Universal Paper Goods Co.

DECISIONS OF NATIIONAL. I.ABOR RELATIONS BOARI) Universal Paper Goods Company and Miscellaneous Warehousemen, Drivers & Helpers, Local 986, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 21 CA- 16353, 21 -CA 16359, 21-CA- 16544, and 21 CA 16763 July 2, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENI.I.) AND TRUESI)AILE On March 20, 1979, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a limited exception and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor I Respondent has excepted to certain credibilit) findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr, Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In adopting the Adminis- trative Law Judge's finding crediting the testimony of employee Steven Sharer, we do not rely on his statement that Sharer did not wear a union button during the campaign. Although the record reveals that Sharer testi- fied that he had worn a union button for several weeks during the election campaign, this fact alone is insufficient to reverse the Administrative Law Judge's findings crediting Sharer's testimony. I In his Decision the Administrative Law Judge at one point inadvertently referred to employee Leonard Orrante as a "roll grabber." when in fact he was employed as a machine operator at the time of his discharge. In addi- tion, in the Administrative Law Judge's discussion of the testimony concern- ing Orrante's work record, he inadvertently referred to March rather than January as the time that Powell told him he was one of the two top incentive makers in the folder department. Neither of these corrections affects our decision herein. Finally, Respondent has excepted to the Administrative Law Judge's find- ing that, at the time of Orrante's discharge, Supervisor Wier showed him a copy of Respondent's regulations. Although the record is unclear as to which of Respondent's supervisors showed the regulations to Orrante, he testified without contradiction that these regulations were shown to him and we so find. We find merit in the General Counsel's limited exception that the Ad- ministrative Law Judge, in his recommended notice. inadvertently failed to provide that Respondent cease and desist from discouraging union activity by discriminating against its employees. We shall correct the notice accord- ingly. Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Universal Paper Goods Company, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted fior that of the Adminis- trative l.aw Judge. APPENDIIX NorI'I(' To EPI.oYItIS PosIII) BY OR)iR OF 11II NAI()NAI. LABOR RIL.A'I()NS BOARI) An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Re- lations Board has found that we violated the law and has ordered us to post this notice and carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a represent- ative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from anyv or all of these things. Accordingly, we give you these assurances: WE wVIE.l. NOl discourage membership in, or activity on behalf of, Miscellaneous Warehouse- men, Drivers & Helpers, Local 986, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, by discriminating in regard to hire or tenure of em- ployment, or any term or condition of employ- ment. WE WII.I. NOI threaten employees with eco- nomic reprisals in the event of union success in an election. WE WIll. NOT force our employees to reveal their support of a labor organization. WE WII. NOT issue warnings to employees un- der subpena who attend and testify on behalf of a discharged coworker before another tribunal. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights. WE WILL offer Leonard J. Orrante immediate and full reinstatement to his former position or, 243 NLRB No. 34 254 UNIVERSAL PAPER GOODS COMPANY if that position no longer exists, to a substantially equivalent position without prejudice to seniority and other rights and privileges previously en- joyed, and WE Wll.l. make him whole for any loss of wages suffered as a result of our discrimina- tion against him, with interest. WE WIl.l physically delete from our records warnings given to David Matutte and Ysidro Baca for attending and testifying under subpena in behalf of a discharged coworker before an- other tribunal. UNIVERSAL PAPER GOODS COMPANY DECISION SIATEMENT OF IHli CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard in Los Angeles, California on August 23, 24, and 25, 1978. The second amended complaint. issued July 20 and based upon charges filed January 30 and 31, April 3, and June 9, 1978, by Miscellaneous Warehouse- men, Drivers & Helpers, Local 986, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein the Union, alleges that Respondent, Universal Paper Goods Company, has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the National Labor Relations Act, as amended. Briefs have been submitted by the General Counsel and Respon- dent. ' Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Universal Paper Goods Company is a California corpo- ration maintaining its principal office and place of business at Los Angeles, California, where it is engaged in the manu- facture of office filing supplies. It annually sells and ships goods and materials valued in excess of $50,000 directly to customers located outside the State of California. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED Miscellaneous Warehousemen, Drivers & Helpers. Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organi- zation within the meaning of Section 2(5) of the Act. I An unopposed motion by Respondent to correct the transcript in a num- ber of minor respects is hereby granted. It may be noted that the issuance of this Decision has been delayed due to my illness. I1. Illt UNFAIR IABH()R PRA( II( ES A. Introduction, the Issues By was of background. pursuant to a petition filed by the Union on December 6. 1977, in Case 21 RC 15367. an election was conducted on February 2, 1978, in a unit of the production and maintenance employees of Respondent. in- cluding shipping and receiving employees, production clerks, warehousemen. and truckdrivers, but excluding all other employees, department heads, part-time employees, office clericals, guards, professionals, and supervisors. The ballots were impounded due to the filing of an unfair labor practice charge by the Union which thereafter executed a request to proceed, and said ballots were counted on Febru- ary 7. A report recommending certification was issued by the Regional Director on March 10, and a decision and certification of representatives was duly issued by the Board on May 26, 1978. Thereafter. a complaint issued in Case 21-CA 16850 and a motion for summary judgment in that matter alleging a refusal to bargain is pending before the Board. The instant complaint alleges that in the foregoing con- text, commencing in January 1978. Respondent threatened employees with economic and other reprisals to discourage them from joining or assisting the Union. placed employees il the position of declaring their union preference, and con- veyed to employees the view that it would be futile to join or support the Union. It also alleges that on or about March 29, 1978, Respondent discharged employee Leonard J. Orrante because of his activities in behalf of the Union. Finally, it is alleged that thereafter on or about June 6. 1978, Respondent issued written warnings to employees David Matutte and Ysidro Baca because of their union and concerted activities and because they attended an unem- ployment compensation hearing involving a claim by Orrante seeking benefits from the California Unemploy- ment Insurance Appeals Board. B. Intrerference. Restraint, and Coercion Orrante entered the employ of Respondent on approxi- mately October 14. 1975, as a roll grab operator and was promoted to machine operator about 2 years prior to his discharge on March 29, 1978. He initially was under the supervision of Assistant Foreman Alfred Gunthner of the folder department who was promoted to production super- intendent in approximately January or February 1978. At or about that time, George Wier, also spelled herein as Weir, was promoted from assistant supervisor to supervisor of the folding department which had 12 or 13 employees. As Orrante testified, and I so find, he commenced his activities on behalf of the Union in October 1977, after being solicited to do so by coworker David Matutte of the same department who held an identical position. Orrante attended union meetings, spoke with coworkers about the Union, and for some months openly wore on his shirt a union button some 2 inches in diameter. Matutte also wore this button in similar fashion and, according to Orrante. they were the two most active in behalf of the Union. Orrante was also an observer on behalf of the Union at the above-described election. 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that Respondent held about three meet- ings with employees during working hours on a depart- mental basis in the period directly before the election, two of which were chaired by Operations Manager Jeff Powell. These were general in nature and apparently of a noncoer- cive tenor although at one of them Powell compared work- ing conditions with those of another organized company which was a competitor. It appears that at another he also commented on the union button worn by Orrante. Orrante testified and I find that on or about the after- noon of January 26, 1978, Powell spoke to him at his work station as he did individually that day with other operators in the department. Powell referred to Orrante's impending two weeks' vacation pay and added that "the Union is not getting in here, Leonard, and if you don't like it, you had better find another job that has a Union." Orrante further testified that Seven Sharer, who operated the adjoining ma- chine, was several feet distant and close enough to hear this conversation.' Sharer, still in the employ of Respondent, entered its em- ploy in 1975, almost 3 years prior to the instant hearing. He recalled that Orrante and Matutte wore union buttons as well as Ysidro Baca who, together with Matutte, received warnings for attending unemployment compensation hear- ings, as discussed below. Sharer placed the talk between Powell and Orrante some 3 weeks or I month before the election and recalled that he was some 3 or 4 feet distant, although his adjoining machine is more remote.' It appears that the duties of Sharer require him to move about the area, and he was returning from the glue machine. He testi- fied that he had heard the reference by Powell to vacations. Powell then stated to Orrante that if "you think that you are going to get the Union in here you might as well go look for a different job because you are not going to get it here." Powell, the son of President Roe Powell who did not tes- tify, has been operations manager in charge of all manufac- turing and distribution since June 1977, after prior experi- ence as an operator in the plant. He was well aware of the union campaign, that Orrante wore a union button, and that he later served as a union observer at the election on February 2. Powell recalled an individual meeting with Orrante at his work station on or about January 26 and about I week before the election for the purpose of explain- ing a 2 weeks' vacation scheduled for July. Orrante then expressed displeasure, as he had previously, with the work- ings of the plant. Powell contended that he told Orrante that Orrante had been with Respondent for some time and that he would probably be there "whether the Union got here or not." As Powell left the scene, he allegedly further stated "I don't think the Union is going to make it or get in" to which Orrante pointed his finger at Powell and stated, "Do you want to bet?" He did not see Sharer at the time and in effect 2 Orrante was questioned herein as to a subsequent affidavit wherein he deposed that no one else was present, but testified that his recollection was later refreshed by testimony at an unemployment compensation hearing at which he sought benefits. According to Sharer, he told Orrante that he had overheard this talk with Powell about vacation pay and so informed Orrante on the day it took place. 3In demonstrating the distance at the hearing, Sharer apparently placed the distance several feet farther. denied the versions attributed to him by Orrante and Sharer. Initially, Powell's alleged version as to Orrante's secure tenure with Respondent is in effect refuted by the discharge of Orrante in March. After the incident, photographs made by Respondent to depict the scene as it then existed do not do so according to Orrante and Sharer because of changes in the sizes of goods stationed there. In view of all the foregoing. I credit the corroborative testimony of Orrante and Sharer herein. Of significance is the fact that Sharer is still in the employ of Respondent, was not the wearer of a union button so far as the record discloses and there is no evidence of union activities by him during this period, and Powell's version concedes both the date and the introduction of the topics by him. Moreover, the fact that Powell did not see Sharer is explained by Pow- ell's stance when speaking with Orrante as well as by the position of the machinery and supplies in the area. The placing of Sharer by Powell at a greater distance from Orrante at Sharer's normal basic work station is not consistent with Sharer performing duties at a closer spot such as the glue machine. I find that Respondent, in effect, warned an employee of the likelihood of economic reprisal against him in the event of union success in the impending election, this constituting unlawful conduct within the meaning of Section 8(a)(1) of the Act. See John Dory Boat Works, Inc., 229 NLRB 844, 848 849 (1977). Machine operator David Matutte regularly wore a union button on his shirt for 3 weeks or more prior to the election held on February 2. He testified that Powell came to his machine and commenced a discussion about the button, asking why Matutte was wearing it. Matutte replied that he did so "Because I like the Union, I want the Union. We want the Union." Powell then responded that Matutte "had better take it off' and that Powell would give him another button. Matutte in turn said that he did not wish to wear "your button" and that he liked the Union. Powell alleg- edly said that he would give Matutte a "Universal" button. There was evidence, and I find, that no such button existed. Powell denied that he ever told Matutte to take off his union button or that he would supply a button captioned with the name of Respondent. I credit the testimony of Matutte whose union activities were prominent and who is still in the employ of Respon- dent. I find that during the organizational campaign and shortly before the election, Powell asked Matutte why he was wearing a union button, extracted a response that this was due to his union support and sympathies, and offered to provide him with a different proemployer button. That another button did not exist does not detract from the fore- going which constituted interrogation concerning his union activities and in effect forced Matutte to further reveal his support for the Union, this within the meaning of Section 8(a)(l) of the Act. I so find. C. Other Alleged Intrerference, Restraint, and Coercion Prior to the Election I base no finding adverse to Respondent on vague testi- mony by Matutte concerning remarks by Powell to the em- ployees of the folder department I to 3 weeks before the 256 UNIVERSAL PAPER GOODS COMPANY election. Powell spoke about a contract between Smead, a competitor, and the Union. Powell made reference to supe- rior benefits at Respondent and allegedly stated that the Union was "bad" because the Smead employees "never have anything when the Union went there because they had no money, and they fired people, and they had no benefits at all." Matutte asked to see a copy of the Smead contract and this was done although Powell refused to give him his only copy. Powell in turn denied stating that the employees of Smead had been discharged due to the Union. The General Counsel also relied upon the testimony of Robert Rowe, who has driven a tow motor for Respondent for 4-1/2 years. He recalled attending one meeting con- ducted by Powell which was attended by employees of the binder department, although none of the "folder depart- ment employees were present." Powell, according to Rowe, adverted to the Smead contract and pointed to the lower wages paid thereunder. Rowe took particular note of those paid to the tow motor operators which apparently were also lower than those paid by Respondent. Powell pointed out that Respondent could not stay competitive if it granted raises to its own employees who enjoyed wage rates supe- rior to those of Smead. Powell recalled a meeting which Rowe attended when Powell explained that Respondent had to remain competi- tive with Smead. its chief competitor. He had the Smead contract with him and pointed out the latter's wage scales which were less than those enjoyed by the employees of Respondent. I see nothing herein violative of Section 8(a)( ) of the Act, base no adverse finding thereon. and recom- mend dismissal of this allegation. D. The Discharge of Leonard J. Orrante There is considerable evidence concerning the work rec- ord of Orrante. much of which need not be set forth be- cause Respondent concedes that Orrante was terminated "for deliberate waste of material" in a particular incident and that "his, Orrante's, motive became apparent through his entire course of conduct during the . . . Union cam- paign." The simple fact is that Orrante would not have been discharged, on Respondent's case, but for the March 27, 1978 incident. As found, Orrante, a clear and forthright witness. entered the employ of Respondent in October 1975, although Re- spondent's records disclose an earlier hire in the previous month, and he was discharged March 29, 1978, almost 2- 1/2 years later. He had been a roll grab operator in the folder department for about 2 years at the time of his dis- charge, the last 6 months under Wier, and his union activi- ties have already been set forth. On March 27, he performed his customary duties. That afternoon, Wier asked several operators as to the identity of the employee who had cut some material from a roll of manila paper and finally ascertained that Orrante had done so. He pressed Orrante for a reason and the latter re- sponded that the roll was damaged and as a result the paper had to be cut and removed.' This particular roll had been ' There is a central hollow core some 8 inches in diameter in each roll with the paper wrapped around i the roll can weigh as much as 1200 pounds. As the paper is used. there is a tendency for the roll to zig zag and jam the machine. processed by Sharer on the adjacent machine and he in- formed Orrante of the damage. The latter, with some spare time on his hands, proceeded to cut the damaged paper from this roll, known as a butt roll, with the intent of plac- ing it in a bin of paper to be recycled, as is customary. As Orrante put it. Wier became incensed and told him not to repeat this action. Assistant Foreman Mike Cobos then came on the scene and placed the cut paper in the recycling bin from which it was subsequently removed and sold. Orrante worked on March 28 without incident. At the close of business on March 29. Wier handed him a form captioned "NOTICE TO EMPLOYEES-CHANGE IN RELATIONSHIP"; it was signed by Wier and showed as a reason for discharge "DELIBERATE WASTE OF MATERIAL." Orrante protested this, stating that he had merely handled the butt roll in normal fashion when the exterior portion of the remaining paper around the core has been damaged. Wier responded that Respondent had held a management meeting and arrived at this decision. Orrante received permission to speak with Gunthner and did so. The latter admitted that he and Powell had attended the meeting but made no reply to Orrante's query for a reason why he had not been called in and provided an opportunity to give his side of the story. Wier did show Orrante a copy of Respondent's Regula- tions wherein certain rules were set forth, and providing that an infraction was grounds for dismissal. One type of conduct forbidden was "Deliberate waste of material or de- struction of Universal's property." These rules had been handed to Orrante at Christmas 1977. this shortly after the filing of the election petition. Respondent has made much of the cutting of the dam- aged roll of manila paper. Orrante testified that he had nev- er been told by Wier to seek permission to do so. that he had previously cut such rolls in the presence of Gunthner and Wier. and that he had never been told he was doing his job improperly. Indeed, during his training. Gunthner had shown him how to cut paper and to separate it from the core which was then placed in the trash. Sharer basically confirmed Orrante's testimony. He testified, and I find, that he never received a warning about cutting or wasting paper from a damaged roll until after Orrante was discharged and that Gunthner. during his training commencing in August 1975. told him to use his own judgment in cutting a dam- aged roll of manila paper. Also, he never had known any- one else to be discharged for waste of materials. Ysidro Baca, a machine operator since 1974. likewise cor- roborated the testimony of Orrante, confirming that the machine operated by the latter was delicate and jammed easily. Gunthner never told him to seek permission to cut a roll although he personally had chosen to do so. Since the discharge of Orrante. he is required to seek such permission. He had never been warned for cutting paper or to stop wasting it. Matutte, with long tenure dating back to 1969, and who worked on a machine similar to that of Orrante. testified that he was never warned against cutting damaged paper from a roll or to seek permission to do so. On his own initiative, he has ceased this practice after the discharge of Orrante, although prior thereto he would make such cuts in the presence of supervisors without reprimand or discipline. 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He observed a similar work history on the part of Sharer. Matutte, as well, cut damaged rolls from the machine of another operator. He did hear Wier berate Orrante on March 27 for cutting a roll without permission, this again contrary to past practice. Nothing was said about the possi- bility of discharge. Wier, Cobos, Gunthner, and Powell presented volumi- nous testimony concerning this incident which allegedly led to the discharge of Orrante, but it does not withstand evalu- ation. This testimony, all of which has been carefully con- sidered, basically boils down to a contention that Orrante was discharged for improperly cutting paper from a butt roll on March 27, 1978, and much of this has been treated above. Respondent has adduced evidence of an increase in work errors, this resulting in more scrap in March 1978. The sim- ple answer to this is that there had been a simultaneous increase in production during this identical period. This in- crease in scrap is not directly attributed to Orrante rather than his coworkers. That Respondent exaggerated the os- tensible loss caused by Orrante's work on this occasion is refuted by Powell's concession that this loss was "over $100"; had it been much more, a larger figure would obvi- ously have been forthcoming. Again, this was allegedly caused by an employee of over 2-1/2 years' tenure. The foregoing is highlighted by the fact that all opera- tors, including Orrante, regularly enjoyed 100 percent in- centive pay or better. And in .March, a crucial period, Orrante uncontrovertedly testified that his incentive pay amounted to 130 percent. This is supported by his further testimony, again uncontradicted, that in March Powell had told him that he was one of the two top incentive makers in the folder department. As for the alleged impropriety in the cutting of damaged rolls, roll grabber Rudy Abedoy, still in the employ of Re- spondent, whose job was to insert and remove the rolls of paper from the machines, testified how he regularly saw double top machine operators in the presence of manage- ment cut these rolls when damaged. This was also the testi- mony of Matutte, as indicated. As noted, Orrante was not given and in effect was denied an opportunity to present his side of the story. One may appreciate how Respondent, as it stressed, took several days to reach its decision in view of Orrante's prominent and known union activities. But this record war- rants the conclusion that the reason assigned by Respon- dent for the discharge of Orrante was pretextual. Had his purported transgression been so serious, it would seem that quick action would have been taken. And the record well supports the view that his conduct was but a regular prac- tice by all company employees similarly engaged. To sum up, Orrante was the first employee ever dis- charged because of waste and carrying out a practice en- gaged in by his coworkers without reprimand. And, as noted, Respondent's records of waste do not support its position as to Orrante; indeed, the record demonstrates that these figures were not prepared until after the discharge of Orrante. And the discharge followed an expression of ani- mosity to him by management because of his union adher- ence shortly prior to the election which was won by the Union. Indeed, the Court of Appeals of the Ninth Circuit has recently upheld a finding of a discriminatory discharge in related circumstances where, unlike here, there was no di- rect evidence of knowledge of union activities. N.L.R.B. v. Warren L. Rose Castings, Inc., d/b/a V & W Castings 587 F.2d 1005 (9th Cir. 1978). 1 find, therefore, in view of all the foregoing that there is compelling evidence which prepon- derates that Orrante was discharged because of his union activities within the meaning of Section 8(a)(3) and (1) of the Act.5 E. The Warning Notices to Matutte and Baca At issue herein are warning notices to employees David Matutte and Ysidro Baca for leaving work to attend and testify at an unemployment compensation hearing on June 5, 1978, involving Orrante. The General Counsel alleges, and I find for reasons set forth below, that these were moti- vated by their engaging in an activity protected by Section 7 of the Act. Baca, an employee since June 1974, had worn a union button. Organizer John LeFlore of the Union, as Baca testified and I so find, had previously told Baca that there would be an unemployment hearing some time in June in the case of Orrante; no date was specified. On Fri- day, June 2, Baca returned home from work and found a subpena in the mail directing him to appear at I p.m. on Monday, June 5, to testify before the California Unemploy- ment Insurance Appeals Board in connection with the case of Orrante. The plant was then closed for the day and was not operative on June 3. On June 5, as Baca testified, he reported for work shortly before his scheduled hour of 7 a.m. He advised Supervisor Wier that he had to leave at lunch that day. Wier approved and asked for no reason. Baca duly checked in and worked until 11:45 when he left to attend the hearing which, in essence, was attended by all the supervisory employees of Respondent involved in the Orrante matter. Baca well with- stood cross-examination as to the events preceding his ap- pearance at that hearing. The experience of Matutte who had worn a union button for some 3 weeks prior to the election was very similar. He testified, and I find, that he was told by LeFlore that there would be a hearing in June on the case. Matutte discovered a subpena in the mail at his home late on the afternoon of June 2 directing him to appear at the hearing at I p.m. on Monday, June 5. Indeed, both subpenas stated on their face that they were picked up on May 30 at a State office, this consistent with the testimony of LeFlore. Matutte reported to work at his regular starting time of 7 a.m. on June 5 and 15 or 20 minutes later advised Wier that he was due to be in court at I p.m. that day. Wier read the subpena and approved his departure. Later that morning, as Matutte testified, Wier asked for the subpena so that he could display it to Personnel Director Sosa. Matutte replied that, pursuant to instructions by LeFlore, he could show it to Wier but could not turn it over to him. Wier responded that this was satisfactory and left the scene. Matutte worked until he departed from the plant at noon and re- ported to the State hearing at 1 p.m. I have not herein given weight to findngs in a (aliifornia Unemployment Insurance Appeals Board decision involving the discharge of Orrante. 258 UNIVERSAL PAPER GOODS COMPANY Respondent has contended that the two men violated a company rule, notwithstanding the fact that Respondent had granted advance consent to their departure. A com- pany rule is in evidence providing that anyone unable to report to work is to notify his supervisor no later than one- half hour after the start of the scheduled shift, and also generally provides that one is to give notice "each day you are or intend to be absent." Baca admitted that he had been warned previously about poor attendance and tardiness; these oral warnings obvi- ously had nothing to do with the instant issue. He also testified that he had previously given Respondent advance notice of a traffic court appearance, but, unlike the instant case, he was aware of the matter prior to the scheduled date. Both Baca and Matutte were given written warnings on June 6 by Wier in the presence of Supervisors Carrillo and Sosa concerning their absences from work on June 5. These indicated that this was a first offense. That of Baca stated that he had been advised on several occasions "including a documented verbal warning" that Respondent required all its employees to furnish I-day's advance notice of any nec- essary absence, except for emergencies, and complained that the notice had not been given until the morning of June 5. That of Matutte was quite similar, stating that he had been notified on several occasions that I-day's advance notice was to be given in these circumstances; this was news to Matutte. On June 6, Carrillo also told Matutte, accord- ing to the latter, that Respondent was giving him a warning because of his midday departure on June 5. It may be noted that LeFlore well supported herein the testimony of the two employees concerning the circum- stances leading to their appearances at the June 5 hearing, pointing out that the subpenas were picked up in person on May 30 at the state office due to the time problem. Wier placed the request by Baca to leave early at 10 a.m. on June 5. He admitted that Baca supplied no reason and that he, Wier, asked for none. Wier also admitted that Matutte stated on June 5 that he had to attend a hearing. He was unaware of Matutte receiving any prior instruction as to furnishing advance notice in connection with an ab- sence, but contended that such a policy had always existed. The testimony of Personnel Director Sosa does not assist Respondent. In addition to what is stated above in the rules, she contended only that employees are aware that they are to furnish advance notice of absences if they have knowledge thereof. While not in the rules, she again con- tended that this was well known, but there is no evidence to support this. I find, under all the circumstances, that Respondent seized upon this incident for discriminatory considerations based upon their knowledge of the union activities of these two employees, as well as its animosity towards Orrante. to issue warning notices to them. I find that this conduct was manifestly discriminatory within the meaning of Section 8(a)(3) and coercive within the meaning of Section 8(a)(l) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CON(CuSIONS O L.AW I. Ulniversal Paper Goods Company is an employer within the meaning of Section 2(2) of the Act. 2. Miscellaneous Warehousemen, Drivers & Helpers. Local 986, International Brotherhood of Teamsters, Chauf- feurs. Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By warning an employee of economic reprisal in the event of union success in an election and by forcing an employee to reveal his support for a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( 1 ) of the Act. 4. By discharging Leonard J. Orrante for engaging in union and concerted activities and by issuing warnings to employees under subpena for attending and testifying at an unemployment compensation hearing in behalf of a dis- charged coworker, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not otherwise engaged in unfair labor practices. THE REMEDY Having found that Respondent has engaged in unfair la- bor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respon- dent has violated Section 8(a)(3) and (I) of the Act by dis- charging Leonard J. Orrante because of his union activities. I shall, therefore, recommend that Respondent offer him immediate and full reinstatement to his former position without prejudice to seniority or other rights and privileges. See The Chase National Bank of the Ciy of New York. San Juan, Puerto Rico, Branch, 65 NLRB 827 (1946). I shall further recommend that Respondent make Orrante whole for any loss of earnings he may have suffered as a result of this discrimination against him by payment of a sum of money equal to that he would normally have earned from the date of discharge to the date of its offer of reinstatement, less net earnings, with interest thereon to be computed in the manner prescribed in 'F W. It'oolworrth Company, 90 N LRB 289 (1950), and Florida Steel (orpora- tion, 231 NI.RB 651 (1977); see, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 The Respondent, Universal Paper Goods Company. Los In the event no exceptions are filed as provided b) Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall. as pros ided in Sec. 102 48 of the Rules and Regulations. be adopted bh the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Angeles. California. its officers, agents. successors. and as- signs, shall: I. Cease and desist from: (a) Discouraging membership in. or activity on behalf of Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees. by discriminating in regard to hire or tenure of employment, or any term or condition thereof. (b) Warning employees of economic reprisals in the event of union success in an election: forcing employees to reveal their support of a labor organization: issuing warn- ings to employees under subpena who attend and testify in behalf of a discharged coworker before another tribunal or in any other manner interfering with, restraining. or coerc- ing employees in the exercise of the right to self-organiza- tion, to join or assist the above named or any other labor organization, to bargain collectively through representa- tives of their own choosing or to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Leonard J. Orrante immediate and full rein- statement to his former job, or if this job no longer exists, to a substantially equivalent position, without prejudice to se- niority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him in the manner provided above in the section entitled "The Remedy." (b) Physically delete from its records warnings given to David Matutte and Ysidro Baca for attending and testify- ing under subpena in behalf of a discharged coworker be- fore another tribunal. (c) Preserve and, upon request. make available to the Board or its agents, or examination and copying. all pay- roll records. social security payment records. timecards. personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its premises at Los Angeles. California. copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 21, after being duly signed by an authorized represent- ative of Respondent, shall be posted by it immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter. in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21. in writ- ing. within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 260