Tekform Products Co.

National Labor Relations Board - Board Decisions

May 18, 1977

229 N.L.R.B. 733 (N.L.R.B. 1977)

TEKFORM PRODUCTS CO.
Tekform Products Company, a Division of Bliss &
Laughlin Industries and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America-UAW. Cases 21-
CA-14515 and 21-CA-14742
May 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 26, 1977, Administrative Law Judge
James T. Barker 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Tekform Products Company, a Division of
Bliss & Laughlin Industries, Anaheim, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b):
"(b) Unlawfully announcing or imposing more
stringent rules governing the terms and conditions of
employment of employees, imposing a search rule, or
disparately applying valid rules for the purpose of
interfering with, restraining, or coercing employees in
the rights guaranteed in Section 7 of the Act."
2. Insert the following as paragraph l(c) and
reletter the subsequent paragraphs accordingly:
"(c) Prohibiting employees from displaying union
insignia on their personal property at their work
stations."
3. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. S;andard Dry -Wall Products,
229 NLRB No. 111
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). we have
carefully examined the record and find no basis for reversing his findings.
2 In the absence of exceptions thereto, we adopt pro forma the
Administrative Law Judge's Decision concerning the validity of the
Respondent's no-solicitation rule.
3 In his recommended Order the Administrative Law Judge inadvertent-
ly failed to include cease-and-desist provisions relating to his findings that
Respondent violated Sec. 8(aXI) by establishing a search rule and by
prohibiting employees from displaying union insignia at their work stations.
We have modified the Order accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate the employment of
Alice Nell Adams or Dorothy Gerdes, or any
other employee, because he or she engages in
union or other protected concerted activities.
WE WILL NOT issue written reprimands or
warning notices to Helen Woodall, or any other
employee, because he or she engages in union or
other protected concerted activities.
WE WILL NOT in any unlawful manner, for the
purpose of interfering with the rights guaranteed
employees to engage in union activities, promul-
gate a search rule or impose stringent rules of
conduct and discipline covering their conduct on
the job and in the plant.
WE WILL NOT in an unlawful and disparate
manner apply the existing valid no-solicitation
rule which is promulgated in the handbook
distributed to employees in May 1975.
WE WILL NOT prohibit the display of union
insignia on the personal property of employees at
their work stations.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to engage in self-organiza-
tion, to bargain collectively through representa-
tives of their own choosing, to act together for
collective bargaining or mutual aid or protection,
or to refrain from any or all such activities.
WE WILL NOT discourage membership in
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America-UAW, or any other labor organization
of our employees, by terminating our employees
or issuing written warning notices or reprimands
to employees because they engage in protected
union or other concerted activity, or in any other
manner discriminate against any of our employ-
ees with regard to hire or tenure of employment,
or any term or condition of employment, except
as permitted by the proviso in Section 8(a)(3) of
the Act.
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Alice Nell Adams and Dorothy
Gerdes immediate and full reinstatement to their
former positions of employment or, if such
positions are no longer available, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay they may have
suffered by reason of the discrimination against
them.
WE WILL expunge from our personnel records
and other files the written warning notice or
written reprimand issued to Helen Woodall on
March 22, because she had engaged in conduct
on behalf of International Union, United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America-UAW, or had involved
herself in protected concerted activity.
WE WILL notify Helen Woodall, in writing, that
the written warning notice or reprimand has been
withdrawn and all references thereto in our
records have been expunged.
TEKFORM PRODUCTS
COMPANY, A DIVISION OF
BLISS & LAUGHLIN
INDUSTRIES
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me on September 27 and 28, 1976, at Los
Angeles, California, pursuant to an order consolidating
cases, consolidated amended complaint, and amended
notice of hearing issued by the Regional Director of the
National Labor Relations Board for Region 21 on July 29,
1976.1 The amended consolidated complaint alleges viola-
tions of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, hereinafter called the Act.
Respondent concedes the timely filing of the charges and
amended charges in this consolidated proceeding. Counsel
for the General Counsel and counsel for Respondent
timely filed briefs with me.
Upon the entire record in this case, the briefs of the
parties and my observations of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all material times, Respondent has been a Delaware
corporation engaged in manufacturing microelectronic
packages, with a facility located at Anaheim, California.
In the course and conduct of its business operations,
Respondent annually ships and sells goods valued in excess
I All dates refer to the calendar year 1976, unless specifically noted
otherwise.
of $50,000 directly to customers located outside the State of
California.
Respondent concedes, and I find, that it is, and has been,
at all times material herein, an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America - UAW, hereinafter called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this case are whether (1)
Respondent terminated the employment of Dorothy
Gerdes and Alice Nell Adams, and issued a written
warning notice to Helen Woodall because these employees
had engaged in union or other protected concerted
activities; and (2) in violation of Section 8(a)(l) of the Act,
Respondent unlawfully announced to employees increased
benefits and other terms and conditions of employment,
and imposed more stringent policies and terms and
conditions of employment on employees, all for the
purpose of inducing and/or coercing employees to refrain
from supporting the Union. Respondent admits that a
technical violation of Section 8(a)(1) of the Act occurred
when a member of supervision instructed employees to
remove union decals from their personal toolboxes. It is
Respondent's contention, however, that this violation was
de minimis, warranting no remedial order.
B. Pertinent Facts
1. Background facts
a. The Company's operation
Ronald Chalman is a vice president and general manager
of Respondent. At material times in February and March
1976, Michael Wise served Respondent in the capacity of
personnel manager, having entered Respondent's employ
on August 18, 1975. At all pertinent times, Robert Peet has
been Respondent's technical director and Ricardo Vallero
has been employed in the capacity of a supervisor in charge
of the tool-and-die and stamping departments, working
under the direction of Robert Peet. Prior to March 22,
Alice Adams, Dorothy Gerdes, and Helen Woodall were
employed as press operators working under Vallero's
supervision. Fay Ramirez was similarly employed in
Vallero's department and was considered by management
to possess excellent work skills. In its Anaheim, California,
operation, Respondent employs approximately 200 indivi-
duals.
734
TEKFORM PRODUCTS CO.
b. The union organizing effort
In late February, Scott Watts, International representa-
tive of the Union, met initially with employees of
Respondent. Thereafter, an organizing effort was com-
menced among the rank-and-file employees at Respon-
dent's Anaheim operation and authorization cards were
signed. The organizing effort of the employees came soon
to the attention of Chalman and Wise by virtue of
information voluntarily imparted to them by rank-and-file
employees. By letter of March 9, Watts advised Chalman
of the composition of the steering committee comprised of
23 employees, including Dorothy Gerdes. Prior to March
16, Adams and Woodall wore union buttons while at work
in the plant. On March 30 the Union filed a representation
petition in Case 21-RC-14610 and an election was held in
July which the Union lost.2
2. The alleged unlawful conduct
a. The terminations and reprimand
(1) The break table incident
Soon after the organizing effort commenced, several
employees, including Gerdes, Adams, and Woodall, solic-
ited other employees on plant premises during breaks and
lunch in an effort to obtain their signatures on authoriza-
tion cards in support of the Union. Prior to March 16,
Gerdes and Adams, as well as employees Myrick and
Nichols, had requested Fay Ramirez to sign a union
authorization card. Ramirez parried these efforts in a
variety of ways, including a representation that she had
already signed and mailed an authorization card to the
Union. That no signed authorization card had been
received by the Union from Ramirez was known to the
leadership group among the employee complement, includ-
ing Adams, Gerdes, and Woodall. Thus, at the commence-
ment of the afternoon break on March 16, Gerdes
requested Adams to again ask Ramirez to sign an
authorization card. This request was uttered by Gerdes to
Adams as Adams passed by the desk of Ron Gould, on her
way to the break table, some 20 feet away.3 During the
course of the 15-minute break, Gerdes remained at Gould's
desk in the company of Gould and Jerry Bever, a leadman.
However, after speaking briefly with Gerdes at the
beginning of the break period, Adams proceeded to the
break table, where Woodall, Ramirez, and two other
employees were seated. Ramirez was seated near one end
of the table and Woodall was seated at the other end.
Adams approached Ramirez as Ramirez sat at the break
table and asked Ramirez what had happened to her on the
previous Sunday, inquiring why she had not been to the
union meeting. Ramirez responded that she had to go to
see her son, and Adams asserted that the visit could have
waited a week. Adams also observed that the Union had
not received a signed authorization card from Ramirez and
she asked Ramirez if she would sign another one, and
permit one of the employees to take the card to the Union.
2 These latter findings are based on official notice of the formal
documents in the representation case.
3 The testimony of Helen Woodall, Alice Adams, and Dorothy Gerdes
Ramirez answered that both her husband and her son had
sent cards to the Union on her behalf. This exchange
generated some light laughter which caused Brenda
Hanneman, seated at a separate table some 10 feet away, to
become attentive to the flow of conversation at the break
table. With Hanneman listening, Adams or Woodall stated
that the list would be checked to see whether or not a card
had been received from Ramirez. However, Woodall
requested Hanneman to go to a nearby location in the
work area and obtain an authorization card for Ramirez to
sign. Hanneman did so and returned to her seat at the
nearby table. In the meantime, Ramirez stated that if the
Union had not received her first two authorization cards
she was not going to mail in another one. The matter was
not pursued, but, at this juncture, Woodall asked Ramirez
if she would like to wear a union button. Ramirez answered
in the affirmative, inquiring if Woodall had one in her
possession. Woodall answered that Ramirez could have
hers, and she proceeded to give Ramirez the union button
which she had been wearing. Ramirez attached the button
to the front of her smock. One of the individuals at the
break table complimented Ramirez on her appearance and
there was some restrained laughter. At this juncture, the
bell rang, signaling the end of the break and the various
employees returned to their work stations. At no time
during the break did Gerdes approach the break table. Nor
did Gerdes approach Ramirez or engage her in conversa-
tion during the break, or following the break when Ramirez
was returning to her work station. Hanneman was of the
impression, as she observed the incident, that the employ-
ees were "picking on" Ramirez.
(2) Ramirez reports to management
Later in the afternoon of March 16, following the break
period, Richard Vallero had occasion to pass through the
press area. Ramirez stopped Vallero and stated that she
wished to speak to Vallero immediately. Ramirez and
Vallero went together to Vallero's office and Ramirez
informed Vallero that she was "afraid" and "very upset."
In explanation, Ramirez stated that during the break
period she had been threatened. Vallero asked Ramirez to
describe the incident and she did so but her composure was
not good and she appeared nervous. In giving to Vallero a
detailed description of her version of the incident, she
expressed resentment at being told that a union meeting
was more important than a visit with her son; she detailed
the assertedly persistent nature of the efforts of employees
to obtain her signature on an authorization card; she
expressed a lack of understanding as to the importance of
her signature in light of the representation of the employees
that they had sufficient authorization cards; she described
the effort of Adams to convince her to sign an authoriza-
tion card; she detailed the involvement of Woodall in
presenting her with a union pin to wear; and she described
the asserted confrontation with Gerdes wherein Gerdes, in
allegedly threatening tone and manner, endeavored to
coerce her into signing a card.
supports the foregoing. I have also considered the testimony of Fay Ramirez
concerning the efforts of employees to obtain a signed card from her.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Ramirez had completed her description, Vallero
and Ramirez went to Peet's office and conversed with him.
Later in the day, Peet and Vallero met with Wise and he
was informed of Ramirez' allegations. Peet requested Wise
to look into the matter and Wise did so. He spoke first with
Ramirez in the company of Vallero. Ramirez gave to Wise
a description similar to that detailed to Vallero earlier.
Ramirez expressed fear of going into the department in
light of what had transpired. After speaking with Ramirez,
Wise reported to Peet and Chalman and summarized
Ramirez' report for their benefit. It was agreed that an
effort should be undertaken to substantiate Ramirez'
version and Wise met again with Ramirez. She repeated
her description of the incident and, in answer to a question
posed by Wise, she reported that there had been several
employees in the vicinity of the break table but that she did
not think they could give Wise any insight into what
happened. She stated, however, that Theta Cockrel was at a
table very close to the break table when the incident
occurred. The following day, Wise spoke with Cockrel
who, in substance, was unable to provide details of the
incident. Wise reported this to Peet and Chalman, and they
reached a decision to obtain labor relations advice.
Chalman consulted with the Company's labor relations
consultant, and a written statement was obtained from
Ramirez. This statement outlined the assertedly persistent
nature of the efforts of the employees prior to March 16 to
obtain her signature on a union authorization card and it
contained a brief outline version of the events during the
break period on the afternoon of March 16. It also
contained an assertion that Dorothy Gerdes had been a
participant in the incident and had stated that the
employees would make Ramirez sign a card. In this
connection, Ramirez' statement contained the following
descriptive account: "They were very angry with me, and
were almost yelling and had very nasty and threatening
tone in their voice." The statement contained no reference
to an alleged fear or apprehension on Ramirez' part over
continuing to work in the department with Adams, Gerdes,
Woodall, or any other employee. Thereafter, Peet, Chal-
man, and Wise discussed the entire incident and again
contacted the Company's labor relations consultant.
Subsequently, Peet, Chalman, and Wise reached a decision
to terminate Gerdes and Adams and to discipline Woodall.
Vallero did not participate in the decision. Prior to
reaching this decision, no statement, oral or written, was
obtained from Adams, Gerdes, or Woodall, and only
Ramirez and Cockrel were interviewed. No inquiry was
made of Ron Gould, the departmental supervisor, or of
Jerry Bever, the leadman. In March, and material times
prior thereto, it was Respondent's policy to have Peet
personally handle any investigation into serious charges
pertaining to employee work-related conduct. Moreover, it
was Respondent's policy, when disciplinary measures
appeared warranted, to consult with direct supervision
concerning the discipline to be imposed. The then promul-
gated policy governing discipline for employee misconduct
for "[t]hreatening, intimidating, coercing and interfering
with other employees or supervision" provided for verbal
and written notice to charged employees and for dismissal
only in the event of repeated breaches.
(3) The disciplinary interview
In implementation of the decisions, separate interviews
were conducted in Peet's office with each employee during
the morning of March 22. Peet, Wise, and Vallero
participated in each of the interviews. Adams was the first
employee interviewed. At the outset of the interview, Peet
inquired of Adams whether she knew the reason she was
being brought to the office. Adams disclaimed knowledge
and Peet informed Adams that she was being called in
because of her involvement in a threat to Ramirez in the
plant on Tuesday, March 16. Adams denied threatening
Ramirez. Peet stated that in the opinion of management
she had threatened Ramirez and that she was being
terminated for that reason. Thereupon, Wise requested
Adams to sign a statement which had been prepared and
which contained the following entry, setting forth the
reason for termination:
As a result of a threat directed to Fay Ramirez last
Tuesday, March 16, 1976, we hereby discharge you
effective 11:40 a.m. 3-22-76. You were a principal
party to this threat as described in a statement, which
may be made available to competent authority at a
later date.
Adams inquired why she should sign the statement in that
she had not threatened anyone. Wise responded that she
could sign the document and add her own notations in the
space provided. After some exchange of conversation,
Adams signed the document and added the following
notation:
Alice Adams asked Fay Ramirez if she would sign a
union card and let one of us take it to the union hall if
we didn't get one in the mail soon?
In presenting the signed document, Adams again denied
threatening Ramirez and verbalized for the benefit of those
present at the meeting the statement which she had added
in writing to the termination document. The meeting ended
and Adams' termination became effective.
The next meeting was with Gerdes and at the outset of
the meeting Gerdes was informed that she had been called
in because of her involvement in a threat to Ramirez
during the afternoon break on Tuesday, March 16. Gerdes
denied threatening Ramirez and Peet answered that after
due consideration, Gerdes was being terminated effective
at 11:40 a.m. Peet stated that management would not
tolerate threats against any employee and added that if
anyone threatened Gerdes proper action would be taken
and that individual would be terminated. Gerdes again
stated that she had not threatened anyone and stated that
the allegation was untrue. Wise presented Gerdes with a
termination notice identical in form to that presented
earlier to Adams. The entry with respect to the reason for
termination was, in essential character, identical to that
contained on the form presented to Adams. Gerdes
declined to sign the document on the grounds the
allegations contained thereon were untrue. Wise stated that
she could add notations in the space provided and Gerdes
finally affixed her signature to the document. She added
736
TEKFORM PRODUCIS CO.
the notation: "I1, Dorothy Gerdes, deny all charges above."
The meeting ended in due course and Gerdes' termination
became effective. 4
Woodall was the last of the three employees called in on
the morning of March 22. Peet began the interview by
stating that she was present because of her involvement in
the incident involving Ramirez on March 16. Prior to
entering Peet's office, Woodall had become aware that
Adams and Gerdes had been terminated. Thus, upon
hearing Peet's initial statement at the outset of the meeting,
Woodall exclaimed, "she's going to get everyone of us."
She was informed to "calm down" before she got herself
"in any deeper." Thereupon, Peet stated, in substance, that
he did not initially believe that Woodall had been involved
but that careful investigation had confirmed her complici-
ty. Peet noted, however, that Woodall had had a different
role in the matter and was therefore being given a warning
rather than a termination notice. As the meeting pro-
gressed, Woodall was presented with a warning notice
containing the following explanatory entry:
You were a member of a group of 3 people who
approached Fay Ramirez on Tuesday, March 16, 1976,
and actively responded during a conversation in which
threats were made to sign union cards. You did not
make any direct threats. But, you were a part of such a
group discussion. We caution you to avoid such
conversations in the future. If this type of occurrence
happens one more time, you will be immediately
discharged.
Woodall agreed to sign the document and Peet cautioned
her not to become similarly involved in threats to other
employees. The meeting ended on this note.5
(4) The reported threats
Prior to receiving the report of the March 16 incident
involving Ramirez, Respondent's management had been
informed by some of its employees that the Union was
employing aggressive methods in endeavoring to get
employees to sign authorization cards. Moreover, employ-
ees had reported a certain apprehension and fear arising
out of asserted threats made to them by supporters of the
Union. Further, in late February, employee Charmain
Mote had made available to her immediate supervisor a
note which had appeared on the windshield of her
automobile as it was parked in the Company parking lot.
The note read, "Keep your mouth shut or else!" Mote had
no knowledge of the source of this note and did not report
the matter to the police. By memorandum dated February
27 Chalman advised all of the employees:
4 Wise testified that he first learned on the evening prior to the initial day
of hearing herein that Gerdes was claiming not to have been directly
involved in the March 16 incident. He further testified that he endeavored to
contact three individuals - Cockrel, Bever, and Rainey - but learned that
each was unavailable and not susceptible to direct contact and consultation.
I As more fully discussed below, I have carefully reviewed the testimony
of record relative to the three meetings and the foregoing findings are
predicated upon a composite of that testimony. I specifically credit the
testimony of record to the effect that at no time during the course of the
It has come to my attention that an employee has
received an anonymous threat while working at
Tekform after refusing to sign a union authorization
card.
I want to make certain that each and every employee
understands the company position regarding this type
of activity.
The company will not, under any circumstances,
tolerate the threatening, intimidating, coercing or
abusing of fellow employees or any attempt to retard
the work of a fellow employee; or otherwise disrupting
or interfering with a fellow employee.
We take for granted the large majority of our people
will always maintain an acceptable standard of com-
mon honesty and decent human behavior. However,
the possible exceptions among our employees are
advised that any violation of the company position will
result in disciplinary action appropriate to the serious-
ness of the incident. This will include, where necessary,
discharge and legal criminal proceedings.
Subsequently, on March 22, Chalman caused to be posted
a memorandum to all employees containing the following:
In the past several weeks, the Auto Workers Union
(UAW) have been intimidating and coercing Tekform
employees. Several employees have reported that they
have been intimidated and threatened in order to make
them sign a union card. Per my memo to you on
February 27th, management is obliged to protect its
employees and will not tolerate this illegal activity.
After consulting with our lawyers, Tekform has filed an
unfair labor practice charge against the union to stop
these illegal activities.
Save for the testimony of Mote, no employee was called
as a witness to testify concerning asserted threats emanat-
ing from union sources or supporters.
(5) The credibility question
The findings with respect to the incident which tran-
spired during the course of the afternoon break period on
March 16, are based on a careful evaluation of the
testimony of Fay Ramirez, Brenda Hanneman, Helen
Woodall, Alice Adams, Dorothy Gerdes, and Ronald
Gould. With respect to the early phases of the dialogue
between Ramirez and Adams, I have placed principal
reliance on the testimony of Ramirez, as contrasted with
that of Adams and Woodall, which impressed me as less
than candid and complete. However, with respect to the
facet of the dialogue and occurrences which took place
following Hanneman's attentiveness to the flow of events, I
place primary reliance on the testimony of Hanneman.
three separate meetings was the identity of the other alleged participants in
the asserted threat to Gerdes articulated. On the other hand, I do not credit
the testimony of Woodall to the effect that she was told by Wise durng the
course of the meeting with her that she was being given a warning notice
because of her action on March 16 in giving Rarmirez a union button.
Woodall's pretrial affidavit contains no such reference and there is no
independent record testimony or documentary evidence which lends
support to Woodall's testimony in this regard.
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanneman impressed me as a thoroughly credible witness,
whose version was essentially dispassionate and accurate.
While I am convinced that she erroneously attributed to
Woodall certain remarks which Adams, in fact, made to
Ramirez, I do not consider this to materially detract from
the reliability of her testimony. Moreover, in crediting
Hanneman, I have also evaluated the fact that she initially
placed Gerdes at the break table but quickly recanted from
that testimony. I received the distinct impression as I
observed her testify in this regard that she made this
modification in the interests of accuracy and not with any
ulterior motive reflecting upon her veracity. I specifically
credit Hanneman's testimony that at no time during the
entire break period did she observe Gerdes approach the
break table or in any manner converse with Ramirez. In
reaching this determination, it follows that I reject the
testimony of Ramirez in all respects which are inconsistent
with Hanneman's credible observations. Gerdes credibly
denied any involvement in the occurrences during the
afternoon break period, and she is supported in this regard
not only by Hanneman but by Adams and Woodall, as
well. I find no basis for rejecting this testimony and
accordingly do not credit Ramirez' testimony to the effect
that during the break period Gerdes approached her and,
in a standing position, straddled Ramirez' legs, squinted
her eyes, and put her hands on hips, and said, in harsh
tones, "Oh, yes, we'll make you sign." The record,
generally, lends no support to Ramirez' testimony in this
regard, either with respect to the occurrence of the
described incident or to Gerdes' participation in any
similar confrontation. I place no reliance on the hearsay
testimony of Wise to the effect that Theta Cockrel had
identified Gerdes as a participant.
In rejecting Ramirez' version of the March 16 incident,
to the extent indicated, I give no weight to the record
testimony elicited from witnesses called by the General
Counsel relating to Ramirez' assertedly poor reputation for
truth and veracity. In short, that testimony failed to
establish the point sought by the General Counsel; namely,
that Ramirez had a chronic propensity to distort the truth.
Rather, the testimony revealed, as I evaluate it, a deep
cleavage between Ramirez and the union activists arising
principally, it appears, from different attitudes and stan-
dards believed applicable to work performance and rules.
In essence, the testimony disclosed a distrust on the part of
employees who testified on the reputation issue of Ramirez'
suspected role as an informer, as well as a resentment of
Ramirez' orthodox - perhaps rigid - attitudes toward
employee conformity to work rules. For her part, Ramirez
impressed me as an individual who harbored defensive and
hostile feelings toward the employee proponents of the
Union, including the alleged discriminatees. I have taken
into account the cleavage above delineated in making my
credibility resolutions, and conclude that both Ramirez
and the three alleged discriminatees were disposed to shade
their testimony to a degree in order to vent their bias.
Significantly, however, Hanneman did not impress me as
an individual influenced by or imbued with this tendency.
6 The record contains no evidence suggesting that Respondent sought to
invoke the protective machinery of the civil law enforcement entities or of
the Board prior to March 22.
Conclusions
I find that Respondent violated Section 8(aX3) and (1) of
the Act by terminating the employment of Dorothy Gerdes
and Alice Nell Adams on March 22, and by issuing a
warning notice to Helen Woodall.
It is Respondent's contention that Gerdes and Adams
were terminated because they threatened and verbally
abused Fay Ramirez in an impermissible manner. It is
Respondent's further contention that Woodall was subject-
ed to a lesser form of discipline for her involvement with
Ramirez on the afternoon of March 16, because she
abstained from overt conduct of an objectionable nature
with respect to Ramirez. Respondent avers that its
disciplinary actions were within the realm of management
prerogative and were not motivated by a desire to
discourage union activity.
I conclude that the reasons advanced by Respondent are
pretextual and that Respondent was motivated by a desire
to eliminate from the employee complement known
proponents of the Union.
I find upon ample record evidence that prior to March
16, and specifically on March 22, Respondent was aware
that Gerdes, Woodall, and Adams each supported the
Union and its then viable effort to achieve recognition as
the collective-bargaining representative of Respondent's
employees. I further find that, despite disquieting reports of
aggressive organizing activity on the part of the Union, and
its supporters, there was nothing to manifest to Respondent
that the activities were egregious or unprotected, or that
tied Gerdes, Woodall, or Adams to these activities. 6 In
point of fact, disputes among employees had not been
uncommon, and prior to March 16, Ramirez had been a
principal in some of them. Thus, the record reveals that
allegations of improper conduct emanating from one
employee with respect to the in-plant behavior or conduct
of others were not new to management and supervision.
Nothing in the record suggests that the alleged discrimina-
tees, individually or as a group, possess the reputation for
aggressive or aberrant behavior. On the other hand, both
by observations of Ramirez as she testified at the hearing
as a witness before me and indicia clearly discernible on
the face of the record suggest that Ramirez possessed a
rigid standard of conduct and was not deft in diplomacy or
human relations. Moreover, the record evidence suggests,
and I find, that Respondent had sound basis for knowing
or suspecting that Ramirez was not sympathetic either to
the Union or to the efforts of her coworkers in endeavoring
to further the principle of collective representation.
Additionally, the March 16 incident as reported by
Ramirez occurred openly in the plant, at break time, in an
area which Respondent's management and supervision
knew from past experience was daily frequented by many
employees. These considerations manifestly placed Re-
spondent on notice that, if not fanciful, Ramirez' version of
the frightening and threatening overtones of the interlude
may have been at least overdrawn. This conclusion became
particularly requisite, as I view the record, by reason of the
discernible variances between Ramirez' oral reports of the
738
TEKFORM PRODUCTS CO.
incident and her written statement given during the course
of the investigation. Significantly, the written version to
which Ramirez affixed her signature contained none of the
allegations of distress, fear, and apprehension over physical
well-being which Ramirez expressed in her oral interviews.
The more circumspect nature of Ramirez' written state-
ment should clearly have put management on notice that
further indepth inquiry was essential. Only the most casual
and truncated undertaking occurred in the form of an
interview with Cockrel. Although common insight into the
worktime routine of employees compelled the conclusion
on the part of management that individuals other than the
principal participants may have observed and heard
important facets of the exchange involving Ramirez, none
of them were interviewed. Significantly, in derogation of
practice and policy, management abstained from inter-
viewing or taking statements from immediate supervision
or lead personnel. A disciplinary decision was reached
without giving the employees affected a meaningful
opportunity to advance their version. The termination
meetings were, in this respect, pro forrna and provided no
forum for explanation by the disciplined employees.
Indeed, the proceedings were so stereotyped that Gerdes,
who the credited evidence establishes was not involved in
any dialogue or confrontation with Ramirez on March 16,
was disciplined merely on the strength of Ramirez'
unsubstantiated report, despite Gerdes' protestations of
noninvolvement. This conduct on the part of Respondent
is inconsistent with the concept of an employer motivated
solely by a desire to protect employee interests in worktime
safety and physical well-being. What was manifestly
required in the circumstances here pertaining was a
comprehensive and evenhanded investigation designed to
tap all sources of insight, information, and intelligence. Not
only was this not undertaken in any meaningful way, but
the investigation was so limited in scope and so inbred in
character as to require the conclusion, which I reach, that it
was purposely so to serve an unlawful motive. This being
so, it is unnecessary to determine whether, in the abstract,
Respondent acted, in part, because, objectively, it preferred
Ramirez' work skills to those possessed by any or all of the
disciplined employees. It did not come to that. Respondent
seized on Ramirez' report as a seemingly sufficient
foundation for tactically combating the union effort by
eliminating two proponent employees from the work
complement. This tactic, predicated upon an unlawful
pretext, was impermissible under Section 8(a)(3) of the
statute. Thus, there arises in this matter no impermissible
substitution of judgment on the part of the trier of fact as
to the propriety of the discipline imposed. A violation of
Section 8(a)(3) and (1) of the Act resulted from the March
22 termination of Dorothy Gerdes and Alice Nell Adams
and from the warning notice issued to Helen Woodall.
b. Interference, restraint, and coercion
(1) Employee benefits announced
At the outset of his employment in August 1975, in his
capacity as personnel manager, Michael Wise was in-
' Ronald Chalman testified to this effect. The testimony of Ronald
Gould and Robert Gordon establishes that this document was presented to
new employees, at least those hired in 1971 and previous years.
formed by Ronald Chalman who employed him that one of
his responsibilities would be the preparation of an
employee handbook. To assist Wise in this undertaking,
Chalman made available to him the draft booklet which
had been formulated and prepared under the guidance of a
management consultant firm. This booklet, which was
compiled in 1973, had been left in a dormant stage in that
it was never officially adopted and therefore was never
distributed to employees. There existed, when Wise was
hired in August 1975, an eight-page document defining in
abbreviated form the personnel policy of the Company,
including employee benefits and company "obligations"
towards its employees. As amended in certain particulars,
this document remained in effect in August 1975 when
Wise received his instructions from Chalman concerning
the preparation of an employee handbook.7 The stated
policy of the Company, as defined in the document, was to
classify employees who had completed their probationary
period into job categories and pay levels commensurate
with their abilities. Further, with respect to wage compen-
sation, the document contained the following statement:
Pay scale levels are available to each employee
identifying the pay standard for each skill level in his
department. Tekform will strive to provide the best
wage commensurate to equivalent work done by other
companies in the Orange County area.
* *
Tekform management believes it is in the best interests
of both the company and the employee to periodically
review each permanent employee twice a year. The
supervisor of each department is obligated to meet
personally and alone with each of his people in March
and October of each year to review progress on the
employee and self-improvement goals for the following
review. This will be maintained on the employee record
card.
Based on the supervisor's findings relative to the
employee's output, quality, improvement or some other
form of "merit," a request for upgrade in classification
will be made and submitted to management with the
basis for the increase so indicated.
The document specified six paid holidays for employees,
but prior to August 1975 one additional holiday was
included so that when Wise joined Respondent's organiza-
tion, Respondent provided the following paid holidays:
New Year's Day, Good Friday, Memorial Day, Fourth of
July, Labor Day, Thanksgiving Day, and Christmas Day.
The document also contained a provision specifying 16
different items of "misconduct," subjecting employees
initially to a verbal warning from their supervisors, to be
followed by a written warning. Included in the listing of
activities subject to written warning were "solicitations of
any kind during working hours" and "threatening, intimi-
dating, coercing or interfering with other employees or
supervisors."
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As an integral element of his instruction to Wise
concerning the preparation of an employee handbook,
Chalman directed Wise to consider the matter of wages, a
merit increase, wage progression program, job classifica-
tion, paid holidays, and a grievance procedure.
Commencing in October, Wise undertook a survey of
wages and holiday benefits and began the evaluative
process relative to the other facets of the assignment which
had been given to him by Chalman. No final determina-
tions were reached. On December Il, Chalman wrote a
memorandum to Wise as follows:
Pursuant to the previous discussions we have had
regarding review of our wage structure, please meet
with me, a week from today, to review your progress
and comparable wage and benefit packages available in
the Orange County area. You are also behind on the
new Employee Policy Handbook that we have been
working on. I know you are extremely busy but this
should be expedited.
We know the pressures which will be created by the
$2.30 minimum wage in January and must explain both
to the employees and the supervisors that your task will
be complete by the March review period. Shall await
our meeting.
A meeting transpired between Wise and Chalman prior
to Christmas. The analysis previously undertaken by Wise
had indicated to him the need for modification of the
existing merit system of wage progression. He also
determined that the open-door policy which was in effect
had become outdated and that a formal grievance
procedure was necessary. Chalman approved these recom-
mendations at the December meeting and it was also
decided that the question of wages and the related issue of
rate progressions should be finally resolved prior to the
contemplated March 1976 wage review. It was further
decided at the meeting that two additional paid holidays
should be granted to coincide with the average number of
holidays provided by employers in Orange County where
Respondent's business enterprise was located.
In the ensuing weeks, decisions were reached with
respect to the content of the handbook. 8 Thereafter, in
February and March drafts of the material to be included
in the new employee handbook were distributed to
managerial personnel and to corporate headquarters and
modifications were made. Subsequently, a draft was
submitted to the printer and a "blue-line" rendition was
returned by the printer to Wise. The "blue-line" copy was
submitted to counsel for study and, prior to March 22, he
advised a modification in language in the proposed section
covering solicitations. Accordingly, that section was modi-
fied to read as follows:
" The specifics of the wage rates and the final drafts of the job
classification descriptions were achieved prior to March I but the testimony
of Wise and Chalman is somewhat imprecise as to exactly when. It is clear
from the record that no final provisions dealing with wage rates and rate
progression were approved at the December meeting.
9 I have carefully evaluated the testimony of Robert Gordon and
Michael Wise in reaching a determination with respect to the approximate
date of the meetings at which the handbook was distributed. Wise credibly
testified that during the course of the group meetings each employee in
There shall be no solicitation for any purpose during
your working time.
There shall be no distributing of written or printed
matter of any description, or soliciting during working
time or in working areas. Each year, Tekform donates
to the United Fund Crusade in our employees' name.
This donation will be posted for your information.
The modification suggested by counsel was incorporated
into the "blue-line" copy which was resubmitted to the
printer. By early May, the printed handbook was returned
to Respondent, and, during the first 2 weeks of May,
separate meetings were held by Wise with groups of 15 to
20 employees, during which the handbook was distributed
to each employee and the contents thereof discussed in
detail.9
In the meantime, during the month of March union
proponents circulated a flyer posing the rhetorical ques-
tions:
WHEN are we going to get our March wage increase?
* *
WHY don't we have a grievance procedure that
includes arbitration?
It is undisputed that no general announcement pertaining
to the matters contained in the handbook had been made
prior to its distribution. However, by memorandum dated
March 22, and posted on plant bulletin boards, the
employees had been informed in essential terms of the
reach of the company rule "pertaining to solicitations and
distribution of literature in working areas." In this regard,
the March 22 memorandum contained the following:
There have also been reportings of solicitations for
the union during working time and distribution of
union literature in working areas.
So there is no misunderstanding of company rules,
we will again reiterate the longstanding policy on
solicitation and distribution of literature.
"There will be no solicitation during working
time. There will be no distribution of literature in
working areas by any employee."
The record contains credited testimony revealing that
during relevant times prior to March 22 employees and
members of supervision had participated in and been
aware of solicitations conducted in the plant during
worktime for a variety of miscellaneous purposes. Addi-
tionally, printed material had on occasions been distribut-
ed in the work areas of the plant on worktime, and this had
come to the attention of supervision as well as employees.
With respect thereto, and with reference to the rules
attendance received a copy of the handbook. He further placed the meetings
as transpiring in early April, although he conceded that his recollection in
this regard could be faulty. On the other hand, Gordon testified credibly
that he was in layoff status during the first 2 weeks of May and had not
received or been aware of the contents of the handbook prior to his layoff.
He testified further that he received a copy of the handbook when he
returned from layoff on or about May 15. Gordon's testimony constitutes
the most reliable basis for determining the approximate distribution date of
the handbook.
740
TEKFORM PRODUCTS CO.
governing solicitations, the March 22 memorandum con-
tained the following:
These rules include all forms of solicitation and
literature such as, Tupperware, honey sales, jewelry
sales, furniture and automotive sales, discount tickets,
by individuals of any business ventures, unions or other
organizations. This is not an all inclusive list but
examples of activity which is not allowed and will be
enforced. [Emphasis supplied.]
The booklet as distributed to employees and promulgat-
ed in its final form, contained the following provisions:
Wage Policy
Administration
Tekform policy provides for the establishment and
maintenance of a formal wage plan covering all job
classifications. Each job is assigned to a particular
grade and corresponding rate range that is commensu-
rate with wages paid or comparable with all other
companies in this area. The Personnel Department is
responsible for the overall administration of the wage
program.
Rate Range
The rate range in each case shall consist of a
minimum and maximum job rate. As indicated in the
following paragraph, an employee shall advance to the
job rate of his range by automatic progression.
Rate Progression
An employee shall receive an automatic increase of
ten cents (.10) per hour after satisfactorily completing
his sixty (60) day probationary period, and an increase
of ten cents (.10) per hour, or more in certain steps,
each six (6) months work as related to hire date, until
the maximum job rate of the classification is reached.
Additionally, included in the booklet and announced as
paid holidays were the day before New Year's Day and the
day before Christmas Day, as well as the seven paid
holidays previously available to employees. The booklet
also contained a provision making available to all perma-
nent full-time employees of the Company, at the age of 21,
a monthly investment plan through payroll deductions.
Included in the booklet also was a detailed statement of a
three-step employee grievance procedure. Under the
heading "Rules of Conduct" the booklet provided: "Com-
mitting any of the following rule infractions or related
improper conduct will be sufficient grounds for discipline,
up to and including termination." There were 32 different
categories of conduct specified as falling within the scope
of this rule. Moreover, the booklet contained the following
provision:
it The foregoing findings are based on a composite of the testimony of
Robert Gordon, Ronald Gould, Ronald Chalman, and Michael Wise.
Respondent introduced no written document supporting Chalman's conjec-
tural testimony to the effect that he had posted a wntten notice pertaining to
Company Security Regulations
Security regulations are a legal business necessity.
Employees may be required to display the contents of
packages, lunch boxes, brief cases, and the like, to plant
security representative upon entering or leaving the
Company premises.
At pertinent times up to and including the Christmas
season of 1975, it had been Respondent's practice,
understood by rank-and-file employees, to hold a Christ-
mas dinner in the plant in midday on the day before
Christmas. Following the completion of the dinner,
employees had tacit freedom to leave the plant and
dispense with their work duties for the balance of the day.
No similar practice or policy pertained with respect to the
day before New Year's Day.
In 1973, Respondent's parent company decided on a
stock purchase plan to be made available to all personnel.
Letters and brochures were prepared for distribution to
each employee and in January 1975 a communication was
dispatched to Chalman with respect to the plan. Chalman
issued a directive to his subordinates to distribute the letter
and, in May 1975, he urged the managers and departmen-
tal heads to undertake steps necessary to stimulate general
interest in the plan. Participation of the rank-and-file
employees was minimal, but some of the supervisors did
communicate to rank-and-file employees the availability of
the plan. No general announcement in written form was
made. The availability of the plan was not generally known
among rank-and-file employees prior to the May meet-
ing.1o
Conclusions
Respondent concedes that the new handbook promulgat-
ed a wage progression policy, a grievance procedure, and
two additional holidays which had not theretofore been in
effect or offered employees. Moreover, Respondent con-
cedes that the no-solicitation rule set forth in the March 22
memorandum to all employees and contained in the
handbook was different from that which had existed
theretofore in any promulgated or written form. However,
it is Respondent's contention that the wage, grievance
procedure, and holiday decisions had been reached in
December prior to the commencement of the union
organizing effort, and that only clerical and ministerial
prerequisites delayed the immediate implementation and
promulgation thereof. With respect to the modified no-
solicitation rule, it is Respondent's contention that the
change was made upon advice of counsel and for the single
purpose of bringing the preexistent rule into conformity
with the Act. In this regard, it is Respondent's assertion
that no imputation of impropriety under Section 8(aX I) of
the Act may be indulged in light of Respondent's effort to
comply with the statute. Finally, Respondent contends that
the stock purchase plan was not a new benefit but was one
which had been available to all employees for approxi-
the stock purchase plan on employee bulletin boards. I find that Chalman
limited his efforts to inform employees to oral communications between
supervision and the rank-and-file employees.
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 2 years prior to the advent of the Union. In sum,
Respondent avers that, in all of the prevailing circumstanc-
es, it was not compelled to abstain from implementing
agreed-upon or existing benefits or employee policies
merely because of the occurrence of the union organizing
campaign.
With respect to the allegations of the complaint alleging
the imposition of more stringent policies and rules, it is
Respondent's view that the General Counsel failed to
sustain his burden of proof.
On the other hand, the General Counsel contends, and I
find, that by virtue of the distribution of the employee
handbook in May, Respondent announced and implement-
ed (a) a restructuring of its job classifications and wage
rates with a consequential effect of granting a general
increase in wage rates; (b) the establishment of a formal
grievance procedure in lieu of the informal "open door"
policy previously extant; and (c) the addition of two
holidays to be formally imbedded in the benefit program
available to employees. It is the General Counsel's view
also that, by and through the handbook, Respondent
announced for the first time the availability to employees
of a monthly stock purchase plan. Moreover, it is the
contention of the General Counsel that through the device
of the employee handbook, Respondent effectuated and
promulgated a new, more stringent, rule pertaining to the
discipline of employees for named offenses. The record
supports this latter contention. Additionally, the General
Counsel correctly contends that the no-solicitation rule
contained in the employee handbook and previously
disseminated through a March 22 memorandum to
employees was one more stringent than that which had
been enforced in the plant prior to the advent of the Union.
There remains the question whether, given the entire
circumstance of the announcement, Respondent violated
Section 8(a)(1) of the Act.
At the outset, it is essential to hold, as I do, that, through
the dissemination of the employee handbook, Respondent
promulgated and announced new rules which, on their
face, and upon application, would have the inevitable
effect of circumscribing theretofore existing rights of
employees to be accorded a warning notice for a first
offense against plant rules and to be free from search of
their personal effects. As the General Counsel correctly
contends, the booklet abandons the preexisting rule
governing plant discipline which had provided for written
and oral notice, and substitutes in its stead a rule granting
broad discretion to management and supervision, includ-
ing the option of summary termination, as a disciplinary
measure for an initial breach of the worktime conduct and
behavior code by an employee. Moreover, as found, no
"search rule" had pertained prior to May. It is not enough
for an employer to contend that, in a circumstance free of
antiunion considerations, the promulgation of rules of this
character would fall within the proper prerogative of
management. Here, an election was pending when Respon-
dent announced these rules and the restrictive character
and nature of these rules was such as to render likely the
ready discernment by employees of the nexus between this
announcement and the revised no-solicitation rule which
modified established plant policy and which was at odds
with the recognized plant practice of according optimum
freedom to both employees and supervision alike to engage
in solicitation in furtherance of a variety of commercial
and charitable causes. Respondent made no evidentiary
showing from which it might be concluded that the
modified disciplinary rule or the search rule was adopted
prior to the organizing effort and it is clear that the revised
no-solicitation rule imposed restrictions calculated to
circumscribe the freedom of communication previously
enjoyed within the plant by individual employees. The
imposition of this rule in the midst of a union organizing
campaign and in variance with past practice with respect to
other forms of solicitation was unlawful under Section
8(a)(1) of the Act. Moreover, Respondent's conduct in
terminating three union advocates for pretextual and
discriminatory reasons discloses a willingness on its part to
resort to improper ends to achieve a defeasance of the
Union's following. For these reasons, I find that the
evidence supports the General Counsel in his contention
that Respondent imposed more stringent policies govern-
ing terms and conditions of employment in order to
discourage the union or concerted activities of its employ-
ees. It is in context of this finding and of the discrimination
visited upon Adams, Gerdes, and Woodall that the May
announcement of improved wages and benefits must be
weighed.
It is an established principle of law that an employer
possesses the legal duty while a representation proceeding
is pending to decide whether or not to grant benefits to unit
employees solely on the basis of what would have been
done if a union were not in the picture; e.g., The Gates
Rubber Company, 182 NLRB 95 (1970). On the other hand,
the Supreme Court has held that an employer violates
Section 8(a)(1) of the Act if, "while a representation
election is pending," benefits are conferred 'for the purpose
of inducing employees to vote against the union." N.L.R.B.
v. Exchange Parts Company, 375 U.S. 405, 409 (1964).
[Emphasis supplied.] Moreover, in Exchange Parts, the
Supreme Court stated that Section 8(a)(l) of the Act
prohibits, "conduct immediately favorable to employees
which is undertaken with the express purpose of impinging
upon their freedom of choice for or against unionization
and is reasonably calculated to have that effect." The
timing of wage increases or other benefits unilaterally
conferred is, of course, a significant factor in 8(a)(l) cases,
but findings of illegality may, and frequently do, rest on
evidence separate from inferences to be drawn from the
timing of a grant of benefits. See N.L.R.B. v. Gruber's Super
Market, Inc., 501 F.2d 697 (C.A. 7, 1974); N.LR.B. v.
Tayko Industries, Inc., 543 F.2d 1120 (C.A. 9, 1976); Crown
Zellerbach Corporation, 225 NLRB 911 (1976); The Singer
Company, 199 NLRB 1195 (1972). In the absence of
business necessity, an employer violates Section 8(a)(1) of
the Act by "continuing to offer improvements in wages and
working conditions and by implementing improvements in
wages and working conditions, after notice of the pendency
of union activities ... " William P. Owen d/b/a Owens
IGA Foodliner, 188 NLRB 277, 288 (1971). However, in the
ultimate, whether the conduct violates Section 8(aXl1) must
be determined in light of all the circumstances and not on
the basis of per se doctrinal concepts. Champion Pneumatic
742
TEKFORM PRODUCTS CO.
Machinery Co., 152 NLRB 300, 306 (1965). The instant
record reveals an amalgam of conduct on the part of
Respondent sufficient to establish that, even in the absence
of a union organizing effort, Respondent would have
granted and announced wage rates and a wage progression
policy, as set forth in the employee handbook. Further, the
evidence of record warrants the conclusion, which I reach,
that, absent the Union, Respondent would have adopted a
grievance procedure as defined in the employee handbook,
added two paid holidays, and would have promulgated the
stock purchase plan in written form. The stock purchase
plan had been in existence for some months, and prior to
the emergence of the Union, supervision had conveyed this
information to at least some of the rank-and-file employ-
ees. For reasons relating inferably to financial capability,
there appears to have been no widespread interest in the
plan. But it was available, and it is illogical and unwarrant-
ed to assume that in publishing a comprehensive statement
of policies and benefits Respondent would not have
included a summary of terms of this existing benefit.
Contrary to the General Counsel, I find insufficient
evidence to support the notion that Respondent leisurely
formulated the handbook and expedited the process only
when it became aware of organizational interests on the
part of its employees. The evidence is to the contrary and
discloses to my satisfaction that, in December, Chalman
endeavored to speed the process and that by late February
Respondent had given final formulation to the pertinent
wage, grievance, holiday, and stock purchase provisions of
the handbook. There is insufficient evidence to suggest that
the preliminary interests and efforts of employees in
organizing as had transpired prior to March I motivated
Respondent to give priority to the publication and
distribution of the handbook. While Respondent may not
have deferred preparation of the handbook, neither did it
program its final printing and issuance to coincide with the
preelection period. I find that Respondent came forward
with an explanation, other than the pending election, with
respect both to the chronology of the decisionmaking
process and the announcement itself. With full awareness
of the rationale underlying Styletek, Division of Pandel-
Bradford, Inc., 214 NLRB 736 (1974), cited by the General
Counsel in support of his contentions, and with due regard
to the existence of Respondent's hostility towards the
Union, I conclude that the evidence does not preponderate
in favor of a finding that Respondent modified either the
time, manner, or form of its announcement of the
handbook provisions dealing with wages, the grievance
procedure, holidays, and stock purchase plan to serve
antiunion ends. Clearly, as I view the record, given the
mandate that it proceed as it would have done if the Union
had not been in the picture, if Respondent had purged the
booklet of the other provisions previously enumerated as
possessing antiunion foundation, the announcement of the
wage, grievance, holiday, and stock purchase provisions
would stand unscathed by the provisions of Section 8(aX)(l)
by reason of their prior origins and formulation extraneous
to the organizing effort. I find no warrant for reaching a
different result merely because they were entwined in the
1 The credited testimony of Robert Gordon and Steve Seebold
establishes the foregoing.
handbook with tainted provisions as found above. To
ignore cogent evolutionary background and context, and to
paint the picture all black or all white, serves only to
simplify the matter for analytical and decisional purposes,
but it does violence to the admonition that per se
approaches must be eschewed. Cf. Champion Pneumatic
Machinery Co., supra. Because Respondent acted unlawful-
ly in including in the booklet certain provisions, and then
proceeding to an announcement of them, does not render
culpable the announcement of all new benefits. Cf.
Dynacon Plastics and Textiles Division of Medline Industries,
Inc., 218 NLRB 1404 (1975).
I find unconvincing the notion advanced by the General
Counsel that employees had generated no impetus for a
wage increase and a grievance procedure. The steering
committee pamphlets issued in March during the campaign
had raised questions revealing interest in both areas. But
this begs the question. The facts of record are that prior to
the advent of the Union, the operative decisions on wage
policy were made and implementation of those decisions
proceeded. There is only conjecture to support the thesis
that the rates were modified or the rate progression concept
adjusted to counter the organizing effort. The same holds
true of the grievance and stock purchase provisions.
Manifestly the decision to add two paid holidays had been
reached in December. Their promulgation had to be
accomplished and the promulgation proceeded according
to a reasonable schedule and was accomplished in
handbook form as was contemplated by management
before the first stirrings of employee interest in the Union.
Having reached decisions on these matters, free from union
considerations, Respondent was entitled, if not compelled,
to proceed to announce the effectuation of the provisions
in normal course at a time when, absent the Union, the
announcement would have been made. It was not requisite
that each new benefit be announced piecemeal, as it were,
and it is consistent with proper personnel practice that they
be announced together, at one time. I find that Respondent
followed a reasonable and proper procedure. If it had not
done so, and had withheld benefits already decided upon
merely because a union was in the picture, Respondent
might well have risked a charge of unlawful deprivation of
benefits. Cf. McCormick Longmeadow Stone Co., Inc., 158
NLRB 1237, 1241-42(1966).
(2) The union insignia incidents
During the first 2 weeks of March employees engaged in
conversations during their break periods and at lunchtime
with respect to the advantages and disadvantages of union
representation. Some advocates of the Union engaged in
card signing activities during their nonwork time at
Respondent's premises and literature in support of the
Union was brought onto the premises. A yellow and blue
UAW paper insignia approximately 3 1/2 inches in
diameter was in the possession of some of the employees as
they worked in the plant during the middle of March."
In the early stages of the union organizing effort,
Respondent held a meeting which was attended by
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory employees and at which the permissible ground
rules for countering union organizing campaigns were
delineated. The dissemination of union literature was a
topic of discussion during the course of the meeting.
Ricardo Vallero attended the meeting. Subsequently, in
mid-March, while passing through the toolroom, Vallero
observed what he considered to be union literature
displayed by employees Gordon and Seebold at their work
stations. Thus, Vallero observed UAW insignia displayed
by both Gordon and Seebold and he observed a sheet of
union literature on display at Seebold's workbench.
Accordingly, Vallero informed Robert Peet that union
literature was being displayed by employees in the work
area and inquired if this were permissible. Peet informed
Vallero that it was not and gave his approval to Vallero to
accomplish its removal.12 Vallero went to the plant and
spoke initially with Gordon. Vallero approached Gordon
while Gordon was working at his workbench and pointed
to the UAW insignia which Gordon had placed on top of
his toolbox and which was exposed to view. Vallero
requested Gordon to remove the insignia, noting the
insignia had to be kept "out of sight." Gordon removed the
insignia and placed it in a drawer in his toolbox. He said he
did not realize that it was "not legal" to display the insignia
on his toolbox.
After speaking with Gordon, Vallero approached See-
bold who had in his possession at his work station a coffee
cup with an insignia affixed and his personal toolbox
bearing a UAW insignia. Affixed to his toolbox, also, was a
sheet of union literature readily identifiable as such.
Vallero asked Seebold to remove the literature and the
insignia and Seebold complied with his request.' 3 Respon-
dent introduced no evidence suggesting that substantial
business necessity justified a ban on the display of union
insignia.
Conclusions
Respondent concedes, and I find, that Vallero violated
Section 8(a)(1) of the Act when he requested employees to
remove UAW insignia from personal property in their
possession at their work stations.14 General Counsel
correctly contends that during the absence of "special
circumstances" shown by the employer to exist and to
justify a prohibition against them, union insignia of the
variety involved in the instant matter may not be
prohibited. See Fabric Services, Inc., 190 NLRB 540, 541
(1971). The prohibition here imposed by Vallero interfered
with rights guaranteed employees under Section 7 of the
Act and violated Section 8(a)(1) of the Act. See Fabric
Services, Inc., supra; Mclndustries, Inc., 224 NLRB 1298
(1976). Contrary to Respondent, I find this violation does
not stand in isolation nor is it de minimis, particularly in the
absence of record evidence revealing that Respondent took
steps to counter Vallero's instructions or, when knowledge
of Vallero's activities came into its possession, to inform
employees of their rights with respect to the display of
union insignia.
12 The credited testimony of Ricardo Vallero and Robert Peet establishes
the foregoing.
1a The foregoing is based on the testimony of Robert Gordon, Richard
Seebold, and Ricardo Vallero.
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
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that, on March 22, Respondent discrimi-
natorily terminated the employment of Alice Nell Adams
and Dorothy Y. Gerdes, I shall recommend that it offer
each of them immediate and full reinstatement to their
former position of employment, or, if that position is no
longer available, to a substantially equivalent position of
employment, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest in accordance
with the policy of the Board, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Having found that Respondent, for discriminatory
reasons, issued a written warning notice or reprimand to
Helen Woodall, I shall recommend that Respondent be
ordered to revoke said written notice or reprimand and
expunge said notice or reprimand from its files, together
with all references thereto as may be contained in
Woodall's personnel record or any other record maintained
by Respondent. I shall further recommend that Respon-
dent be ordered to notify Helen Woodall, in writing, that it
has complied with this directive.
Having found that Respondent engaged in conduct in
violation of Section 8(aX)() of the Act, by imposing more
stringent rules of discipline and behavior in the form of a
modified procedure for assessing discipline for breach of
plant rules, and by imposing a search rule; and having
further found that Respondent gave disparate application
to an otherwise valid no-solicitation rule, all for the
purpose and objective of interfering with the rights
guaranteed employees under Section 7 of the Act, to freely
engage in union or other concerted activities, I shall
recommend that Respondent cease and desist prospective-
ly from announcing rules for the purpose of interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act. However, nothing
contained in this recommended Order shall be construed as
14 The General Counsel raises no issue with respect to that portion of
Vallero's instructions to employees as related to the display of readily
identifiable union literature.
744
TEKFORM PRODUCIS CO.
requiring Respondent to cease giving effect in a lawful
manner to the announced rules.
Upon the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Tekform Products Company, a Division of Bliss &
Laughlin Industries, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America - UAW is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By terminating the employment of Alice Nell Adams
and Dorothy Gerdes and by issuing a written warning
notice or reprimand to Helen Woodall, Respondent
engaged in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. By announcing a rule modifying the procedures for
determining the discipline of employees for breach of plant
rules, and by establishing a search rule, both for the
purpose of interfering with, restraining, and coercing
employees in their right to engage in activities in support of
the Union, or any other labor organization, Respondent
engaged in unfair labor practices in violation of Section
8(aX l) of the Act.
5. By giving disparate application to an otherwise valid
no-solicitation rule, for the purpose of interfering with,
restraining, and coercing employees in the exercise of their
rights to engage in protected or concerted activities on
behalf of the Union, or any other labor organization,
Respondent engaged in unfair labor practices in violation
of 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 to the extent set forth above, Respondent
engaged in no other conduct in violation of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 15
The Respondent, Tekform Products Company, a Divi-
sion of Bliss & Laughlin Industries, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America - UAW, by
unlawfully terminating the employment of its employees or
issuing written warning notices or reprimands, or in any
other unlawful manner, discriminating against employees
with respect to their hire or tenure of employment or any
'5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
other term or condition of employment in violation of
Section 8(a)(3) and (1) of the Act.
(b) Unlawfully announcing or imposing more stringent
rules governing the terms and conditions of employment of
employees, or giving disparate application to valid rules for
the purpose of interfering with, restraining, or coercing
employees in the rights guaranteed in Section 7 of the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in self-organization, to bargain collectively through repre-
sentatives of their own choosing, to act together for
collective bargaining or mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Alice Nell Adams and Dorothy Y. Gerdes
immediate and full reinstatement to their former positions
of employment, or, if those positions are no longer
available, to substantially equivalent positions of employ-
ment without prejudice to their seniority or other rights
and privileges, and make each of them whole for any loss
of wages which she may have suffered by reason of the
discrimination against her, in accordance with the recom-
mendations set forth in the section of this Decision
entitled, "The Remedy."
(b) Revoke the written warning or written reprimand
issued to Helen Woodall and expunge all references and
records pertaining thereto from the personnel file or other
records of Respondent.
(c) Notify Helen Woodall, in writing, that the written
warning or written reprimand issued to her on March 22
has been revoked and that all references in the personnel
files and other records of Respondent have been expunged.
(d) 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 records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(e) Post at its Anaheim, California, plant copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms to be provided by the Regional Director
for Region 21, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those specifically found in this Decision.
'6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
745