiday season
were designed, as the General Counsel urges, to "quash
any support for the union." Respondent did, however,
give bonuses to employees at its December 22 Christmas
party. It appears that the bonuses ranged from $50 to
$100. In years prior to 1978, Respondent had given em-
ployees crates of oranges or grapefruit, or a ham or a
turkey, but never cash. Although no cash value has been
assigned to the gifts of previous years, it would seem
that none of them approached the value of the cash
bonus of 1978. Respondent proffered no probative evi-
dence on the reason for the change from food to cash.
Christmas is the season for gifts, and it is not unusual for
employers to give money or goods to employees as an
expression of good will at this season, but this change to
cash above the value of previous gifts during a union
campaign, 5 and at a time when Respondent apparently
was in difficult financial circumstances, without reason-
able explanation thereof and in the context of other ef-
forts to discourage union activity, persuades me that Re-
spondent was utilizing the occasion to impress on its em-
ployees that it was the source of benefits to them and
gave them the cash bonus as an inducement to abandon
union support. This conclusion is not entirely free from
doubt, but I find the General Counsel has shown by a
preponderance of the evidence that Respondent prof-
fered an inducement violative of Section 8(a)(1) of the
Act.
I credit Otis Cherry's testimony that Reece stated at
the Christmas party that he could not afford a union and
would have to close the plant if he had to pay "discrimi-
nation wages." An employee who testifies against his
current employer is generally likely to be telling the
truth as he understands it,' but all other witnesses, in-
cluding Shumaker who is still employed and an alleged
discriminatee, heard no such threat. That Reece did not
testify on this matter is, in my view, determinative, With
nothing to differentiate in the way of demeanor, I am
persuaded that the undenied testimony of an employee
whose livelihood is controlled by the employer against
whom he testifies should be given credence. I find that
Reece's statement was a threat to close the plant if the
Union got in and he had to pay union-negotiated wages.
'" The Union ultimately filed an election petition with the Board on
January 24. 1979.
I' See, e.g, Federal Stainless Sink Div. of Unarco Industries. Inc., 197
NLRB 489, 491 (1972).
1321
I)ECISIONS OF NATIONAI. LABOR RELATIONS B()ARD
Such a threat is reasonably calculated to interfere with,
restrain, and coerce employees in violation of Section
8(a)(1) of the Act.
B. Ihe Distribution and Solicitarion Rule
Respondent has a shop rule prohibiting:
19. Distribution of any literature or soliciting or
selling of any kind during working hours.
Rule 19 is unlawfully broad because "working hours,"
without further refinement or definition by the employer
and notice thereof to the employees infringes on the em-
ployees' right to engage in union solicitation and distri-
bution on their breaks and lunchtime. 17 The mere exist-
ence of such an overly broad rule tends to restrain and
interfere with employee rights even if not enforced. Rule
19 is invalid on its face and it is unnecessary to show it
has been enforced. ' I find Respondent's shop rule 19
violates Section 8(a)(1) of the Act.
Upon the foregoing findings of fact and conclusions
based thereon, and upon the record as a whole, I make
the following:
CONCI.USIONS OF LAW
1. The Respondent, Rich's Precision Foundry, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The Union, United Glass and Ceramic Workers of
North America, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By maintaining an overly broad no-solicitation and
no-distribution rule, Respondent has interfered with, re-
strained, and coerced its employees in violation of Sec-
tion 8(a)(1) of the Act.
4. By threatening to discharge employees who engage
in union activity, Respondent violated Section 8(a)(1) of
the Act.
5. By threatening to close its plant if its employees ob-
tained union representation, Respondent violated Section
8(a)(1) of the Act.
6. By searching an employee's locker for union-related
documents, by inquiry into the substance of employee
conversation in an effort to ascertain whether that con-
versation concerned union activities, by advising employ-
ees it was aware an employee possessed a union-related
document, by telling an employee it was aware of a
union meeting, and by telling an employee it knew who
the union leaders were, Respondent interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act, and con-
veyed to its employees an impression it was surveying
their union activities, all in violation of Section 8(a)(1) of
the Act.
7. By interrogating employees about their union activi-
ties and those of other employees, Respondent violated
Section 8(a)(1) of the Act.
8. By soliciting an employee to engage in antiunion ac-
tivities, Respondent violated Section 8(a)(1) of the Act.
II ErIex Internafional. Inc., 211 NLRB 749, 750 (1974); C & W Mining
Co.. Inc., 248 NLRH 270 (1980).
"' Blue Crors-Blue Shield of ,4abama, 225 NLRB 1217, 1220 (1976)
9. By conditioning employment on antiunion activity,
Respondent violated Section 8(a)(1) of the Act.
10. By giving employees a cash Christmas bonus in
order to induce them to abandon the Union, Respondent
violated Section 8(a)(1) of the Act.
11. By discharging Felix Birt and Homer Acres, and
laying off Kurt Elder and Greg Shumaker in order to
discourage union activity and membership in a labor or-
ganization, Respondent violated Section 8(a)(3) of the
Act.
12. The unfair labor practices set forth above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THi REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent
to cease and desist from further violations, to post an ap-
propriate notice, to offer Felix Birt and Homer Acres un-
conditional reinstatement to their former jobs, or sub-
stantially equivalent positions if their former jobs no
longer exist, make them whole for all wages lost as a
result of their unlawful discharge, and make Kurt Elder
and Greg Shumaker whole for all wages lost as a result
of their unlawful layoff. Said backpay and interest there-
on is to be computed in the manner prescribed in F. W
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). 19 I shall also recom-
mend that Respondent be ordered to rescind and abro-
gate its unlawful no-solicitation and no-distribution rule,
and notify its employees that it has taken such action.
Pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER2 0
The Respondent, Rich's Precision Foundry, Inc.,
Yorktown, Indiana, its agents, officers, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in a union by discharg-
ing or laying off employees or otherwise discriminating
in any manner with respect to their tenure of employ-
ment or any term or condition of employment.
(b) Maintaining in effect or enforcing any rule which
tends to prohibit employees from engaging in union talk
or solicitation or other concerted activity protected by
the Act on nonwork time in nonworking areas of its fa-
cility.
(c) Coercively interrogating employees concerning
their or other employees' union activities and desires.
(d) Threatening employees with discharge, plant clo-
sure, or other reprisals because they engage in union ac-
tivities.
is See, generally, lois Plumbing & Heating Co., 138 NLRB 716 (1962)
21 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, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
1322
RICH'S PRECISION FOUNDRY, INC
(e) Soliciting employees to engage in antiunion activi-
ty.
(f) Conditioning employment on engaging in antiunion
activity.
(g) Granting benefits to employees in order to induce
them to refrain from union activities.
(h) Making statements to employees or engaging in
conduct reasonably calculated to convey to employees
that their union meetings and activities are under Re-
spondent's surveillance.
(i) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer to Homer Acres and Felix Birt immediate
and full reinstatement to their former jobs, or substantial-
ly equivalent employment if their jobs no longer exist,
and make them whole for any loss of earnings they may
have suffered by reason of their discriminatory dis-
charge, in the manner set forth in the section of this De-
cision entitled "The Remedy."
(b) Make Kurt Elder and Greg Shumaker whole for
any loss of earnings they may have suffered by reason of
their discriminatory layoff, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Rescind and abrogate its shop rule 19, and notify
its employees of said rescission and abrogation in writ-
ing.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(e) Post at Respondent's place of business in York-
town, Indiana, copies of the attached notice marked
"Appendix." 2 i Copies of said notice, on forms provided
by the Regional Director for Region 25, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply with this Order.
21 In the event that this 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 read "Posted B)
Order Pursuant lo a Judgment of the United Stales Court of Appeals En-
forcing an Order of the National Labor Relations Board "
1323