Precision Plating and Theodore Jones

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supreme Bumpers, Inc., d/b/a Precision Plating and Theodore Jones. Case 7-CA 15048 June 29, 1979 DECISION AND ORDER BY MEMBERS PENEI.I.O, MURPHY, ANI) TRUESDALE On March 29, 1979, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Supreme Bumpers, Inc., d/b/a Precision Plating, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: I. Substitute the following for paragraph I (d): "(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." I Respondent has excepted to certain credibility 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 Dry Wall Products, Inc., 91 NLRB 544 (1950), enid. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In par. I (d) of his recommended Order the Administrative Law Judge uses the broad cease-and-desist language. "in any other manner." However. we have considered this case in light of the standards set forth in Hickmott Foodr. Inc., 242 NLRB No. 177 (1979), and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that Respondent has a proclivity to violate the Act or has engaged in such egre- gious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory nghts. Accordingly. we shall modify the recommended Order so as to use the narrow injunctive language, "in any like or related manner." We have modified the Administrative Law Judge's recommended Order to include the full reinstatement language traditionally provided by the Board. We also modify the proposed notice to conform with the provisions of the recommended Order. 2. Substitute the following fbr paragraph 2 (a): "(a) Offer James Burton and Theodore Jones im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered due to the discrimination practiced against them, in the manner set forth in the section of this Decision entitled 'The Remedy.'" 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX No ric( To EMPI.OYEES POSTEr) BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties 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. The Act gives the employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection. To refrain from the exercise of any such ac- tivities. WE WIll. NoT discharge employees because of their union membership, activities, or sympa- thies. WI WILL NOI threaten employees with plant closure or other reprisals in the event they at- tempt to form or organize a labor union. WE WILl. NOI coercively interrogate employ- ees as to their or their fellow employees' mem- bership in, sympathies for, and activities on be- half of a union. WE WIl.. Nor in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. W. w.L. offer James Burton and Theodore Jones immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights or privileges previously enjoyed, and we WILl. make them whole for any loss of earnings they may have 243 NLRB No. 45 230 PRECISION PLATING suffered due to the discrimination practiced against them, with interest. SUPREME BUMPERS. INC., D/B/A PRECISION PLATING DECISION STATEMENT OF Till CASE THOMAS R. WItLKS, Administrative Law Judge: Pursuant to unfair labor practice charges filed by Theodore Jones, an individual, a hearing in this matter was held upon a com- plaint issued by the Regional Director and an answer filed by Supreme Bumpers, Inc., d/b/a Precision Plating (herein called Respondent). Upon the entire record, including my observation of the demeanor of witnesses and consideration of briefs. I make the following: FINDINGS OF FACI I. BUSINESS OF THE RESPONDENI Respondent is an Ohio corporation engaged in the busi- ness of reconditioning and distributing automobile bumpers at its plant in Detroit. Michigan. Its principal office and its other plant are located in Toledo, Ohio. Only the Detroit plant is involved herein. All parties agree and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. fl. 11THE UNION Metal Polishers. Buffers. Platers and Allied Workers In- ternational Union I.ocal No. I (herein called Union), is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Ill. TIlE UNFAIR I.ABOR PRA('CI('ES A. Background The issue herein is whether Respondent. in violation of Section 8(a)(3). discharged employees James Burton and Theodore Jones because of their union activities and whether it engaged in acts of coercive interrogation and threats in violation of Section 8(a)( I). Respondent's Detroit plant employs approximately 20 employees of whom there are welders, metal finishers, strip- pers, polishers, and platers. In 1977 Theodore Jones, James Burton, John Eskridge, Jimmie Dukes, and Willie Harrell were employed as polishers and were paid on a piece-rate basis. Harrell was employed from July 1977 until he left on a leave of absence on November 19. 1977. He returned on February 7, 1978. Theodore Jones (hereinafter T. Jones) entered on duty in August 1974 and was terminated on April 5, 1978. Burton was employed from January 4, 1977, until February 4, 1978. Another employee. William Mitch- ell, was employed during 1977-78 as a "polisher inspec- tors," but he was paid on an hourly basis and was engaged in "touch up" work. Carl Opalewski was the general superintendent and plant manager of the Detroit plant. Fred Jones was the foreman who was in charge, inter alia, of the polishing work and was the immediate supervisor of the polishers. Fred Jones was transferred to the Detroit plant from the Toledo plant in early January 1977. approximately I month after Opa- lewski entered on duty at the Detroit plant. Fred Jones and Opalewski consulted each other almost daily concerning all aspects of the plant operations. B. The Union Organizing Effort Burton and T. Jones testified that employees had dis- cussed the possibility of seeking union representation in November 1977, although there had been general refer- ences amongst the employees with respect to the subject of unionization as early' as January 1977. T. Jones and Burton actively participated in those discussions and advocated unionization.' Burton testified that in November 1977 there was general dissatisfaction among the employees with respect to their benefits in comparison to benefits enjoyed by Respondent's Toledo employees who were represented by the lIAW. However. Burton conceded that he was prompted to take some positive action after he had received a disciplinary layoff from November 14 18 for excessive unexcused ab- senteeism (42 unexcused absences from January I through November 14). Burton testified that about I week after his return to work on November 14 he decided to confront Foreman Fred Jones. having concluded that he had been unfairly treated. He and Fred Jones had enjoyed a friendly relation- ship up to that point and had known one another for many years. Fred Jones had occasionally driven Burton home af- ter work. In their confrontation, according to Burton. he told Jones that he had decided that he would attempt to get the plant organized by a union. and that Fred Jones re- sponded that it would not make any difference because Jer- ry Friedman (one of the managers in Respondent's head- quarters in lToledo) would close down the plant before anyone could bring a union in. This occurred at the time- clock in the presence of employees Dukes and Mitchell who did not testify. No attempt was made to contact the Union until after the Christmas and New Year holidays. Further employee discussion ensued. On January 6 Burton, pursuant to prear- rangement, met with union representative Carroll at a res- taurant and obtained union authorization cards. On Mon- day, January 9, Burton brought the cards to work and gave some to employees T. Jones, Kenneth Rogers, and John Eskridge during nonworktime in the shop area and in the restroom. The executed cards were returned to him over the next 3 days in the plant restroom and lunch area, and he mailed them to Carroll. T. Jones had solicited several em- ployees who executed union cards. There is no evidence that they were directly observed by Fred Jones or Opa- lewski. I do not find inconsistencies between Burton and T Jones as to when such conversation started as significant. Burton's testimony revealed under- standable difficult) in selecting a pecise date as to when the talk moved from a point of casual conversation to one of serious consideration. 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the second week of January, according to Burton, as he was standing in the plant at 10:30 a.m. Fred Jones approached him and engaged in a conversation. They spoke apart from several employees who were in the general area but who did not participate in the conversation. Fred Jones told Burton that Jerry Friedman was aware that Burton had distributed union cards in the plant, but that it would do no good because he would not allow it. Burton re- sponded that it would make no difference as a majority of employees had already signed up for the Union. Fred Jones then asked him who had signed cards, and Burton refused to disclose that information. Fred Jones also told him that the employees should have tried to obtain representation from the same union that represents the Toledo plant em- ployees, i.e., the UAW. Burton testified that in mid-January on an occasion when Fred Jones had driven him home he asked whether Burton got the Union "straightened out" to which Burton responded, "We got it pretty well straight." On January 20, 1978, the Union forwarded a letter ad- dressed to Jerry Friedman, president of Respondent, advis- ing him of its claim to represent a majority of Respondent's employees and demanding recognition. The Union offered to prove its majority status by submitting signed union au- thorization cards to a mutually selected third party. By let- ter dated January 30 Respondent acknowledged receipt of the aforesaid letter and indicated therein that it would refer the matter to its legal counsel. On February 14 Respondent, by its counsel, refused the recognition demand. On February 4 Burton was terminated. T. Jones testified that in mid-February at his machine just after lunch Fred Jones approached him and engaged in a conversation while they were standing alone. Fred Jones asked him whether he had heard anything "about the union deal," to which T. Jones responded negatively. Fred Jones then cajoled him stating "you can tell me." Thereupon T. Jones confirmed that he was indeed aware of the union effort. Fred Jones then stated that the time was not right for a union, and that if the Union "got in, Jerry [Friedman] and Skip [H. W. "Skip" Hilfinger III, vice president and general manager at the Toledo headquarters] will close the place up." T. Jones, however, insisted, "Well, they got one in Toledo. Why not have one here?" Fred Jones answered, "But the guys in Toledo don't want one, they don't like the one they got." T. Jones retorted that the Toledo employees seem to be getting more benefits than the nonunion Detroit employees, and that Fred Jones as a foreman would himself benefit from unionization in that the Toledo foremen do not work half as much as he does and without a union he is "killing him- self." In fact, Fred Jones does engage in a substantial amount of shopwork and spends the majority of his time working with the employees in the shop. According to T. Jones' detailed and vividly described account of the conver- sation, Fred Jones broke off the colloquy with a desultory response, "Well, they don't need no union in here, you guys don't know what you are getting into," and that it just was not time for a union at the Detroit plant. In March, prior to March 16, at about the time T. Jones was about to accompany his daughter who was involved in a court proceeding against another person, T. Jones en- gaged in a further conversation with Fred Jones at lunch- time near his work station. Fred Jones approached T. Jones while he was alone and asked, "You guys still trying to get the Union in?" T. Jones responded, "Yeah ... we might as well like I said they got one in Toledo." Fred Jones an- swered that the "guys" in Toledo do not like the Union, and responding to T. Jones comparative reference to To- ledo Fred Jones further asked why they did not want the UAW which represents the Toledo employees. T. Jones ex- plained to him that the "AFL-CIO" has "been around longer," and "the Union is a union anyway," and is "good for the working man." Fred Jones retorted, "Well, I tell you Skip and them is gonna close the place up. They are not gonna let no union come in here." T. Jones persisted in his support of the Union with the rejoinder, "Well, they might as well close it up then." On April 4 T. Jones was advised that he was terminated. Fred Jones generally testified that he had no conversa- tions with T. Jones or Burton wherein the subject of the Union was raised in any manner. Fred Jones testified that he first became aware of union organizing efforts immedi- ately prior to the discharge of Burton on February 4. How- ever, he then testified that it could have been before or after Burton's discharge. He finally testified that it was about the time of Burton's discharge. He was more convincing and certain in his testimony when he had initially testified that he was aware of the union organizing effort prior to the discharge of Burton. I am convinced that he was more ac- curate in his first response. Fred Jones became aware of the union organizing effort, according to his testimony, when Opalewski told him that he had heard from the salesman that employees were organizing in the plant. Opalewski tes- tified very generally and hesitantly that this occurred in January or February, and that this was his only source of information on the subject. He further testified that he, the plant manager, was never aware of or advised by his supe- riors of the receipt of the January 20 union recognition de- mand letter at the Toledo plant. Certainly this is an extraor- dinary lack of communication of a normally significant event if Opalewski is to be believed. However, Fred Jones testified that the Detroit plant was notified by a letter from the Toledo headquarters and instructed on how to handle the organizing campaign, i.e., what he could lawfully do or not do. Receipt of that letter at the Detroit plant was stipu- lated to have occurred "in the first part of February." Al- though Fred Jones conceded that he spent most of his time on the floor of the shop working alongside the polishers, strippers, and finishers, and regularly drove employee pol- isher Dukes to and from work, and that he occasionally drove Burton to his home after work, he denied that he ever engaged with employees in conversation regarding anything other than their work. He then proceeded to testify insis- tently that the employees never discussed their work related problems and complaints with him, their immediate super- visor. Thus, Fred Jones, in effect, rendered the highly im- probable testimony that despite close proximity at work and in a carpool, he never talked to employees about non- work or work problems. C. The Discharges Respondent's position is that Burton and T. Jones had both possessed high absenteeism records and work deficien- cies that should have caused their discharges many months 232 PRECISION PLATING prior to the Union's organizing efforts, but that they were both tolerated because of the recurrent and continuing dif- ficulties in hiring qualified polishers of whom there was a chronic shortage in the Detroit area. Respondent contends that the discharges were effected because of the sudden abundance of qualified polishers available for employment. In November 1977 Burton had received a I-week layoff because of "too much time off." This followed I week of absence due to illness. Up to that time he had, according to his attendance records, 43 workdays of unexcused absences and 10 days of absence due to illness during his 1977 ten- ure. He also regularly worked less than a full day. He had not been disciplined prior to that time. Respondent main- tains no formal rules or policies with respect to absentee- ism. Between November 18, 1977, and February 4, 1978, Burton had about 12 absences of which 3 consecutive ab- sences preceded his discharge. Burton testified that on February 4 he reported for work but was told by Fred Jones that his machine was disman- tled and that he was to be laid off for 2 months. He testified and it is uncontradicted that he was denied a layoff slip. The next week, after Burton filed a claim for unemploy- ment compensation and attempted to obtain a layoff slip, he was advised that he had been discharged for absentee- ism. Burton then confronted Fred Jones who, according to Burton, denied responsibility for the termination and re- fused to give him a layoff slip or a discharge slip. Fred Jones testified that it was his decision to discharge Burton and T. Jones. He testified that he discharged Burton for excessive absenteeism and because Burton had the habit of choosing more remunerative work instead of selecting bumpers that were already sold and which had priority. Polishers, as part of their duties, take turns "pulling" avail- able work from an assortment of bumpers ready for polish- ing. Opalewski also testified that Burton desired to be "an all around man," and chose to perform other work instead of polishing bumpers at a time when it was necessary to perform polishing work. He testified that this caused dis- ruption in the workflow. In his testimony Fred Jones made no reference to this purported deficiency. Opalewski and Fred Jones testified that Burton's absenteeism and deficien- cies occurred throughout his entire tenure, and that he was continually reprimanded. Burton was admittedly not disci- plined for his nonattendance work deficiencies. His attend- ance record reflects only that he was given a disciplinary layoff because of absenteeism and terminated for absentee- ism. His record is silent as to any work deficiencies. Fred Jones was evasive as to whether Burton was insubordinate as to the refusal to run priority items. At first he testified that Burton did not actually refuse to perform work; how- ever, after he was pressed he changed his testimony and thereafter asserted that Burton made an outright refusal to perform priority work. Yet, incredibly, he conceded that Burton was never disciplined for this alleged insubordina- tion which persisted for over I year. Moreover, Fred Jones did not testify to any specific instances of insubordination. His entire testimony with respect to this matter was ren- dered with a high degree of uncertainty and was most un- convincing. Opalewski testified that when Burton's machine broke down he and Fred Jones jointly decided to terminate Burton because of a lack of work, i.e., the lack of work for him to perform provided the opportunity to get rid of him. Opalewski testified initially that the scarcity of polishers slackened, and Respondent hired five or six new polishers in the period between January and April 1978. Fred Jones testified that the opportunity to discharge Burton arose when Burton's machine broke down during his absence. He testified that there was only one other pol- ishing machine available, and that he had hired another man, Willie Harrell, to operate that machine. Fred Jones admitted that the explanation he gave to Burton at the time of Burton's exit interview was that his machine was broken, and another man was available to work on the only avail- able machine. Thus Fred Jones corroborates, to an extent, Burton's testimony that Burton was being laid off because of the breakdown of his machine and there was no immedi- ate work for him. Fred Jones further admitted that Harrell, who was actually hired in January, was not hired to replace Burton. He further admitted that Harrell had been previ- ously employed in 1977, and that he had been absent on a "leave of absence" for a 2-1/2-month period of time so that he could go "South." Harrell's attendance record reveals that he commenced employment on July 11, 1977, that his employment continued until November 19. and that he re- turned on February 1,. 1978. It further indicates that in 1978 on May 5, he again left to go "South." At some unspecified date more than 2 weeks after Burton's discharge his ma- chine was repaired. Neither Fred Jones nor Opalewski testi- fied as to whether anyone was specifically available to re- place Burton on the date that his machine became operative. Fred Jones admitted that during Harrell's first hiatus in employment no other polishers were hired. Burton became the first polisher of substantial tenure to be terminated for absenteeism under the management of Fred Jones and Opalewski. Respondent's records reveal that Ralph Leek. a polisher, was hired in mid-November 1977 and terminated on January 8, 1978. for "too much time off... couldn't do work polishing." Also Jimmie Leo White, a plating department employee who commenced work on February 16, was terminated on April 7 for a fail- ure to report to work. Franklin Jones, an inspector who was rehired on August 16, 1977, was terminated on January 9. 1978, because of absenteeism. Sam Milanovich. Jr., was hired in mid-November 1977 as a "miscellaneous" em- ployee and was terminated on May 17, 1978, from his job in the shipping and receiving department because of absentee- ism and malingering. With respect to the discharge ofT. Jones, a review of his attendance record for 1977 reveals a total of 41 unexcused absences. From mid-July to mid-September he was absent due to recuperation from an automobile accident. In 1978 his unexcused absences were as follows: January. 3; Febru- ary, 3: and March, 5 absences. In January 1978 T. Jones was absent due to the flu from January 23 to 27. He testified that he called the office of Respondent on the first day of his illness and informed Opalewski and Fred Jones that he would be out ill. He was not explicitly contradicted. His attendance record reflects this time off as absence due to illness and not as an unex- cused absence. T. Jones testified that much of his absences were due to the need to accompany his daughter to a reha- bilitation center in late 1977, apparently because of injuries sustained in the same automobile collision that her father had been involved in in July. On March I, 2, and 3 T. Jones 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was absent because he attended the aforementioned trial in which his daughter was involved which was apparently re- lated to the automobile collision. He testified that he gave advance notice of this absence and obtained at least impli- cit approval from Opalewski and Fred Jones. The trial commenced on Wednesday, March 1, and ended Friday, March 3. On Friday T. Jones appeared at the shop to get his check and advised Opalewski that he would be absent on Monday, March 6, as he wished to be present with his daughter in court when the jury was expected to deliver a verdict. Opalewski responded, "I hope they hang the so and sos." He also told Fred Jones who said "Okay." Opalewski did not contradict him. Fred Jones conceded that advance notice was in fact given, and he also did not contradict T. Jones in this regard. On Tuesday, March 2, when he returned to work T. Jones testified that his timecard was missing, and in a later conversation with Fred Jones the latter pretended to have no knowledge of his excuse and then relented and said that he was merely "playing." Fred Jones denied this incident. In late March T. Jones testified that he gave advance notice and received approval for an absence because he had to reinstate a lapsed automobile policy. He also testified that Fred Jones told him that it was permissible for him to take the entire day off. Fred Jones testified that T. Jones had only given advance notice as to the necessity to attend his daughter's trial. T. Jones testified that on Monday. April 3, he performed his job. but that he became ill and his production dropped from his usual 15 bumpers per day to 10 bumpers. He testi- fied that as he left the shop that day he told Fred Jones in passing that he was ill, hut that Fred Jones appeared preoc- cupied. Fred Jones denied that conversation. The shop was concededly noisy. On Tuesday, April 4, T. Jones did not call in as he testified that he had slept late because of medi- cation that he had taken. On April 5 T. Jones returned to work and found his timecard missing. According to T. Jones, he then confronted Fred Jones who asked him why he did not call in on Tuesday. T. Jones responded that he had been asleep because of the medication, but that Fred Jones responded, "Well, I'm tired of you guys coming in here any time you get ready." Assuming that this meant that he was discharged, T. Jones demanded to know whether Jimmie Dukes would also be fired for his absentee- ism.' Fred Jones then stated to T. Jones, "I have got some- thing for Jimmie Dukes." T. Jones demanded to know whether he was being discharged because Fred Jones had gotten rid of Burton and was now getting rid of him be- cause he had some influence over the "guys." Fred Jones denied the accusation. T. Jones insisted that his discharge was because he had influenced other employees on the "union thing." According to T. Jones, Fred Jones answered "It's not mostly that, anyway Jerry and them is talking about closing the place up before they would let a union come in." T. Jones thereupon left the shop area without receiving a discharge slip from Fred Jones. T. Jones then confironted Opalewski near the front office and asked him 2 Jimmie Dukes entered on duty on February 24. 1977. During 1977 he had acquired 37 unexcused absences of which 23 or 24 occurred since Au- gust 1. In 1978 from January through March Dukes also acquired 13 unex- cused absences according to Respondent's attendance records. why Fred Jones had discharged him. Opalewski, according to T. Jones, responded that it was within Fred Jones' "au- thority." When T. Jones protested that it was not right, Opalewski responded with the comment that a lot of things in the shop are not right. T. Jones asked Opalewski to check the attendance records and told him that he was absent no more than anyone else. Opalewski told him that he would. T. Jones asked if he had given Opalewski any trouble and was told that he had not, but that in any event Opalewski's hands were "tied." T. Jones then protested that he had helped maintain order in the shop by stopping fights among the employees and on one occasion restrained Opalewski's own son (an employee), from hitting Opalewski. To this, according to T. Jones, Opalewski responded "Ted you seem to be a leader over the guys, they seem to listen to you." Opalewski promised to check the records. Several days later, according to T. Jones, he met again with Opalewski in his office and was shown some handwrit- ten figures purporting to be attendance information for an unspecified period of time. These figures purported to be the attendance records of Dukes, polisher Robert Henry, and himself. According to those figures Dukes had 16 ab- sences, Henry 10, and T. Jones 17. According to T. Jones, Opalewski then said that he had talked to Fred Jones, but that he could not guarantee anything. T. Jones then left. To Jones testified that he had received no prior repri- mands or warnings concerning his absenteeism. It is con- ceded that he has never been disciplined for prior absentee- ism. The attendance records reveal that Henry had acquired 22 unexcused absences in 1977. In 1978 from January through April Henry had I I unexcused absences. Further, in that period Dukes had 13 unexcused absences and 5 days of absence for illness. . Jones, according to Respondent's records, had acquired I unexcused absences in 1978 as of April I, and 5 days of absence for illness for the same period. Thus, the records seem to corroborate 1. Jones' account of the proportion of absences of the polish- ers named by T. Jones in his testimony as being referred to by Opalewski at least in 1978. Opalewski testified that he and Fred Jones had discussed the attendance records of T. Jones and Burton in the latter part of 1977 and 1978. but that their continued employment was tolerated because of a shortage of polishers. He ex- plained that Respondent was lax with respect to attendance in 1977, but that as more polishers became available in late 1977 and early 1978 it became more "strict." In contradic- tion to Fred Jones' testimony, Opalewski testified that a "couple" of employees returned to its employ during the time of the discharges. However, Opalewski testified that the decision to discharge T. Jones was made by Fred Jones "on his own." Fred Jones testified that when T. Jones had been absent on Tuesday, April 4, he decided to terminate him. Fred Jones testified that T. Jones' absenteeism situation this time had differed from the past attendance problems because Fred Jones now had polishers "coming around looking for jobs at that time and therefore we had polishers that would produce." He did not name those applicants. Fred Jones testified that on April 5 he accused T. Jones of"not produc- ing" and not putting enough time in on the job, and there- fore he was discharged. At that point T. Jones "blew up," 234 PRECISION PLATING and Fred Jones claims that he ignored him and kept on working. Fred Jones denied having received any advance notice of T. Jones' absence on April 4. He generally denied making references to the Union or to the closing of the plant within the context of union activity. He did not testify as to the details of his exit conversation with T. Jones. Moreover, Fred Jones testified that T. Jones performed the role of self-appointed leader among the polishers. Fred Jones denied that Opalewski had subsequently asked him to reconsider his decision. On cross-examination Fred Jones testified that between January 1 and April 1978 he had hired no polishers, and that after the discharge of T. Jones he had hired as a polisher Carlos Hill. Respondent's attend- ance records reveal that Hill did not enter on duty until April 26, 1978. Despite Fred Jones' testimony that Hill had applied for a job at some unspecified date prior to T. Jones' discharge, there is no explanation as to the lapse of time before he actually started to work, particularly in the face of Respondent's pressing need for polishers and Fred Jones' testimony of the number of job applicants who were "com- ing around" looking for immediate work. In early 1978 Respondent hired several individuals as polishers, but they were terminated after a few days of em- ployment because they were clearly unqualified and lacked experience. Respondent's records indicate that Leroy Ed- ward Williams was terminated on April 20 after I day of employment. D. Ernstin was terminated on April 28 after 2 days of employment. Larry Hull was terminated on April 14 after I day of employment. John Willis worked 3-1/4 hours on April 24 and quit. Ralph Leak entered on duty as a polisher on November 14, 1977. and was terminated on January 8, because of "too much time off' and because he was incapable of performing polishing work. Thus, Respon- dent's records fail to substantiate the testimonies of Opa- lewski and Fred Jones that there was an abundance of qualified polishers available to it during late 1977 and early 1978. Rather, the records indicate that Respondent was starkly unsuccessful in obtaining qualified experienced pol- ishers. Indeed, on cross-examination Opalewski contra- dicted his own testimony and the later testimony of Fred Jones by admitting that at the time of the discharges of Burton and T. Jones Respondent had hired no replace- ments for them, and that, in fact, the labor market for qualified polishers did not improve but was indeed "bad." Furthermore, Respondent engaged in no overt advertising for polishers but, according to Opalewski, relied entirely on "word of mouth" solicitation for help. With respect to the work deficiencies of T. Jones, the testimonies of Respondent's witnesses are not consistent. The thrust of Fred Jones' cryptic testimony was that T. Jones was absent too much, and thus his absence interfered with his productivity. Opalewski, on the other hand, gave extensive testimony that T. Jones also was given to choos- ing perferred bumpers and avoiding priority items, and that he also was given to failing to complete his work. Thus Opalewski, who was not the immediate supervisor of either Burton or T. Jones, was more explicit and descriptive of their deficiencies than was Fred Jones. For example, Fred Jones did not testify (as did Opalewski) as to Burton's sup- posed disruptive assumption of nonpolishing duties. Only on cross-examination did Fred Jones testify that T. Jones would pull bumpers and then leave them unfinished and not show up for the next day's work. His testimony in this regard was extremely evasive as to whether other polishers engaged in the same conduct, e.g., he testified to a question put to him, "No, and maybe." lie finally admitted that other polishers had also been guilty of leaving priority bumpers unfinished. According to Opalewski, he only spoke to T. Jones a couple of times in 1977 about his manner of selecting cer- tain bumpers and then failing to complete the job. Hie did not speak to him about this in 1978. With respect to absen- teeism, he testified that he had talked to T. Jones "prob- ably" in 1977 and "maybe" in the months of December. November. and January but testified, "He was like this all the time," i.e., ever since Opalewski had taken charge, a period of about I year. Opalewski testified that he never pressured T. Jones but merely told him. "Ted. let's get in here." or "something like that but that is about the extent of it." Opalewski admitted that with respect to the qualit of work, T. Jones was a "good polisher." and Burton was a "very good polisher." Fred Jones testified that he continu- ally warned T. Jones about his absenteeism over the period of 1 year. He did not testitf that he ever warned T. Jones about any other work deficiencies. Fred Jones testified that he spoke to ukes about his excessive absenteeism, but Fred Jones insisted that "every- body else had a pretty good record," despite the fact that the attendance record shows that polisher Henry's absen- teeism in 1978 was comparable to the record of T. Jones. Furthermore, polisher inspector William Mitchell also had a comparable 1978 absenteeism record. Dukes was not dis- ciplined, nor was any other polisher, for absenteeism or for the failure to finish bumpers. Opalewski testified that after Fred Jones had discharged T. Jones the latter came to him and engaged in a conversa- tion at the time he came to pick up his paycheck. At that time, according to Opalewski, T. Jones complained that he was unfairly treated, and that Respondent's records would bear him out. Opalewski then checked with the record- keeper at the Toledo headquarters. According to Opa- lewski. he then told T. Jones that his absenteeism was greater than anyone else's, and that Dukes and Henry had medical reasons for several weeks of sick leave. In any event, according to Opalewski, he told T. Jones that putting aside the issue of sick leave, T. Jones was still absent far more than any other employee. Opalewski testified that T. Jones did not respond. Opalewski denied that he told T. Jones that a lot of things were not right or that his hands were tied. He did not give a detailed account of the conver- sation but merely either affirmed or denied the questions put to him. He denied speaking to 1. Jones on the date of his discharge. He did not deny referring to T. Jones as a leader or a person with "influence over the employees." His cryptic testimony is unclear as to whether he interrupted the conversation in order to check the records. It seems to be a fairly certain probability that he did, in fact, do so. Thus, it would appear that he had two conversations with T. Jones after the discharge and not one as he suggested in his testimony. He did not deny the specific figures quoted by T. Jones in his testimony which have some substance in the records as we have seen upon examination of those rec- ords which were submitted into evidence. 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Opalewski admitted that Respondent has no policy as to the number of absences which require discipline. He con- ceded that Respondent has no disciplinary policy with re- spect to the failure to call in when absent. When asked on direct examination whether employees normally call in when absent, he initially failed to respond. When asked another question he testified that when the employees showed up the next day, he did ask them why they did not call in. Thus, he implied that they did not call in on every occasion or on some occasions. Finally, he did concede that despite his request the employees do not invariably call in. His demeanor in this respect was thoroughly guarded and evasive despite the fact that he was on direct examination. The separation notice contained in Respondent's own records makes no reference to work deficiencies of T. Jones but merely states, "too much time off." It is signed by Opa- lewski. IV. ANALYSIS AND C(ONCLUSIONS A. Credibility Evaluations The disposition of this case depends to a great extent upon a credibility resolution between the two dischargees and the two Respondent agents directly involved. Respon- dent argues that Burton and T. Jones are less credible be- cause of their inability to recall dates with facility and be- cause of some minor inconsistencies with respect to when employees commenced certain general conversations about the Union and whether the timeclock is always utilized. However, Fred Jones and Opalewski impressed me as far less certain as to dates, and they were far more inconsistent with each other's testimony on matters of much greater sub- stance, e.g., whether there was, in fact, an abundance of available qualified polishers at the time of the discharges. Whether the timeclock was always utilized is not a critical issue. The polishers were paid on a piece-rate basis, and Burton's testimony that the true criteria of employees' worth was productivity and not hours clocked in was not essentially contradicted. Respondent argues that T. Jones and Burton were not corroborated in key areas where other employees named as present during certain conversations were not called as wit- nesses by the General Counsel. The General Counsel has made his primafacie case with the testimony of one witness to each alleged coercive conversation. He has moved for- ward with his case. Respondent has rebutted that testimony with one witness. Neither party has subpoenaed employees of Respondent as corroborative witnesses. There is no showing that the third party witness is under the control of the General Counsel or available to testify. I cannot infer that he would testify adversely to the General Counsel's case. If anything, the missing witnesses as employees would appear to be under Respondent's control rather than that of the General Counsel. Respondent argues that T. Jones should be discredited because of a misrepresentation made in a proceeding before an agency of the State of Michigan wherein he submitted a claim for employment disability compensation. T. Jones filed the claim pursuant to the assistance and presumed ad- vice of an attorney. The claim, i.e., "Petition for Hearing" was filed on April 27, 1978, signed by T. Jones, and set forth that the applicant was disabled "on or about April 1978" by a personal injury that occurred "on or about April 1978" at Respondent's plant which consisted of a "general disability of back, legs, right arm, lung disease, bronchitis, emphysema." The claim also set forth that the injury oc- curred as follows: "4/78 injured back on job, constant strenuous use of back, legs, right arm, constant exposure to atmospheric pollutants." T. Jones testified that his April "disability" was the cumulative effect of many years of work, and that he had been under a doctor's care for several years. Clearly this is an inappropriate tribunal to resolve an issue arising under the Michigan workers compensation act. Whether T. Jones became "disabled" under the term and meaning of that statute remains to be resolved by the state agency involved. This record does not support Respon- dent's contention that a necessary contradiction arises from the processing of the unfair labor practice charges and the disability claim. The disability claim does not purport to allege that T. Jones ceased functioning in his job precisely on April 5, the date of the alleged unfair labor practice. T. Jones did not testify that he ever purported to make that claim to the state agency. Indeed, his testimony is to the effect that his physical problem was not the result of a spe- cific physical act on the job, and such testimony is not in- consistent with the verbiage inserted on the form petition submitted to the state agency. Thus, I do not agree with Respondent's counsel that T. Jones' credibility has been dealt a "crushing blow." At most, it raises questions which cannot be resolved by this record. Far more pertinent and persuasive is the testimony as to the issues in this case. Upon a total review of the testimonies of all four wit- nesses, their demeanor, and in consideration of logical probabilities, I conclude that T. Jones and Burton are far more credible witnesses than Fred Jones and Opalewski in virtually every area of substance where there is a testimo- nial conflict. T. Jones and Burton's demeanor were preemi- nently superior with respect to naturalness of exposition, certitude as to substance, forcefulness of conviction, sponta- neity of direct testimony, responsiveness, coherence, consis- tency on cross-examination, ability to provide details and context of conversations, and external consistencies. Fred Jones and Opalewski displayed hesitant, uncertain demeanors and lacked the spontaneity usually associated with candor. Their testimonies were cryptic and guarded. Fred Jones was so defensive and guarded that when he testified that he never spoke to employees about personal matters about work problems, I found him completely un- convincing. Opalewski's demeanor was similarly handi- capped when he claimed that he had never been advised by his superiors of the Union's demand for recognition. Accordingly, I credit the testimonies of Burton and T. Jones with respect to their conversations with Fred Jones regarding the Union and union activity and with regard to the incidents leading up to and including their discharges. B. 8(a)(1) Allegations I conclude that Respondent, by its agent Fred Jones, in late November 1977 threatened employee Burton that Re- spondent would close its Detroit plant if a union were suc- cessful in organizing the Detroit plant and thus violated 236 PRECISION PLATING Section 8(a)(I) of the Act. I do not agree with Respondent's contention that such conduct was untimely alleged in the complaint by virtue of Section 10(b) of the Act. According to the credited testimony of T. Jones, it occurred I week after his return to work on November 21, 1977, i.e., on or about November 28. The original charge was filed on April 13, 1978, and served on Respondent on April 14, 1978. The charge alleged that Respondent had interfered with, re- strained, and coerced employees in the rights guaranteed in Section 7 of the Act by the discharge of T. Jones and by "other acts." Such broad allegation in the charge has been held sufficient to support particularized 8(a)(1) pleadings in a subsequent complaint. See Fremont Hotel, Inc., 162 NLRB 820, 821 (1967). Moreover, the threat was specifi- cally alleged in the amended charge of May 26, and thus it is timely. I further conclude that Respondent violated Section 8(aXl) of the Act by Fred Jones' coercive interrogation of Burton during the second week of January 1978 as to whether he or any other employee signed union cards and by Fred Jones' interrogation of Burton in Jones' car, in mid-January. As to the latter, Respondent contends that such interrogation was not coercive, i.e., whether he had the Union "straightened out" yet. Inasmuch as this interroga- tion was part of a pattern of interrogations and occurred in the context of threats on other occasions, I conclude that it also became coercive in such a factual configuration. I also find that Respondent violated Section 8(a)( 1) of the Act by Fred Jones' mid-February and mid-March coercive conversation with T. Jones wherein T. Jones was ques- tioned as to his knowledge of the union organizing effort, his motivation for supporting the Union, and was threat- ened with plant closure if the Union was successful; and by Fred Jones' threat to T. Jones on April 5 of plant closure. C. The Discharges In view of the foregoing I conclude that Respondent had knowledge of the union activities and sympathies of T. Jones and James Burton and further evinced an animosity toward unionization by its employees of its Detroit plant. The discharges occurred within the context of interroga- tions and threats. Burton was the prime activist for the Union. His discharge occurred shortly after Fred Jones be- came aware of the fulfillment of Burton's threat to organize the Union. T. Jones' discharge thereafter occurred subse- quent to his continued expressions of support for the Union. In view of the circumstances herein, including Fred Jones' constant presence in the shop and proximity to em- ployees (including carpooling), it can be inferred that in any event Respondent was well aware of the full extent of the union organizing efforts of its employees. See Famet, Inc., 202 NLRB 409 (1973): Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959). Respondent contends that Burton and T. Jones were de- ficient in their work habits. Yet they were never disciplined for their alleged disruptive activities. Other employees had left priority work undone. There is no evidence that they were disciplined. I do not find the testimonies of Fred Jones and Opalewski credible with respect to the extent of the discriminatees' alleged deficiencies. Their testimonies were inconsistent and put Respondent in a posture of advancing shifting reasons for the discharges. When Burton was disci- plined in November he was disciplined solely for absentee- ism. When he was laid off no initial reference was made to his deficient work performance. Had his misconduct been as severe as portrayed, surely some reference in Respon- dent's records would have been made of it. Similarly, the termination notices in the records of each employee refer to no such misbehavior. I credit the testimonies of Burton and T. Jones that no references of work deficiencies were ever mentioned to them upon their terminations. With respect to the absenteeism records of both men, they appear excessive. However, in comparison with other polishers their records are not exceedingly disporprotionate, particularly with respect to months of their employment in 1978. 1 find persuasive Burton's testimony that the critical factor for piece-rate production is not so much the hours clocked in hut rather the number of bumpers that were produced. There was no testimony by Respondent's wit- nesses of any deficiency with respect to the actual number of bumpers produced by either employee. In this respect Opalewski characterized these employees as "good" or "very good." Thus, they apparently had the capacity and did produce satisfactorily in view of their facility as quali- fied and experienced polishers. Respondent concedes that it had long condoned the ab- senteeism and work deficiencies of Burton and T. Jones, and that the opportunity to relieve itself of these objection- able employees occurred when it was faced with a fortu- itous abundance of a labor pool of much needed polishers who were "coming around" looking for work. Respondent does not explain why it did not use this opportunity to eliminate other polishers who had high incidences of absen- teeism, e.g., Dukes. However, the testimonies of Respon- dent's witnesses and its own records do not support Re- spondent's contention. As seen above, there was no evidence that a bountiful source of qualified polishers ap- peared at the time of the discharges which, according to the Respondent. occurred coincidently at the time of the union organizing effort. Rather, the reverse situation appears to have existed. Indeed, Opalewski admitted that there was no real change in the labor pool situation. Thus, neither Bur- ton nor T. Jones was immediately replaced with a waiting qualified applicant. Inasmuch as Respondent's proffered reason for the dis- charges of Burton and T. Jones is not supported by the record, I can only infer that some other factor must have motivated Respondent to conclude that these employees' work habits were no longer acceptable, and that Respon- dent's real motive "is one that the [Respondent] desires to conceal-an unlawful motive-at least where as in this case the surrounding facts tend to reinforce that inference." See Shattuck Denn Mining Corporation (Iron King Branch) v. N.L. R.B., 362 F.2d 466, 470 (9th Cir. 1966). I conclude that the real reason for the discharges in this case is the union activities and sympathies of the dischargees. Therefore, al- though Respondent may have had sufficient cause to dis- charge Burton and T. Jones in the absence of union activi- ties, because it was motivated by antiunion animus to effectuate the discharges I conclude that it violated Section 8(a)(3) and (1) of the Act. See N.L.R.B. v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147, 151-152 (6th Cir. 1967). 237 DECISIONS OF NATIONAL LABOR RELA IONS BOARD Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: C()NCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By its conduct set forth in section III, above, Respon- dent has engaged in and is continuing to engage in viola- tions of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEuI)Y Having found that Respondent violated Section 8(a)(1) and (3) of the Act, Respondent shall be ordered to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged James Burton and Theodore Jones, Respondent shall offer them immediate and full reinstatement to their former or substantially equivalent positions without preju- dice to their seniority or other rights and privileges and shall make them whole for any loss of pay they may have suffered by reason of the discrimination against them. Any backpay found to be due shall be computed, with interest, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).' In view of the nature of the violations herein, it will be further recommended that Respondent be required to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. On the basis of the foregoing findings of fact, conclusions of law, the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent Supreme Bumpers, Inc., d/b/a Preci- sion Plating, Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 'In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Threatening employees with plant closure or other reprisals in the event its employees attempt to form or orga- nize a labor union. (b) Coercively interrogating employees as to their or their fellow employees' membership in, sympathies for, and activities on behalf of a union. (c) Discharging its employees because of their union membership, activities, or sympathies. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist Metal Polishers, Buff- ers, Platers and Allied Workers International Union Local No. , or any other labor organization, to bargain collec- tively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer James Burton and Theordore Jones immediate and full reinstatement to their former positions or, if that is not possible, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other documents nec- essary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at its Detroit, Michigan, plant copies of the at- tached notice marked "Appendix."' opies of said notice, on forms provided by the Regional Director fbr Region 7, after being duly signed by Respondent's authorized repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director, in writing, 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 a United States court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 238