Ace Machine Co.

ACE MACHINE CO. 623 James F. Stanford, Inc. d/b/a Ace Machine Co. and United Steelworkers of America, AFL-CIO- CLC. Case 8-CA-12140 May 20, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 13, 1979, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respond- ent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- ministrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge as modified herein and to adopt his recom- mended Order as modified herein. 2 ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find no merit in Respondent's implied allegation of bias and prejudice on the part of the Administrative Law Judge. Upon our full consideration of the record and the Administrative Law Judge's Deci- sion, we perceive no evidence that the Administrative Law Judge pre- judged the case, made prejudicial rulings, or demonstrated a bias against Respondent in his analysis or discussion of the evidence. We do correct the following inadvertent errors in the Administrative Law Judge's Decision. In sec. III,B, par. 7, of his Decision, the Adminis- trative Law Judge stated that Wolf told Hewitt that if the latter wanted to work only 48 hours he should seek employment at a union shop. The record indicated that the time frame mentioned was "40 hours." In sec. IIl,C,I, par. 1, of his Decision, the Administrative Law Judge referred to radial presses as "radio pressers." And, in sec. IlI,C,3, par. 9, he stated that employee Hewitt's discharge was "legally motivated" when it is clear from the rest of his Decision that he found the discharge was ille- gally motivated. 2 In par. 2(c) of his recommended Order and in the section of his Deci- sion entitled " The Remedy," the Administrative Law Judge provided, inter alia, that Respondent immediately execute the contract agreed to by the parties on July 3, 1978. However, inasmuch as, automatic renewal clause aside, that contract, by its terms, will have expired before the issu- ance of this Decision, we shall require Respondent, at the Union's option, either to sign the above contract, or to bargain in good faith for a new agreement, and, if an understanding is reached, to embody such under- standing in a signed agreement. In the event the Union requests Respond- ent to sign the aforesaid contract, Respondent shall make whole all em- ployees covered by it for the loss of benefits which would have accrued to them had Respondent executed the contract within a reasonable time after the same was proffered to Respondent for signature, with interest to be computed as set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." We shall modify the recom- mended Order accordingly. See Worrel N.ewspapers. Inc., 232 NLRB 402 (1977). 249 NLRB No. 73 1. The Administrative Law Judge found that the no-solicitation rule promulgated by Respondent after commencement of the union campaign was in- valid, and concluded that its continued mainte- nance constitutes a violation of Section 8(a)(1) of the Act. We agree with this conclusion but do so for the reasons set forth below. On May 11, 1977, Respondent posted a notice to its employees on its own letterhead which read as follows: ALL EMPLOYEES Re: No Solicitation Policy We are all aware of the solicitation on behalf of union representation that has recently oc- curred. This solicitation has seriously affected our productivity since much of the talking and planning took place on Company time. This loss of production is not in the best interests of employees or the Company. In fact we have both been harmed by it. Consequently a "no solicitation" rule is being added to the rules of conduct under the first category making an employee subject to discharge for a first of- fense. No outsiders will be allowed in the shop for solicitation purposes for any reason with the single exception of the United Fund Cam- paign. Your cooperation in this matter is appreciated. J. S. WOLF Respondent's president, Wolf, testified that Re- spondent's no-solicitation rule is embodied in the second paragraph of the notice which refers to "outsiders" and was designed to prevent solicitors from entering its premises on behalf of the Union. Apparently, in light of this testimony, the Adminis- trative Law Judge concluded that since Respond- ent specifically permitted outside solicitation for the United Fund Campaign, while prohibiting such solicitation for the Union, Respondent thereby vio- lated Section 8(a)(l) of the Act. It may be that Respondent intended to restrict the application of its no-solicitation rule to nonem- ployee solicitors. Whatever Respondent's intention, however, such a limitation is not clear from the face of the no-solicitation notice read as a whole. Also in the remedy section of his Decision, the Administrative Law Judge recommended that Respondent be ordered to recognize and bar- gain with the Union as the exclusive representative of its employees in the appropriate collective-bargaining unit for a period of no less than I year from the date on which Respondent fully complies with the other terms of the recommended Order. However, the duration of Respond- ent's obligation to recognize and bargain with the Union should be for a reasonable time from the date of compliance and the recommended Order shall be so modified. ACE MACHINE CO. 623 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In fact, the first paragraph seems to imply that so- licitation by employees is also restricted. This inter- pretation is particularly apt since, after discussing the problems occasioned by union solicitation, the first paragraph of the notice explicitly adds the no- solicitation rule to the offenses for which employees are subject to discharge. It is well settled that the reasonably foreseeable effects of the wording of a no-solicitation rule on the conduct of employees will determine its legal- ity, and that where the language is ambiguous and may be misinterpreted by the employees in such a way as to cause them to refrain from exercising their statutory rights, then the rule is invalid even if interpreted lawfully by the employer in prac- tice.3 Thus, we do not reach the question of whether Respondent's policy as interpreted by Re- spondent is lawful, since we find Respondent's policy concerning employee solicitation as promul- gated is, at best, ambiguous. And, we note further that the risk of ambiguity must be held against the promulgator of the rule rather than against the em- ployees who are supposed to abide by that rule.4 Absent a showing that Respondent's no-solicitation rule was necessary to maintain production or disci- pline, it was presumptively invalid.5 Accordingly, since Respondent made no showing here that the rule was necessary, we find its no-solicitation rule to be in violation of Section 8(a)(l) of the Act. 2. On February 12, 1978, Respondent's president interviewed John Hosterman for a supervisory po- sition. In the course of the interview, Wolf in- quired of Hosterman how the latter felt about a union. The Administrative Law Judge found that, since the Board has held that job applicants are guaranteed the rights of employees under Section 7 of the Act, Wolfs interrogation of Hosterman con- cerning the latter's opinion about a union violated Section 8(a)(1) of the Act. We disagree. With the amendment of Section 2(3) and (11) of the Act and enactment of Section 14(a), Congress specifically excluded supervisors as such from the Act's protection. In so doing, Congress was con- cerned, inter alia, with the employer's need to obtain and retain loyal supervisors. 6 In light of this concern, the Board has long held that individuals applying for supervisory positions must be treated as supervisors and, contrary to the Administrative Law Judge, not as employees under the Act.7 D Solo Cup Company, 144 NLRB 1481 (1963). Farah Manufacturing Company, Inc., 187 NLRB 601, 602 (1970). Chrysler Corporation, Eight Mile Road Stamping Plant, 227 NLRB 1256, 1259 (1977). 6 Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 659--661 (1974). 7 See, e.g., Pacific American Shipowners Association. 98 NLRB 582 (1952): and Mapes Hotel. Inc., 230 NLRB 61 (1977). We note that nonem- ployee applicants are distinguished from employees who are seeking pro- Here, although Hosterman was subsequently hired by Respondent as a rank-and-file employee, he was not employed by Respondent at the time of his interview with Wolf for a supervisory position. In these circumstances, we find that Wolfs interro- gation of Hosterman, as a potential supervisor, con- cerning his union sentiments was not violative of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, James F. Stanford, Inc. d/b/a Ace Machine Co., Cuyahoga Falls, Ohio, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraphs 2(c) and (d): "(c) Upon request, sign the written agreement submitted by the United Steelworkers on August 16, 1978, with any inadvertent errors omitted, give retroactive effect to its terms and conditions, and make its employees whole for any losses, if any, they may have suffered as a result of its refusal to sign such an agreement, in the manner set forth in the section of the Administrative Law Judge's De- cision entiled 'The Remedy.' "(d) If no such request is made, bargain collec- tively in good faith with the Union, upon its re- quest, as the exclusive representative of the em- ployees in the appropriate unit, over the terms and conditions of a collective-bargaining agreement and, if an agreement is reached, embody it in a signed agreement." 2. Substitute the attached notice for that of the Administrative Law Judge. motion to supervisory positions. See, e.g., St. Anne's Hospital, 245 NLRB No. 130 (1979). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question any of our employ- ees with regard to any of their other union or protected concerted activities or the union or protected concerted activities of other employ- ees. WE WILL NOT in any manner threaten our employees with reprisals for their support of ACE MACHINE CO 625 any union or for engaging in any protected concerted activities. WE WILL NOT spy on our employees or give them the impression that we are spying upon their meetings or other gatherings or any of their union activities. WE WILL NOT tell our employees that it would be futile for them to support their Union because we would never enter into any agreement with their collective-bargaining rep- resentative, United Steelworkers of America, AFL-CIO-CLC, or any other union of their choosing. WE WILL NOT maintain or enforce any rule or regulation which prevents our employees from engaging in union activity on nonwork- ing time nor will we discriminatorily refuse to permit them to solicit for union or concerted activity purposes while permitting other orga- nizations to so solicit. WE WILL NOT discharge or otherwise dis- criminate against any of our employees in regard to their tenure of employment or other terms and conditions of employment for en- gaging in union activities or other protected concerted activities. WE WILL NOT in any other manner discour- age membership in United Steelworkers of America, or any other labor organization, by discharging either directly or constructively any employee who engages in any activity in support of said Union, or any other union, nor will we transfer any employee from one de- partment to another for like reason. WE WILL NOT refuse to furnish to United Steelworkers of America, as the bargaining representative of our employees in the unit hereinafter set forth, any information necessary for the said Union to have in its possession for the purpose of representing our employees in the said unit as their bargaining representative. WE WILL NOT in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist or be represented by United Steelwork- ers of America, or any local thereof, or any other labor organization, to bargain collective- ly through representatives of their own choos- ing, or engage in other protected concerted activity for the purpose of collective bargain- ing or other mutual aid or protection, or to re- frain from any or all such activity, except as provided by the National Labor Relations Act. WE WILL offer John Hosterman and Wil- liam Hewitt immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent po- sitions, without loss of seniority or other rights and privileges and WE WILL make them whole for any loss of earnings they may have suf- fered by reason of our discrimination against them, together with interest. WE WILL transfer Bessie Belknap back to her former position in the machine department without any loss of seniority and WE WILL also make her whole for any loss of earnings she may have suffered by reason of our dis- criminatory transfer of her to the bench de- partment and any backpay which she may have lost will be paid also with interest. By reason of our failure to execute the aforesaid agreement, WE WILL make whole our employees in the unit represented by the United Steelworkers, for any loss of benefits which may have accrued to them by reason of our failure to execute the collective-bargaining agreement at the time it was offered to us for signature. WE WILL, upon request, execute and retain in force for the period of its duration the col- lective-bargaining agreement which we for- merly had agreed upon and which we refused to sign which was submitted to us by the Union on August 16, 1978; give retroactive effect to its terms and conditions; and make our employees whole, with interest, for any losses they may have suffered as a result of our failure to sign the agreement. If no such request to sign the agreement is made, WE WILL, upon request, bargain collec- tively with the Union over the terms of an agreement and, if an agreement is reached, WE WILL sign that agreement. WE WILL recognize United Steelworkers of America as the bargaining representative of our employees in the following appropriate unit: All production and maintenance employees employed at our Cuyahoga Falls, Ohio, fa- cility, excluding all office clerical employees and professional employees, guards and su- pervisors as defined in the Act. WE WILL provide the United Steelworkers the list of names and addresses of all employ- ees in the aforesaid unit upon the request of the said Union. WE WILL recognize and bargain, upon re- quest, with United Steelworkers of America, and any local union thereof established for the purpose of servicing our employees in the aforesaid unit and for the purpose of servicing ACE MACHINE CO. 625 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the aforesaid agreement which we hereby agree to execute. All our employees are free to become or remain or refrain from becoming or remaining members of United Steelworkers of America, or any other labor organization of their choosing. JAMES F. STANFORD, INC. D/B/A ACE MACHINE CO. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard at Akron, Ohio, upon a complaint issued on September 13, 1978, which complaint is based upon a charge filed on July 26, 1978, by United Steel- workers of America, AFL-CIO-CLC, herein called the Union or the Charging Party. The complaint alleges, in substance, that James F. Stanford, Inc., d/b/a Ace Ma- chine Co., herein called the Respondent or the Compa- ny, through various officials, interfered with the Re- spondent's employees' Section 7 rights by various acts of coercion and restraint, discriminatorily discharged and reassigned employees for engaging in union activities, and, additionally, by various acts, refused to bargain in good faith with the certified representative of the Re- spondent's employees, all of the foregoing in violation of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, herein called the Act. In its duly filed answer, the Respondent, while admitting the juris- dictional allegations of the complaint, denies the commis- sion of any unfair labor practices and, additionally, affir- matively alleges that it was not and is not under a duty to bargain further with the Union because the Union has lost its majority status. At the hearing, all parties were given full opportunity to be heard, to present evidence, and to make oral argu- ment. Oral argument was waived. Briefs have been timely filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record in the case, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation, manufactures precision metal products at its plant at Cuyahoga Falls, Ohio. The Respondent annually manufactures and fur- nishes goods of a value in excess of $50,000 to Goodyear Tire and Rubber Company, which, in turn, annually pro- duces and ships goods of a value in excess of $50,000 di- rectly out of the State where such enterprise is located. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. Il. THE UNFAIR LABOR PRACTICES A. Background and Issues Following a Board-conducted election, the Union, on June 22, 1977, was certified as the bargaining representa- tive of a unit of the Respondent's production and mainte- nance employees. Shortly thereafter, upon the request of the Union, bargaining between the Respondent and the Union commenced and continued through a number of sessions until the Respondent broke off bargaining in September 1978.' With regard thereto, the complaint al- leges that the Respondent did not bargain in good faith and that, in fact, a tentative agreement had been reached but the Respondent had refused to sign the written docu- ment encompassing the terms of the agreement. Counsel for the General Counsel further alleges that, from the date that bargaining began, and especially beginning in 1978, the Respondent began a campaign to cause disaf- fection from the Union among Respondent's employees included in the unit. According to counsel for the Gener- al Counsel, as set forth in the complaint and in his brief, the Respondent allegedly coercively interrogated its em- ployees, threatened employees with reprisals, created the impression of surveillance, told employees that it would never sign a contract with the Union, created the impres- sion that it would be futile for employees to engage in union activity, and, even before the election at which the Union was chosen as the Respondent's employees' bar- gaining representative, established an unlawful, overly broad no-solicitation rule. The General Counsel contends that all of the foregoing acts were and are violative of Section 8(a)(l) of the Act. The Respondent denies all of the foregoing. The Respondent admits that, as further alleged in the complaint, it did discharge two employees who were of- ficers of the Union and additionally transferred another employee, also a union officer, to a less desirable job, but contends that the two discharges were for lawful cause, as was the transfer of the third employee. The General Counsel contends, on the other hand, that the discharges and the transfer were in reprisal for holding union office and otherwise engaging in union activity, and for the purpose of discouraging union membership. This, con- tends the General Counsel, is violative of Section 8(a)(3) and (1) of the Act. The General Counsel further complains and alleges that the Respondent, during the negotiation period fol- lowing the Union's certification, refused to honor the Union's request for necessary information; unlawfully re- fused to execute a written contract which represented, in writing, what the parties had already agreed upon; and, finally, unlawfully withdrew recognition of the Union and refused to deal further with it. In defense, the Respondent contends and maintains that it had reserved the right of ratification of any tenta- tive agreement reached at the bargaining table to its I Unless otherwise specified, all dates herein are in 1978. ACE MACHINE CO. 627 board of directors and that the directors, after reviewing the said written agreement, lawfully rejected the same. Furthermore, the Respondent contends that its failure and refusal to furnish the names and addresses of the Re- spondent's employees, which the General Counsel con- tends were necessary in order for the Union to properly represent the Respondent's employees for which the Union was certified, was a result of company policy not to give out the names and addresses of its employees, that such policy was one of long standing, and, further- more, the Union was furnished a list of employees prior to the election pursuant to the Board's Excelsior rule. Finally, the Respondent argues that, by the date of its refusal to further recognize and bargain with the Union, the Union had lost its majority status and the Respond- ent was under no further obligation to deal with the Union. Thus, upon the foregoing, the issues of the case are framed. Additonally, the case presents subsidiary issues of credibility and the supervisory status of certain indi- viduals. B. Interference, Restraint, and Coercion The Union's organizational campaign evidently began sometime before May 1, 1977. On May 11, 1977, the Re- spondent posted a notice to its employees on the Re- spondent's letterhead announcing its "no-solicitation policy." In testifying, the Respondent's president, Jerome S. Wolf, admitted that this policy, as originally posted, is still in effect, or at least was in effect as of the date of the hearing herein. The first paragraph of that notice began with the sentence: We are all aware of the solicitation on behalf of union representation that has recently occurred. This solicitation has seriously affected our produc- tivity since much of the talking and planning took place on company time. The paragraph goes on to state that, in the best inter- ests of both the employees and the Company, they were adopting a no-solicitation rule which was to be added to the rules of conduct of the Company making an employ- ee subject to discharge for a first offense thereof. The second paragraph, which Wolf admitted summa- rizes the Respondent's present policy, reads as follows: No outsiders will be allowed in the shop for solici- tation purposes for any reason with the single ex- ception of the United Fund Campaign. The Supreme Court has held2 "An employer may val- idly post his property against nonemployee distribution of union literature . . . if the employer's notice or order does not discriminate against the Union by allowing other distribution." In the case at bar, the Respondent admits it adopted its no-solicitation rule to keep out so- licitors entering the premises on behalf of the Union. Moreover, the policy affirmatively permits solicitation for the United Fund Campaign and is still in force and effect. Therefore, a fortiori, the Respondent is discrimi- 2N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1965). nating against the Union by allowing other distribution. Therefore, I find and conclude that the no-solicitation rule in effect at all times material hereto is invalid and its continued current maintenance constitutes a violation of Section 8(a)(1) of the Act. Thus, early in the Respondent's relationship with the Union, the Respondent displayed hostility toward the Union. After a number of bargaining sessions, as related heretofore, the Respondent, through President Wolf, and others, engaged in further acts which indicated the Re- spondent's attitude toward the Union and those individ- uals who supported the same. Thus, on Feburary 12, 1978, President Wolf interviewed prospective employee John Hosterman for the position of supervisor in the drill press area on the second shift. During that interview, Wolf inquired of Hosterman how the latter felt about a union. The Board has long held that a job applicant is an em- ployee guaranteed Section 7 rights under the Act. Ac- cordingly, Wolfs interrogation at Hosterman's employ- ment interview regarding the latter's opinion about a union constitutes unlawful interrogation and as such is a violation of Section 8(a)(1) of the Act. 3 Thereafter, during approximately the last week of May 1978, Wolf spoke to employee William Hewitt in Wolfs office. No one else was present. Wolf had summoned Hewitt into his office with regard to the latter's failure to appear for work on several successive Saturdays. At that time, Hewitt explained to Wolf that Hewitt was unable to work Saturdays because of Hewitt's father's illness which required Hewitt's presence at home on those days. During the conversation, Wolf told Hewitt that if the latter wanted to work only 48 hours (presumably 5 8- hour days, Monday through Friday) Hewitt would have to find employment at a union shop.4 In light of the fact that, during this period of time, the Respondent was supposedly negotiating a collective-bar- gaining agreement with the Union, this statement consti- tuted a veiled threat that the Respondent's shop would never become a shop with a union agreement inasmuch as collective-bargaining agreements are generally defined as establishing the wages, hours, and working conditions of employees. Accordingly, I find that this statement constitutes a violation of Section 8(a)((1) of the Act. Another incident, similar to the foregoing, occurred in early June 1978. At that time, present in Wolfs office were Wolf, Henry Nagle, Hewitt's immediate supervi- sor,5 and Hewitt. The discussion at that conference or meeting was with regard to Hewitt's receiving a raise. At the conclusion of the discussion, Hewitt was given a 10-cent-an-hour raise. However, as the meeting pro- gressed, the subject of the Union was brought up by Hewitt who had been observed by Wolf sometime before discussing union matters with Union Representative Richard J. Garuccio. Hewitt was concerned about get- ting his raise because of the fact that he had been ob- 3 The above is from the uncontroverted testimony of Hosterman. Wolf, in testifying, did not deny the interrogation. Accordingly, I credit Hosterman in this respect. 4 From credited testimony of Hewitt. In testifying, Wolf did not deny the words attributed to him by Hewitt. ' Nagle's status as supervisor is discussed below. ACE MACHINE CO. 627 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served by Wolf. Hewitt had had a conversation with Nagle prior to the meeting regarding the effect upon Hewitt's employment with the Respondent because of Hewitt's activities concerning the Union. Hewitt ex- pressed his concern about the raise because of the Union. Wolf then stated to Hewitt and to Nagle who was pres- ent that, "They [the Respondent] operated there for 20 years without a union, and that they [the Respondent] would operate there a lot longer without one." When Hewitt rejoined that he wanted to work in a union shop, referring to the Respondent's shop as a union shop, Wolf told Hewitt that the latter should seek employment in a union shop. 6 The foregoing statements of Wolf during the meeting, directed to Hewitt, and, therefore, to the employees of the Respondent, conveyed the idea that their choice of a union was futile and, moreover, if Hewitt wanted to work in a union shop, he should seek employment else- where. This latter is tantamount to a veiled threat of re- prisal, and, accordingly, constitutes a violation of Section 8(a)(l) of the Act. Reference has been made, above, to Hewitt's fear of reprisal that he would not receive his periodic raise be- cause Wolf observed him talking to a union business rep- resentative. Reference has also been made to the fact that Hewitt's supervisor, Henry Nagle, was present at the meeting above related. Because Respondent has denied that Nagle was, at that time, a supervisor within the meaning of the Act, it becomes necessary to make a de- termination as to Nagle's status. Despite the Respondent's denial that Nagle was or is a supervisor, in testifying as to the supervisors employed in the Respondent's facility President Wolf listed Nagle as a supervisor in the mill area of the Respondent's facility. Hewitt also referred to Nagle as his supervisor. At the meeting described above at which Hewitt was given a 10-cent-per-hour raise, Nagle gave to Wolf, before the raise was given Hewitt, an evaluation of Hewitt's per- formance. Nagle informed Wolf that Hewitt's perform- ance was satisfactory. In further explanation of Hewitt's regarding Nagle as his supervisor, Hewitt stated that Nagle was in charge of the mill area and directed him in his work. As will be hereinafter fully discussed, Hewitt was eventually discharged. In testifying as to the reason for Hewitt's discharge, Wolf admitted that Nagle has com- plained of Hewitt's performance (this, despite the fact that Wolf could not remember the meeting above re- ferred to) and stated that he, Wolf, relied on Nagle's re- lating to Wolf that Hewitt had a bad work record. In fact, Wolf ultimately stated that he relied heavily on Nagle's recommendation in discharging Hewitt. This in- dicates that Nagel effectively recommended Hewitt's dis- B From uncontroverted testimony of Hewitt. In testifying, Wolf could not remember the instance at which Hewitt was given a raise at that time. He admitted that such a meeting could have occurred but could not remember it having taken place. Additionally, Nagle, whose employment with the Respondent had evidently not terminated by the time of the hearing inasmuch as the Respondent made no reference thereto, was not called as a witness. Accordingly, I infer that had Nagle been called his testimony would have supported that of Hewitt rather than the very in- definite statement regarding the meeting testified to by Wolf. According- ly, I credit Hewitt. charge. Furthermore, Wolf admitted that, at an earlier period, Nagle recommended Hewitt and other employees for wage increases and that the increases were granted on Nagle's recommendation. Upon all of the foregoing, therefore, I find and con- clude that Nagle is, and was at the times material hereto, a supervisor within the meaning of Section 2(11) of the Act. Employee Hewitt was employed in an apprenticeship program in which the Respondent was a participating employer. This evidently was a progressive program during which the apprentices were given opportunities to operate the various pieces of equipment in the Respond- ent's shop. As the apprentices progressed in skill, they were given raises on the basis of their progression. As noted above at one point, more fully hereinafter dis- cussed, during late May 1978 Union Representative Gar- uccio appeared outside the shop and, during his appear- ance, Hewitt went out to talk to him. Wolf observed this, and proceeded to the place where Garuccio and Hewitt were in conversation. Wolf ordered Hewitt to return to the latter's work. In a conversation shortly thereafter, Nagle stated to Hewitt that Nagle thought Hewitt's job was in jeopardy because Hewitt had joined the Union and, moreover, Wolf had caught Hewitt talk- ing to Garuccio, the union representative. Nagle went on to further explicate his thoughts with regard to Hewitt's future with the Respondent by stating he did not think Hewitt would receive the scheduled raises or be advanced to the more complicated machines or receive the full training provided under the appren- ticeship program, and that Hewitt would not be happy in the Respondent's employ. 7 On the basis of the foregoing, it is concluded that the Respondent, through Nagle, threatened Hewitt with re- prisals of loss of employment and benefits in violation of Section 8(a)(1) of the Act. Other employees were involved in incidents in which President Wolf interrogated employees. Thus, sometime in July 1978, Wolf asked employees Bessie Belknap and Ronald Oxley to step into his office. According to Belk- nap, whom I credit, when they entered the room, Wolf held a paper in his hand which he threw down as if in anger or disgust. He then turned to Oxley and Belknap and asked them why they had not stopped Hosterman from filing certain papers with the Board. Wolf further asked them if they knew that Hosterman had filed papers. When they replied they did not have anything to do with it, Wolf accused Oxley and Belknap with knowl- edge of the matter. 8 ' From credited uncontroverted testimony given by Hewitt. Nagle did not testify, as noted above. I The foregoing is taken from credited testimony of Belknap. Belknap, at the time of the hearing herein, was still employed by the Respondent and subject to Respondent's retaliation and pressures. In his testimony, Wolf stated that the only individuals with whom he spoke concerning the Union were Belknap and Oxley because he knew they were on the Union's negotiating committee. However, Wolf did not directly deny in any respect the foregoing testimony. He merely stated that when a paper was served upon him such as a subpena he would inquire of them what the matter was about. I have noted that Oxley testified to this meeting but did not mention in his testimony the matter above mentioned. Never- theless, upon my observation of Belknap, the fact that she was still em- Continued ACE MACHINE CO. 629 On the basis of the foregoing, I find and conclude that this interrogation was coercive and, therefore, violative of Section 8(a)(l) of the Act. Upon an earlier occasion, approximately June 2, 1978, Wolf held another conversation with Belknap. It would seem that Belknap had asked Wolf if the latter could see his way clear to give her underage son a job. The record reveals Wolf told Belknap he could not hire Belknap's son without giving some thought about using an under- age individual in the plant. Wolf asked Belknap to step into Vice President Richard Appleton's office (Appleton is also a stockholder and director of the Respondent). After discussing the possibilities of the job for Belknap's son, Wolf asked Belknap how many employees attended the union meeting which would have been held on May 30. Belknap replied that she had not attended the meet- ing and, therefore, did not know many other employees attended. Thereupon, Wolf stated, "Well, I don't need to know their names and who they are, but I need to know how many." 9 I find that, in effect, this conversation not only was an unlawful interrogation of Belknap with regard to union membership of other employees but also constituted, in its context, a "carrot and stick" situation in which in one breath Wolf stated he would look into the matter of a job for Belknap's son and then almost immediately asked Belknap how many employees attended the union meet- ing on May 13. This entire conversation, and the interro- gation, interfered with an employee's Section 7 rights and, therefore, constituted a violation of Section 8(a)(1) of the Act. An incident of similar nature, again involving Presi- dent Wolf, occurred on June 14, 1978. On that morning, employee John Hosterman reported for work at his usual time. Within approximately 2 hours, Wolf approached Hosterman and stated to the latter, "I know what is going on around here. I want to thank you for starting the union problems in this shop again." It should be noted, at this juncture, that, on the evening before, a union meeting was held during which union officers were elected. Hosterman was among those officers. 'o The foregoing incident, because of its timing on the morning after the Union's election of officers, indicates ployed by the Respondent at the time of the hearing herein and because of the vagueness of the testimony of Wolf, I find and conclude that Belk- nap's testimony with regard to this incident is credible. 9 From testimony of Belknap which was not specifically denied by Wolf, who, as heretofore noted, maintained that he spoke only to Belk- nap and Oxley with regard to union matters that were necessary and under circumstances which did not constitute threats or coercion. Accordingly, because Wolf did not directly deny this conversation or give a different version of it, or even deny that the conversation took place, I find and conclude that, because Wolf did mention in testifying that at one time Belknap did ask for a job for her son, Belknap's version of the conversation, as related, is credited. 'o Although no other employees testified to this incident, Hosterman testified that the incident occurred under the clock immediately outside Wolfs office and no other employees were present. However, again, al- though I have taken into consideration the fact that Hosterman was dis- charged, as hereinafter related, and therefore could be considered to have nursed a deep grievance against the Respondent. I nevertheless credit him because Wolf did not admit or deny this conversation in his testimo- ny, as heretofore noted. Wolf merely stated, at one point of his testimo- ny, that the only individuals he talked to about union matters at any time were Belknap and Oxley. Accordingly I credit Hosterman in this re- spect that Wolf had some knowledge of the proceedings of the previous evening. In view of his earlier questioning, on June 2, wherein he asked Belknap to tell him how many attended a union meeting, there is created by the state- ment to Hosterman an impression of surveillance in that someone, at Wolfs request, was informing Wolf of what occurred at union meetings. Accordingly, I find that this impression given by Wolf of surveillance of the union meetings constitutes interference with employees' Sec- tion 7 rights and thereby violates Section 8(a)(1) of the Act. Ronald Oxley is an employee whose position with the Respondent is somewhat closer to Wolf than a number of the other employees herein involved. Oxley is obvi- ously somewhat better educated than the other employ- ees, and his work as an inspector in quality control ne- cessitated a greater skill and knowledge of the Respond- ent's product and the methods of their fabrication. Thus, a somewhat close relationship developed between Oxley and Wolf. Oxley, a skilled individual, had planned to leave the Respondent's employ sometime after the dates pertinent to this proceeding and had so informed Wolf. In late spring and early summer of 1978, Wolf, being somewhat concerned with replacing Oxley when the latter was to leave because of Oxley's key position in the Respond- ent's plant, engaged Oxley in a number of conversations with regard to this matter. However, because of the rela- tionship the conversations tended to drift into union mat- ters. It is evident from the record, as indicated, that Wolf knew Oxley was an ardent supporter of the Union. At the aforementioned meeting of June 13, at which union officers were elected, Oxley was selected president of the Local Union in the Respondent's shop. At that meeting, John Hosterman was elected vice president, William Hewitt, treasurer, Bessie Belknap, secretary, and Mike Paschall, financial secretary. Late on June 14, the day following the election, Wolf summoned Oxley into Wolfs office and started a discussion by asking Oxley whether Oxley's plan to leave the Respondent's employ was progressing and whether Oxley knew approximately when he was going to depart. Oxley evidently did not give Wolf a specific answer. As a result, the next day, June 15, again approximately at quitting time, Wolf called Oxley into Wolfs office and engaged Oxley in a conversation which again centered about whether Oxley had made up his mind to leave Respondent's employ and, if so, about when the leaving would occur. Then, Wolf in a somewhat confidential manner stated to Oxley, "Ron, there isn't going to be a union here at Ace Ma- chine. You know, if you don't have a contract you don't have a union, and I am not going to sign a contract." Continuing the conversation, Wolf told Oxley, "Ron, I know that you and five others are pretty strong union. I am prepared to do my very best to convince you people that your future will best be served by finding employ- ment elsewhere." In the same vein, Wolf further in- formed Oxley, "Ron, you have got 2 weeks of vacation coming. I submit that you can use my office in searching for other employment. You can use my telephone. You can take your vacation time now or at a time or any way you want." Then, Wolf reverted back to the union ACE MACHINE Co. 629 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter and stated, "I am prepared to spend any amount of money that is necessary to keep the Union out of Ace Machine." Finally, in closing the conversation, Wolf stated, "I want a compatible work force. I want people who are all of the same notion. I want people who are of non-union conviction." " Wolfs statements during the above-related conversa- tion constitute interference with employees' Section 7 rights. The first part of the conversation to the effect that Wolf was not going to sign a contract with the Union indicated in no uncertain terms to Oxley that Wolf had no intention of ever recognizing the Union in the sense of signing a contract. 1 2 This, of course, constituted interference amounting to a violation of Section 8(a)(l) of the Act. Further, in the same conversation Wolfs statement, to the effect that he would spend any amount of money to keep the Union out of the Respondent, created the impression that it would be futile for employees to engage in union activi- ty. This further constitutes interference in violation of Section 8(a)(1) of the Act. Wolfs further statement to Oxley that Wolf wanted compatible employees who would be of nonunion con- viction, at the same time urging Oxley to take his vaca- tion in order to secure another job, constitutes, at the very least, a veiled threat, and probably an outright threat to Oxley that, if the latter did not forgo his union support, he would be dismissed from his employment with the Respondent. This threat, of course, constitutes a violation of Section 8(a)(l) of the Act, and I so find. On June 16, employee John Hosterman was dis- charged by President Wolf. Present at the discharge in- terview was Richard Appleton, who, as noted above, is vice president and a director of the Respondent as well as a working stockholder. At the end of the exit conver- sation, at which Hosterman was discharged, he was told to punch out his timecard. As Hosterman walked out to where the timecards were located, Wolf said to him, "I want to thank you again for starting union problems." Then Wolf asked Hosterman for the papers that Hoster- man had in his possession as an expediter. These were on a clipboard by the inspection bench. Hosterman handed the papers to Wolf and, as he did so, Wolf repeated for a second time, "I want to thank you again for starting union problems." After that Wolf ordered Hosterman to leave. As Hosterman was walking out the door for the third time, Wolf stated to him, "I want to thank you for starting union problems."'3 "1 All of the foregoing is from Oxley's testimony. I was most im- pressed with the manner in which Oxley testified and observed that Oxley had almost total recall of the events. He did not in any way at- tempt to obfuscate or to evade questions put to him on cross-examination. Furthermore, although he admitted his intentions of leaving the Respond- ent's employ, at the time he testified he was still employed by the Re- spondent, subject to whatever discipline or reprisals the Respondent could direct toward him. On the other hand, Wolf, although admitting conversations with Oxley, did not directly deny the import of the con- versations as recited above. Accordingly, I credit Oxley's testimony. 12 Although Wolf testified that he told Oxley and the others through- out the entire negotiations that he would not sign a union shop contract, this does not seem to be the import of the statements to Oxley. '3 From credited testimony of Hosterman. Although Wolf obliquely denied this matter, as noted above, Appleton testified that he did not hear It is concluded, therefore, that these statements con- cerning Wolfs derisive thanks to Hosterman for the lat- ter's starting the "union trouble," even though at the time Hosterman had been already discharged, constitute interference with employees' Section 7 rights and, there- fore, is violative of Section 8(a)(l) of the Act. C. The Reassignment of Bessie Belknap and the Discharges of John Hosterman and William Hewitt 1. Bessie Belknap Belknap was hired at approximately mid-December 1977. Before being hired, Belknap completed 8 months of training in machine operation and had been certified by an adult training center in Akron, Ohio, as a production machine operator. However, when she was hired she was assigned to benchwork which consisted, for the most part, of deburring steel parts, a rather unskilled op- eration. As noted, the Respondent is a metal shop where various types of metal stampings are made. However, Belknap's training qualified her for the operation of lathes, milling machines, shapers, radio pressers, and drill presses. Thus, the work to which she was assigned did not require her to utilize her training. On approximately Feburary 14, 1978, Belknap spoke to President Wolf in his office. Belknap told Wolf she was tired and bored with the benchwork and attempted to give Wolf a 2-week notice of quitting. Wolf sought to induce Belknap not to quit and promised, upon Belknap's suggestion, that he would speak to the general shop su- perintendent, Raymond Flegel, about a possible transfer of Belknap from benchwork to machine operation. Evi- dently, Wolf did speak to Flegel as he promised. The next day, Wolf called Belknap into his office and told her that the next drill press job would be hers. Wolf fur- ther promised Belknap the latter could move up to oper- ating a lathe and other machines also. In conformity with this promise, the Respondent hired another individual for the benchwork and, after Belknap assisted in breaking in the new employee, Belknap was transferred to the machine area. She successively worked on drill press, belt sander, and bandsaw, and eventually Belknap was assigned to operate the hydraulic saw, which position she retained for approximately 4 months. Belknap, whose testimony in this respect was uncontro- verted by the testimony of Flegel, was told by Flegel that her work in the machine area was satisfactory and that she was performing well. In fact, undenied by Wolf is Belknap's statement to the effect that she was doing such a good job that she was getting out approximately Wolf make such statements to Hosterman at the time of the latter's dis- charge. However, Appleton admitted, on cross-examination, that at the time he could have overheard the part of the conversation during which Hosterman testified Wolf told Hosterman that he thanked him for starting the union problems Appleton was approximately 30 feet away. Moreover, Appleton admitted the shop is a metal processing shop in which substan- tial noise is normal. Accordingly, although Appleton stated he did not hear Wolf make the statement, he did not positively deny that Wolf made the statement. Under all the circumstances, including the distance Apple- ton was separated from the place where Wolf made the alleged statement to Hosterman, I find and conclude that Hosterman's version of this por- tion of the conversation is credible. Moreover, I have discredited Wolf in other respects and I cannot credit his denials in this respect. ACE MACHINE CO. 631 as much as the two other employees who were doing the same work on the other shifts. As a matter of fact, she was doing so well on the hydraulic saw that she was as- signed to break in an employee who was to operate that machine on the third shift, Belknap having been assigned to work on the first, or day, shift. As found above, on June 2, when conversing with Belknap with regard to the possibility of the latter's son obtaining a position with the Respondent, Wolf interro- gated Belknap with regard to the number of individuals who attended the union meeting held 3 nights earlier. Belknap could not give Wolf a satisfactory answer for the reason that she had not attended that meeting. Also, as heretofore related, at the union meeting of June 13, Belknap was elected recording secretary of the Local Union. On the following day, June 14, 1978, Rich- ard J. Garuccio, the Union's staff representative, sent a letter dated that day to the Respondent's labor counsel, Harvey Rector, informing the latter that the last propos- al of the Respondent, made during the ongoing negotia- tions, had been rejected by the union membership. The letter further requested that the parties resume negotia- tions at the earliest practical date. Under the signature on the letter were listed individuals who were to receive, and did receive, copies of that letter. Listed thereon were the representative of the Federal Mediation and Conciliation Service, Respondent President Wolf, a staff representative of the United Steelworkers, and Ronald Oxley as president of the Local Union, John Hosterman as vice president of the Local Union, and Bessie Belknap as recording secretary. Oxley credibly testified that he received his copy of the foregoing letter at his home in the Akron area on June 16, 2 days after the mailing. Ac- cordingly, I find and conclude that, despite all protesta- tions by Wolf to the effect that he had no knowledge of who the union officers were until sometime after June 20, Wolf knew who the officers listed on that letter were; namely, Oxley, Hosterman, and Belknap. In any event, the Respondent stipulated that any letters that were mailed were received in due course. Furthermore, the Respondent's labor relations counsel, Rector having received the letter, even assuming Wolf did not, it is hardly believable that Rector did not make contact with Wolf to inform the latter who the union officers were who were listed at the bottom of that letter. Approximately I week after the meeting of June 13, Wolf called Belknap into his office and stated to her, "I am going to have to back track on my promise of put- ting you on a machine." Wolf was referring to the oper- ation of a lathe. Wolf further stated that the Respondent had an apprentice in the shop who would have to be moved from machine to machine in order to receive needed experience. Wolf further informed Belknap that he could not put her on a lathe for at least a year and a half. At this news, Belknap asked if Wolf was telling her to look for another job. Although Wolf protested that he was not, when she asked if she should seek work else- where, would he give her a good recommendation, his reply was, "Oh, yes. I will write you the best one ever." Then he added, "You can take time off and look for work. You can make it up later if you want to but you don't have to." Several days later, Belknap went into Wolfs office to pick up the promised written recommen- dation. However, she did not look for another job, at least at that time or, in any event, did not leave the Re- spondent's employ, and was still employed at the time of the hearing herein. However, shortly after the foregoing conversation with Wolf, Belknap was removed from machine work and put back on the benchwork which she so disliked. Belknap was never given a reason for this shift in her as- signment aside from the excuse that an apprentice needed training. Belknap testified, in connection therewith and without contradiction, that the individuals who are used on benchwork, for the most part, are individuals who have no machine training or experience whatsoever. Ad- ditionally, at the time of the hearing herein, Belknap was still doing benchwork. Moreover, although Belknap is the most senior employee in the benchwork area, other individuals have been hired to work on machines that Belknap worked while she was in the machine area. Wolf testified and cited as one of the factors Belknap's lack of performance on the machines, basically, that Belknap did not work as required on certain Saturdays. However, Belknap testified that there were times during the period when she was working in the machine area before her transfer back to the benchwork area, Flegel, the shop superintendent and her supervisor, would advise her that there was no work to be done on the hy- draulic saw on a Saturday and, therefore, Belknap took the day off. It should be noted that Flegel, in testifying, did not contradict this testimony of Belknap. There is a noticeable similarity between Wolfs appar- ent willingness to give Belknap time to find another job and Wolfs apparent eagerness to give Oxley time off to look for another position, as herein above detailed. Both instances, similar in nature, occurred subsequent to the date on which it is most likely that Wolf learned of the fact that these individuals had become officers of the Union. Moreover, in the case of Oxley, Wolf had dis- cussed union matters with the latter. This coincidence and similarity of treatment is cited in reference to the disposition, below, of the issue of whether Belknap was reassigned to benchwork for disciminatory reasons. I find and conclude that Belknap's reassignment to the benchwork area thwarted her ambition to work at more intricate and higher paying work and was part and parcel of the Respondent's desire to not only retaliate against Belknap for her participation in union activities but was also designed to make Belknap's employment with the Respondent so distasteful she would be forced to quit. The fact that she did not quit does not remove the taint from the Respondent's motivation, nor render it any less discriminatory. In coming to the foregoing conclusion, I have consid- ered first the timing of Belknap's reassignment. Within a period of a week to 10 days after Belknap became a union officer and Wolf learned of this matter, the reas- signment which was most distasteful to Belknap oc- curred. Secondly, early in this Decision it has been found that Wolf and other of the Respondent's supervisors and managers have threatened employees with reprisals if they engaged in union activities. The animus thus dem- ACE MACHINE CO. 631 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onstrated supports the finding, above, that Belknap's reassignment was for discriminatory reasons. Further- more, I have considered Wolfs testimony as a whole with regard to Belknap, and find that his reasons for reassigning Belknap are completely unsupported by other of the Respondent's witnesses and, certainly, there is nothing in the record to show, at least so far as Wolf himself is concerned, that Belknap's work in the machine area was unsatisfactory. Therefore, on the basis of all of the foregoing facts, I find and conclude that the reassigning of Belknap from her hydraulic saw work in the machine area to the less desirable benchwork was caused by her activities on behalf of the Union, most specifically her election to union office, and that the purpose thereof was in reprisal for Belknap's union activities and for the purpose of dis- couraging Belknap so that she would quit her job with the Respondent, thus ridding the Respondent of a proun- ion enthusiast. Accordingly, I find and conclude that thereby the Respondent violated Section 8(a)(3) and (1) of the Act on the date of the reassignment and thereaf- ter. 2. John Hosterman As noted above, Hosterman was employed as a super- visor on the second shift in the drill press area in Febru- ary 1978. It is apparent that Hosterman did not work out in that position and soon thereafter quit. Sometime the first part of May, he was rehired as an expediter of pro- duction on the first, or day, shift. Hosterman's position required him to actually physically to move and control the flow of parts to be processed in the various areas of the shop so that the work flowed smoothly in accord- ance with the requirements of the orders which came into the shop. In this respect, Hosterman was required to determine, from the orders, the priorities with which the work was be processed. In this respect, Hosterman could inform even some of the working officers of the Re- spondent as to which orders they were to finish first. However, although the Respondent claims that, be- cause of this authority, Hosterman was, in fact, a super- visor, the facts of Hosterman's authority and work re- quirements lead to the conclusion that he was but a rank- and-file employee. Thus, without repeating the full list of indicia of supervisory authority contained in Section 2(11) of the Act, suffice it to say, Hosterman possessed none of these indicia. Most certainly, he could not hire, could not discharge, could not discipline, nor could he recommend effectively any of these. Moreover, and most pertinent, is the fact that Hosterman had no one to su- pervise. Although Shop Superintendent Flegel testified that he did not think, and informed Wolf of his thoughts, that it was to the best interest of the Respondent not to assign Hosterman to the position of expediter, neither Flegel nor any other of the Respondent's officers or indi- viduals in management capacity complained about Hos- terman's ability to keep the work flowing insofar as parts were concerned until after the Respondent, through Wolf and Respondent's labor relations counsel, learned that Hosterman had been elected vice president of the Local Union. Also, while it is highly possible that Oxley and Belknap harbored prejudices against the Respondent, inasmuch as they both worked in the areas where Hos- terman distributed parts, and I have found them credible in other respects, I credit their testimony to the effect that they could not find any fault in Hosterman's distri- bution of the parts to be processed which they, them- selves, worked on. Oxley described Hosterman's replace- ment in the position of expediter as an individual who perhaps had more duties than Hosterman in respect to recordkeeping but who, nevertheless, was no more satis- factory at distributing the work than was Hosterman. From all of the foregoing, I conclude and find that Hosterman was not a supervisor. He, indeed, had no one to supervise. The mere fact that he had to inform indi- viduals as to which work had priorities was not the resuit of his own discretion, but rather was the result of the orders as they came into the shop. Thus, as noted above, I find and conclude that, as of the date of the dis- charge hereinafter related, Hosterman was a rank-and-file employee within the meaning of the Act. We come now to the date of Hosterman's discharge on Friday, June 16, 1978. During the morning of that day, Hosterman had made an error in the distribution of the work. However, it is apparent from the record that the error was quickly corrected and that it was neither a costly matter to the Respondent nor did it result in an inordinate waste of time. Thus, there was little, if any, economic loss. It should be noted that the letter from the Union's rep- resentatives to the Respondent's labor relations counsel containing the list of officers at the bottom thereof would have reached Wolfs desk in the ordinary course of events on June 16. I have already concluded that Wolf received that letter in due course. Thus, I find and conclude that Wolf had knowledge that Hosterman was elected a union officer on June 13. As heretofore found, the morning after Hosterman was elected local union vice president on June 13, Wolf walked up to him and stated, "I know what is going on around here. I want to thank you for starting the union problems in this shop again." This, I conclude, is definitely indicative of the fact that, even failing receipt of the letter noted above on June 16, Wolf had knowledge that Hosterman was, at least, very active in union affairs. To come back to the morning of the day of June 16, Wolf called Hosterman into his office and began the dis- cussion by referring to a possibility that Hosterman was unhappy in his work. What Wolf was referring to at that time was an earlier complaint by Hosterman that, al- though his job was a very critical one, he was not given a raise. At the time he complained, Wolf told Hosterman that the night shift differential which Hosterman had been paid in his former position had not been taken away from him when he was rehired on the day shift and that, therefore, this was, in effect, a raise. While Hosterman was not completely satisfied with that explanation, noth- ing further was said between the two of them regarding this matter until the afternoon of June 16. When Wolf confronted Hosterman with the statement that he thought Hosterman was not happy in his work, a discussion ensued after which Wolf stated, "If you are not happy here, we are going to have to terminate you." With that, Wolf left the office temporarily and returned ACE MACHINE CO. 633 with Richard Appleton, a stockholder, officer, and direc- tor of the Respondent, whose official title was vice presi- dent of engineering. Appleton evidently was the individ- ual who complained about Hosterman's having assigned the wrong material in the wrong quantities that morning. However, in testifiying, Appleton did not state that this was a usual occurrence. However, Wolf asked Appleton in Hosterman's presence if he could find anything wrong with Hosterman's ability to perform and Appleton could find nothing except the incident of that morning. Wolf then again repeated that, if Hosterman was not going to be happy as an employee of the Respondent, they would have to terminate him. At the end of this conversation, Wolf told Hosterman to punch out his timecard. As related above, as Hoster- man walked out to punch his timecard, Wolf followed him and stated, "I want to thank you again for starting the union problems." At that time, Wolf asked Hoster- man to turn over all of his expediter papers. Hosterman did as he was told and then Wolf again repeated, "I want to thank you for starting the union problems." Wolf thereupon ordered Hosterman to leave the premises, and as the latter was walking out the door the same state- ment was again made to him, "I want to thank you for starting union problems."' 4 From the foregoing, Wolfs animosity toward Hoster- man for the latter's union activity is established beyond doubt. Certainly, the timing soon after Hosterman had been elected vice president of the Union 3 days before; the letter to the Respondent's labor counsel listing at the bottom thereof Hosterman as union vice president; and the statement by Wolf to attempt to force Hosterman to admit that he was unhappy in his work; and, finally, the repeated statements upon the discharge of Hosterman to the effect that Wolf thanked him for bringing about the union trouble once again indicate beyond doubt that Hosterman, even though at fault for the improper distri- bution of parts early in the day, was discharged discri- minatorily because of Hosterman's union activity and that the reason given by Wolf for the discharge was pre- textual. Accordingly, I find and conclude that the dis- charge was made to discourage union activity not only of Hosterman but also for other employees in the shop. This, then, constitutes a violation of Section 8(a)(3) and (1) of the Act. 3. William Hewitt Hewitt, as related earlier in this Decision, was hired through a local apprenticeship program. During the entire period he worked for the Respondent as a ma- chine apprentice, his work, if not above average, was at least somewhat satisfactory to the extent he was not taken off the program until after he became a union offi- cer. Although Hewitt's length of service with the Re- spondent was relatively short, having been hired in early April and discharged June 20, 1978, he was absent froiw 14 As heretofore noted, Appleton apparently was too far away at the time to actually hear what was said, although he testified that he did not hear Wolf make these statements to Hosterman Nevertheless, because I have not credited Wolf in other respects. I do not credit hi denials that he made these remarks to Hosterman as he was discharging, the latr'r al: as Hosterman was leaving the premises work a number of Saturdays when he was supposed to have worked. He was reprimanded for this by Wolf. Hewitt explained to Wolf that his father was ill and, for reasons not clear in the record, he could not work on Saturdays. However, after the reprimand, Hewitt did work on Saturdays. On Monday, June 19, 1978, Hewitt had a dental ap- pointment. He called in to the Respondent's office to ex- plain that he could not be in that day because of the ap- pointment. He spoke to Vice President Richard Apple- ton who told Hewitt that it would be all right for him to be absent.1 s As noted, on June 13, at the union meeting, Hewitt was elected to the office of treasurer of the Local Union. As heretofore found, following Wolf's earlier observa- tion of Hewitt's conversation at the Respondent's prem- ises with Union Representative Garuccio, followed by Supervisor Nagle's threats that by reason of this Hewitt could possibly lose his job because of his obvious activi- ties on behalf of the Union, I find and conclude that, as of the date that Hewitt was elected a union officer, the Respondent had knowledge of Hewitt's union sympathies and desires, if not his election to union office. Moreover, I find and conclude that a letter addressed to the Re- spondent by Garuccio, bearing the date June 19, 1978, reached the attention of the Respondent and Wolf before June 20, 1978, the date of Hewitt's discharge.' 6 I con- clude from this that Wolf also had had knowledge of Hewitt's election to office in the Union at the time Hewitt was discharged on June 20. Additionally, I also take note of a telephone conversa- tion, to which Oxley credibly testified, that Oxley was told by the recently elected union financial secretary, Michael Paschall, on June 16, that Paschall desired to in Although Appleton testified with regard to Hewitt's discharge, he did not deny that Hewitt called in with his excuse of having to attend a dental appointment and that Appleton had approved his absence. la Attached to a letter from Union Represenative Garuccio to the Re- spondent for the attention of President Wolf, which letter is dated June 19, 1978, is a list of newly elected union officers, including the name of William Hewitt as treasurer of the Local Union. Although the letter con- tained the Respondent's correct street address, the city named in that ad- dress is Akron, Ohio, and not Cuyahoga Falls, Ohio, which is the city or town in which the Respondent's plant is located There is no zip code on that address. Inspection of this letter, addressed to the Respondent, re- veals that copies were sent to Oxley, Belknap, and the Federal Mediation and Conciliation Service as well as the Respondent's labor counsel To verify that the date of this letter is in error, and should have been June 15, and that the letter was actually received by Wolf on or before June 20. counsel lor General Counsel sought to introduce in evidence an enve- lope which he claimed is the envelope in which the above letter was en- closed and received by Wolf Typed on the envelope is the same incor- rect address as is on the letter and without a zip code number The enve- lope is postmarked "Cleveland, Ohio, June 15, 1978." It also bears, in handwriting, a corrected address, with the Respondent's correct zip code, with the incorrect address crossed out by pen or pencil. Additonally, the envelope also bears a second postmark from Akron, Ohio, dated June 16, 1978. Moreover, official notice is taken of the fact that Cuyahoga Falls and Akron, Ohio, are contiguous municipalities. It can readily be in- ferred, therefore, that an envelope postmarked Akron, Ohio, on I day would e delivered the following delivery date in Cuyahoga Falls, con- sidering the extremely short distance it would have to travel. Over and above all of the foregoing is the statement in Wolfs investigatory affida- vit that he received only one misaddressed letter from the Union. Ac- cordiigly, pursuant to Rule 901 (a)(4) of the Federal Rules of Evidence, i hereby reverse my original ruling made at the hearing rejecting the en- velope, and I hereby receive the same in evidence as G C Exh. 30 ACE ACHI E CO 63 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately resign as a union officer. In that conversa- tion, Paschall told Oxley, whom I credit, that Wolf cor- nered Paschall and talked to him about the "union busi- ness" and that Appleton had also talked to Paschall about the "union business" and how this would affect Paschall's future with the Respondent.' 7 In any event, on the morning of June 20, when Hewitt reported to work, he discovered that his timecard was missing from the timecard rack. Hewitt thereupon in- quired of Supervisor Nagle about the missing timecard and was informed by Nagle that Wolf had removed Hewitt's timecard because Wolf intended to reprimand Hewitt. A short time thereafter, Wolf summoned Hewitt to Wolfs office. Wolf announced to Hewitt that the latter was being discharged because he did not have a doctor's excuse for the previous date and also because Hewitt's attitude was very bad. Hewitt reminded Wolf that Appleton had been apprised of Hewitt's dental ap- pointment and had given him permission to remain off on that day for that purpose. Moreover, Hewitt offered to bring in an excuse from the dentist within the next 24 hours, but Wolf replied that that would be too late. When Hewitt inquired further with regard to Wolfs statement about Hewitt's bad attitude, Wolf replied that he did not believe Hewitt was happy in the Respondent's employ and again claimed that basically, in general, Hewitt's attitude was poor. It is notable, from the record, that the reasons given by Wolf for Hewitt's discharge shifted from time to time based upon the date upon which the reasons were given. I have above recited the reason that Wolf gave to Hewitt at the time that Hewitt was discharged. Addition- ally, although Wolf earlier had told Hewitt that he could no longer miss working Saturdays, nevertheless, after the reprimand, on the Saturday before the date of the dis- charge, Hewitt did report to work in accordance with the warning earlier given to him by Wolf. Moreover, as noted, Wolf refused to give Hewitt the opportunity to bring in the doctor's excuse regarding Hewitt's dental appointment even though he must have been aware of the fact that Appleton had given Hewitt permission to be off on the day of Hewitt's dental appointment. Addition- ally, both Belknap and Oxley credibly testified, without denial by Wolf, that a note was posted on the bulletin board at the Respondent's premises detailing the reasons for Hewitt's discharge;' 8 both Oxley and Belknap stated that the note stated Hewitt was discharged because he had been tardy on a number of occasions. Yet, this was not given as the reason for the discharge of Hewitt by Wolf when he let Hewitt go. Also, according to Bessie I7 Although Paschall admitted in testifying that he did have a conver- sation with Oxley in which he expressed his desire to resign as a union officer within 3 days after he was elected to that office, he denied that this was caused by any pressure brought upon him by any of the Re- spondent's officials. However, noting that Paschall and Oxley, at the time of the hearing herein, were both still employed by the Respondent, I be- lieve that Oxley's testimony is the more accurate in view of the fact that his testimony was detrimental to the Respondent and that he was subject, as much as Paschall, to whatever retaliation the Respondent decidtd to visit upon him. Moreover, my personal observation of these indiiduals on the witness stand bolsters my conclusion that Oxley was the more forthright of the two. 's It was further testified that such notices were a matter of the Re- spondent's practice posted after any individual was discharged. Belknap, the note listed Hewitt's failure to work Satur- days as a reason for discharge. Yet, as noted, Hewitt had worked on the Saturday before the discharge in order to comply with Wolfs reprimand earlier given to Hewitt that the latter had not worked on Saturdays. It should further be noted that Appleton, in testifying, did not deny that he had given Hewitt the day off to attend to Hewitt's dental appointment. Finally, in the investigatory affidavit which Wolf signed, a further shift and inconsis- tency appeared. In that affidavit, Wolf stated that Hewitt was discharged for unsatisfactory and poor work per- formance. And, finally at the hearing, Wolf testified that Hewitt was discharged for pure poor performance and refusal to work Saturdays. From the foregoing, it is apparent that the shifting and somewhat contradictory reasons given by Wolf for Hewitt's discharge lead to a strong suspicion that Hewitt was discharged for reasons other than poor work per- formance, or failure to work Saturdays, even though Nagle and Wolf testified that Hewitt was not the best of employees with regard to his work performance. This suspicion leads to the ultimate conclusion, when the entire record with regard to Hewitt is considered, that Hewitt was discharged for his union activity. In the first place, the discharge came within days after Hewitt was elected to union office and within a very, very short time after the Respondent's knowledge of the same. Then, the inconsistent reasons for the discharge must be considered. The Board has held on many occasions that shifting, inconsistent reasons for discharge do warrant an inference that such discharge was legally motivated.'9 Accordingly, by reason of all the foregoing, although it may be concluded that Hewitt was, perhaps, not the ideal employee, he was not discharged for that reason, which I find to be pretextual, but because of his union activities. Such discharge tends to discourage union ac- tivity and support, and is discriminatory and, therefore, violative of Section 8(a)(1) and (3) of the Act, and I so find. D. The Refusals To Bargain 1. The appropriate unit and the certification It is admitted, and I find, that on June 15, 1977, a ma- jority of the employees in the unit described below, which is admittedly appropriate, designated the Union as their representative for the purposes of collective bar- gaining with the Respondent and that, thereafter, the Board certified the Union as the bargaining representa- tive of that unit on June 22, 1977. The agreed-upon ap- propriate unit is: All production and maintenance employees em- ployed at the Respondent's Cuyahoga Falls, Ohio facility, excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act: The Respondent, in its answer, contends that the certi- fication, in effect, is of no further force and effect and I aft Broadcasting Company, 238 NLRB 588 (1978); PRS Limited d/ hba F & M n rring Co, 237 NLRB 628 (1978). ACE MACHINE CO. 635 that the Union does not represent the employees in the above-described unit for which the Union was certified. The Respondent alleges that at the time of the election there were only 26 employees employed in the Respond- ent's plant, but that a very short time later the comple- ment of the employees who would be included in the unit was raised to 60 and that 60 is now the normal com- plement of employees in the unit. The Respondent argues that the Union lost its majority and was not able to reach an agreement with the Company during the 12- month period following the certification; that the Union has not been able to secure and maintain a majority during the past 16 months, meaning the 16 months be- tween the date of the certification and the date of the answer to the complaint and up to and including the date of the hearing. Therefore, the Respondent contends, the Union is not now the exclusive representative of the em- ployees in the above unit for the purposes of collective bargaining. Nevertheless, at the hearing herein, aside from the tes- timony of President Wolf, who testified that approxi- mately 300 employees have gone in and out of the Re- spondent's plant since the certification, the Respondent has made no effort to show that the Union had, indeed, lost its majority. Nor has the Respondent shown that at the time of the election the 26 eligible employees were not a representative group or that, although the unit might have expanded in numbers, the work performed by the unit members and their classifications has been changed. In fact, the Respondent has emphasized that there is no set table of classifications for the Respond- ent's employees. Evidently, according to Wolf and other of the Respondent's officials, employees are changed from machine to machine, and, therefore, there is no spe- cific classification of employees. Accordingly, I find and conclude that, as of the date of the election and certifica- tion, the complement of employees was representative of the employees still employed in the Respondent's facility. Additionally, as will be set forth hereinafter and has been set forth hereinabove, if, indeed, the Union has lost its majority status, such loss of majority status has been at- tributable, at least in major part, to the Respondent's unfair labor practices. Accordingly, the Respondent cannot now be heard to claim that it has either an objec- tive reason to believe that the Union has lost its majority status or that the Union actually has lost its majority status. 2. The refusal to furnish information As heretofore mentioned, in July 1977, approximately a month after the Union's certification, the Union re- quested that bargaining toward a collective-bargaining agreement begin. The Respondent did honor the request to begin bargaining and, at the very first session, the Union submitted its proposals in writing, which propos- als were used as a basis for negotiations from that point until the Respondent broke off negotiations in September 1978. While the record does not show how many bargaining sessions were held between the parties, a number of them took place. At the outset, President Wolf and Harvey Rector, the Respondent's bargaining representative and labor counsel, informed the union representatives that any matter upon which agreement was reached would have to be ratified by the Respondent's board of direc- tors. Bargaining on behalf of the Union was conducted by a negotiating committee which was, in the main, headed by Union Representative Garuccio. During the negotiations, various counterproposals made by the Re- spondent's representatives were rejected by the Union's membership. On or about March 9, 1978, the Union, through Gar- uccio, requested the Respondent to furnish to the Union the names and addresses of all unit employees then em- ployed by the Respondent. From that day to date, the Respondent has consistently refused.2 0 The Respondent has refused to supply this list of names on two separate grounds. In the first place, the Respondent insists that it is a company policy not to fur- nish the names and addresses of its employees to anyone for any reason whatsoever. Secondly, as a legal defense, the Respondent contends that, prior to the election, the Respondent furnished to the Union the so-called Excelsi- or list which listed the employees employed by the Re- spondent in the unit found appropriate. Of course, at the time the demand for the list was made in March 1978 and thereafter, that original list was not only outdated, but was also extremely inaccurate because of the large turnover of employees, as alleged by the Respondent, and, moreover, the complement of employees has in- creased to more than double the size it was at the time of the election in June 1977. Accordingly, the second reason fails as a matter of law. The Supreme Court has held,21 "There can be no question of the general obligation of an employer to pro- vide information that is needed by the bargaining repre- sentative [of his employees] for the proper performance of its duties .... " Moreover, where the union has re- quested the names of the bargaining unit employees and other information with regard to their classifications, dates of employment, and addresses, the Board has held,2 2 "This is the type of information which is pre- sumptively relevant to the union in its role as the em- ployees' exclusive bargaining representative." I have heretofore set forth the fact that the rate of turnover of employees since the date of certification has been great and the size of the unit has more than dou- bled. Moreover, the Respondent has not shown that the Union can readily reach, or possesses the means of reaching, both member and nonmember employees who are included in the unit. Additionally, the information re- quired is readily available to the Respondent. Considera- tion of these factors under the foregoing circumstances makes it clear that the provision of the information re- quested by the Union from the Respondent is required by the Act.23 Moreover, the Respondent has never at any time, aside from stating that it gave the names of 20 Wolf admitted that, throughout the negotiations, the Union request- ed the list of names and addresses from the Respondent. ' NL.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). 2 California Blowpipe & Steel Company. Inc., 218 NLRB 736, 742-743 (1975). 23 See Magma Copper Company, San Manuel Division, 208 NLRB (1974). ACE MACHINE CO. 635 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the Excelsior list, and that it maintains a policy of not furnishing such names, shown that there is a lack of need for this information in order for the Union to perform its duties as the certified bargaining repre- sentative of the unit employees. Nor has the Respondent shown that the information requested is available else- where.2 4 Moreover, as noted, the information which the Union has been able to accumulate since the certification has certainly become outdated, outmoded, and useless for the intended purpose. 25 Finally, the parties have not reached any agreement as of the date of the hearing herein. Inasmuch as the Respondent has consistently re- fused during the entire period of negotiations to consent to a union-security clause in any bargaining agreement which might be reached, the Union has no means of knowing with which employees to communicate or the manner in which it can communicate with such employ- ees. Also, the Union cannot communicate with the em- ployees at the plant inasmuch as, as credibly testified by Garuccio, and not heretofore mentioned, the Respondent has consistently refused to permit Garuccio entry to the Respondent's facility nor has the Respondent permitted the posting of any union matters on any of the bulletin boards or any other places where notices are posted within the Respondent's facility. Accordingly, by reason of all of the foregoing, I find and conclude that the names and addresses of the unit employees are necessary for the Union to perform its role as the collective-bargaining representative of the Re- spondent's employees and that the Respondent's refusal to furnish this information upon proper request, as noted, constitutes a refusal to bargain in good faith within the meaning of Section 8(a)(5) and (1) of the Act. 3. Refusal to sign a written agreement Reference has been made, above, to the fact that Wolf, during the negotiations, apprised the Respondent's board of directors of developments during the course of the ne- gotiations. Wolf testified that, during the preliminary ne- gotiations sessions, the Respondent's board of directors cautioned Wolf to be discreet and to proceed with care in the negotiations. Of course, during that period of time, the Respondent, as noted, was represented by Wolf and by the labor relations counsel, Rector. Although the record does not reveal the number of sessions held, it is probable that at one point in approximately March 1978 Wolf, at a session with the board of directors, informed them the direction the negotiations had taken at that point and the board was, according to Wolf, somewhat displeased. The directors thereupon instructed Wolf to withdraw several of his tentative agreements and to renew negotiations based on a different set of guidelines. Accordingly, on March 25, Wolf wrote a letter to Herbert Stottler, an International union representative, who also acted as a union negotiator, in which Wolf ad- mitted that the Respondent had made a final offer and that the Respondent and the Union were nearing a tenta- tive agreement. Wolf then went on to remind Stottler that, at the original meeting, all of his actions and deci- 24 California Blowpipe d Steel Company. Inc., supra. 2 Autoprod, Inc., 223 NLRB 773 (1976). sions would be subject to the approval of the Respond- ent's board of directors. Wolf ended the letter by re- questing that the next negotiating meeting should be held after April 10, 1978. Wolf further testified that he discussed each wage rate proposal with the board of directors throughout the entire negotiation period, which lasted, as noted above, from July 1977 through July 1978, and was instructed as to how much the Respondent was prepared to offer the Union. To sum up, Wolfs testimony was to the effect that the Respondent's board of directors was kept con- tinuously informed of the negotiations and was therefore aware of what was taking place during the entire period. One of the items which the Respondent consistently refused consent was the request of the Union for union- security provisions. This continuing request for union se- curity on the part of the Union was, to a major extent, one of the chief stumbling blocks in reaching an agree- ment. Finally, on July 3, 1978, at the last meeting held between the parties, Wolf and Rector were in attendance for the Company. For the Union were Garuccio, Stottler, Oxley, and Belknap. During that meeting, the economic provisions were ultimately agreed upon, the details of which are not here relevant. In fact, the wage rates which were agreed upon for the various classes of machanics were made retroactively effective to May 11, 1978. Attempts were made by both parties to get some additional movement in other areas in addition to wages. When this was proposed by the Union, Wolfs response was, "We made a final offer and we will stand on it." Then, union security was again brought up and Wolf, who was still in attendance at the meeting, indicated that there was no way that the Respondent would agree to a contract with a union-security clause. At this point, Gar- uccio stated that, if there were no union-security clause, would the Company be agreeable to the contract as to the matters which were already tentatively agreed upon because that was the one area in which the parties were in agreement. Upon this offer, Garuccio left the room to call union headquarters. He came back with the assent of the Union to drop union security if the Respondent would accept the balance of the contract as it had been negotiated up to that point. He informed Wolf that, as far as the Union was concerned, the Union would forgo the union-security clause and therefore they would have a contract. At that point, Wolf consented and a contract was for a year's term as proposed by the Union. Wolf then affirmatively stated that they had a tentative agree- ment. At that point, Wolf, evidently having other matters to attend, announced he had to leave the meeting. Before going, however, the parties went over each and every item that had been agreed upon in order to prevent any misunderstanding. Before Wolf left, he and the union representatives did agree to each and every item. Then, Garuccio and Wolf having been satisfied that all parties were in basic agreement, Garuccio suggested that Rector and Garuccio sit down, then and there, and finalize all other portions of the tentative contract which had not been initialed previously by representatives of both par- ties. Wolf consented and left, indicating that he might have to talk to his board of directors about the agree- ACE MACHINE CO. 637 ment. But, as Wolf left, Garuccio asked Wolf if Rector was in authority to agree to the contract and Wolfs re- sponse was in the affirmative. Wolf added that Rector had full authority, Thereafter, Wolf having departed from the meeting of July 3, 1978, Garuccio and Rector marked up the work- ing copy of the proposals which had been the basis for the negotiations throughout the entire negotiation period, arriving at a complete agreement by initialing each and every item by the end of that meeting. In other words, every item that was to be in or out of the final contract was agreed upon, and all those that were agreed upon were initialed by both Rector and by Garuccio. Thus, an entire agreement was reached on that date. Even some corrections in wording were initialed. 26 Upon agreement of Garuccio and Rector, at the close of the meeting of July 3, Garuccio consented to prepare a complete, final copy of the agreed-upon contract and present it to the Respondent. Garuccio did this and, on August 16, mailed the copy of the tentative final agree- ment which reflected the total of the agreement of the parties reached on July 3. However, there were two in- advertent errors in the agreement. One article was inad- vertently included and a second article was inadvertently omitted. However, these were matters which could be easily corrected and were admittedly not fatal to the entire agreement. For over a month no word was re- ceived from the Respondent in response to Garuccio's submission of the written agreement. Finally, the Re- spondent through Wolf, by letter dated September 21, 1978, informed the Union as follows: I regret to inform you that the Ace Machine Com- pany Board of Directors, at a meeting held Septem- ber 21, 1978 did not approve the tentative agree- ment reached at the last meeting held at the Federal Mediation and Conciliation Service in the Federal Building, Akron, Ohio. The foregoing represents the entire letter. No explana- tion for the rejection of the agreement was offered by the Respondent. It is evident, therefore, that the entire agreement, after all the final negotiations and after the tentative agreement reached on July 3, was completely rejected without any explanation whatsoever on the part of anyone representing the Respondent, including Wolf and Rector. During his examination at the hearing herein, Wolf did not state that the two inadvertent errors were the cause of the rejection, but maintained only that the board of directors had a good-faith disapproval of the contract, and that the Respondent desired only to re- negotiate each and every term as though no agreement had been reached on any terms whatsoever. The law is well settled that, when an employer refuses to execute an agreement reached with a union's repre- sentatives, it violates Section 8(a)(5) and (1) of the Act.2 7 Nor would the two inadvertent errors in the written sub- mission mailed by Garuccio to the Respondent on 28 This agreement was received in evidence and constitutes, together with Garuccio's credited testimony, the basis for the foregoing recitation of what was contained in the agreement that was reached on that date. 27 See H. J Heinz Company v. N.L.R.R. , U.S. 514 (1941). August 16 excuse a complete refusal to execute the agreement previously reached.2 8 Of course, the authority invested in any bargaining agent may be limited in the negotiation of a collective- bargaining agreement which is subject to ratification by either union membership or, as in the case at bar, the board of directors of the Respondent.2 9 However, an employer cannot sit by for an extended period of time while its representatives negotiate, reach agreement, and then under guise of exercising its reserved right of ratifi- cation reject completely the results of negotiations. 30 To fully assess the legal effect of the rejection of the agreement and the failure of the Respondent to execute the same without explanation thereof, it is necessary to review the corporate structure of the Respondent and the nature of the alleged limited authority of the negotia- tors for the Respondent to commit the Respondent to a binding agreement requiring execution thereof. Because the rejection letter of September 21, 1978, states that the board of directors did not approve of the tentative agree- ment, a first inquiry must be made as to how the board of directors was composed at the material time. The Respondent is a closely held corporation whose stock is divided between five individuals. President Wolf and his wife own 60 percent of the stock; a Mr. and Mrs. J. F. Stanford hold approximately 20 percent; Richard Appleton holds from 8 to 10 percent; and a church not connected with the corporation except for its stock own- ership holds approximately 7 percent. The board of di- rectors, made up completely of stockholders, with the exception of the church, are as follows: Richard Apple- ton, Mr. and Mrs. Stanford, and Mr. and Mrs. Wolf. Evidently there are no set dates for the meetings of the board of directors of the Respondent as a corpora- tion, which is typical of small business corporations of the type of which the Respondent is an example. How- ever, on cross-examination, Wolf admitted that there had been no board of directors meeting within the 6-month period preceding the hearing date herein and, further- more, he could not remember when there was a last formal board of directors meeting. With regard to the formality of the operations of the board of directors, Wolf merely stated that it was one of "those lawyer things," that a lawyer was paid a fee to set up a set of corporate books and a charter. In view of this, and in view of the fact that both Wolf and Appleton were working stockholders who actually participated in the daily operation of the plant, it is hardly conceivable that the board of directors was not fully aware of the prog- ress of the negotiations as they proceeded over a period of approximately 1 year. In fact, on March 25, 1978, as heretofore stated, Wolf reiterated in his letter to Stottler of the Union that, from the outset, all of his actions and decisions at the meeting were subject to the approval of the board of directors. Accordingly, when Wolf left the meeting on July 3, 1978, and informed Garuccio that 28 Trojan Steel Corporation, 222 NLRB 478 (1976); Bronson Methodist Hospital, 223 NLRB 95 (1976); Raven Industries, Inc., 209 NLRB 335 (1974). 29 Aptos Seascape Corporation, 194 NLRB 540 (1971) 30 NL.R.B. v. Alterman Truck Lines. Inc., 587 F.2d 212 (5th Cir. 1979). ACE MACHINE CO. 637 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rector was fully authorized to complete the rather minor matters required to finalize the terms of the pros- pective agreement, the terms agreed upon that day were terms of which the board of directors had full knowl- edge or, at least, terms with which they had been ap- prised inasmuch as the only remaining important matter which had not been agreed upon by that time was the outstanding request of the Union for a union-security clause. Since what was agreed upon at that date, July 3, 1978, was substantially what had been earlier approved by the Respondent, and because Wolf had stated that Rector had full authority to complete the minor matters which required negotiations and initialing, it can only be concluded that the agreement that was made on that day was an agreement of which the board of directors was fully cognizant and to which Wolf would not have con- sented had not the board of directors had knowledge thereof. Also to be considered in connection with the forego- ing, as heretofore concluded in this Decision, Wolf, at a somewhat earlier date, told employee Oxley that the Re- spondent, or at least Wolf as president of the Respond- ent, was not going to sign the agreement. Accordingly, although as acknowledged heretofore, an employer may properly limit the authority of a bargain- ing representative, there was really no such limitation here in the person of Wolf and his labor counsel, Rector. As a matter of fact, Rector himself, although not testify- ing, admitted at one point in the proceeding that he thought they had a contract on July 3, when he initialed the agreed-upon portions of the proposals with Garuccio. By reason of all of the foregoing, the apparent knowl- edge of the board of directors, the statement to Oxley by Wolf, the authority given by Wolf to Labor Relations Counsel Rector, the fact that Wolf and his wife own the majority of stock and therefore had basically the final persuasive vote at any meeting of the board of directors, I find and conclude that the refusal to execute the writ- ten contract, without explanation, was but a sham, as contended by the General Counsel, and that the Re- spondent's rejection constituted a bad-faith refusal to bar- gain within the definition set forth by Section 8(d) of the Act, and was and is a violation of Section 8(a)(5) and (1) of the Act. 4. The withdrawal of recognition of the Union There is set forth heretofore a discussion with regard to the Respondent's contention that the Union has lost its majority status. In fact, at the hearing herein, the Re- spondent stipulated that since September 27, 1978, the Respondent has withdrawn such recognition and has ad- mittedly refused to bargain with the Union for the rea- sons herein earlier set forth. In seeking to establish an objective reason for refusing to recognize the Union after the expiration of the certifi- cation year Wolf gave the following: (a) the advice of his counsel; (b) his personal opinion based upon his busi- ness judgment, basically the turnover of employees from the date of the Union's election until the date of Septem- ber 27, 1978; and, finally, (c) his discussion with approxi- mately no more than a dozen out of the 60 employees in the bargaining unit as of the date the Respondent with- drew recognition. The Board has stated that, with regard to objective considerations, "To establish sufficient objective base, however, requires more than the mere assertion thereof based upon the employer's subjective frame of mind. Furthermore, the employer must not have engaged in any conduct tending to encourage employee disaffection from the union."31 The record herein is replete with instances of the type of unfair labor practices which the Board has long held demonstrate that the employer's so-called objective rea- sons for failing to recognize and bargain with the certi- fied union are valid. Certainly it cannot be found that the Respondent's "objective reasons" for stating that the considerations which Wolf felt imposed upon him the duty not to recognize his employees' union are such that a good-faith doubt as to the Union's continued majority status could not have been in the mind of Wolf or any of the other corporate officers. Moreover, beyond citing the large turnover of unit employees, the Respondent has not in any way demon- strated that the Union has indeed lost its majority status. Although the majority status of a certified union cannot be attacked during the certification year, absent unusual circumstances not here present, there is a presumption of continuing majority after the certification year, unless the Respondent can overcome such presumption. Cer- tainly, here, in view of the unfair labor practices which could have caused defection from the Union, there is an absence of a sufficient basis upon which to make a find- ing that the continuing presumption of majority has been overcome. Accordingly, in addition to all that has been said on this matter, above, I find and conclude that the Respondent's refusal to recognize and bargain with the Union on and after September 27, 1978, constitutes a fur- ther refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. 5. The overall refusal to bargain in good faith It is unnecessary to unduly lengthen this Decision with a repetition of all that has been heretofore discussed with regard to the various acts of the Respondent in violation of Section 8(a)(1), (3), and (5) of the Act. Needless to say, all of these violations, in toto, are matters upon which the Board in the past has relied to find a violation of refusal to bargain in good faith, with the purpose in view by the Respondent not to reach an agreement with its employees' bargaining representative. The Respondent here does not defend its refusal to bargain upon the basis that all it engaged in was hard bargaining.3 2 However, the Respondent's adamant position with regard to the Union's proposal for a union-security clause in conjunc- tion with the Respondent's refusal to execute the agreed- upon contract provisions, the coercive statements to em- ployees to the effect that the Respondent would never sign a collective-bargaining agreement with the Union, the other threats in violation of Section 8(a)(1), the dis- sl James W. Whirfield, d/b/a Cutten Supermarket, 220 NLRB 507, 508 (1975). "I See N.LR.B. v. American National Insurance Co., 343 U.S. 395 (1952). ACE MACHINE CO. 639 criminatory discharges and, transfer, the Respondent's refusal to furnish necessary information to the Union and finally, the Respondent's unlawful withdrawal of recog- nition and ultimate refusal to bargain with the Union constitute sufficient reason to find that, upon the entire record, from the date the negotiations began and con- tinuing to date, the Respondent has engaged in, and is engaging in, conduct constituting bad-faith bargaining in violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, it will be rec- ommended that the Respondent cease and desist there- from. Having found that the Respondent has engaged in, and is engaging in, threats and other coercive acts interfering with the employees' Section 7 rights, it will be ordered that the Respondent cease and desist therefrom. It having been found that the Respondent has discri- minatorily discharged employees John Hosterman and William Hewitt, it will be ordered that the Respondent reinstate each of them to their former or equivalent posi- tion, and make them whole by paying to each of them a sum of money equal to that which each would have earned but for the discrimination visited upon them by the Respondent. Backpay shall be computed with interest thereon in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977).33 It having been found that the Respondent discrimina- torily reassigned Bessie Belknap from a more desirable position to a less desirable position, it will be ordered that the Respondent reassign Belknap to her formerly held or equivalent position without loss of seniority in such position. It will further be recommended that Bessie Belknap be reimbursed for any loss of earnings she may have suffered by reason of the discriminatory transfer in the same manner as set forth above in the cases of John Hosterman and William Hewitt. It having been found that the Respondent has unlaw- fully refused to provide the Union with a list of unit em- ployees' names and addresses, it will be ordered that such information be furnished to the Union by the Re- spondent upon request by the Union. It having been found, further, that the Respondent has failed to execute an agreed-upon written contract em- bodying the terms and conditions reached on July 3, 1978, it will be ordered that the Respondent immediately 3 See, generally, Isis Plumbing d Healing Co., 138 NLRB 716 (19621. execute the agreement embodying such terms and condi- tions of employment and that, in order to fully remedy its refusal to execute such agreement, the Respondent make whole all employees covered by the aforesaid col- lective-bargaining agreeement or the loss of any benefits which would have accrued to them under the contract had the Respondent executed the same within a reason- able time after the same was proffered to the Respondent for signature, with interest to be computed as set forth above. Because the Respondent has refused to recognize the Union, it will be ordered that the Respondent recognize and bargain with the Union as the exclusive representa- tive of its employees in the appropriate collective-bar- gaining unit for a period of no less than I year from the date on which the Respondent fully complies with the other terms of this Order. Upon the basis of the foregoing findings of fact, and the entire record in this case, I make the following: 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 1. ' or organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees by threaten- ing them with reprisals including loss of employment, by creating the impression of surveillance, and by other acts of interference with the employees' Section 7 rights, the Respondent has engaged in, and is engaging in, unfair labor practices prohibited by Section 8(a)(1) of the Act. 4. By discriminatorily discharging employees John Hosterman and William Hewitt, and discriminatorily transferring Bessie Belknap, all for the purpose of dis- couraging membership in the aforesaid Union, the Re- spondent has engaged in unfair labor practices prohibited by Section 8(a)(3) and () of the Act. 5. By refusing to furnish to the Union information nec- essary for the Union to properly function as the collec- tive-bargaining representative of the Respondent's em- ployees in the unit herein below set forth, the Respond- ent has violated, and is violating, Section 8(a)(5) and (1) of the Act. The appropriate unit is: All production and maintenance employees em- ployed at the Respondent's Cuyahoga Falls, Ohio facility, excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act. 6. By refusing to execute and sign the agreed-upon collective-bargaining agreement reached by the Respond- ent and the Union in their negotiations, the Respondent has violated, and is violating, Section 8(a)(5) and (1) of the Act. 7. By ceasing and refusing to recognize the Union as the collective-bargaining representative of the Respond- ent's employees and by refusing to bargain generally with the said Union, the Respondent has violated, and is violating, Section 8(a)(5) and (1) of the Act. ACE MACHINE CO. 639 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, and pur- suant to Section 10(c) of the Act, I hereby issue the fol- lowing: ORDER 34 The Respondent, James F. Stanford, Inc., d/b/a Ace Machine Co., Cuyahoga Falls, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership, activities, and desires, and the union membership, activities, and desires of other em- ployees. (b) Threatening employees with discharge and other reprisals for supporting and otherwise engaging in activi- ties on behlaf of the Union. (C) Creating the impression of surveillance of the em- ployees' union activities and of the Union's meetings at- tended by the Respondent's employees. (d) Creating the impression of futility on the part of its employees to engage in union activity or to support the Union. (e) Maintaining and enforcing an invalid union no-so- licitation rule. (f) Discharging employees John Hosterman and Wil- liam Hewitt for engaging in and supporting union activi- ties in order to discourage union membership. (g) Transferring Bessie Belknap from a more desirable position to a less desirable position in reprisal for Belk- nap's support of and membership in the Union in order to discourage union activity and support of the Respond- ent's employees. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, assist, or be represented by any labor orga- nizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activity, except as such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized under Section 8(a)(3) of the Act. (i) Refusing to furnish to Respondent's collective-bar- gaining representative, the Union herein, information necessary for the Union to perform its duties as the col- lective-bargaining representative of the Respondent's em- ployees. (j) Unlawfully refusing to execute and sign the written agreement representing the terms and conditions thereto- fore agreed upon between the Union and the Respond- ent. 34 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. (k) Refusing to recognize and bargain with the Union as the collective-bargaining representative of the Re- spondent's employees in an appropriate unit as herein- after set forth. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to John Hosterman and William Hewitt im- mediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without loss of seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the dis- crimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Transfer Bessie Belknap to her former position in the machine department, without loss of seniority, and make her whole for any loss of earnings she may have suffered by reason of the discriminatory transfer to the bench department in the manner set forth above. (c) Sign and otherwise execute and place into full effect the written agreement submitted by the United Steelworkers on August 16, 1978, with any inadvertent errors omitted. (d) Make whole the employees in the unit represented by the Union for any loss of benefits which may have accrued to them by reason of the failure to execute the collective-bargaining agreement, as set forth above. (e) Provide to the Union a list of names and addresses of all the employees in the following appropriate unit: All production and maintenance employees em- ployed at the Respondent's Cuyahoga Falls, Ohio facility, excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act. (f) Recognize and bargain, upon request, with United Steelworkers of America, AFL-CIO-CLC, and any local union thereof, established for the purpose of servic- ing the employees in the aforesaid unit and the above aforesaid agreement. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (h) Post at its facility in Cuyahoga Falls, Ohio, copies of the attached notice marked "Appendix." 35 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- ,. In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ACE MACHINE CO. 641 tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.