Staats and Staats, Inc.

NATIONA and Staat8, Inc. Internatiod Electrical, md A F G CIO-CLC. KA-11816 1 1 Wagman find- i n s 1 Starnes Aston. crosscxamination, Aston 1 Arrigione aa Reapondent hu certain made the Boud's catnblished ovmule an r a p c t crcdi- bility unleu c l u r con- v i m molutions Dly Wail Pmducl Inc.. 188 F.2d (3d 1951). crrcfully examined basis hia ~espondent'; February impoaed N.LR.B. 405, 409 increases fwt light.^ 1qc) aa l(g): "(g) succesl Rapondent's wtica is tape pnrt Staats' Dmmber meeting employees. rcvuls before clwe Aston gonm 888 DECISIONS OF L LABOR RELATIONS BOARD Staats and Union of Radio Machine Workers, Cases and 6-CA- 11849 February 3, 198 DECISION AND ORDER On August 18, 1980, Administrative Law Judge Leonard M. issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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, and conclusions of the Administrative Law Judge, as modified below, and to adopt his recom- mended Order, as modified herein. Contrary to the Administrative Law Judge, the record does not establish that, on December 1, 1978, Clyde Staats, the Respondent's president, un- lawfully instructed employee to have the Union withdraw its election petition. In so finding, the Administrative Law Judge relied on the direct testimony of employee Rich However, on testified that he "couldn't say" who broached the subject of withdrawing the petition, that Staats "may not have" brought it up, and that, "possibly," an employee had. Further, a tape recording of the second half of the December meeting was introduced into evidence. It reveals that, after discussing another subject, employee Dave stated, "I've heard that if we with- draw the petition, that we could get fined for that." Nothing indicates that, in the ensuing discus- sion, Staats instructed any employee to have the petition withdrawn. We shall therefore dismiss this one allegation unsupported by the evidence. Nonetheless, we fully agree with the Administra- tive Law Judge's conclusion that only a bargaining order can fully remedy the Respondent's serious unfair labor practices and forestall future recourse to the tactics which proved so successful here. Before its November 16, 1978, demand for recogni- tion, the Union enjoyed the support of 15 of 23 unit employees as evidenced by signed authoriza- tion cards. Four days later, Clyde Staats, the Re- spondent's president, summarily discharged three union adherents under circumstances which clearly establish a discriminatory motive and a willingness The excepted to credibility findinga by t k Administrative Law Judge. It is policy not to administrative law judge's resolutions with to the preponderance of all of the relevant evidence us that the are incorrect. Standard 91 NLRB 544 (1950). enfd. 362 Cir. We have the record and find no for reversing findings. 254 NLRB No. 105 to retaliate against employees for their support of the Union. On November 28. Staats threatened to discontinue the apprenticeship pro- gram, and, on 19, 1979, he new work rules on employees. Nor was the Respon- dent's antiunion campaign limited to threats and re- prisals. On December 1, 1978, Staats granted em- ployees an additional holiday, modified the Re- spondent's vacation schedule, and told employees to come to him if they thought they were not re- ceiving a "fair shake." As the Supreme Court stated in v. Exchange Parts Ca,375 U.S. (1964): The danger inherent in well-timed in benefits is the suggestion of a inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if not obliged. The Respondent responded to its employees' union activity by (I) unlawful threats and interro- gation, (2) acts of reprisal, including the discharge of three employees, and (3) unlawful solicitation of grievances and granting of benefits. The foregoing conduct, which vividly demonstrated to employees the perils of union support and the rewards of its rejection, tended to dissipate the Union's preelec- tion majority. Further, with employees so condi- tioned, the possibility of a fair election is at best ORDER Pursuant to Section 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, Staats and Staats, Inc., Irwin, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, so modified: 1. Substitute the following for paragraph Threatening employees with layoffs if they select the Union, or any other labor organization, as their collective-bargaining representative." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. The apparent of the the recording of the latter It that. shortly of the demonstrated by I with of the meeting, em- ployee Rich stated, "You know, if everything's be fine down here, we guarantee you a no vote." POSTED ORDER NATIONAL Relations NOT Worken, AFGCIO- CLC, WE WILL because impliedly threaten employas othcr organization, ather as re& employcca, profesaional supervi- as disciplinary righta guaranteed ill&, Har- Gribschaw positions includinl and mnke earnings may backpay them, disciplinary warnin@ and disciplinaty the violationp rescind 1 5 min.--docked min.--docked min. 30 dismissal dimis- saldischarged. (1) constitutes dismid. 889 STAATS AND STAATS, INC. APPENDIX NOTICE To EMPLOYEES BY OF THE LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL discharge or otherwise dis- criminate against employees in regard to their hire, tenure of employment, or any term or condition of employment in order to discour- age membership in, support for, or activities on behalf of International Union of Electrical, Radio and Machine or any other labor organization. NOT threaten employees with dis- charge of their membership in, sup- port for, or activities on behalf of the Union, or any other labor organization. WE WILL NOT employees with discontinuance of our apprenticeship pro- gram if the employees support the Union, or any other labor organization, in its effort to achieve representative status. WE WILL NOT solicit employee grievances in order to persuade to abandon their support for the Union, or any labor as their collective-bargaining rep- resentative. WE WILL NOT threaten employees with lay- o f f ~ ~plant closure, or any reprisals if they select the Union, or any other labor orga- nization, their collective-bargaining repre- sentative. WE WILL NOT interrogate employees con- cerning their union activities or sentiments toward the Union, or any other labor organi- zation. WE WILL NOT impose more onerous condi- tions of employment upon employees in order to dissuade them from supporting the Union, or any other labor organization. WE WILL NOT promise employees improved conditions of employment to persuade them to abandon the Union, or any other labor organi- zation, as their collective-bargaining represen- tative. WE WILL NOT to bargain collectively concerning rates of pay, wages, hours of em- ployment, and other terms and conditions of employment with the Union as the exclusive bargaining representative of the employees in the appropriate bargaining unit set forth below: All production and maintenance employees employed by the Employer at its Irwin, Pennsylvania, facility; excluding all other employees, office clerical and guards, employees and son defined in the Act. WE WILL NOT revise, expand, promulgate, and thereafter enforce plant or work rules, or impose punishment for violation of plant or work rules, governing employees rep- resented by the aforesaid Union without bar- gaining with said Union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the them in Section 7 of the Act. WE WILL offer Carl S. Regis H. tung, and Eugene Paul immediate and full reinstatement to their former positions or, if those no longer exist, to sub- stantially equivalent positions, without preju- dice to their seniority and other rights and privileges, their apprenticeship status, each of them whole for any loss of they have suffered by reason of our unlawful discrimination against them, with interest on the due WE WILL remove all and rescind all monetary penalties other actions, including discharge, im- posed since February 19, 1979, upon employ- ees represented by Union for the of the rules quoted below. WE WILL the following rules which were promulgated on February 19, 1979: Tardy--Offense to 15 min.; 5 to 10 30 Replacement After min. to fill vacancy sub- ject to expelled for the day. Penalties for Tardy and no show: 3 times cau- tioned; 4th time 3 days 3 Quitting work for personal reasons with out one day notice offense. Personal tools: Borrowing tools from other's forbidden. Supervision: Failure for not to obey orders or willfully using derogatory remarks to per- sonnel insubordination Individual record: Each employee will have a card that registers performance for one (1) year. Can be checked with supervisor when requested. request, hours S T A A ~ STMIS, M. WAGMEN, Workers, complaint allegca Staats Staats, 8(a)(1), (3). f151, seq.). Compaay, answer, a~ comrniesion labor demanor witnews, afta fded JURISDICCION Company. nonretail Irwin, Pennsylvania, period goods excese SSO,000 points outside $50,000, commerce 2(6) allege, con- 11. UNFAIR Issues 1978,l Starnca' 12 employees the Regional certificati; represents: Two R e g i d the 20 company employea~ ~ e g i o n d D i k t o r thqc practice Cam Case MA-11849. Thereafter, r 8(a)(l9 prounion (b) Act;' Unlesa otherwise stated. d l data 1978. a Sec. provida: self-organization, fonn, assist labor organizations, barpin repreoenta- choosinn. and engnge activi- t i e coiective bar&ining dhcr m u t d Machine and shall have refrain any all that may of 2(5) of by u Act. 08 w t i o n S(aK3). 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole employees w h o have suffered loss of pay since February 19, 1979, for violation of the abovequoted rules, with interest on the amounts due them. WE WILL, upon bargain with the above-named Union as the exclusive represen- tative of the employees in the appropriate unit described above with respect to the rates of pay, wages, of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. AND INC. DECISION LEONARD Administrative Law Judge: Upon charges filed by International Union of Electrical, Radio and Machine AFL-CIO-CLC, herein called the Union, the Regional Director for Region 6 of the National Labor Relations Board issued a consolidat- ed and notice of hearing on January 29, 1979. The complaint, as amended at the hearing, that Respondent and Inc., referred to below as the Company, had violated Section and (5) of the National Labor Relations Act, as amended (29 U.S.C. et The by its timely amended at the hearing, denied of the alleged unfair practices. Upon the entire record, including my observation of the of the and due consider- ation of the briefr by the General Counsel and the Company, I make the following: I. AND LABOR ORGANIZATION The a Pennsylvania corporation engages in the manufacture and sale of tools and dies at its plant. During the 12-month preceding issuance of the consolidated complaint, the Company sold and shipped valued in of directly to located Pennsylvania from its Irwin, Pennsylvania, plant. During the same period. the Company received goods and materials valued in excess of directly from points located outside Pennsylvania for use at its Irwin plant. In its answer the Company admitted the foregoing data and conceded that at all times material it was an employer engaged in within the meaning of Section and (7) of the Act, and I so find. The complaint the Company in its answer cedes, and I find that International Union of Electrical, Radio and Workers, AFL-CIO-CLC, is a labor organization within the meaning Section the THE ALLEGED LABOR PRACTICES A. Background and On November 8 or 9, company employee Willie Lee Starnes, Jr., contacted the Union and ar- ranged for a meeting between Frank Pugliano, an orga- nizer, and a group of company employees to be held on November 13 at a restaurant in Irwin. In response to organizing effort, of the Company's 23 pro- duction and maintenance attended the meet- ing. Thereafter, the Union sought to organize the Compa- ny's employees. On November 14 Union filed a peti- tion with the Director in Case 6-RC-8356. seeking as collective-bargaining tive in a unit of the Company's production and mainte- nance employees. days later the Company received the Union's written demand, dated November 14, for recognition and collective bargaining in the same unit. On or about November 16 the Company received notifi- cation from the Director that Union had filed the representation petition in Case 6-RC-8356. By letter dated November the Company rejected the Union'r request for recognition and bargaining. The Union held a second meeting with employees late on the afternoon of November 20. On December 4 the Company and the Union entered into a Stipulation for Certification Upon Consent Elec- tion among the Company's production and maintenance The approved the election agreement on December 5. On the same date he notified Company and the Union that he was holding the rep- resentation petition in abeyance pending investigation of the unfair labor charge in 6-CA-11849. one of the cases before me. On December 13 the Region- al Director advised the parties that the election in 6-RC-8356 would not be held due to the investigation of the unfair labor practice charge in Case on February 7, 1979, the Regional Director notified the Company that the Union had withdrawn its election petition. The issues presented by the pleadings with respect to Section of the Act are whether the evidence showr that, in response to the Union's organizing effort and its employees' manifestations of sentiment, the Company violated that section of the Act by: (a) threatening to close its plant if the employees were rep- resented by a union for purposes of collective bargaining; threatening employees with discharge because they engaged in union activity or other activity protected by Section 7 of the (c) threatening employees with discontinuance of the Company's apprentice program if refer to 7 of the Act Employees shall have the right to to join, or to collectively through tiva of their own to in other concerted for the purpose of or aid or protection, dm the right to from or such activities except to the extent such right be affected an agreement requiring membership in a labor organization a condition of employment authorized in 1 1 employeen mire representative; (f) concerning activitia an becaw 8(a)(3) employee8 Hartung, r a i d Company violated 8(a)(5) refusel requested unit ployea Intefirence, Caercion Kistner presmce asbestor pcmible his remarks, Gribachaw exist fisher responded subatancc employees closc plant.a eame day, Gribnchaw Supervisor the his working re~pond.~ a findimp regarding convnution Kistncr hud tatimony. Gribrhaw seemed wme- what uncertain enrt Kistner's remarks, a p pcrrcd to be nuking eKort bat nunner. contrast, Kirtner, d i n g threat n dc- s~ribcd did imprga n being witnaa when hh towud and the wbo mpporIaI Thu, after tdfying thst campaign he hd n employea and did he contndictcd himaelf. h d d hd Grib- chaw fonner utegory kcrlec h d comp*ined nkslor. his admitted clurifiutioa employea d Khna seriolu hia w n towud possibility representation plmt. asked h i auesament sentiment Kitncr timn evraive. finding reprding Gribrhaw's Stuts hud Gribrhw's teatimany direct examination. tatimony crou-elunirution efSect Swtn dw suggestion asbeston i.e., close employea 8(a)(1) as re- laten aribnchaw's Norman of the Campany's regarded members apprenticesl~ip 1950. were repro sented adminiatered Stnab displea~ure.~ employas. Stamen. before Earl guys w n an uncedn manner cnntnst Gribshaw'c morc ceruin demanor whm tatifying On direct emination. Stuts conobonted complaint n hulth h u d testird Stuts th.1 he Gribrhaw plmt cloring sekcted n their apnt. testimony remarks Swts. that Norman Stat8 thratmed employem rcprcwntation. discussion Company's apprm- pmgnm Stub baaed uncontndict- ed Rndinpl Stuts' apprcn- program are bued Starms' Stutn denied that apprenticeship w n n Starnes imp& n witness, hiis Stuts' remarks. ac8esnnmt Stutn' I rmted instances sdfcontrdiction, m self-serving cma-cxamina- Continued 89 STAATS AND STAATS, INC. the employees selected the Union to represent them for purposes of collective bargaining; (d) promising employ- ees improved conditions of employment to persuade them to abandon their support for the Union; (e) threat- ening with onerous working conditions if they selected the Union as their collective-bargaining interrogating employees their union membership, and sentiments; (g) in- structing employees to request the Union to withdraw the representation case petition; (h) soliciting complaints from employees, and implying favorable treatment of their complaints, to dissuade them from supporting the Union their collective-barpaining representative; and (i) imposing more onerous working conditions upon em- ployees of their union activities or other activity protected by Section 7 of the Act. Further issues presented are whether the Company violated Section and (1) of the Act by discharging Carl E. Miller, Regis H. and Eugene Paul Gribschaw because they supported the Union. The pleadings also the question of whether the Section and (1) of the Act first by ita failure and to bargain with the Union for the of production and maintenance em- and further by its unilateral promulgation of new work rules. B.Alleged Restraint, and At the end of October or the beginning of November, company employee Eugene Gribschaw, while working on a brake lining job, complained to Supervisor Anthony S. about the of fibers in the air and the harm they could cause if breathed in. In the course of suggested that thin peril would not "if there wan a union here." in that, if selected a union to represent them, the Company would quickly the On tho complained to Company Norman Staats about danger to breathing caused by on the brake lining. He also told Norman Staats that, if there were a union in the plant, thin safety hazard would not exist. Norman Staats did not My Gribschaw's with arc upon Gribrhaw's Although about the wording of he a genuine to provide his recollection in a full and forthright In who denied my such the one by Gribschaw, not me a candid testifying about attitude the Union employees it. during the Union's m opinion to which favored t k Union which not, He admitted that he cataloged em- ployee u either pmunion or antiunion that he placed in t k he about By of into pro antiunion cut doubt upon testimony that he indifferent the of union at the Company's Further. when about of employee toward the Union. w u at My encounter with Norman is upon on Gribschaw's on to the that threatened The General Counsel argues that Kistner's response to Gribschaw's that the presence of a union bar- gaining agent would alleviate the danger of in the plant violated the Act. I agree. Kistner's answer, that the Company would quickly the plant if the embraced union representation, was an unmis- takable threat of reprisal designed to discourage union activity among the Company's employees. Accordingly. I find that, by this threat, the Company violated Section of the Act. I also find, contrary to the General Counsel's conten- tion. that the evidence does not support a finding that Norman Staats made a similar threat. I shall therefore recommend dismissal of so much of the complaint to encounter with Staats. On or about November 28, approximately 12 days after the Company had received the Union's demand for recognition and bargaining and the notice the Union's representation election petition, Earl Lloyd, field repre- sentative of the U.S. Department of Labor's Bureau of Apprenticeship Training, visited plant. Initially, Lloyd and Clyde Staatn, the Company's founders, who are by the employees and man- agement as the most senior of the Company's management, discussed the Company's program which wan currently active, which dated from October Clyde Staats asked Lloyd if the current apprenticeship program could continue if the employees represented by a union under a collective-bargain- ing agreement. Lloyd responded that, if a union the employees, under the usual union practice, the Company's unilateral operation of the program would give way to a jointly apprenticeship pro- gram. Clyde reacted to Lloyd's answer with some At Clyde Staats' request, Lloyd went into the plant to speak to a group of company Among those present were employees Jim Kowinsky, Paul Bish, and , Willie Lee In opening the discussion, and introducing Lloyd to the employees, Clyde Staats warned: "Some of you think you can do anything you want to and I'm telling you I can get rid of your apprenticeship with just a letter or a phone call."' With- plant closure delivered in in s h u p with on direct examina- tion. Norman Gribrhaw's to the and that Gribschaw may have remarked about a union. However, denied threatened with if the employees a union collective-&gaining Employee Carl S. Miller corroborated Gribrhaw's credited regarding his to Norman However. Miller's testimony does not corroborate Gribrhaw's further testimony plant closure if the sought union My findings regarding Floyd's of the ticcship with Clyde are upon Lloyd's testimony. My regarding Clyde remarks regarding the ticcship on testimony. Clyde telling the employees the pmgnm voluntary. However, me 8 candid Ihave accepted recollection of In making my of Clyde testimony, of evasion, md unsolicited declaration. At one paint during found smallness least those 2OS7 aware Stants' persirtence likely him apprenticeship ita reprisal union the threat, 8(aXl) On requeet Aetky, members the holi&p year."8 employcea &ys duired dayr. mas, aood personal that perhapa personal I n d d , first time granted iu employees vacation Company vacatiom Indepen- deoce closed. take course S t a a ~ earlier ar knew "outrageour amounts" benefits tion, compny courucl dmonirbal uuwer quatioru rapo~uivdy. Supervisor Khtner denied Clyde Sfaao thratmed d i i t i n u c apprmticahip progm. However, con- Clyde Sfaatd md the uncertain No- Sfaata, Kntncr Clyde Sfaau that rpprmticahip pmgrm WM voluntuy h w f u M Cornpy w u concerned. fiadinga regarding attmd.na union'^ 20 uc bucd J d r c y Astky'~ testimony. bucd findinga rcguding cornphino and rcquao ud Compny'~ raponvl and remark Darmber Riclurd Alto& Jr.. ud ad- mimion8 Sfaata, Staam, ud abandon its expressed falings La Starncs, contact reprcde!ntatives petition. Supervisor Kiatner restricted Thua, machine, essigned course gonna self- Lodr, feUn Because very g a s f e l h recitation remarks find he for grievance& policy, employsr Willie Lee Starnes p r a repreamtation petition. Given the manifestations animua 20 e k w h e n them rcmarkr Section m t representative.. find remark8 v i e 8(aX1) d m find sentiment8 8(aX1) possible while Act B(aX1) spe- Kristern's version hi remulu conflico -'I venioa &ton WM r c a n p y u ha tatified. u u w d more detached manna than Kntmr, lamed anxiour den& 892 DECISIONS O F NATIONAL LABOR RELATIONS BOARD out more, Clyde Staats' remarks, as quoted above, were ambiguous. However, clarification was provided by his severe manifestations of union animus on November 20. On that date, as below, he violated the Act by dis- charging three union supporters and threatening a fourth with a similar fate. Given the of the employee complement, 23, and the attendance of at 8 of employees, including the 3 discharged employees, at a union mating on November it was likely that by November 28 all of the employees listening to Clyde Staata were of the unlawful discharges, the unlaw- ful threat, and the identity of the perpetrator of those unfair labor practices. In this context it was likely that employees hearing the remarks, "You g u p think you can do anything you want to," fall from Clyde lips would understand that he was ired by the outbreak of union activity, and that its was to goad into terminating the program. In short, Clyde Staata' warning when viewed in context carried a threat of designed to chill sentiment and union activity among Company's employees. By this implied the Company violated Section of the Act. December 1, at the of employa Jeffrey D. Clyde Staata and other of management met with the Company's employees. In the course of the mating, several employees expressed desire for "a few more per Clyde Staata asked the which they as additional holi- The employees suggested the day before Christ- Friday, and a holiday. Clyde Staats agreed the employees could have Good Friday and one holiday per year. in 1979 the Company for the a day off on Good Friday. The employ- ah voiced a complaint about the Company's policy. Prior to the meeting of De- cember 1, the required employees to take their during a 2-wak period, including Day when the plant was At the meeting of December 1 the employees pressed for a flexible policy under which they could their vacation whenever they wished. Clyde Starts agreed to permit the employ- ees to express their individual preferences for vacation periods. In the of the meeting, Clyde recounted his experience a union member. He said he about unions, that unions do not help employees very much, that they require of dues, and that employees are able to obtain on their own. him to that to the to testimony testimony of conceded that told the employa the the My at the November mat- ing upon employe I have my the employa' the other at the mating of I upon the testimony of R. the of Clyde No- Anthony S. Kistner. Clyde Staata remarked that the employees were bar- gaining with him without the Union. He went on to ask the employees whether this indicated that they wanted the Union to representation election petition. The employees mixed and uncertainty. Turning to employee Willie Clyde Staata advised him to union that even- ing and persuade them to drop the Anthony told the employees at the meeting of December 1 that, if the Union succeeded in organizing the plant, the employees would be to a single machine. if then were no more work for that the employa would be laid off. He contrasted that result with the Company's policy of moving employees from machine to machine.* In the of his remarks to the employees Clyde Staata stated: Positive thinking is the only thing that is improve your image. I don't care whether you go one way or the other, and I'm obligated-I took an obligation on to hire you people. I'm here to see that you get a fair shake in life. today, anymore, there's not many that a fair shake in life. Believe me. If you don't think you get a fair shake from Clyde C. Staata, you come and cry-cry to me, see? Believe me, there is one person who never left you, see? You can't say you never got a fair shake. From the of Clyde Staata' at the December 1 mating, I that included therein an invitation employ- to submit an an- nouncement of a new vacation and a suggestion that the Union to withdraw its their timing in the midst of Union's organizing campaign and close upon the Company's of union , on November and 28, as found in this Decision, I find interfered with, re- strained and coerced the Company's employees in the ex- ercise of their 7 to select a labor organiza- tion as their collective-bargaining Ac- cordingly, I that by these the Company lated Section of the Act. I that in this context, the questioning of the employ-regarding their toward the Union was coercive, and thus ah violated Section of the Act. Kistner's remark about layoffi, not a threat of more onerous conditions of employment, ran afoul of the For the Company's practice was to transfer employees from machine to machine when work was scarce, rather than to lay them off. By his remark, Kistner was threatening the employcea with reversal of that practice if they were represented by a union. I find, therefore, that this remark constituted a threat of reprisal violative of Section of the Act. Although not * of with However, employe the time He also in a and more forthright did who to give emphatic cifically Kistner's sufticiently M & Ca. Inc., Staau ployee m r d evidentiary Dischages Gribschaw, his November be- working After Starnes CMbschaw attend evening Angelo's Bar. attended received Pugliano. weeh h i Re& yarn, managment m reference Staats, pennis- tear poeter permission. Hartung also Bu. attended, snd gave Pugliano m t i c pknt, addressed workiog con- ditim M Between expresbed prounion cmploy- ea Edwin Kistnu Hartuog Sidley, Miller 8. Lee Starnes Pug- limo rights presence t h i Strats right.1° November standing near Richard Aston'r grinding machine as Aston Aston working, A h bolts, Grikhaw's &chine. received papers." iosisting Oribschaw "[Wlell, becawe hand. G r i k h a w steps re- WM his bear causal release releared h i Showman am1 Show- acutning. ' Aston. Aston working after Aston As cursed Gribachaw, -~ - ' 0 fact regarding three alleged discri- minatea am hsed uncontrldicted and 893 STAATS AND STAATS, INC. alleged as a violation in the amended complaint, threat was fully litigated and was proximate in time and related in context to other alleged violations to warrant the finding of a violation. J Trucking 214 NLRB 592, 597 (1974). The complaint alleges that at the meeting of December 1 Clyde and Anthony S. Kistner threatened em- with more onerous conditions of employment if they supported the Union. As the provides no support for that allegation, I shall recom- mend its dismissal. C. The of Employees Hartung, and Miller 1. The events At the time of discharge on 20, Eugene Oribschaw had been in the Company's employ for ap- proximately 5 years. Approximately 1 year after he for the Company, G n i h a w left his job for approximately 6 months. Oribschaw supported the Union's attempt to organize the Company's plant in November 1978. lunch on November 13 at the plant, Willie Lee invited to the Union's meeting that at Gribschaw that meeting, where he and signed a union authorization card. That same evening he returned the signed authorization card to Union Representative Frank Approximately 1 week before the Union's meeting of November 13, and about 2 before discharge, H. Hartung, a company employee for a little over 3 posted a satire critical of on the Company's bulletin board. The satire did not mention the Union make any to unions in general. Su- pervisor Norman whose father is Clyde Staats. approached Hartung a few days later and asked sion to up the and throw it away. Hartung gave his supported the Union's organizing effort in November 1978. On November 13 at the plant, em- ployee Paul Bish informed Hartung of the Union's meet- ing scheduled for that evening at Angelo's Hartung and signed an authorization card for the Union it to Frank that same evening. On November 17 Hartung came forth with a second commentary reflecting his view of the Compa- ny's management. This satire, which he showed around the itself to a caricature of they might be at the Company's plant in 1979. November 13 and the date of his discharge. Hartung sentiments to other at the plant. He spoke to employee Jay Show- man, who was hostile to the Union, and who Supervisor had identified as an antiunion employee prior to December 1. also spoke in favor of the Union to employee Robert Clyde Hartung's son-in-law. Employee Carl Scott was employed by the Company from February 1975, until November 20 as a tool and die apprentice. Miller attended the Union's November 13 meeting about which he had heard from Willie that same day at the plant. At the meeting Miller signed a union authorization card which he gave to Frank that same evening. On or about November 16 Miller saw a National Labor Relations Board notice on the Company's bulletin board. The notice recited employee under the Act to participate or not to participate in union activity and announced that a petition seeking a representation elec- tion among the Company's employees had been filed with the Board. Miller glanced at it in the of other employees and Clyde Staats. Miller was glad to see notice. He evidenced his sentiment by smiling. At this juncture Clyde was standing "[a] couple of feet"away on Miller's On the afternoon of 20, employee Edwin Jay Showman was employee R. was grinding or "dressing" a wheel for Showman. While was Showman walked into a supply area near em- ployee Gribachaw's work station. obtaining some Showman approached Showman asked Oribschaw why he, Showman, had not any "union When Gribschaw said he did not know, Showmnn called him a liar that Oribschaw did know. At this, said, Ed, the way I hear it the guys didn't want you to know you'd run straight back to the old man and tell him, right?" As Gribschaw reached into his toolbox, Showman grabbed him with his left hand around his throat and struck at him with his right retreated a few with Showman holding onto his throat. Showman struck Gribschaw. As Gribschaw treated, employee Carl (Scott) Miller, who working at own machine nearby, grabbed Showman in a hug and him to his hold on Gribschaw. When Scott Miller hold, struck Miller. At this, Miller began As they moved about the shop, they dislodged an aluminum ladder which began to fall. Gribschaw observed the fall- ing ladder. He retrieved it before it could strike the floor and restored it to its standing position. Employee Regis Hartung next joined the fray, along with Richard who had signed a union card and had attended the Union's November 13 meeting. Hartung held Showman's arms and held one of Miller's arms. At this point Showman was pulling on Miller's hair. Clyde Staats, who was in a nearby room, heard the noise of the altercation and humed to the shop. He arrived just and Hartung had joined in the action. Clyde Staats ordered the employees to stop fighting. they broke apart, Showman began swinging wildly. Showman upon Clyde Staats' re- peated order to stop fighting. As soon as Showman had ceased swinging, Staats dis- charged Miller. and Hartung. When Miller asked if Showman would also be discharged, Clyde My finding of to this point the upon their testimony that of Su- pervisor Kistner. timecar& complet- stood tools a p preached. was Hartung instructei, leR afternoon.'' Starnes, recent warned "Mou machines and Starnes "me guya today."la Oo 20, hia telephoned s t n i g h t d things Hutung take Staats. day, a d ref& shop."14 letters respectively, date ment former its February respond. dfschargcd to hearin8 buzer three were employets copy ea com- " n cmmuntu November hwd Gribachaw'b Miller'* md ammd uncertdn &out ud w n witna, w i n Jy confused and fend c r ~ ~ i n a t i o n . dult Stuts' wit- nan pmrioualy. tntimony also Shomua failed moborate Clyde Stmu' It t h end acufik Showom wo k i n a p W under three alleged dkrimirutcca " regarding exchange Stuu are b a d Hartun8's I' bne regding Stuu' rmurka SUmm St.ma' tatimony. St.ma i m p d u frank stnightfor- wud witngc. Stuts Stmes' testimony. I ~ t a d , h i e d tha threatened m p l o y m diacharge and substance knew f.cu miaht dleption. l4 regarding Hutuna's request Stuu' b d Gribachaw, General prounion sentiment appears supporten testified employee8 proun- was Kistncr's Supervison N o m n Kistner prounion complained working Starncs, Kistner'sd as prounion I. also commentaria swn aRer board, Kistmr dimtie- fied employca as 20. appears likely 20 Har- earliest prounion sentimmt 16 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Staats responded, "I don't want to hear it, punch your and get out." The three discharged employees began the process of departing from the plant. As Hartung near his toolbox picking out his own Clyde Staats Hartung asked Staats why he had been termi- nated. Staats replied that it because had left his machine. The three employees, as the plant that Within 1 hour of the fight's termination Clyde Staats approached employee Willie Lee who was then working at his machine located near the scene of the altercation. Staats Starnes, guys better stay at your mind your own busi- ness." answered that he had remained at his ma- chine. Clyde Staats responded saying, almost had four of you out of here November after discharge, Hartung re- turned home, the plant, and spoke to Norman Staats. Hartung asked if Norman Staats had found out what had happened in the earlier altercation and if the Company "had out yet." Norman Staats advised to the matter up with Clyde The following Hartung returned to the plant asked Clyde Staats for reinstatement. Hartung insist- ed that he "had no involvement in instigating any fight." Clyde Staats to reinstate Hartung saying "he didn't need troublemakers in the By separate to Gribschaw, Miller, and Hartung. the Company announced that effective the same they were 'offered unconditional reinstate- to your job or substantial equivalent with Staats and Staats, Inc." The Company gave each until 19 to The three employees returned the Com- pany's plant on Monday, February 19. After punching in and the plant sound the beginning of the day's work, the three waited for instructions. Clyde Staatr appeared, and took them into an office. He told the employees that they had "started a lot of trou- ble for [hi], and that they being employed as new with a new probationary period. Clyde Staats also gave each of the three a of the Company's current work rules. It is undisputed that of February 19 employee Miller needed approximately 52 hours of work to My findings to the of 20 are upon Anton's, Hartung's testimony. Showman detail of the fight, at times a reluctant relying upon a cloudy memory to off I have with Clyde reliability u a However, in rejecting his hem, I note that to testimony to the effect that of the against the floor the M y finding Hartung's with Clyde on November 20 upon tatimony. my finding Clyde to upon me king a and Further. Clyde did not contradict or deny he the allegation he with u spelled out in the complaint, testified in that he of no that support that M y finding for reinstatement and Clyde response are upon Hartung's testimony. plete his apprenticeship. It is also undisputed that Clyde Staats advised Miller that his apprenticeship certificate would not be forthcoming until after Miller had ed the current probationary period. Miller declined rein- statement. 2. Analysis and conclusions The General Counsel contends that the Company ter- minated Miller, and Hartung because they supported the Union. The Company denies that union considerations motivated the three discharges, contend- ing instead that the three were terminated for reasons having nothing to do with union activity or support. For the reasons set forth below, I find merit in the Counsel's contention. The record shows that employees Gribschaw, Miller. and Hartung supported the Union by signing authoriza- tion cards 1 week before their terminations. However, there is no showing that the Company knew of the signed cards prior to their discharges on November 20. Instead, there were circumstances supportive of an infer- ence that the Company at least suspected the three of prior to November 20. It that the Company's management was alert- ed to the presence of union among its em- ployees by the Union's letter of November 16. Indeed. Supervisor Kistner that prior to December I he considered who complained about asbestos and other working conditions as probably being ion. Among those who complained about asbestos Gribschaw, who did so well before the Union's organiz- ing effort came to attention on November 16. More important, Staatr and heard Gribachaw's sentiments in late October or early November when he about with asbestos. Willie Lee the leading union activist among the Company's employees, also registered in mind a probable employee prior to Decem- ber For Starnes had complained about working with asbestos. Another employee who expressed criticism of the Company was Hartung. Early in November and again on November 17, he published sarcastic criti- cal of the Company's management. The first of these publications received Norman Staats' attention it appeared. Given the fact that the first satire appeared on the Company's bulletin it was likely that also saw it. Given Kistner's alertness for and Norman Staatr' reaction to the first of Hartung's satires, it was likely that the two supervi- sors viewed him a probable union supporter prior to November It thus that before November Norman Staatr and Anthony Kistner had ample opportu- nity to compare notes on Gribschaw, Starnes, and tung and impart their views to their superior, Clyde Staats. According to the record, the and only op- portunity for the Company to learn of employee Miller's occurred on November when he smiled at a Board election notice. At that point he was I was evi- Staats base r&ord t h e koowledge prounion discharging Staate Starnes' Stames his "[Wle minate supporten." Aston, Kistncr St.ata Aston. after 8(aX1) supporters supporters. inconsis- t h e Aston's cross-examination cross-examined regarding answmd before knew areigned fmd, Aston's Staata discarged Aston scuffle, Aston's Gribschaw's scume was scume even hie doen situs 4 crossexamination Aston's 8(a)(3) first 895 STAATS AND STAATS, INC. standing a few feet from Clyde Staats. However, it is not clear that Clyde Staats saw Miller or that Staats equated Miller's smile with support for the Union. By itself this subtle incident, proffered by the General Counsel as dence of company knowledge, was too slender a reed upon which to such an inference. However, the provides other compelling evidence to sustain the General Counsel's position. I find it likely that Clyde Staats was aware of Willie Lee Starnes' leading role in the Union's campaign. For, of the 23 employees on the Company's payroll, Starnes approached no less than 8 on the Union's behalf between November 13 and 20. At least three of incidents occurred at the plant. Given the smallness of the em- ployee complement and Starnes' frequent solicitations on the Union's behalf both at the plant and away from the plant, his role in the Union's organizing effort probably came to Clyde Staats' attention before November 20. Resolution of the issue of company or sus- picion on November 20 that Gribschaw, Hartung, and Miller were flows from Clyde Staats' remarks to Willie Starnes on November 20. For, almost immedi- ately after the three on that day, Clyde went to work station and warned him against straying from his machine. When protest- ed that he had not left machine, Staats announced almost had four of you guys out of here today." Given the probability that Clyde Staats by this date be- lieved that Starnes was the leading union activist among the Company's 23 employees, the reference to "four of you guys" viewed in that context translated into the as- sertion that Clyde Staats almost found it possible to ter- four union supporters that day. However, by re- maining at his machine, Willie Lee Starnes limited the termination to three. Examination of the immediate circumstances of the three discharges leaves little doubt that Clyde Staats ref- erences to "you guys" in his remark to Starnes meant "you union For, as found above, Clyde Staats arrived at the scene of the altercation involving union supporten Gribschaw, Hartung, and Miller and Ed Showman, an employee who believed to be antiunion and did not investigate its causes or seek to establish who started it. Instead, he summarily selected. three who were union supporters for discharge and spared Showman. Clyde admittedly did not notice Showman was the only antiunion employee in- volved. The timing of this incident, but 4 days Re- spondent received the Union's election petition and its letter demanding recognition and bargaining, the Compa- ny's union animus, demonstrated by its violations of Sec- tion of the Act both before and after these dis- charges, and the speedy selection of the three without investigation strongly suggest that Clyde Staats was anxious to get rid of three union In response to the General Counsel's case, the Compa- ny produced the testimony of Clyde Staats to the effect that he fired the three employees because, unlike Show- man, they had left their work stations to get into a fight. I note at the outset of my review of the Company's de- fense that the explanation offered by Staats was tent with that offered in the Company's brief which as follows (br. p. 4.): Clyde peremptorily discharged Gribschaw, Miller, and Hartung for fighting and being away from their work stations. This ambiguity casts a shadow of doubt over the Compa- ny's defense. In any event, neither of explanations withstands scrutiny. According to Clyde Staats, he knew at the time he came upon the scuffle on November 20 that Showman was scheduled to be at machine, having a wheel dressed, rather than at his normal work station some dis- tance away. However, I cannot accept this assertion in light of Clyde Staats' demeanor on re- garding this assertion. Thus, when the General Counsel Clyde Staats his knowledge of Showman's work assignment at the time of the scuffle, Staats was evasive and directly only when prompted by the Company's counsel. This circumstance together with the other infirmities in Clyde Staats' testi- mony which I have previously discussed cast great doubt upon Staats' claim. There was no other corroborating evidence to show that, discharging the three em- ployees, Clyde Staats what work was to Showman. I therefore, that in fact Clyde Staata did not know that Showman's work required him to be at machine at the time Gribschaw, Hartung, and Miller. However, even if Staats knew that Showman was properly waiting for to finish grinding a wheel, at the time Clyde Staats came upon the Showman was about 40 feet from machine. job site was 10 feet from the site. Miller's work station was about 20 feet away and Hartung's about 10 feet from the site. Thus, if Showman was properly away from usual work station, it not appear that he had any legitimate business at the of his encounter with Gribschaw, Hartung, and Miller. Indeed, on Showman admitted that he was standing 10 feet from machine and then walked toward Gribschaw, not to perform any work, but only "to see what he said." Further, if an additional reason for discharging the three was their involvement in a fight, Showman should have been found guilty of simi- lar misconduct. In sum, far from assisting its cause, the Company's de- fense adds credence to the General Counsel's contention that on November 20 Clyde Staats seized upon the scuf- fle as a pretext to rid the plant of three employees who supported the Union. I find, therefore, that, by discharg- ing Gribschaw, Hartung, and Miller on November 20, the Company violated Section and (1) of the Act. I also find that Clyde Staats' remarks to Willie Lee Starnes on the afternoon of November 20 violated the Act. For, in the context in which he warned Starnes that "you guys better stay at your machines and mind your own business" and then followed with "we almost had four of you guys out of here today," Staats made plain his willingness to use whatever pretext presented itself to eliminate union supporters from the Company's 8(a)(l) Refus01 Borgoin production plant.Is its t h t contentions. Instead, purpose IUE-AFL-CIO-CLC Corpo- mtrbn, 144 (1963), employea purpoaa tion would unless has aa Cumberland d e , suficient - '' Th w u M employee8 cmploycd Stuts Stuts, Irwin, Pennaylvanh, dl mployeea. o f f c clerical mpbyeca, guards, professional em- p l o y m and aupervim Company diapute the [N.LR.B. Gisrel hc, 606607 (1969).] 15 15 Pug- 15 collective- also also Lee Starnes' Starnes Bish, Weiss, whose Thus, Stamea status.1a Hedrtrom Compcmy, assembled Pugliano's rrmark 6 fmdom wad made these first was 15 Pugliano'u were rep- 1' The r i g m follow% Arrigonie. Kokmka, Aston, Kowinaky, Junes Orepory Milla. Carl Stlrna, Weisa. Gribschaw, Widdowa, Regia 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work force. By this threat, the Company violated Sec- tion of the Act. D. The To Recognize ond With the Union As of November 14, when the Union wrote its letter demanding recognition and bargaining, it claimed the support of a majority of the and maintenance employees at the Company's Irwin, Pennsylvania, The Company received the Union's demand on November 16. By letter dated November 20, the Compa- ny rejected the Union's demand. As of November 14, the date of the Union's demand, the Union had signed au- thorization cards from 15 of the Company's 23 produc- tion and maintenance employees. In defense of refusal to bargain, the Company urged that the Union's majority status was tainted because Union Representative Frank Pugliano told employees that signing a card would result in an election or the sending of a petition and also be- cause Pugliano told employees if they remained neu- tral they would either not receive the Union's protection or would suffer the Union's displeasure. I find no merit in these The authorization cards under scrutiny here contained no reference to an election. each card declared its as follows: I authorize to act as my col- lective-bargaining representative in all matters per- taining to all conditions of employment. Under the Board's doctrine in Cumberlond Shoo NLRB 1268, 1269 where, as here, the authorization cards unambiguously recited that the signer authorized the specified union to represent the for of collective bargaining and made no men- of an election, that card be counted in favor of the specified union, it was shown that the so- licitor told the employee that the sale purpose of the card was to obtain a Board-held election. The Supreme Court expressed its approval of the Board's policy follows: In resolving the conflict among the circuits in favor of approving the Board's we think it to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly can- celed by a union adherent with words calculated to direct the signer to disregard and forget the lan- guage above hie signature. There is nothing incon- sistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used - - unit sought by the Union described in the complaint fol- lows: All production and maintenance by and Inc., at its facility; excluding other and as defined in the Act. The does not the appropriateness of requested unit. first to get an election. v. Packing Ca. 395 U.S. 575, None of the cards which supported the Union's claim of majority status as of November 14, 1978, ran afoul of the Board's Cumberlond rule. None of the 15 signatories was told that his card would be used only for the purpose of securing a Board representation election. There was no showing that in any of the instances the solicitor contradicted the language of the card or told the employee to disregard it. I find instead from liano's uncontradicted testimony that at the meeting of November 13, at which the Union obtained 12 of its signed authorization cards, he explained that the purpose of the signed authorization cards was to arable the Union to claim majority status and to obtain a bargaining agreement. He advised them that the Union intended to seek an election. I find from Willie testimony that told employ- ees Paul Gregory and James Kowinsky, cards were included in the 15, that the purpose of their cards was to show that they wanted the Union to be their representative and also to "set up an election." did not negate the clear meaning of the au- thorization card. Consequently. I find that all of the IS authorization cards offered in support of the Union's ma- jority claim were valid for purposes of determining the Union's representative o subsidiary of Brown Group, Inc., 223 NLRB 1409, 1410-1 1 (1976). Nor do I find merit in the Company's contention that Frank Pugliano tainted the Union's majority on Novem- ber 13 when he told employees that, if they did not sign authorization cards, the Union would not protect them. The plain meaning of that remark was that, if the employees did not support it, the Union would not protect them from the Company. Absent from remark was any express or implied threat of reprisal by the Union. Thus, his did not impair the employees' to accept or reject the Union as their bargaining representative. Nor did Pugliano endanger the Union's majority when he warned employee Jeffrey D. Astley that his failure to sign the card would cause the Union to withhold its pro- tection from him and that the Union would remember that he neutral. Pugliano remarks on No- vember 20, the date on which Astley signed an au- thorization card for the Union. Thus, Astley's card not included among the cards which the Union held as proof of the majority status it claimed in its letter of November 14 to the Company. It follows, therefore, that, even if remarks grounds for reject- ing Astley's authorization card, the Union's claim of names of the cud were as David Steve Jr.. Richard R. Bish, Jr.. Paul Long. Brown, Daniel Lee Scott Clark. Duane E. Jr., Willie Cole. William A. Gregory J. Eugene Mark C. Hartung. H. resentative un- employes. 15 l a t fusal That refusal Tonkin Corp. d/ Ca Sacmmento, first represent umemedied its refusal Gemld Gogin Gogin (1977). employm as impede likely employee8 rcprisol other17 8(a)(l) Consequently, Kenworth Trucks 815, 8(a)(S) (1) as ita employm. Comprmy's Impition 1 employm, rules employees requested discriminntees " "[AJny ~mrll groups individuals, around struggle orpmiution." B a d & Lamb Optical N.L.R.R, F.2d 575, (2d Ci. B m h e n Inc. F.2d 1029-30 L C . Penney Inc. N.L.R.R. 384 F.2d 485 (10th 1%7). hours: 7 . a 12:00 12:45 3:45 min.--docked IS 10 min.--docked 30 dismissals--dis- rquested. (1) Demanded Fri- min. (1) Staats employm Aston a offenaes losses conrti- off<nse," " ~ e r k n a l Aston's requirement l8 '* witncases Kiatner and S t ~ t a Company's Febnury I9 Znin alm testifd the C o m w there M 1 Stuts imprcssed being witnesses. Harter, crw-ex~mination been aware being M r e Iday February STAATS AND STAATS, INC. status would retain the support of an coerced majority of the unit Thus, I need not decide whether Astley's card was tainted. In sum, I find that the authorization cards in the hands of the Union on November 14 were valid indicia of majority support. Therefore, on November 14 and at until November 16, the date of the Company's re- to recognize and bargain, the Union enjoyed the support of an untainted majority of the 23 employees in the agreed-upon appropriate unit. the Union simultaneously with its demand for recognition filed a representation petition with the Board did not provide a valid excuse for the Company's to bargain with the Union. of California, b/a Sewn Up Bottling of 165 NLRB 607, 615 (1967). Nor was the Company's obligation to bargain with the Union vitiated by the appearance of a petition signed by employees during the or second week of December 1978 in which they stated that they no longer wanted the Union to them. For the petition fol- lowed in the wake of the Company's unfair labor practices, including to recognize and bar- gain with the Union. I have therefore rejected this peti- tion as a reliable gauge of employee sentiment toward the Union. G. d/b/a Trucking, 229 NLRB 529, 539, fn. 46 I also find, in agreement with the General Counsel, that the Company's unfair labor practices, particularly the unlawful discharges of Gribschaw, Miller, and Hartung, were of such a nature to undermine the Union's majority and the Board's election pro- cess. It is that the entire unit of 23 ex- perienced the coercive effect of the three unlawful dis- charges combined with that of the Company's threats of and independent violations of Section of the Act. a bargaining order is warranted here. of Philadelphia Inc., 229 NLRB 822 (1977); Tmding Port, Inc., 219 NLRB 298, 301 (1975). I conclude, therefore, that the Company violated Section and of the Act by refusing to recognize and bargain with the Union on and after November 16, 1978, the exclusive representative of production and maintenance Tmding Port, Inc, supm at 301. E. The of Work Rules on February 19, 1979 At the meeting of December between the Compa- ny's management and its the subject of plant and regulations was one of the topics which the raised. They expressed uncertainty about the Company's rules and that a written list be made available to all employees. On February 19, 1979, the date on which Gribschaw, Hartung, expressions of compny attitudes, even to of were likely to be rapidly disseminated a plant during the of Company v. 217 576 1954). Accord: N.L.R.B. v. Clement C a , and United Mine Workers of America, 407 1027, (5th Cir. 1969): C a . v. 479, Cir. and Miller returned to work, the Company promulgated the following table of rules and regulations: Regular work a.m. to p.m.; p.m. to p.m. Overtime as authorized Tardy--Offense: I to 5 min.; 5 to 30 min. Replacement: After min. to fill vacancy subject to expelled for the day. Penalties for Tardy and no show: 3 times cautioned; 4th time 3 days dismissal; 3 charged. Call in Quitting Work for personal reasons with out day notice offense. Make-Up time: Must be authorized. Workmanship: Only high quality must be performed at all times. Scrap Work: Could constitute discharge depending on circumstances and value. Personal Tools: and necessary to per- form duties. Borrowing of tools from other's for- bidden. Clean up time: Allotted 5 min. per day except davs allowance 10 Supervision: Failure for not to obey orders or will- ful using derogatory remarks to personnel consti- tutes insubordination dismissal. Individual Record: Each employee will have a card that registers performance for one year. Can be checked with supervisor when rquested. As Clyde distributed the table of rules to the three returning employees, he remarked that "he was running a business and . . . was making a few changes." I find from the credited testimony of and Gribschaw that the listing of and of pay quoted above under the title "Tardy" did not tute a new policy. However, prior to February 19, the Company had not enforced them. The new policies ex- pressed by the Company's table of rules appear under the headings, "Replacement," "Penalties for Tardy and no show," "Quitting work for personal reasons with out (1) day notice Tools," "Supervision," and "Individual Record." I find from employee testimony that the of personal tools antedat- ed the Union's campaign. The innovation contained in the quoted rules regarding tools was the prohibition against borrowing tools. Company Anthony Clyde denied that any of the rules set forth in the distribution of were new. Employee Hmer initially on ny's behalf that were no new rules set forth in the list. However, have previously stated, neither Kistner nor Clyde me as reliable As for under he re- treated from his earlier position and testified that he had not of the penalties for tardy reflected under the heading "Penalties for Tardy and no show." and conceded that the Compny had no quirement of a notice of an intent to be absent from work prior to 19. As for the provision entitled "Individual Record," Hmer Continued 19. employeft dected employ- m 8(a)(5) Press Inc, 204 also rquire- tiem the animue, supporten, above* rula discriminatees retunred littk sponee and its 8(a)(1) 111. rxi~ e m m e UWAIR PRACTICES set 11, trafTic, the several lesd wmmerce. 2(2) engaged 2(6) 2(5) a u l d individual record F e b wry contraa u employcar Hnrtung Aston imprcrsed conacimtioua h u t m u a fompny rula and aRcr Febnury 1 have crdited rather t h e witncsaca particularly i m p r d demunor Aston, time he Aston h d been die yean seemed certminty u tk between Company's rvla issued Febnury pdicia w k e wcu between tatimony. afceptd Aston's tatimony Har- tuns guamn- 8(a)(l) impliedly employear' collective- pe (0 (g) conditiom employes increased penuade g r i e v m penuade employees Carl R@ Hartung because k a u e 8(a)(3) and represented the productian mdntenance employcea Pmnsylvnnia, r the Section 8(a)(5) thr 8(a)(5) practices 2(6) afltirmative 898 I DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company conceded that it did not consult with the Union prior to the promulgation of the table of rules on February 1979. However. on that date the Act re- quired the Company to bargain with the Union as the ex- clusive collective-bargaining agent of its production and maintenance regarding new conditions of em- ployment, including new rules and regulations and changes in enforcement, as they those By failing to satisfy that obligation, the Company violated Section and (1) of the Act. Colonial NLRB 852, 860-861 (1973). find, in agreement with the General Counsel, that the promulgation of the new rules, particularly the lday notice requirement, the prohibition against borrow- ing tools from other employees, the prohibitions con- tained under the heading "Supervision," and the ment for performance records as set forth under the heading "Individual Recordw were additional burdens which previously had not required of Compa- ny's production and maintenance employees. The appar- ent resurrection of the policy entitled "Tardy" also amounted to an additional burden. The Company's union an exhibited by its threats of economic reprisal, the discharges of three union and the other unfair labor practices found and the timing of the promulgation of the table of on the very day on which the three to work leave doubt that this event wan part of the Company's re- to its employees' union activity. By thus attempt- ing to interfere with, restrain, coerce employees in their enjoyment of the right to support a union, the Company again violated Section of the Act. OF LABOR UPON COMMERCE The activities of the Company forth in section above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, and commerce among States and tend to to labor dis- putes burdening and obstructing commerce and the free flow of 1. The Company is an employer within the meaning of Section of the Act, in commerce within the meaning of Section and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section of the Act. only venture that he had seen cards prior to 19. In and me as being straightforward and giving tkir bat recollection of t k of and regulations before 19, them than the company Further. I was with the of employee Richard Jr. At the testified. in the Company's employ as a tool and maker for 7 Of the two he to have more to relationship the tabk of on 19, 1979, and the Company's prior to that date. Accordingly, there m y diqreement their I have rather than that of 3. The Company interfered with, restrained, and co- erced its employees in the exercise of the rights teed them in Section 7 of the Act, thereby committing unfair labor practices prohibited by Section of the Act, by: (a) Threatening employees with plant closure if they selected a union as their collective-bargaining representa- tive. (b) Threatening or threatening employees with discharge because of their union activities. (c) Impliedly threatening employees with the discon- tinuance of its apprenticeship program in retaliation for the selection of the Union as their bargaining representative. (d) Threatening employees with layoffs if they selected the Union a collective-bargaining representative. (e) Interrogating employees regarding their sentiment toward the Union. Instructing employees to request the Union to with- draw a representation petition pending before the Na- tional Labor Relations Board. Imposing more onerous of employment upon its employees in retaliation for their supporting a union. (h) Promising benefits in order to them to abandon the Union. (i) Soliciting from employees to them to abandon the Union. 4. By discharging Eugene Paul Gribschaw, S. Miller, and H. of their known or suspected union activities or of their support for the Union, the Company violated Section (1) of the Act. 5. By refusing to bargain with the Union on and after November 16, 1978, when the Union a ma- jority of and at the Company's Irwin, plant, in an appro- priate unit, an described above, the Company engaged in unfair labor practicer within meaning of and (1) of Act. 6. By promulgating new plant rules and reinstating a previously unenforced plant rule on February 19, 1979, without bargaining with the Union as the exclusive col- lective-bargaining representative of its employees in the appropriate unit, as described above, the Company has engaged in unfair labor practices within the meaning of Section and (1) of the Act. 7. The aforesaid unfair labor affect commerce within the meaning of Section and (7) of the Act. 8. The Company has not committed any other unfair labor practices except as set forth above. Having found that the Company has engaged in and is engaging in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take action necessary to effectuate the pur- poses of the Act. I shall also recommend that the Com- pany be ordered to offer Eugene Paul Gribschaw, Carl S. Miller, and Regis H. Hartung immediate and full rein- statement to their former positions or, if those positions arc equivdent l B seniority, also loss against qd tmination less earnings backpay F. K Woolworth Compny, (1950), Islr & Ca, 16 Stal Corpomtion, 1 (1 977). record p l o y ~ requiremente adviaed discrimina- Cul was hie probationuy contemplata s t a h as that represent seriow under auspicce ognize wi,th dective N.LR.B. G k l Ca, rquired warn- inga bem discriminatees. lqc) Staate Staats, ite Cease t m s Worken, Impliedly grievancer any collcctive-bar- Threatening organization, ar (0 Intmogating request said (h) condition# employeee aforesaid (j) aforesaid onice an Sec. Ruln as Sec. Rules Board purposes. 899 STAATS AND STAATS, INC. not available, to substantially positions, without prejudice to their their apprenticeship, or other benefits or privileges. I shall recommend that the Company be ordered to make the three discri- minate- whole for any of earnings they may have suffered by reason of the discrimination them by payment to each of a sum of money to that which they normally would have earned from the date of their to the date of the Company's unconditional offer of reinstatement, during such period. The provided herein shall be computed on the basis of calendar quarters in accordance with 90 NLRB 289 with interest as prescribed in Plumbing Heating 138 NLRB 7 (1962). and Florida 23 1 NLRB 65 , , The shows that on February 19 the three em- returned to work as probationary employees. This offer of reinstatement was therefore conditional and did not satisfy the remedial of the Act. The record also shows that the Company tee S. Miller that a further condition of his rein- statement that his apprenticeship program would be tolled during period. The recommended remedy that, in addition to an uncondition- al offer of reinstatement, the Company will restore Miller to his apprenticeship as it was on November 20, 1978, with all hours of work credited to him of date. Having found that by November 16, 1978, a majority of the Company's employees in an appropriate bargain- ing unit had authorized the Union to them in collective bargaining with the Company, and having found that the Company committed unfair labor practices so that now it seems unlikely, if not impossible, that a fair election Board could be held, I shall recommend that the Company be required to rec- and bargain the Union as the representative of those employees that date. v. Packing Inc., 395 U.S. 575. 1 shall also recommend that the Company be to rescind the rules pro- mulgated on February 19, 1979, which are entitled 'Tardy," "Replacement," "Penalties for Tardy and no show," "Quitting Work for personal reasons with out (1) day notice offense," "Borrowing of tools from other's forbidden," "Supervision," and "Individual Record." I shall also recommend removal of all disciplinary and rescission of all monetary penalties and other disciplinary action, including discharge, which may have imposed under these rules since February 19, 1979, and provide a make-whole remedy similar to that pro- vided above for the Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section of the Act, I hereby issue the following recommended: ORDER The Respondent, and Inc., Irwin, Penn- sylvania, officers, agents, successors, and assigns, shall: 1. and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other and conditions of employment in order to discourage membership in, support for, or activities on behalf of International Union of Electrical, Radio and Machine AFL-CIO-CLC, or any other labor organization. (b) Threatening employees with discharge because of their membership in, support for, or activities on behalf of the said Union, or any other labor organization. (c) threatening employees with discontinu- ance of Respondent's apprenticeship program if the em- ployees support the aforesaid Union, or any other labor organization. (d) Soliciting employee in order to per- suade employees to abandon their support for the Union, or other labor organization, as their gaining representative. (e) employees with plant closure if they select the said Union, or any other labor their collective-bargaining representative. employes concerning their union ac- tivities or sentiment toward the said Union, or any other labor organization. (g) Instructing employes to that the Union, or any other labor organization, withdraw its rep- resentation petition at a time when such petition is pend- ing before the National Labor Relations Board. Imposing more onerous of employment upon in order to dissuade them from support- ing the aforesaid Union, or any other labor organization. (i) Promising employees improved conditions of em- ployment to persuade them to abandon the Union, or any other labor organization, as their collec- tive-bargaining representative. Refusing to bargain collectively concerning rates of pay, hours of employment, and other terms and condi- tions of employment with the Union as the ex- clusive bargaining representative of the employees in the appropriate bargaining unit set forth below: All production and maintenance employees em- ployed by Respondent at its Irwin, Pennsylvania, facility; excluding all other employees, cleri- cal employees, and guards, professional employees and supervisors as defined in the Act. (k) Revising, expanding, promulgating, and thereafter enforcing plant or work rules, or impose disciplinary punishment for violation of plant or work rules, govern- " In the event no exceptions are filed provided by 102.46 of the and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, provided in 102.48 of the and Regulations, be adopted by the and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all 900 (I) deemed H. reason discrimination against section thia (b) bargain union appro- ptiate respect Tardy-OfTense: 5 min.-docked min.; 10 min. Afier cautioned, diamid; dismissaltidie- (1) Borrowing Individual registers (1) dbciplinary warnings penaltica nctions, Februuy 19, employen 2(c) Make losr 19, 2(c) loes earninga this all social recordr necessuy backpay - - thin "AppmdkWP0 being signed Respondentk shall thereakr, p k , employtea steps noticar (h) Regiod writ been comply 'O thin Order is enforced Judgment Stues Appala. word notice reding "Postal a the National Labor Relatiom b d " shall read " b u d Punu- UniM States Apperls National Labor Rdationr Boud." DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing employees represented by the aforesaid Union with- out bargaining with said Union. In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Eugene Paul Gribschaw, Carl S. Miller and Regis Hartung immediate and full reinstatement to their respective former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, including their apprenticeship status, and make each of them whole for any loss of earnings they may have suffered by of Respondent's unlawful them in the manner set forth in the of Decision entitled "The Remedy." Upon request, with the said as the exclusive representative of the employees in the unit described above with to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (c) Rescind the following rules which were promulgat- ed on February 19, 1979: 1 to IS S to min. docked 30 Replacement: 30 min. to fill vacancy subject to expelled for the day. Penalties for Tardy and no show: 3 times 4th time 3 days 3 charged. Quitting Work for personal reasons with out day notice offense. of tools from others forbidden. Supervision: Failure for not to obey orders or will- ful using derogatory remarks to personnel consti- tutes insubordination dismissal. Record: Each employee will have a card that performance for one year. Can be checked with supervisor when requested. (d) Remove all and rescind all monetary and other disciplinary includ- ing discharge, imposed since 1979, upon represented by the said Union for the viola- tion of the Rules set forth in paragraph above. (e) whole employees who suffered any of pay since February 1979, for violation of any of the rules set forth in paragraph above in the manner set forth for of in the section of Decision entitled "The Remedy." (f) Preserve and, upon rquest, make available to the Board or its agents, for examination and copying, payroll records, security payment records, time- cards, personnel and reports, and all other re- cords to analyze the amount of due under the terms of recommended Order. (g) Post at its Irwin, Pennsylvania, plant copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 6, after duly by repre- sentative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days in conspicuous including all placer where notices to are customarily posted. Reasonable shall be taken by Respondent to insure that said are not altered, defaced, or cov- ered by any other material. Notify the Director for Region 6, in ing, within 20 days from the date of this Order, what steps have taken to herewith. In the event that Court of Order of ant to a Judgment of the Order of the the by a in the Court of of a United by Enforcing an