Samsonite Corp.

National Labor Relations Board - Board DecisionsOct 11, 1973

206 N.L.R.B. 343 (N.L.R.B. 1973)

SAMSONITE CORP. 343 Samsonite Corporation and Leon C. Wikoff. Case 27- CA-3656 October 11, 1973 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On June 6, 1973, Administrative Law Judge Rich- ard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Samsonite Corporation, Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the Adminis- trative Law Judge's recommended Order.' i Member Fanning disagrees with the order only insofar as it may be read to permit restrictions on the distribution of literature in working areas when work is not being performed in such areas See his dissenting opinion in Stoddard-Quirk Manufacturing Co., 138 NLRB 615. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was tried at Denver, Colorado, on March 13, 1973. The complaint, based on a charge filed on September 6, 1972,' by Leon C. Wikoff, issued on January 5, 1973, alleging that Samsonite Corporation, herein called Respondent, violated Sections 8(a)(1) and (3) of the National Labor Relations Act, as amended. Issues The primary issues are : (1) whether Respondent violated t All dates are in 1972 , unless otherwise specified. Section 8(a)(1) of the Act by maintaining and enforcing no-distribution and no-solicitation rules which unlawfully limited employees in their right to engage in concerted ac- tivities on company property; and (2) whether Respondent violated Sections 8(a)(3) and (1) of the Act by discharging Leon C. Wikoff, V. Stevens Kite and Richard Gould be- cause of their involvement in the distribution of literature. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is a Colorado corporation engaged in the manufacture and sale of luggage at its plant in Denver, Colorado. It annually sells and ships goods valued in excess of $50,000 directly to places outside of Colorado and annu- ally purchases and receives goods valued in excess of $50,000 directly from places outside of Colorado. Respon- dent is an employer within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum & Plastic Workers of America, and its Local Union No. 724, AFL-CIO (herein jointly called the Union), are each labor organizations with- in the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Background For many years Respondent and the Union have been parties to successive collective -bargaining agreements. Company rules have been the subject of negotiations. Sec- tion (a)(14) of those rules provides: Although the Employer may impose a lesser penalty, the following shall be just cause for immediate dis- charge: Unauthorized distribution of literature, written, or printed matter on the Employer 's premises , or posting or removing of notices , signs, or writing in any form on bulletin boards or other property of the Employer. However, employees may distribute Union Literature on Company premises before or after work or during lunch or break periods provided that the employee dis- tributing the Union literature and the employee receiv- ing the Union literature are both off work or on lunch or break periods at the time of the distribution. 206 NLRB No. 91 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The identical rule was included in a supplemental agree- ment to the collective-bargaining contract in effect from 1968 through 1972. The current contract, which is effective from 1972 through 1975, does not contain that rule but pursuant to agreement of the parties that rule has been separately printed as a company rule. As interpreted by Respondent , the exception for the distribution of "Union literature" applies to any Union and not just the incumbent. However, the situation with a union other than the incum- bent has never arisen. The General Counsel contends that employees Wikoff, Kite, and Gould were discharged because of their involve- ment in the distribution of a newsletter called the "New Morning" and that the distribution of that newsletter was a concerted , protected activity under Section 7 of the Act. Respondent contends that the no-distribution rule is law- ful and that Wikoff was discharged because he disobeyed that rule and because he disobeyed a direct from a supervi- sor to comply with that rule. Section (a)(8) of the company rules provides that the disobedience of orders of superiors shall be just cause for immediate discharge. Respondent further contends that Kite and Gould were discharged because they falsified their applications for em- ployment. Section (a)(1) of the company rules provides: Although the Employer may impose a lesser penalty, the following shall be just cause for immediate dis- charge: Falsification of the Employer's records or making false statements when applications for employment are being made. The General Counsel also contends that Respondent's Rule (b)(9), which is a limited no-solicitation rule, is unlaw- fully broad. It states: (b) Except as provided in paragraph (a), violation of the offenses listed below shall not be cause for immedi- ate discharge , but the offending employee shall be sub- ject to a reprimand for a first offense, layoff up to five (5) working days for the second offense, and discharge for a third offense . In assessing penalties , the second or third offense does not have to be the same type or kind as the first or second offense. (9) Unauthorized solicitation or collections for any purpose on the Employer 's premises . However , solici- tations of Union membership on Company premises are permissible before or after work or during break or lunch periods , provided that both the employee doing the soliciting and the employee solicited are both off work or on break or lunch periods at the time of the solicitations. In January 1972, negotiations began between Respon- dent and the Union for a new contract . About that time several union stewards and other employee members of the Union began meeting informally to discuss problems that they believed existed with regard to both their union repre- sentation and working conditions in the plant . These meet- ings led to the organization of a group called the Committee of Unity which consisted of some seven employees and their wives . The members of the committee believed that they were not being represented properly by the Union. They spoke to other employees and urged that the employees attend the union meetings in the hope that the rank and file would take greater control of the Union. They also dis- cussed what they considered insufficient wages and poor working conditions. They talked about what they believed to be excessive heat in the plant in the summer ; excessive cold in the winter; dangerous fumes in the plant; and discri- mination against women and minorities by Respondent. In carrying out their program the members of the committee contributed toward the purchase of a mimeograph machine and published a newsletter called the "New Morning." The first edition of the "New Morning" was published in early May and was distributed to Respondent' s employees at the plant on May 9. It consisted of articles stating: that the Union's contract gave the highest-paid workers the larg- est increases and the lowest-paid workers the least increases, and that "The only thing left for the straight- time workers is to organize and fight for their just demands !"; that the employees had the right to refuse to work on unsafe ma- chines and that if that right was used the Company would be forced to start cleaning up unsafe machinery and noxious fumes ; that the employees received practically nothing in the new contract and that the Union had supplied poor leadership to them ; and that Respodnent might not be an equal opportunity employer and might be discriminating against women, blacks, and Chicanos. The newsletter also contained : a suggestion that the employees read the book "Bury My Heart at Wounded Knee"; a quote from Abra- ham Lincoln to the effect that capitalists generally act in concert to fleece the people; an article stating that the em- ployees should speak up without being afraid of being fired; a request for employees to help with the newsletter; and a cartoon complaining about the heat in the plant. The second copy of the "New Morning" was published in June and was distributed to Respondent's employees at the plant on June 14 . It contained articles stating: that Respondent should do something about temperatures in the plant that reached over a hundred degrees in the summer; that the employees should be at the June 18 union meeting and tell the Union what they thought about a proposed dues increase ; and that a new way of running things was needed so that power in the Union was returned to the shop floor, and that the office of union president and other full-time offices should be abolished so that their duties could be taken over by an in-plant committee . In addition, there was an article complimenting departmental representatives for abolishing payments to union stewards and another article complaining that copies of the contract had not been print- ed for the employees . It also contained a quote from Helen Keller to the effect that the country is governed for the well-to-do and for the exploiters of labor . There was also an article complaining that the president of the Union was well paid and remote from the conditions under which employ- ees worked; an article stating that the employees should speak out without fear ; and another article asking for help in the publication of the newsletter. SAMSONITE CORP 345 B. The No-Distribution Rule and things stood. Wikoff then said "That's what I wanted you the Discharge of Wikoff 1. The facts Respondent hired Wikoff in September 1971. He worked as a line packer and was later given the task of putting handles on suitcases. He was a member of the Union and until early 1972 was a shop steward. Wikoff was one of the original members of the Committee of Unity. He wrote articles for and helped print and distribute the "New Morn- ing." Though he distributed the May copy of the "New Morning" in the plant on May 9, there is no evidence that Respondent had any knowledge of his involvement in that activity. However, Respondent was aware that the distribu- tion had been made. Frank Koke, Respondent's production manager,2 was told by his superiors after the first distribu- tion that someone had passed out the newsletter on the second shift, that it was unauthorized literature and that if he saw anyone passing them out in the future he was to put a stop to it. About 4 p.m. on June 14, Koke saw Wikoff pass his office carrying an armful of papers. Koke thought the papers might be copies of the "New Morning" so he called Freder- ick Ihrig, who was at that time manager of employee rela- tions, and asked what he should do if he saw the "New Morning" being passed out. Ihrig told Koke that if he saw anyone doing it he was to tell that person that it was unau- thorized literature, that such literature was not to be passed out on the premises, and he was to give whoever was passing it out a direct order to stop. Wikoff distributed copies of the June issue of "New Morning" in Respondent's cafeteria and outside the cafete- ria door on his way back to the work area. He placed some of the copies on his workbench. About 4:15 p.m., Koke passed Wikoff's workbench and saw Wikoff passing two of the newsletters to employees who were working nearby. Koke asked Wikoff what the papers were and Wikoff re- plied that they were copies of the "New Morning." Koke asked if anyone had authorized him to pass them out and Wikoff answered in the negative. Koke then told Wikoff that he was supposed to be working, that he was on compa- ny time and that he, was not supposed to be passing out any unauthorized literature at all. After some discussion, Koke said "I'm fiving you a direct order not to pass out any more of those papers on company premises." Wikoff said that his constitutional rights were being violated and Koke repeated the order. About 6:15 that evening Koke was watching employees come out of the cafeteria when he saw Wikoff come through the cafeteria door toward the production area. As he was leaving the cafeteria Wikoff handed a copy of the "New Morning" to another employee and intentionally allowed Koke to see what he was doing. Koke then called Wikoff into his office, told him that he had already been warned and sent him home. Wikoff asked if he was fired and Koke replied that Wikoff should call the next day to see how 2 The parties stipulated and I find that Koke, as well as Ihng, Delisle, and Daniels (whose titles are set forth below), are supervisors within the meaning of Section 2(11) of the Act. to do, catch me so you could fire me or send me home so we'd have a case to take to court." Koke then walked out of his office with Wikoff. At that point Stevens Kite, another alleged discriminatee, came up to them and asked what was happening. Koke told him that it was none of his concern and that he was sending the an home for disobeying an order. Kite replied that it was his concern because he was the union steward, to which Koke replied "I don't know what you boys are up to, but it's got to stop. I got to do what I have been told." Kite then gave Wikoff a phone number where he could get legal assistance and Wikoff left the plant. Koke reported the incident to his superiors and Richard L. Daniels, the director of production, made the decision that Wikoff should be discharged for unauthorized distribu- tion of literature and for refusing a direct order. On June 15, Koke told Wikoff on the telephone that he was terminated for those reasons. The termination notice for Wikoff shows that he was discharged effective June 15, 1972, for violation of company rules (a)(8) and (a)(14) (which are set forth above.) After his discharge Wikoff, as well as the other two al- leged discriminatees, Gould and Kite, filed grievances pro- testing their discharges, but the Union did not press them to arbitration. Thereafter they tried to attend a union meet- ing and were kept out. As the Respondent interprets the contract, any request for arbitration must be submitted by the Union and an aggrieved individual has no contractual right to bring a grievance to arbitration. 2. Analysis, additional findings, and conclusions The record evidence establishes and Respondent openly acknowledges in its brief that "the discharge of Wikoff was clearly and admittedly the direct result of his acting in viola- tion of the `no-distribution' rule and his refusal to obey a direct order to stop distribution." Though the distribution that was the proximate cause of Wikoff's discharge oc- curred as Wikoff was leaving the cafeteria, he had not yet returned to his work station and the distribution did not interfere with his work or the work of the employee who received the literature. Respondent does not contend that Wikoff was discharged because he distributed the literature when he or the recipient of the literature should have been working or were in a working area . Koke's order to Wikoff was to stop passing out the papers on company premises. That order was in conformity,with Respondent's no-distri- bution rule and encompassed distribution in nonwork as well as work areas. In determining whether Wikoff's dis- charge was in violation of the Act and whether the rule as enforced also violated the Act, three separate issues are raised. They are: (a) Was the distribution of "New Morn- ing" by Wikoff an activity protected by Section 7 of the Act; (b) if so, did the no-distribution rule unlawfully restrict that protected activity in balancing it against Respondent's right to control activities taking place on its property; and (c) whether the Union could and did effectively waive the right of employees to engage in the type of literature distribution involved here. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. The protected activity Section 7 of the Act provides in part that employees shall have the right to engage in concerted activities for the pur- pose of mutual aid or protection. That concerted activity need not be union activity to be protected. Thus, in N.L.R. B. v. Washington Aluminum Company, 370 U.S. 9 (1962), the United States Supreme Court held that an employer inter- fered with Section 7 rights of its employees in violation of Section 8(a)(1) of the Act by discharging employees who engaged in a work stoppage to protest the lack of heat in the plant. The Court pointed out that a labor dispute was in- volved even in the absence of a union because the employ- ees' protest concerned conditions of employment in the plant. The distribution of the "New Morning" was a concerted activity of employees. The text of both editions of the news- letter establishes that the employees were protesting what they considered to be inadequate wages and poor working conditions. The newsletters repeatedly made reference to the poor temperature control in the plant. The newsletter also brought to the attention of the employees the belief by the writers of the newsletter that their Union was not ade- quately representing them. As the Court of Appeals held in N.L.R.B. v. New-Car Carriers, Inc., 189 F.2d 756 (C.A. 3, 1951), "Attempts by some members of a union to bring about a change in the uniun's attitude about particular col- lective bargaining contracts is certainly `concerted activity' protected by Section 8(a)(1) of the Act. The employer can- not defend his interference by saying that the concerted activity was directed against the position taken by the Union and not directly against the employer." The fact that some of the articles in the newsletter con- tained gratuitous remarks or "social comment " matters doen not detract from the conclusion that the distribution of the "New Morning" was a concerted activity for the purpose of seeking improvements in wages and conditions of employment . In some circumstances concerted activities such as wildcat strikes might be unprotected if they have the effect of undermining the designated bargaining agent. Cf. Sunbeam Lighting Company, Inc., 136 NLRB 1248, enforce- ment denied 318 F.2d 661 (C.A. 7, 1963). However, that is not the situation in the instant case. The newsletter sought to spur the Union to more effective representation. It did so in a lawful and peaceful manner through the presentation of ideas. I find that the distribution of the newsletter was an activi- ty protected by Section 7 of the Act. Cf. System Analyzer Corp., 171 NLRB 45; Indiana Gear Works, a Division of Buehler Corporation, 156-NLRB 397, enforcement denied 371 F.2d 273 (C.A. 7, 1967). b. The validity of the no-distribution rule Section 7 of the Act gives employees the right to engage in concerted activities through the distribution of literature of the type involved herein. However, such rights are not unlimited. Conflicting rights of the employer to regulate his property must also be considered. Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793 (1945). As the United States Su- preme Court said in N.L.R.B. v. Babcock & Wilson Compa- ny, 351 U.S. 105 (1956): Organization rights are granted to workers by the same authority, the National Government, that preserves property rights: Accommodation between the two must be obtained with as little destruction of one as is consis- tent with maintenance of the other. The employer may not affirmatively interfere with organization; the Union may not always insist that the employer aid organization. In seeking to accommodate these conflicting rights, the Board has enunciated certain rules of law which distinguish between solicitation and the distribution of literature. As the Board held in Stoddard-Quirk Manufacturing Co., 138 NLRB 615: To sum up , we believe that to effectuate organizational rights through the medium of oral solicitation, the right of employees to solicit on plant premises must be af- forded subject only to the restriction that it be on non- working time. However, because distribution of literature is a different technique and poses different problems both from the point of view of the employees and from the point of view of management, we believe organizational rights in that regard require only that employees have access to nonworking areas of the plant premises. Applying the foregoing principles in the instant case, we agree with the Trial Examiner . as stated above, that the no-distribution rule maintained by Respondent is presumptively invalid on its face, as applied to employ- ees who wish to distribute union literature , since its reach is not limited to working time or to the working areas of the plant. (footnotes omitted) Section (a)(14) of Respondent's rules forbids unauthor- ized distribution of nonunion literature on Respondent's premises. The unauthorized distribution of the "New Morn- ing" by employees on nonwork time in nonwork areas 3 was banned by the no-distribution rule. Respondent so inter- preted the rule when it discharged Wikoff for engaging in a distribution in violation of the rule. That distribution was an activity protected by Secion 7 of the Act. Under the cases cited above, the rule is presumptively invalid. Though those cases involve the distributior of union literature, the logic behind them applies equally to any distribution of literature protected by Section 7 of the Act. Respondent can rebut that presumption by a showing of special circumstances such as the necessity to maintain pro- duction, discipline, or security. As the court of appeals held in McDonnell Douglas Corporation v. N.L.R.B. 472 F.2d 539 (C.A. 8, 1973): We do not mean to say that the Board cannot, pursuant to Republic Aviation, hold that a rule infringing Section 7 rights is presumptively invalid and must be justified. We do hold, however, that when, in attempting to rebut that presumption, an employer makes a credible show- 3 Though Wikoff distributed the literature as he was leaving the caretena, he had not yet reached his machine "work area." SAMSONITE CORP. 347 ing of special justifying circumstances, as was done in this case, the Board m ,weighing that evidence must responsibly and in a meaningful way consider the im- portance of the proffered justification and thereby de- termine whether the actual impact of the contested rule upon Section 7 rights mandates the invalidation of the rule. Frederick Ihng, who was the manager of employee rela- tions, was the only witness who testified concerning the need for the no-distribution rule. He averred that the only unauthorized distribution in the past had been on one occa- sion during the 1968 or, 1970 political campaign when one of the local candidates had handed a large number of cam- paign brochures to employees as they were coming into the plant, with the result that there were handbills laying all over the work area and parking lot, which presented a sig- nificant problem in the maintenance department. He also testified that there can be a connection between handbill- ing, trash, and safety; that employees receive handbills and have a tendency to pay attention to them; and that there can be a potential fire danger associated with trash. This evidence falls far short of rebutting the presumption that the no-distribution rule is invalid. As the Board held in Stoddard-Quirk Manufacturing Co., supra: We also find that the presumption of invalidity is not overcome by the testimony of Carson Butcher, Respondent's vice-president, that the rule was adopted years ago for the purpose of `keeping down the litter ... and fire hazards . . . in the plant.' The mere asser- tion that a broad no-distribution rule has this purpose hardly proves that is actually `necessary' for the em- ployer to prohibit union handbilling by his own em- ployees in nonworking areas in order to `maintain production or discipline' [Babcock & Wilcox, supra.] 9 The situation might be different and the presumption of invalidity of the broad rule overcome if an employer could establish that the particular operations of the company, e.g., a high explosives plant, made the distribution of any inflammable material a menace No such proof, of course, was adduced or sought to be adduced here " I find that the no-distribution rule in question is presump- tively invalid on its face in that it forbids the distribution of literature in the plant by employees who are on nonworking time and in nonworking areas in situations where such dis- tribution is an activity protected by Section 7 of the Act. I further find that Respondent has not rebutted that pre- sumption. Further consideration is needed, however, to de- termine whether the no-distribution rule, which otherwise would have been unlawful, was validated by the Union's contractual waiver of the right of the employees to engage in nonunion distribution. c. The waiver issue the Court of Appeals for the Sixth Circuit has refused to enforce the Board 's Magnavox decision, I am bound by the Board's interpretation of the law in that case . In Magnavox the Board reiterated the language it had used in Gale Prod- ucts, Div. of Outboard Marine Corp., 142 NLRB 1246, en- forcement denied 337 F.2d 390 (C.A. 7, 1964), as follows: The validity of a contractual waiver of employee rights must depend ... upon whether the interference with the employees' statutory rights is so great as to override any legitimate reasons for upholding the waiver. Upon consideration of all the relevant factors, we are per- suaded that, in the circumstances of this case, an un- limited contractual prohibition against union solicitation and distribution would unduly hamper the employees in exercising their basic rights under the Act. Their place of work is the one location where em- ployees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters relating to their status as employ- ees ... (142 NLRB at 1249). Also in Magnavox, the Board expanded on the order it had issued in the Gale Products case and directed a company not to enforce any rule which prohibited employees: "from distributing literature in nonworking areas on nonworking time on behalf of any labor organization relating to the selection or rejection of a labor organization ....or other matters related to the exercise by employees of their Section 7 rights." Though that case involved the distribution of union literature, the touchstone of the Decision is the con- cern for employees' Section 7 rights. As found above, the distribution of the "New Morning" was protected by Sec- tion 7. In the instant case, as in Gale Products and Magnavox, the contractual prohibition against employees' exercise of their statutory rights with regard to the distribution of literature unduly hampered those employees in the exercise of their basic rights under the Act. There is no showing that the restriction on distribution is needed by the Union to make it a more effective collective-bargaining agent for the em- ployees. As discussed above, Respondent's interest in the no-distribution rule, and therefore in the waiver, is not so strong as to extinguish the employees' rights under the Act. No special need was shown for the waiver and I find no reason to conclude that the employees' statutory rights should be overweighed by the waiver.4 In conclusion, I find that: (1) Respondent violated Sec- tion 8(a)(1) of the Act by maintaining, giving effect to, and enforcing section (a)(14) of its rules in that that rule prohib- its employees from distributing literature in nonworking areas on nonworking time where such distribution is pro- As detailed in Magnavox Company of Tennessee, 195 NLRB 265, enforcement denied 474 F.2d 1269 (C.A. 6, 1973), the Board in a number of cases, and courts of appeals in other cases, have considered the question whether a union can contractually waive the right of employees to distribute literature on nonworking time in nonworking ar- eas. Though there is a split of authorities in the circuits and 4 In Magnavox the Board noted: "As our holding is concerned solely with the exercise by employees of their Section 7 rights, it is not to be taken as licensing in any way the distribution of institutional-as distinguished from purely organizational-literature of a labor organization which has ac- quiesced in an employer's promulgation or maintenance of a broad no- distribution rule." In the instant case the "New Morning" was not institution- al literature of the Union. It was concerned with the exercise by employees of their Section 7 rights 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tected by Section 7 of the Act; and (2) Respondent violated Section 8(a)(l) of the Act by discharging Wikoff for refusing to abide by its unlawful no-distribution rule.5 Much of the above discussion also applies to the limited no-solicitation rule, (b)(9). That rule is presumptively un- lawful in that it prohibits employees from solicitations on nonworking time where those solicitations, though not for union membership, are for concerted activities that are pro- tected under Section 7 of the Act. Respondent has not re- butted that presumption and the employees' rights have not been effectively waived by the Union. I therefore find that Respondent violated Section 8(a)(1) by maintaining rule (b)(9)•6 C. The Discharge of Gould 1. Background and the General Counsel's case Gould was hired in mid-April 1971. He worked as a scale and counterman and then as a material handler. Gould joined the Union and for part of his employment was a shop steward. Gould was one of the original members of the Committee of Unity. He attended a number of meetings in the lunch- room and elsewhere to discuss the publication of the "New Morning," and in addition he wrote some of the stories and distributed the paper. On May 9, Gould took 30 or 40 copies of the May edition of the "New Morning" into the plant and handed them out during the lunch and break periods. He only distributed the newsletter in the cafeteria and the breakroom. On June 14, Gould followed the same proce- dure for the distribution of the June edition of the "New Morning." When asked whether Respondent ever found out that he was active in distributing the newsletter, Gould credibly testified: "It was common knowledge within two depart- ments that I was, but in terms of the company and manage- ment, no, not to my knowledge." Gould also credibly testified that to his knowledge the subject was never dis- cussed in the presence of a foreman. Supervisors were pre- sent at other tables in the careteria, which is a large, unpartitioned area, when Gould was distributing the news- letter. However, Gould acknowledged that he passed the newsletter out to the people immediately surrounding him at a table, that he had made an effort to insure privacy when he was handing them out, and that he didn't know whether he was seen by any supervisor. Gould was discharged on June 28, 14 days after the sec- ond distribution of the "New Morning.- 5 Though the complaint alleges that discharge also to be violative of Sec- tion 8(a)(3) of the Act, the evidence establishes that the discharge was keyed to Wickoff 's concerted activities under Section 7 of the Act rather than to the encouragement or discouragement of membership in a labor organization under Section 8(a)(3) of the Act I shall therefore recommend dismissal of the allegation in the complaint that Wikoff was discharged in violation of Section 8(a)(3) of the Act. 6 The complaint also alleges that the "promulgation" of rules (a)(14) and (b)(9) was unlawful These rules appear in substantially the same form in the 1968 contract. They were "promulgated" more than 6 months prior to the filing of the charge and therefore under Section 10(b) of the Act , the "promul- gation" is not subject to attack. 2. Respondent's case When Gould filled out his application for employment on April 14, 197 1, he stated that he had never been arrested and that he had worked for the Arizona State government from November 1968 to-March 1970. He certified that the infor- mation on the application was correct and that he realized that his employment was dependent upon the accuracy of that application. The application was not accurate. Gould had been convicted of refusing induction in the Army and he spent from September 1968 to March 1970 in prison. The Respondent's records concerning Gould show an entry dated June 12, 1972, stating "FBI inquiry to interview Gould." Based on that inquiry, Respondent commenced an investigation into Gould's original application for employ- ment. No investigation had been made prior to that time, even though more than a year had elapsed since his employ- ment. Ihrig acknowledged that prior to the investigation there was nothing to his knowledge negative in Gould's employment record. Respondent only initiates an investigation into an employee's employment application when something comes to Respondent's attention raising a question about that em- ployee. Respondent hires approximately 3000 employees a year and for economy reasons does not run a routine check on applications. The FBI inquiry on Gould was made to Respondent's security department and resulted in an inves- tigation by the department. The next entry on Respondent's records pertaining to Gould is dated June 20, 1972, and reads "Newspaper clip- pings received showing Gould arrested and convicted/sen- tenced for Draft evasion induction into the Army. Conviction not shown on Gould's application for employ- ment." The security department brought this information to Ihrig, the manager of employee relations and 'Delisle, the director of industrial relations. Some days later they recom- mended to Daniels, the director of production, that Gould be discharged for falsifying his application. Daniels made the decision to fire Gould, who was discharged on June 28. The termination notice sets forth that Gould was discharged for violation of company rule (a)(1) which states in part that the making of a false statement on an application for em- ployment is just cause for immediate discharge. Daniels testified that he did not receive any report about Gould violating a no-distribution rule and that he didn't observe any such violation himself. He further testified that Gould was discharged solely'for falsifying the application. Respondent participates in a work release program through the Colorado State Penitentiary and does not as general policy reject employees because they have been ar- rested or convicted of a crime. Respondent has, however, fired employees for falsifying employment applications. One employee who was hired on August 22, 1972, was dis- charged on October 16, 1972, because he had falsified his medical application concerning a previous back injury. An- other employee who was hired on September 4, was dis- charged on September 13, 1972, because he stated on his application that he was 18 when he was only 17 years old. There is no evidence in the record that any other irregulari- ties in employment applications were treated more le- niently. SAMSONITE CORP. 349 3. Conclusions The General Counsel has established: (1) that Gould en- gaged in activities protected by Section 7 of the Act (the distribution of the "New Morning" on June 14); (2) that Respondent harbored an animus against employees who engaged in such activities (as established by the discharge of Wikoff because he engaged in such activities); and (3) that 14 days after Gould engaged in that protected activity, he was summarily discharged. Respondent has established that Gould falsified his appli- cation for employment and that the discharge took place shortly after Respondent learned of that falsification. Re- spondent also established that it had a past practice of discharging employees who falsified their employment ap- plications. However, in the prior discharges for such falsifi- cations, Respondent learned of the misstatements a relatively short time after the hiring of those employees. Also, in both of those situations, the misstatements related to matters which might have affected the employees' work. In one case, it involved the physical condition of the em- ployee, and in the other case, the fact that the employee was only 17 years old. In the instant case , Gould apparently was considered to be a good employee. Respondent had approx- imately 14 months to evaluate his work before his discharge. The falsification of the application related to a matter which had nothing to do with Gould's ability to do the work re- quired of him. Presumably, an employer uses an application form to aid him in determining whether an applicant has a potential for being a good, reliable worker. Observation of an employee's actual work habits for 14 months would seem to be a more reliable index in making that evaluation than the words used on the application. There is, therefore, the suspicion that Respondent's asserted reason for the dis- charge of Gould is a pretext to cover up the real reason for the discharge . There is also a suspicion arising from this that Respondent has something that it seeks to conceal. Howev- er, such suspicions, though they diminish the stature of Respondent's defense, do not establish the General Counsel's case. To successfully prove his case, the General Counsel must establish by a preponderance of the credible evidence that Gould was discharged because he distributed the "New Morning." Unless Respondent knew that he had engaged in such a, distribution, it cannot be found that Respondent fired him for that reason. It is therefore incumbent on the General Counsel to prove such knowledge.' Knowledge of, concerted activities may be shown by cir- cumstantial as well as direct evidence. Famet, Inc., 202 NLRB No. 52. Any circumstances which make it logical to infer that Respondent knew about the protected activities 7 In some situations, such as where an employer interferes with Section 7 rights to forstall organizational possibilities , knowledge that a protected ac- tivity in fact took place is not needed to establish a violation of Section 8(a)(1). However, in the instant case, the discharge of Gould would be unlaw- ful only if a casual connection is shown to exist between Gould's protected activity and the discharge . If Respondent did not know of the protected activity, it cannot be found that Respondent discharged Gould because of that protected activity. Cf. Mook Weiss Meat Packing Company, d/b/a Crown Meat Company, 160 NLRB 546; Kayser-Roth Hosiery Co, Inc., 166 NLRB 372. must be considered. In a small plant where the supervision has close contact with the employees and the concerted activity is carried out in an open manner, an inference is warranted that the company does obtain knowledge. Cf. Big Three Industries, Inc., 192 NLRB 370; Wiese Plow Welding Co., Inc., 123 NLRB 616. The Board looks not only to whether the protected activities take place in such a manner as to give the employer the opportunity to observe it, but also to whether the employer made statements or engaged in conduct which make it likely to believe that he gained knowledge of the protected activities. The American League of Professional Baseball Clubs, 189 NLRB 541. However, the inference of knowledge may not be drawn even where there is proof of union animus, suspicious timing and false rea- sons advanced to justify the discharge, where there is no independent basis for inferring knowledge. The American League of Professional Baseball Clubs, supra, and cases cited therein. , In the instant case, Gould did not distribute the "New Morning" in such a manner as to make it logical to infer that Respondent must have obtained knowledge of that activity. Cf. Hadley Manufacturing Corporation, 108 NLRB 1641. Neither did Respondent 's actions or the statements of its representatives warrant such an inference. Gould distribut- ed copies of the "New Morning" on only two dates, May 9 and June 14. The distribution was made only in the break- room and the cafeteria. Though there were supervisors pre- sent in the cafeteria, Gould acknowledged that he passed newsletters out to people at his table and that he made an effort to insure privacy. He also acknowledged that he didn't know whether he was seen by any supervisor. The distribution was not made in such an open manner or under such circumstances as to warrant the inference that it was seen by supervisors. Respondent did know that Wikoff was distributing the "New Morning." When Production Manager Koke was es- corting Wikoff out of the plant on June 14, Koke responded to union steward Kite's inquiry by saying, "I don't know what you boys are up to, but it's got to stop." It is possible to infer from that remark that Koke' s use of the phrase "you boys" indicated that he associated Kite with Wikoff. It is equally logical to infer, however, that Koke was referring to any employees who might be engaged in the distribution and used the expression "you boys" to Kite because Kite, a shop steward, was the Union's representative for all the employees. I do not believe that the inference is warranted that Koke knew that Kite was involved in the distribution. Certainly, there is nothing in that remark which would sup- port a finding that Koke knew that Gould had been engaged in the distribution.8 In conclusion I find that the General Counsel has not established by a preponderance of the credible evidence that Respondent knew before Gould's discharge that Gould was involved in the distribution of the "New Morning." It follows that there is a failure of proof that Gould's discharge was casually connected to his protected activity. I shall therefore recommend the dismissal of those portions of the $ As set forth below, in the discussion of Kite's discharge , Kite had a conversation with Respondent's attorney, Muller. For the reasons set forth in that discussion , I do not believe that that conversation warrants any inference of company knowledge as to either Kite or Gould. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint that allege that Gould was discharged in viola- tion of the Act .9 D. The Discharge of Kite 1. Background and General Counsel's case Kite was employed by Respondent on April 8, 1971, and was discharged on June 28, 1972. He was a machine opera- tor in the luggage department. Kite was a union member and at the time of his discharge he was a union steward. Kite was one of the original members of the Committee of Unity. He wrote articles for the "New Morning" and helped dis- tribute copies. On May 9, he distributed copies of the May edition in the cafeteria before going to work and on break- time . He also distributed some while he was working. No company official spoke to him about the distribution. He also participated in the distribution of the June edition on June 14. Before going to work he handed a few copies to people sitting with him at the table in the cafeteria and he handed some more to employees in the breakroom. Almost from the beginning of his employment, Kite had been active in union affairs. Shortly after joining the Union, he became a union steward and a member of the Union's publicity department. He wrote articles for and helped dis- tribute the Union's newsletter. He had been active in a union election in which he wore and distributed buttons and campaigned for candidates. When asked whether he knew whether management was aware that he was distributing the "New Morning," Kite testified that there were two things that led him to believe the Company did have knowledge. He averred that he was a known activist, that he was constantly in controversies with the foreman and with people working with him and that after the May edition of "New Morning" was distribut- ed, people came up to him and asked if he was fired. He also testified that supervision was always close at hand, but when asked how the supervisors found out, he replied that he didn't know and that it was a long time ago. Kite also testified that he had a conversation with Nick Muller, an attorney on Respondent's corporate staff, which indicated that Respondent knew of his involvement in the distribution of the "New Morning." Kite and Muller had some mutual friends who arranged for the two to meet at Muller's home. The meeting took place about 2-1/2 months after Kite had been discharged. According to the testimony of Kite, Muller said that the decision for Kite's discharge was made by Thornley Wood's office at the corporate level because there was fear on the part of the Company that the newsletter was inflammatory, would get people aroused, and would cause difficulties. Kite also averred that Muller told him that the Company felt that those who they knew were involved had to go and that the Company was not going to let their people be led down the primrose path. Kite 9 In further support of this conclusion it is noted that Respondent appeared to believe that it had the legal right to discharge Wikoff for distributing the "New Morning" in violation of the no-distribution rule. Respondent admit- tedly discharged him for that reason . It is difficult to believe that with that state of mind Respondent would have discharged Gould and Kite for violat- ing the same no-distribution rule and then gone to the trouble of manufactur- ing an elaborate pretext to disguise that reason. testified that Muller did not name the people who the Com- pany felt were involved. He acknowledged in his testimony that he told Muller the facts of the case as he believed them to be and his opinion as to the reason he was fired. Muller testified that as corporate counsel he has no juris- diction in personal matters and does not participate in the personnel processes of Respondent; that he never discussed Kite's termination with anyone from Respondent prior to his meeting with Kite; that all he knew of the situation prior to his meeting with Kite was what he heard from friends of Kite who were unconnected with Respondent; and that he never discussed Kite with Delisle or Ihrig (the officials who recommended Kite's discharge) or with Daniels (the official who decided to discharge Kite). Muller specifically denied that he told Kite that the decision was made in Thornley Wood's office and also denied that he told Kite that the discharge was caused by the distribution of the "New Mom- ing." Muller testified that in the conversation Kite ex- plained his position and said that he thought that he was fired because of the newsletter. Muller denied that he said anything that could have given Kite the impression that the real reason for the discharge was the newsletter. I credit Muller's version of the conversation. Muller cred- ibly testified that he was not in a position to know the personnel practices of Respondent or the situation with regard to Kite. I do not believe that Muller made the type of sweeping statements attributed to him by Kite. Kite may well have had the impression that Muller was agreeing with Kite's own recitation of what had happened to him because Muller was a sympathetic listener.' Kite was discharged on June 28, 14 days after the second distribution of the "New Morning." 2. Respondent's case When Kite filled out his employment application on April 6, 1971, he stated that he had 2 years of college train- ing and no degree. He also stated that he had never been arrested. He certified that the information was correct and that he realized his employment was dependent on its accu- racy. As with Gould, the application was not accurate. In addition to receiving a bachelor' s degree , he was the recipient of a master's degree in political science from the University of Oregon. He also did some postmasters gradu- ate work at that university." While a student, Kite had been arrested in connection with an incident in which he was trying to keep other stu- dents from crossing a picket line at a plant near the universi- ty that was having a labor dispute. The arrest was for blocking traffic on a public thoroughfare and for assault and battery on a deputy sheriff. He was found guilty of the charge of blocking traffic, which was a traffic violation, and was fined and given 2 days in jail. He was also tried on the assault and battery charge which resulted in a hung jury and 10 It is noted that Kite made no mention of this conversation in his direct examination by the General Counsel. 11 Kite testified that he misstated his educational qualifications on the application because of his need for a job. He averred that he had been unable to obtain employment for which his education qualified him and that he was consistently rejected from other employment because he was "overquali- fied." SAMSONITE CORP. the dropping of the charge. Respondent's records concerning Kite show an entry dat- ed June 6, 1972, stating: "FBI inquiry to verify Kite's em- ployment at Samsonite." The next entry is dated June 12, 1972, and states: "Law enforcement inquiry by telephone from Oregon to verify Kite's employment. Caller advised Kite had been arrested in Oregon and that he was a gradu- ate student at University of Oregon. Kite was allegedly involved in an investigation of a bombing at the University of Oregon campus." The record contains three other en- tries: "June 15, 1972-Newspaper clipping received show- ing Kite arrested and convicted yin Oregon; June 19, 1972-Information received confirmed Kite was a graduate student, University of Oregon; June 27, 1972-terminated. Discharged violation of Co. rule A-I." The records also contain a statement that on June 19, 1972, the registrar's office of the University of Oregon verified the fact that Kite had an advanced degree. There is also a newspaper clipping which shows Kite's arrest. Respondent's procedure for investigating employment applications, when a question is raised, is set forth in the discussion of Gould's discharge. Generally the same proce- dure was followed for Kite. The security department, on the basis of law enforcement agency inquiries , made its own investigation and found that Kite had more formal educa- tion than he had stated on his application and that he had been arrested for obstructing traffic and assault . The securi- ty department passed this information on to Ihrig and Deli- sle, who in turn recommended to Daniels that Kite be discharged for falsifying his employment application. The recommendation was made several days before the dis- charge. Daniels made the decision to discharge Kite. Ihrig testified that Kite's unsuitability for work did not stem from the arrest record or his education, but from his willful withholding of information on the application. He also averred that he could not say whether Kite would have been hired if Respondent had known the truth but that usually when someone with advanced education was put in a routine, boring job, both the individual and the Company were dissatisfied. Kite's termination notice showed that he was discharged on June 27 for violation of company rule (a)(1). He was notified of the termination the following day, June 28. Daniels, who made the decision to discharge both Kite and Gould, testified that he never received a report about Kite violating a no-distribution rule and that he never ob- served Kite violating that rule. He averred that the dis- charge was motivated solely by the falsifications on the application and was not related to the distribution of litera- ture. 3. Conclusions The General Counsel has established that Kite engaged in protected activities, that Respondent harbored an animus against employees who engaged in such activities, and that 14 days after Kite engaged in those activities he was summa- rily discharged. Respondent established that Kite had falsi- fied his application for employment, that the discharge took place shortly after Respondent learned of it, and that Re- spondent did have a past practice of discharging employees 351 who falsified their applications. The same grounds for ques- tioning Respondent's defense set forth in the discussion of Gould's discharge applies equally to Kite. In spite of those suspicions concerning Respondent's defense, however, the same problem of "company knowledge" must be faced. The facts of the case as relating to Kite must be viewed in the light of the law set forth in the Board cases cited above in the section dealing with Gould's discharge. Kite was very active on behalf of the Union. He was a union steward, a member of the Union's publicity depart- ment, and a writer and distributor for the Union' s newslet- ter. In addition, he was active in the union election. Kite's assertion that he was a known activist was accurate. Howev- er, there is no evidence in the record to indicate that Re- spondent bore any hostility toward employees who engaged in that type of union activity. The Union was the recognized bargaining agent and the right to distribute union literature was established through collective bargaining. Respondent's hostility was directed against employees who distributed nonunion literature such as the "New Morning." The question is then whether Respondent knew of Kite's activities in that regard. Kite's testimony that he believed his activities with regard to the "New Morning" to be common knowledge does not prove that fact. As with Gould, Kite did not distribute the "New Morn- ing" in such a manner as to make it logical to infer that Respondent must have obtained knowledge of that activity. Kite engaged in that activity on only two dates, May 9 and June 14. On May 9, Kite distributed some while he was working, some in the cafeteria, and some in the breakroom. On June 14, the distribution was only to people sitting with him at a table and to employees in the breakroom. There is no evidence that the distribution was made in an open manner or in such a way as to make it logical to assume that Kite was observed by supervision. Kite himself testified that he doesn't know how his supervisors found out. Respondent's actions and the statements of its represen- tatives do not warrant the inference that Kite's involvement in the distribution was known. As set forth in the discussion of Gould's discharge, Koke did refer to "you boys" in the context of Respondent's stopping the distribution. Howev- er, for the reasons set forth in that discussion I do not believe the inference is warranted that Koke knew,that Kite was involved in the distribution. No inference of knowledge can be made from the cred- ited facts relating to Kite's conversation with Muller. In conclusion, I find that the General Counsel has not established by a preponderance of the credible evidence that Respondent knew before Kite's discharge that Kite was involved in the distribution of the "New Morning." There is, therefore, a failure of proof that Kite' s discharge was casually connected to his protected activity and I shall rec- ommend the dismissal of those portions of the complaint that allege that Kite was discharged in violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Wikoff in vio- lation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to offer him reinstatement and make him whole for any loss of pay resulting from his discharge, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date on which reinstatement is offered,'less net earnings during that period. Such back- pay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It is further recommended that Respondent be ordered to preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel re- cords and reports, and all other records necessary to analyze the amount of backpay due. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining, giving effect to, and enforcing a rule that prohibits employees from distributing literature in non- working areas on nonworking time where such distribution is protected by Section 7 of the Act, Respondent has violat- ed Section 8(a)(1) of the Act. 4. By maintaining a rule that prohibits employees from soliciting on nonworking time , where such solicitation is protected by Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act. 5. By discharging Leon C. Wikoff because he refused to abide by Respondent's unlawful no-distribution rule, Re- spondent violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as set forth above, the General Counsel has not established by a preponderance of the credible evidence that Respondent has violated the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER t2 Respondent, Samsonite Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, giving effect to, or enforcing any rule that prohibits employees from distributing literature in non- working areas on nonworking time where such distribution is protected by Section 7 of the Act. (b) Maintaining any rule that prohibits employees from soliciting on nonworking time, where such solicitation is protected by Section 7 of the Act. (c) Discharging or otherwise discriminating against any employee for refusing to abide by an unlawful no-distribu- tion rule. (d) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Leon C. Wikoff immediate and full reinstate- ment to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due. (c) Post at its Denver, Colorado, plant, copies of the attached notice marked "Appendix." 13 Copies of the no- tice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's authorized rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 12 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, recommendations and recommended Order herein shall , as pro- vided by 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. 13 In the event that 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." SAMSONITE CORP. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT maintain, give effect to, or enforce any rule that prohibits employees from distributing litera- ture in nonworking areas on nonworking time where such distribution is protected by Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL NOT maintain any rule that prohibits employ- ees from soliciting on nonworking time, where such solicitation is protected by Section 7 of the Act. WE WILL NOT discharge or otherwise discriminate against any employee because that employee refuses to abide by an unlawful no-distribution rule. WE WILL NOT in any like or related manner interfere 353 with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer full reinstatement to Leon C. Wikoff, with backpay plus 6 percent interest, Dated By SAMSONITE CORPORATION (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, U. S. Custom House, Room 260, 721 19th Street, Denver, Colorado 90014, Telephone 303- 837-3551.