Design and Mfg., Corp.

DESIGN AND MANUFACTURING CORPORATION Design and Manufacturing Corporation and Willie Carpenter. Case 25-CA 9526 July 16, 1979 DECISION AND ORDER BY MEMBERS PENELI. O, MURPHY, AND TRIESD)ALE On March 28, 1979, Administrative Law Judge Ir- win Kaplan issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and counsel for the General Coun- sel filed a reply 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 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, Design and Manufacturing Corporation, Richmond, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph (c): "(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Insert the following as the final paragraph of the Order: I Respondent has excepted to certain credibility findings made h 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 cons inces us that the resolutions are incorrect. Standard Dry) Wall Products. Inc. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I In par. I(c) of his recommended Order, the Administratise Law Judge provided that Respondent shall cease and desist from "[iln any other man- ner" infringing on employee rights guaranteed in Sec 7 of the Act. However. we have considered this case in light of the standards set forth in Hckmott Foods. Inc., 242 Nl.RB 1357 (1979). and have concluded that a broad reme- dial order is inappropriate inasmuch as it has not been shown that Respon- dent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the em- ployees' fundamental statutory rights. Accordingly. we shall modify the rec- ommended Order so as to use the narrow injunctive language. "in any like or related manner." "IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges viola- tions of Section 8(a)(1) of the Act other than specifi- cally found herein." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl. LABOR REI.ATIONS BOARD An Agency of the United States Government WE WIL.. NOT discourage membership in or ac- tivities on behalf of Local Union No. 589, Up- holsterers International Uinion of North Amer- ica, AFL-CIO. or any other labor organization, by denying employment to applicants because of their activities on behalf of a labor organization, or otherwise discriminate in regard to hire or ten- ure of employment or any terms and conditions of employment of our employees. WE WIII. NOT make any statements to our em- ployees indicating that we would not hire appli- cants because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain. or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Willie Carpenter full and im- mediate employment to the position in which he would have been employed but fbr our discrimi- nation against him or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other privi- leges, and wiv WInl. make him whole for any loss of earnings, with interest. DESIGN AND MANUFACTURING CORPORA- TION DECISION STATEMENT OF THE CASI IRWIN KAPI.AN, Administrative Law Judge: This pro- ceeding was heard before me in Richmond. Indiana, on July 17 and 18, 1978. The underlying unfair labor practice charges were filed by Willie Carpenter. an individual. on December 23, 1977. and a complaint thereon issued Febru- ary 24. 1978, alleging principally that since on or about July 22, 1977. Design and Manufacturing Corporation (herein also called Respondent or D & M) unlawfully refused to employ Willie Carpenter in violation of Section 8(a)(3) and ( I ) of the National Labor Relations Act, as amended. The complaint (amended at the hearing), also alleges that Re- 243 NLRB No. 82 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent coercively interrogated employees, created the impression of surveillance, and made coercive statements tending to chill union activity thereby independently violat- ing Section 8(a)(l) of the Act. Respondent filed an answer (amended at the hearing), admitting, inter alia, jurisdic- tional facts and the supervisory and agency status of indi- viduals named in the complaint but denying all of the sub- stantive allegations. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Re- spondent, I make the following: FINDINGS OF FAC(1 t. JURISDICTION Respondent, an Indiana corporation, has maintained its principal office and place of business at Connersville, Indi- ana. It also maintains a factory in Richmond, Indiana, the facility involved herein. At all material times herein, Re- spondent has been engaged at said Richmond facility in the manufacture, sale, and distribution of automatic dishwash- ers and related products. During the past year with regard to the operation of its Richmond facility, Respondent has derived revenue in excess of $50,000 directly from the sale and shipment of its products to points outside the State of Indiana. Respondent admits and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that Local Union No. 589. Upholsterers International Union of North America, AFL CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Respondent has operated a plant in Connersville, Indi- ana, since about 1958, and for most of that period including the present time its production and maintenance employees have been represented by International Union, United Au- tomobile Implement Workers of America (UAW). In 1975 Respondent expanded its operations and purchased a fac- tory building in Richmond, Indiana, the facility involved herein. Respondent commenced production at the Rich- mond plant in April 1977, steadily increasing its work force so that by the time of the hearing it employed approxi- mately 465 production and maintenance employees at that facility. In the fall of 1976 Respondent extended recogni- tion to the UAW on an accretion basis for the Richmond production and maintenance unit. This recognition, how- ever, did not serve as a bar to a representation petition filed on July 13, 1977, by Eastern Indiana District Council a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO, in Case 25-RC-6686 (Resp. Exh. 8). The UAW had to postpone its bargaining status on behalf of the pro- duction and maintenance employees employed at the Rich- mond plant until it won a Board-conducted election in Sep- tember 1977' and obtained a certification thereon. Willie Carpenter, the alleged discriminatee. applied for a job at Respondent's Richmond facility on July 22. Prior thereto and since 1964 Carpenter had been employed at Wallace Metal Products, Inc. (herein Wallace), a company also located in Richmond. Wallace's employees were repre- sented by Local Union No. 589, Upholsterers International Union of North America, AFL CIO (herein Upholsterers Union), and they had been engaged in a strike over a new contract since May 5 which did not end until March 1978. The bargaining unit at Wallace at the time of the strike consisted of 159 employees. Carpenter was elected to serve on a five-member negotiating committee to negotiate the new contract. He had served in this capacity for the three prior contracts. Carpenter had also served as a union shop steward for approximately 10 years. During Carpenter's tenure of employment at Wallace the employees, including Carpenter, had been involved in two or three other strikes. The General Counsel asserts, in essence, that Respondent refused to hire Carpenter because he was viewed as a strike oriented person and because he was otherwise a union ac- tivist. As previously noted, Carpenter applied for a job at Re- spondent's Richmond plant on July 22 while the strike at Wallace was still in progress. He had obtained an applica- tion from his friend and neighbor Robert Curtis, an em- ployee at Respondent's Richmond facility. Curtis had ob- tained the aforenoted application from Foreman Floyd Day, and after Carpenter filled out said application he gave it back to Curtis who then submitted it to Day. Carpenter's employment application reflected that he was interested in any position, and it was noted therein, inter alia, that he had welding experience. At about the same time Carpenter registered with the ndiana State Employment Service for referrals, and he learned from that agency that Respondent had an opening for a welder, and an interview was set up for him on July 22. Carpenter appeared on July 22 at approximately 2:30 p.m. for the interview as scheduled and was asked to fill out a second application.' He was met by Foreman Day who looked at the application and recalled that Carpenter was the same individual who Curtis spoke to him about. Day told Carpenter that the opening was for an acetylene welder. While Carpenter had done some acetylene welding, it was minimal and never in connection with his employ- ment. Carpenter's welding experience, while considerable (approximately 10 years), involved principally arc welding, an electrical process. He also did some mig, heliarc, and spot welding at Wallace. Carpenter testified that Day pointed out that if he (Carpenter) had welded, he "prob- ably" would not have any trouble with acetylene welding. Day then escorted Carpenter into the plant to test him on acetylene welding. After Carpenter completed 8 to 10 weld- ing jobs, he asked Day if he thought he could handle the job to which Day responded affirmatively. Day testified, "I told him [Carpenter] that I could tell that he had definitely I All dates hereinafter refer to 1977 unless otherwise noted. 2 See J. Exh. 6. 488 DESIGN AND MANUFACTURIN(G CORPORATION welded before. and that I knew he was nervous . .. And I told him that he hadn't done too bad." Carpenter and Day returned to the office and further dis- cussed the terms of employment including the hourly pay rate. Day asked Carpenter if he would sign a "quit slip" terminating his employment at Wallace if he was offered a job at D & M. Carpenter told Day that if he got the job he would not go back to work for Wallace. He also stated that he would sign the "quit slip" if required but was hoping that it could be deferred because he had 3 weeks' vacation pay due from Wallace and did not know what effect the "quit slip" would have on vacation pay. Carpenter testified that Day told him that he had interviewed three other ap- plicants that day, but that he was the one he was going to hire. He added that Carpenter could not tell Curtis to get off his back. With regard to the quit slip, Day said that he would check with his "boss" (David Riehle. production manager in charge of personnel at that time), although he did not think that it would be necessary for Carpenter to sign it. In either case Day assertedly told Carpenter that he would call him Monday morning to advise as to whether he had to sign the quit slip. According to Day, he told Carpen- ter that he was the best of the applicants that he had come across, but that he still had a few more applicants to inter- view. Day denied that he offered Carpenter a job. but merely that he advised him that if it was decided to hire him that he, Day, would call him to make arrangements. Later that afternoon and before the end of the 3:30 p.m. day shift, Foreman Day approached Curtis and told him that he had just interviewed and tested his "buddy" on the welding job. Day told Curtis that Carpenter was a little nervous on the first job but then calmed down and did "very good." Day remarked "that man [Carpenter] is a welder" and assertedly told Curtis that he was going to hire him. He added, "the only thing I've got to do [is] check with Dave Riehle on his quit slip from Wallace and call Carpen- ter Monday to advise and to make arrangements for his physical." Day confirms that such a conversation occurred, and that he related to Curtis that Carpenter did "pretty good" but denies that he told Curtis that Carpenter was hired. According to Day, he interviewed six applicants on July 22 for the welding job, and that two of them, Carpen- ter and David Drew, appeared qualified and were also tested. Day hired Drew although he did not have any fac- tory experience because he had high school training on acetylene welding and because he assertedly performed bet- ter than Carpenter did when tested. Curtis had several conversations' with Day the following week with regard to the hiring of Carpenter and was told by Day that Riehle told him that they were not going to hire Carpenter. In substance, Curtis testified that Day told him that there was a problem either with Carpenter's references or with the "quit slip" and asked whether he. Curtis, knew that Marvin was Willie Carpenter's brother and whether there could have been a mix-up between the brothers. Cur- tis4 also asserted that Day commented that he did not know 3 While Curtis was unclear as to what Day told him on each occasion, he asrted that he was certain with regard to the substance of what Day told him that week. 4 In September Curtis was elected union local president of he UAW for the Richmond unit. that Willie Carpenter had been on the bargaining commit- tee at Wallace. [)ay testified that he had heard from someone in connec- tion with the strike at Wallace that Marvin Carpenter was quite a character, and he inquired of Curtis whether he knew that Marvin was Willie's brother to which Curtis re- sponded affirmatively. According to Day. Curtis told him that Willie is "okay" and not like Marvin, that Willie was on the union bargaining committee. and that he (Day) did not know that Willie was on the committee prior thereto. In August Paul Tegeler became manager of industrial relations and assumed the personnel functions previously handled by Riehle. Tegeler testified that in August and from time to time thereafter there were openings for repair or gas welders, spot welders. spray painters, and other skilled and nonskilled positions in the pressroom and as- sembly department. On Carpenter's employment applica- tion he indicated that he was desirous of obtaining any po- sition and noted further therein, intr alit, that he was qualified in welding. spray painting, and had experience in the press room (Jt. Fxh. 6). Carpenter continued his efforts to secure employment at D & M as a welder or in some other position, and in furtherance thereof he submitted ad- ditional resumes and spoke with Tegeler but was not of- fered a job. Curtis testified that in October he gave Tegeler one of Carpenter's resumes, and Tegeler gave it back to him assertedly declaring that he would not hire Carpenter be- cause he was "a union activist." Tegeler denies making any such reference to Carpenter as a union activist. According to Tegeler. Carpenter was not hired in July because some- one else was better qualified, and it was the Company's policy not to hire applicants who had previously been re- jected. Thus Tegeler testified that as Carpenter had been turned down previously. it was the (ompany's informal polic . . . that he was not given an further consideration for other jobs." Tegeler asserted that he had. on occasion. attempted to hire someone who had applied and been turned down, but Riehle told him "We ought to let some- one else apply for the job rather than someone who's al- ready applied for it."' The General Counsel contends that by Tegeler's refusal to hire Carpenter because he was a union activist Respon- dent continued to violate Section 8(a)(3) and (I) of the Act. In addition, the General Counsel contends that by Tegeler assertedly describing Carpenter as a union activist to (Curtis as noted above Respondent thereby independently violated Section 8(a)( I ). Further, the General Counsel contends that after the underlying unfair labor practice charges herein were filed Tegeler verbally abused Curtis for providing in- formation to the National Labor Relations Board in sup- port thereof. According to the General Counsel. Tegeler thereby conveyed the impression that he was keeping Cur- tis' protected activity under surveillance in further violation of Section 8(a)(l). Still further, the General Counsel con- tends that Tegeler coercively interrogated applicant Robert Austin concerning his union sentiments in violation of Sec- 'David Riehle and Robert Scelze. executi.e ice president and general manager of the Richmond dlsn. also rlellied regarding the Company', "informal policy" on reconsidering applicants who) had preslousl) been re- jected his so called "informal polic)" 'ill he dscussed more ull) beloa 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a)( 1). As noted previously, Respondent denies all the substantive allegations in the complaint., B. Credibilifv Re.volutions The substantive allegations herein depend largely on credibility resolutions. Thus, a separate section is devoted to resolving the material credibility conflicts. The record discloses that on July 22 at or about 2:30 p.m. Foreman Day interviewed and tested aplicant Carpenter for a position as an acetylene welder. The General Counsel contends that Day hired Carpenter at the conclusion of the interview. In support thereof Carpenter testified that L)ay told him that he was hired, but that he, Day, had to check with Riehle with regard to whether Carpenter would have to sign a quit slip signifying that he would not go back to Wallace after the strike ended. According to Day he merely told Carpenter that he was the best of the applicants that he had seen, but that he still had other applicants to interview. Day testified that he interviewed six applicants on July 22. and onl? two of them. David Drew and Carpen- ter, were good enough to be tested. Day asserted that he decided to hire Drew although the latter did not have anN factorN experience on the basis of his high school training in acetylene welding and because he was fster and better than Carpenter when tested. )ay also asserted that he in- terviewed and tested D)rew on July 22 sometime after he had concluded his interview with Carpenter. While counsel for the General Counsel does not dispute that Dl)a interviewed and tested Drew on July 22, she as- serts that it occurred at about 12 noon, before Carpenter was interviewed and tested. According to the General Counsel's theory I)ay hired Carpenter, but when he checked with Riehle with regard to the quit slip the latter refused to give his imprimatur because, inter alia, Carpenter was a member of the union bargaining committee, and said Union had a history of strikes at Wallace which Respon- dent did not want transported to its Richmond facility. At the top of David Drew's resume is the notation "12:00" with the name "Dave" written in immediately un- derneath (Jt. Exh. 9). Day denied that he made the afore- noted markings on the resume. However, in the absence of any evidence showing who was responsible, the notations appear consistent with the General Counsel's contention that Day interviewed Drew at 12 o'clock, before he inter- viewed Carpenter. While Drew was employed by Respon- dent at the time of the trial, it is noted that he was not called to testify. Moreover, Day's standing with regard to accuracy is-a-vis time, dates, and other matters involved herein has to be strongly suspect. At one point he testified "I didn't keep none (sic) of the facts straight. I didn't have no [sic] reason to note and document in any kind of way the people, the dates, or nothing." Robert Curtis testified that on July 22 as he was getting ready to go home at the end of the day shift, Day told him that he had hired Carpenter and mentioned that he still had to check with Riehle with regard to a quit slip. Curtis also testified that when he spoke with Day again the latter re- 6 The acts and conduct alleged to be violative of Sec. 8(aX I ) will be treated separately infra. ferred to Carpenter's membership on the union bargaining committee. Day acknowledged that such conversations took place but denied telling Curtis that he hired Carpenter. Day's account of the conversation is that he told Curtis that Carpenter was the best that he had come across, but that he still had some applicants to interview. With regard to Car- penter being a member of the bargaining committee, ac- cording to Day', it was Curtis who made said reference not the reverse. On the basis of demeanor, consistency of testimony, plau- sibility, and the entire record I am persuaded that Day hired Carpenter on July 22, but that Day's decision was rescinded by Riehle. I further credit General Counsel's wit- nesses over Day in all material areas where the testimonies are in conflict. Riehle and l)ay both assert that Day made the decision to hire Drew, but that Day, on July 22, merely informed Riehle of that decision. However, this assertion is at odds with the statements Day made to other employee. Employ- ees Coleman Collier and Roy Patton credibly testified that on a Saturday in late September or early October they pressed Day on why Carpenter had not been hired, and he told them that Carpenter could do the job but that the Company would not let him hire Carpenter. When day was questioned whether he told Patton or C'ollier that the ('om- pany would not let him hire Carpenter he responded "I don't remember it. I could have but I I don't remember making the statement." Day recalled having a discussion with Patton on a Saturday concerning Carpenter but was not certain whether Collier was present. Day testified that Patton asked him if the Company was going to hire Car- penter, and he responded "I didn't know, that wasn't up to me, that was up to the Company." )ay's credibility is fur- ther impaired by his affidavit given to the Board agent wherein he asserted that he spoke with Patton about Car- penter before tl:e latter was interviewed and tested (July 22). However, the parties stipulated, the record reveals, and I find that Patton did not begin working for Respondent until July 26. The record discloses that Day made similar statements to employees Cleatus Abrams and Dewey Malicoat. Malicoat credibly testified that Day told him that "Willie Carpenter was the only one that tried out on the [welding] job that could keep it up" and that Day did not know why the Company would not let him hire Carpenter. While the record discloses that Collier, Patton, Abrams, and Malicoat were formerly employed with Carpenter at Wallace and were interested in Carpenter's employment status, the record discloses other factors which tend to sup- port their testimonies. It noted that the above-named em- ployees were all employed by Respondent at the time of the hearing, and as such they testified adversely to their pecuni- ary interest, a matter not to be lightly disregarded. 7 Further, a substantial portion of their testimonies if not fully cor- roborated by Foreman Day was not denied by him either. In view of the foregoing and on the basis of my observation of their demeanor, I credit the testimonies of Collier, Pat- ton, Abrams, and Malicoat. See, e.g., Federal Stainless Sink Di'. of LUnarco Industries. Inc., 197 NLRB 489, 491 (1972); Gateway Transportation, Inc., 193 NLRB 47, 48 (1971): Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961). 490 DESIGiN ANI) MANI FACT1RIN( CO(RPORA ION Another critical credibility conflict to he resolved involve the statements ascribed to Tegeler by Curtis. As noted pre- viously, the General Counsel contends that Respondent not only discriminatorily refused to hire Carpenter on July 22 hut continued to thwart his efforts to secure employment. It is undisputed that after July 22 Carpenter made further attempts to get a job at Respondent's Richmond facility. On one of these occasions in October, as testified to by Curtis, he gave one of Carpenter's resumes (.('. Fxh. 3) to Tegeler who looked at it and after noting that it was C'ar- penter's resume, returned it to Curtis. assertedly saying that he could not hire him. According to Curtis, the reason Tegeler advanced was that Carpenter was a "union activ- ist." Tegeler denied that he referred to Carpenter as a union activist. Tegeler testified that Curtis asked him why the company did not hire Carpenter, and he responded that "Willie Carpenter was like 150 or 200 or 300 other people that we had not hired." Tegeler asserted. "I didn't really know why we didn't hire him." According to Tegeler. he was always being stopped by someone asking about jobs for applicants, and this was one such occasion. Thus Tegeler asserted, "I tried to pass it off (conversation relative to Car- penter) as quickly as I possibly could." Tegeler could not recall anything else of the conversation and denied taking Curtis into his confidence. However, the testimonies of Cur- tis and Tegeler regarding a subsequent spirited conversa- tion between them sometime after the unfair labor practice charges herein were filed (December 23). tend to support Curtis' account rather than Tegeler's version. Curtis testified that shortly after the charges herein were filed Tegeler came over to him at a time when Curtis was having a conversation with Foreman Jackson concerning a work related matter. According to Curtis, Tegeler got angry with him because the information Curtis had given to the Board was related to him by Tegeler in "strict confidence." Tegeler conceded that he got angry at this encounter but only because Curtis assertedly had lied to the Board. How- ever, when Tegeler was asked what he said, he testified "[II don't] remember exactly, because, as I say. I got very angry. And something to the effect . . . he could not he trusted, and that-he in effect didn't always tell the truth." (Emphasis supplied.)s Tegeler's admitted reference to "trust" tends to lend credence to Curtis' testimony that Tegeler told him that he could not hire Carpenter because he was a "union activist," and Curtis' disclosure of this to the Board breached something that Tegeler told him in confidence. In the circumstances of this case I consider it more plausible to attribute the term "trust" and Tegeler's concomitant anger to Curtis' breach of a confidence, i.e., revealing the union activist remark, rather than to Curtis' honesty. Accordingly, I credit Curtis' testimony over the testimony given by Tegeler. The record in other respects also reflects unfavorably on Tegeler's credibility. Tegeler denied that he had ever con- tacted an applicant's employer with regard to references. However, when confronted with some written notations on ' It is not clear from the record how much of the conversation was wit- nessed by Foreman Jackson. No explanation was provided for the failure to call Jackson as a witness. the application of employee Ishmael Smith ((;.(C. i.xh. 4). Tegeler admitted that he called Smith's prex iou cplo!, el. and the notations reflected the infonrinlationll tal sas pro- vided by that employer. Still liter wlhen e ;Ias asIked whether he had made inquiries concerning olther emploccs to other employers he responded occasionall I did A hen I had time." A further critical credibility conflict in,olved a conersa- tion between egeler and emiploee Wendell Pope in Octo- her. Pope asked 1legeler about emplo,menit opportunities for two friends of his and indicated. inter atia, that they were honest. reliable. and good workers. lie pointed out that he had worked with them at Haughton ElIvalors for about 5 years. According to Pope, Tegeler told him "oka"': he was concerned who he was going to hire because I) & M could not afford a strike, and he did not w ant to hire an radicals. Pope testified that legeler made reference to some employees on the second assembly line who would go out on strike even if they were offered $7 an hour just to get out of work. Tegeler denied that he made any reference to union activity. union radicals, or strike. loweser. as Tegeler acknowledged that he might have used the term "radicals" in his conversation with Pope an(d further admit- ted that he made reference in said conllversation to second line assembly workers reflecting extreme behavior. I am persuaded that Tegeler delineated strike oriented employees from other kinds of employees. It is noted that Tegeler hired the two individuals recommended b Pope, and he would appear to have little reason to fabricate his tsti- mony. Further, it is noted that Pope did not work with Carpenter and they were not friends. At the time of the hearing. Pope was still in the employ of Respondent, a tac- tor reflecting favorably on his credibility.5 Accordingly I credit the testimony of Pope in all material respects. On the basis of the implausibility of Tegeler's explana- tions, his material contradictions, and demeanor, I find that he was not a reliable witness. Thus I am unpersuaded with Tegeler's efforts to establish that Carpenter was not hired after July 22 because of the Company's policy regarding previously rejected applicants. As noted previously. Carpenter submitted additional re- sumes after he failed to obtain a welding job at D & M in July. On Carpenter's resume dated October 15, Tegeler wrote the word "no" on the upper right hand portion of the document (Jt. Exh. 7). His explanation r doing so was tantamount to conjecture and did not smack of candor. He explained, ". .. our sort of informal policy was once a per- son was considered for a particular reason. and for any reason or other he was not awarded that job then he was not given any further consideration for other jots. And probably what I did, If ound his [previous applicationl had no on it so I wrote no on this." (Emphasis supplied.) his de- scription of the so-called "informal policy"' contrasts sharply with an illustration of said policy given by Produc- tion Manager Riehle. According to Riehle, if an applicant for a welding position is rejected because someone else is better qualified, the rejected applicant ill be considered for future welding jobs but not for other jobs. As the record discloses that the Company had openings for welders after 9 See fn. 7 above. 4 1 I)l:('ISIONS OF NA' IONAI ILABOR REI.ArIONS BOARD July."' Carpenter, a welder, would have been considered for employment if the Riehle standard had been applied. According to Respondent's witnesses, as there were a great many applicants interested in obtaining employment at I) & M at its Richmond facility, its hiring policy from early 1977 was predicated on giving the Company as much exposure to the largest number of applicants possible. The policy was assertedly set in motion by Robert Scelze, execu- tive vice president and general manager, Richmond divi- sion. Scelze explained that he decided on the policy because the Company had been charged with sex discrimination in 1975. 1 cannot discern a nexus between sex discrimination or any other form of discrimination and the ('ompany's policy regarding previously rejected employees. For exam- ple. there is not the slightest intimation that the policy was designed to help women or members of minority groups. It is not the wisdom or even the legitimacy of the Company's policy that is questioned but rather whether on the basis of the credited testimony it can be determined that it has such a policy. On the basis of my observation of Tegeler. Scelze, and Riehle as witnesses and the entire record, I conclude that Respondent had no such policy and its reliance thereon is pretextual. ('. Di.scussion and ('onclusions I. The 8(a)( I ) allegations As noted above, Curtis testified credibly that Tegeler told him in October that he could not hire Carpenter because he was a "union activist." Carpenter was not a member of the UAW, the bargaining agent fo)r Respondent's employees at its Richmond facility. but belonged to the Upholsterers Union which engaged in two or three strikes at Wallace. On the other hand, Respondent's bargaining relationship with the UAW has been admittedly "amicable" and free from strikes. Respondent voluntarily extended its bargaining re- lationship with the UAW from covering the employees at its Connersville plants to its newer Richmond facility. While the parties had to postpone bargaining for the Rich- mond employees until the UAW won a Board-conducted election, it does tend to show that Respondent was favor- ably disposed toward the UAW for collective-bargaining purposes. The record discloses that Curtis was the UAW local pres- ident for the Richmond employees at the time Tegeler made the "union activist" remark. Tegeler was obviously cognizant of Curtis' high official standing in the union. However, given the admittedly "amicable" relationship with the UAW, Tegeler apparently assumed that he could safely make discriminatory remarks about a strike oriented employee (Carpenter) who was a member of a different union." Tegeler's anxiety relative to strikes and strike ori- 10 For example, employee Malicoat credibly testified that in late Novem- ber or early December Foreman Day asked him if he was interested in transferring to a welding job. Malicoat recommended Carpenter but was told by Day that he did not know why, but the Company would not let him hire Carpenter u' See, e.g.. Medicine Bow (Coal Compuan 217 NLRB 931. 939 940 (1975). ented employees (radicals), was noted previously as cred- ibly testified to by Wendell Pope. While it is noted that Curtis was UAW president at the time Tegeler made the disputed statement, I find it signifi- cant that he was also Respondent's employee. In these cir- cumstances, I find that Tegeler's "union activist" statement to employee Curtis about another individual constitutes a violation of Section 8(a)( I ) of the Act.' It is undisputed that sometime after the underlying unfair labor practice charges herein were filed Tegeler had an an- gry encounter with Curtis. According to Tegeler. he was angry because Curtis lied to the Board about him, and he could not be trusted. According to the General Counsel, Tegeler's angry outburst was tantamount to conveying the impression to Curtis that he had his protected activity (co- operating with the Board) under surveillance. I disagree. While it is well settled that cooperating with the Board is protected activity, the facts as developed in this record are far too vague for establishing that Tegeler created the im- pression of surveillance or otherwise coercively threatened Curtis for engaging in such activity. Carpenter filed charges on December 23 naming Tegeler therein as the employer representative to contact (G.C. Exh. I(a)). In connection with the investigation of the charges, Carpenter's witnesses and Respondent's witnesses including Tegeler were interviewed by Board agents. In these circumstances Tegeler could reasonably conclude that Curtis passed on to the Board agent the "union activist" remark he made to Curtis, vis-a-0vis Carpenter. I find that these facts alone do not support the strained construction placed on them by the General Counsel. In view of the foregoing and noting that the complaint does not otherwise allege that Tegeler unlawfully coerced Curtis during the aforementioned spirited encounter, I shall dismiss this alle- gation.' It is further alleged that in August Tegeler coercively interrogated applicant Robert Austin concerning his union sentiments. Austin testified that Tegeler looked at his appli- cation and noted that he had been laid off from Wayne Works. According to Austin, Tegeler drew to his attention the fact that D & M does not deal with unions the way Wayne Works does. Tegeler assertedly declared, "this com- pany (D & M) runs the company: [at] Wayne Works [the] union runs the company." Austin testified that Tegeler asked him if he strongly supported unions to which he re- sponded that he did. Still further, Austin asserted that Tegeler predicted that the pay rate at D & M would go up $1 per hour after the union came in. Tegeler could not recall interviewing Austin and denied making any anti- union remarks. I found Austin to be vague, unresponsive, equivocal, in- consistent, and incredible. I cannot accept, for example, without supportive evidence, Austin's assertion that Tegeler on one hand underscored D & M's freedom to operate without union interference and on the other hand attribute to the union a $I-per-hour wage increase on the basis of it Fla-o-Rich, nt'. 234 NLRB 1011. 1016 (1978); Mason ('iiy Dressed Beej: 231 NLRB 735, 749 (1977); Medicine Bow (oaol Company, supra. 1 I do, however, note Tegeler's anger as a further reflection of his union animus. See, e.g.. Medicine Bow ('oal Company. supra at 931, fn. 2. 492 [)I:SI(;N AND MANUIFAC IURIN(i (ORPORAIION future negotiations. In view of' the foregoing and the entire record, I find that the General Counsel has failed to estab- lish on the basis of the credited testimony that Tegeler coer- cively interrogated Austin in violation of Section 8(a)( 1 ) of the Act. Accordingly. I shall dismiss this allegation. 2. The 8(a)(3) allegation refusal to employ Willie Carpenter The credited testimony discloses that on July 22 Fore- man Day interviewed Carpenter for a welding position and asked him whether he would sign a quit slip signifying that he would not return to Wallace after the strike at that Com- pany ended, and Carpenter responded aftfrmatively. Day told Carpenter that the job was his, but that he had to clear with Production Manager Riehle as to whether he had to sign the quit slip, and that he would advise him on that matter Monday morning. As Day conceded that Carpenter expresed his willingness to sign the quit slip, I find that Day made a firm offer which was accepted unconditionally by Carpenter. Both Riehle and Day asserted that it was Day's decision as to which applicant to select for the welding position. For reasons stated previously, I reject Respondent's assertion that Day hired David Drew because he was better and faster than Carpenter. Rather. I find on the basis of the credible evidence that Day hired Carpenter on July 22, and Respondent's failure to implement this decision was for dis- criminatory reasons in violation of Section 8(a)(3) and (I) of the Act. The credited testimony discloses that after Day told Car- penter that he was hired he confirmed this to Carpenter's friend Curtis as the latter was getting ready to go home at the end of the shift, but he noted that he still had to check with Riehle regarding the quit slip. The totality of the record convinces me that Riehle ve- toed hiring Carpenter because he was considered a strike oriented employee. It is noted that on Carpenter's employ- ment application he gave as the reason for not working "on strike for [b]etter [e]mployment" (Jt. Exh. 6)." Further. within a few days after Day informed Curtis that he had hired Carpenter, he indicated that there was a problem with Carpenter's quit slip or references. Day raised with Curtis the fact that he had not known that Carpenter was a mem- ber of the union negotiating committee at Wallace. As noted above, Respondent's witnesses assert that it was en- tirely Day's decision to hire Drew. However, Day told a number of employees that Carpenter was the' best of the applicants, but the Company would not let him hire Car- penter. It is undisputed that Carpenter continued to press for employment at D & M after July by, inter alia, submitting additional resumes and talking to Tegeler without success. Tegeler, who had succeeded Riehle with regard to person- nel functions in August, told Curtis in October that he would not hire Carpenter because he was "a union activ- 14 By contrast, Respondent hired former Wallace emploee Ismael Smith in August with virtually the same experience as Carpenter. Smith's applica- tion gave as the reason for leaving Wallace "to [sic] man) strikes (family)" (See G.C. Exh. 4 at p. 2). ist." 'Thus the Company's posture with regard to hiring em- ployees supportive of strikes or union militancy was main- tained b) Tegeler. IThis was further evident b Tegeler's statement to employee Pope that D & M could not afford a strike, and he would not hire [union] radicals. egeler, on the other hand, asserted that he did not ofler Carpenter a job in October or thereafter because he had been previously rejected, and it was the Company's inforntal policy not to consider rejected applicants for future employment. How- ever. for reasons stated previously. I have determined that Respondent had not maintained any such policy., and its reliance thereon is pretextual. Respondent points to its long "amicable" history that it has enjoyed with the UAW in support of its contention that it has never harbored any union animus. It denied that union activity was ever a basis for deciding not to hire an applicant. In further support thereof it adduced testimony showing that it hired several former Wallace employees who had been active in union affairs. With regard to Respondent's amicable relationship bely- ing the allegation that it would discriminate against individ- uals supporting other unions, Administrative Law Judge Pannier III cogently met virtually the same contention as follows: That Barnett would feel this way is only natural in light of the fact that Respondent was satisfied with its relationship with Progressive - a relationship unsullied by either striAes or unjair labor practices. " [Emphasis supplied.] Insofar as Respondent had hired a few former Wallace employees who had served in some union capacity, I find it significant that there is no evidence tending to show that Respondent had knowledge of their union activity at the time they were hired. Moreover, the record discloses that these individuals were active in union affairs long before the current strike at Wallace, and none of them was on the most recent union negotiating committee. On the basis of the foregoing and the entire record, I find that the General Counsel has established by a preponder- ance of the credible evidence that Respondent has, since on or about July 22, refused to employ Willie Carpenter. Ac- cordingly. I find that Respondent has thereby violated Sec- tion 8(a)(3) and () of the Act. Ill. THE EFFECTS OF HE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above in section II, above, occurring in connection with the operations de- scribed in section 1, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. CONCI USIONS OF LAW 1. Respondent, Design and Manufacturing Corporation. is an employer within the meaning of Section 2(2) of the Is Medicine Bo. Coal Companr, supra at 939. 493 I)E('ISIONS OF NATIONAI. LABOR REI.ATIONS BOARD Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 589, Upholsterers International Union of North America. AFI. CIO (herein Upholsterers Union), is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By making statements to employees that it would not hire applicants because of their union activity Respondent violated Section 8(a)(I) of the Act. 4. By discriminatorily refusing to employ Willie Carpen- ter since on or about July 22. 1977, Respondent violated Section 8(a)(3) and (I) of the Act. 5. General Counsel has failed to establish by a prepon- derance of evidence that Respondent engaged in interroga- tion of employees in violation of Section 8(a)(1) of the Act. 6. General Counsel has failed to establish by a prepon- derance of evidence that Respondent conveyed the impres- sion of surveillance to employees in violation of Section 8(a)(1) of the Act. TItE REMIt)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. It having been found that Respondent refused to employ Willie Carpenter in violation of Section 8(a)(3) and (1) of' the Act, I shall recommend that Respondent be ordered to offer him employment to the position for which he would have been employed but for the discrimination against him or, if that position no longer exists, to a substantially equiv- alent position, without prejudice to his seniority and other privileges, and make him whole for any loss of earnings he may have suffered with interest. Backpay shall be com- puted according to the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289 (1950). Payroll and other records in possession of Respondent are to be made available to the Board or its agents to assist in such compu- tation. Interest on backpay shall be computed in accord- ance with the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977).'6 It will be further recommended, in view of the serious unfair labor practices herein found, that Respondent be or- dered to cease and desist from "in any other manner" in- fringing upon the rights of employees guaranteed in Section 7 of the Act. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); N.L.R.B. v. Bama Company, 353 F.2d 323-324 (5th Cir. 1965). On the basis of the above findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: "See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). ORI)ER' 7 The Respondent, Design and Manufacturing Corpora- tion Richmond, Indiana, its officers, agents, successors, and assigns, shall: 1. ('ease and desist from: (a) Discouraging membership in or activities on behalf of Local Union No. 589. Upholsterers International Union of North America. AFL CIO. or any other labor organiza- tion, by denying employment to applicants because of their activities on behalf of a labor organization or otherwise dis- criminating in regard to hire or tenure of employment or any terms and conditions of employment of its employees. (b) Making statements to employees indicating that it would not hire applicants because of their union activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Willie Carpenter employment to the position for which he would have been employed but for the dis- crimination against him or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other privileges, and make him whole for any loss of earnings with interest in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and make available to the Board or its agents, upon request, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Richmond. Indiana, plant copies of the attached notice marked "Appendix." '" Copies of said no- tice, on forms provided by the Regional Director for Re- gion 25, after being duly signed by Respondent's represent- ative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. '7 In the event no exceptions are filed as provided by Sec. 102,46 of the Rules and Regnlations 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, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '8 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 494