The Bendix Corp.

THE BENDIX CORP., RESEARCH LABORATORIES DIVISION 599 The Bendix Corporation , Research Laboratories Division and Local 9, -Amalgamated Lithographers - of America. Case No. 7-CA-P2727. May 18, 1961 DECISION AND ORDER On November 3, 1960, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take .certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the exception noted below.' ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Bendix Corporation, Research Laboratories Division, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in and activities on behalf of Local 9, Amalgamated Lithographers of America, or any other labor organi- 1 Upon discovering that its reproduction unit employees were using company equipment to print union stickers, the Respondent's superintendent assembled the employees and announced to them that thereafter no personal work could be done on the Respondent's machines without prior approval by a supervisor . Prior to this time, these employees had been permitted' to use such equipment during their spare time for reproduction of personal papers and pictures of all types, without any prior request or approval. The Trial Examiner found that, "by withdrawing the privilege of using the Company's re- production equipment for personal work because of antiunion considerations ," the Re- spondent violated Section 8(a) (1) of the Act. We do not agree. By its action, the Respondent did not withdraw the employees' privilege of using the equipment for per- sonal work. The superintendent's instruction prohibited only the use of the Respondent's equipment to produce union material and required advance approval of material to insure compliance with this prohibition . It is not unlawful for an employer to refuse to permit his equipment to be used for the production of union literature . The Respondent's re- quirement of advance approval of material was nothing more than a reasonable measure which an employer is entitled to take in controlling the uses to which his equipment may be put by employees. Accordingly, we do not adopt the Trial Examiner 's finding with respect to this issue. 131 NLRB No. 89. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) Coercively or otherwise interrogating its employees in a manner constituting interference, restraint, or coercion concerning their mem- bership in or activities on behalf of said Union or any other labor organization. (c) Prohibiting its employees from engaging in discussion of union activities on the Respondent's premises or from enforcing any such existing prohibition, unless the said prohibition is limited to the employees' working terms. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 9, Amalgamated Lithographers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization, as au- thorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Harold L. Hunt immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the dis- crimination against him by payment of a sum of money equal to the amount that he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner estab) ished by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of Harold L. Hunt under the terms of this Order. (c) Post at its Research Laboratories Division at Detroit, Michi- gan, copies of the notice attached hereto marked "Appendix." 2 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." THE BENDIX CORP., RESEARCH LABORATORIES DIVISION 601 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent im- mediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in or activities on behalf of Local 9, Amalgamated Lithographers of America, or any other labor organization, by discharging or refusing to reinstate any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT coercively or otherwise interrogate our em- ployees in a manner constituting interference, restraint, or co- ercion concerning their membership in or activities on behalf of said Union or any other labor organization. WE WILL NOT prohibit our employees from engaging in dis- cussion of union activities at our premises during employees' nonworking time or enforce any such existing prohibition. NVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Local 9, Amalgamated Lithographers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Harold L. Hunt immediate and full rein- statement to his former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain or to refrain from becoming or remaining members of Local 9, Amalgamated Lithog- raphers of America, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as amended. THE BENDIX CORPORATION , RESEARCH LABORATORIES DIVISION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Local 9, Amalgamated Lithographers of America , herein called the Union , the General Counsel issued a complaint on June 1 , 1960, alleging that the Bendix Corporation , Research Laboratories Division , herein called the Respondent or the Company, had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519), herein called the Act. In sub- stance, the complaint alleges that since April 5, 1960, the Respondent has violated and is violating Section 8 (a) (1) of the Act, by interrogating its employees concern- ing their union membership and desires , by promising economic benefits and threatening reprisals to its employees to discourage union membership, and by promulgating a rule prohibiting discussion of the Union on company premises. The complaint further alleges that on April 12, 1960, in violation of Section 8(a)(3) and (1 ) of the Act, the Respondent discriminatorily discharged employee Harold L. Hunt and has since refused to reinstate him because of his membership and participation in the Union and its activities . Respondent's answer denies the sub- stantive allegations of the complaint and the commission of unfair labor practices. Pursuant to notice, a hearing was held before me in Detroit , Michigan, on July 6 and 7 , 1960. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence pertinent to the issues, and to argue orally at the conclusion of the hearing. The General Counsel and the Respondent have filed briefs which I have fully considered. Upon the entire record in the case and from my observation of the witnesses and the physical exhibits, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a manufacturer , fabricator, and assembler of electronic com- ponents, hydraulic equipment , and mechanical assemblies, and has plants and fa- cilities throuehout the United States. It also operates a research laboratory in Detroit, Michigan , which is the only facility involved in the instant proceeding. The Company's research laboratory admittedly furnishes services valued in excess of $1,000.000 annually to customers located outside the State of Michigan. On the foregoing, I find that the Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. THE BENDIX CORP., RESEARCH LABORATORIES DIVISION 603 II. THE LABOR ORGANIZATION INVOLVED The parties stipulated that Local 9, Amalgamated Lithographers of America, is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I so find. M. THE UNFAIR LABOR PRACTICES A. Background and union organization The Company's research laboratory has a graphic arts department which is under the supervision of Superintendent Clifford B. Simo. The instant case involves one of the units in the graphic arts department, the reproduction unit, which is super- vised by John Orvosh. Orvosh has an assistant named James Scarmaes whose alleged supervisory status was one of the issues litigated in this proceeding.' In March 1960, there were four other employees in the reproduction unit.' These employees were apparently dissatisfied with the excessive amount of overtime re- quired of them and with the failure of the Company to provide an additional press to relieve the necessity therefor.' On March 22, 1960, all four of the employees in the reproduction unit attended a union meeting and signed cards designating the Union as their collective-bargaining representative. On April 1, 1960, the Union, sent a letter to the Company requesting recognition and on the same day filed a petition with the Board for certification as the representative of the Company's "lithographic production employees." 4 B. Interference, restraint, and coercion 1. The April 5 meeting between Capsalis and the reproduction unit employees On April 5, 1960, upon reecipt of the Union's request for recognition, Respond- ent's Personnel Director Aleck Capsalis called the employees in the reproduction unit and their assistant supervisor, James Scarmaes, to a meeting in one of the Com- pany's conference rooms. According to the credited testimony of the four em- ployees, Capsalis told the assembled employees that he was surprised to learn that the employees wanted representation by a "third party," that he thought the prob- lems of the employees had been resolved at their prior meeting,' and that he did not believe the employees needed a "third party" to represent them in their dealings with the Company. Capsalis asked each of the employees individually if they believed they needed the "third party" to represent them. All of them answered in the affirmative." Capsalis asked what the trouble was. The employees replied that they were being required to work too much overtime and that the pressure of work might be relieved if the Company acquired an additional press. Capsalis replied that he could make no promises because he was prohibited by law from so doing but that he thought something could be worked out if the employees reconsidered their need for the Union' IL-Because of my findings hereinafter set forth, I do not deem it necessary to resolve the issue of Scarmaes ' alleged supervisory status 2 Harold L Hunt, the alleged discriminatee, Charles Bruce Mast, Emil B. Willman, Jr, and Robert N. Manzagol 3 At a meeting in late February or early March 1960, the reproduction employees had been told by Superintendent Simo that they would have to work more overtime or look for another job. 'At the hearing in the representation case (Case No 7-RC-4424), the only issue raised by the Company was that the unit of four employees for which the Union had petitioned was inappropriate and that the appropriate unit should be the entire graphic arts depart- ment. On July 13, 1960, the Board issued its Decision and Direction of Election (not published in NLRB volumes) concluding that the unit requested by the Union was appropriate. On August 12, 1960, the Union won the election and on August 22 was certified by the Board as the representative of the employees In the requested unit. ' See footnote 3, supra. ' Assistant Supervisor Scarmaes had not been asked by the employees to attend the March 22 union meeting and said he knew nothing about the Union. 7 To the extent that the version of this meeting given by Personnel Director Capsalis did not agree with that of the four employees or was not an admission against interest, I have not, in general, credited it, and I have placed little, If any, reliance on his other testimony in this case. I found Capsalis' testimony in a number of instances to be inconsistent and/or contradictory. For example, Capsalls testified on two occasions that he asked the employees at the April 5 meeting why they had joined the Union and then, 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The individual meetings between Capsalis and Employees Mast and Manzagol A few days after the meeting between Capsalis and the reproduction employees, Capsalis called employee Mast to his office and told Mast that if he went to the Union, he would be at a great disadvantage at a later time when he sought other employment. Capsalis further told Mast that a person as "intelligent" as Mast "could see the disadvantages of a union" for one who was not "planning to work as a lithographer" all of his life. Mast replied he would discuss it with "the group" and go along with whatever decision they made. Capsalis also called employee Manzagol into his office a few days after the April 5 meeting described above, and told Manzagol that he did not believe that the employees needed a third party to represent them and that he was sure they could work together in the future as well as they had in the past .8 3. The April 21 meeting between Superintendent Simo and the reproduction employees On or about April 20, 1960, the employees in the reproduction unit duplicated the Union's seal on the Company's Xerox Processor for use as stickers on their private automobiles. Prior to this time, these employees had been permitted without, prior request or approval by the Respondent to use its equipment for duplication of personal papers and pictures of all types and had even been assisted in their personal work by their supervisor, John Orvosh. On April 21, the employees found that the union seals which they had reproduced had been removed from their drawers. That afternoon the employees were called to a meeting and told by Superintendent Simo that he knew that they had filed a petition to be represented by the Union and that they were spending too much time during their coffee breaks in discussing union activities. Simo also told the employees that he had evidence before him that they had used the Company's reproduction equipment to reproduce labels for the UnionB Simo warned the employees that there would be no more personal work on the reproduction machines other than that approved or assigned to them by Supervisor Orvosh, that discussion of the pros and cons of the Union "must be done on their own time outside the Company premises . . . and that drastic measures would be' taken if these extra activities . . . did not cease after this warning." 10 4. Concluding findings in respect to the allegations of interference, restraint, and coercion of employees The General Counsel contends that the interrogations and conduct of the Re- spondent described hereinabove constitute violations of Section 8(a)(1) of the Act." In respect to the April 5 meeting between Capsalis and the employees and the private talks a few days later between Capsalis, Mast, and Manzagol, the Respondent, relying on the Board's decision in Blue Flash Express, Inc.,12 contends that Capsalis' when asked by Respondent's counsel whether he had asked them why they joined the Union, he denied so doing Moreover, although Capsalis admitted that he had told the employees that they did not need a union to represent them, he denied that he was "opposed to the union" and testified that he was "not opposed to unions" and that he had "no feeling either way" as to whether the employees involved were represented by a union. I regard these latter responses as incredible in the light of Capsalis' admitted attempts to dissuade employees from adhering to representation by the Union. In gen- eral, I have concluded from my study of the record and his demeanor that Capsalis' testi- mony was neither frank nor forthright and was apparently motivated only by what he at the moment regarded as most favorable to Respondent's interests 8 The testimony regarding the private discussion between Capsalis and Manzagol was elicited by Respondent's counsel from Capsalis. Significantly, in a prior affidavit to the Board (General Counsel's Exhibit No. 8), Capsalis did "not recall having a private talk with Manzagol around this time." No explanation was given by Capsalis for the later improvement of his memory 8 Evidently the missing union seals. 10 See memo from Simo to the personnel director (Respondent's Exhibit No. 2). 11 Although the complaint does not allege as a violation of the Act the limitations im- posed by Respondent on the privilege of using the reproduction equipment for personal use, the Respondent did not object to the testimony regarding it and the issue was fully litigated and briefed by the parties. Accordingly, I shall consider and dispose of the issue thus raised. is 109 NLRB 591. THE BENDIX CORP., RESEARCH LABORATORIES DIVISION 605 interrogation of employees regarding their union adherence and their reasons for desiring a union, and his efforts to dissuade them from further union adherence, did not interfere with, restrain, or coerce the employees in their rights. I do not agree. In the Blue Flash case, supra, the Board held that although interrogation of employees regarding their union affiliation or sympathies is not unlawful per se, its legality depends on "whether, under all the circumstances, the interrogation reason- ably tends to restrain or interfere with employees in the exercise of rights guaranteed by the Act." In Blue Flash, the Board pointed out that the interrogation had a legitimate purpose, was accompanied by assurances against reprisals, and occurred in an atmosphere -free from antiunion animus. Here, unlike Blue Flash, the interro- gation was not engaged in for the lawful purpose of determining whether the Union had a majority and the Company should, therefore, recognize it. The only purpose asserted for the interrogation in this case was to determine why the employees wanted the Union and to dissuade them from adhering thereto. Capsalis having been apprised by the employees that they unanimously desired union representation, his questioning of the employees as to why they wanted the Union and as to their problems was an obvious effort to undermine the Union's majority status and to deal individually with the employees instead of with their representative. Thus, it can hardly be said that the objective of Respondent's interrogation was lawful. Further- more, unlike Blue Flash, Capsalis offered no assurances to the employees against reprisals and demonstrated opposition and animus to the representation of the em- ployees by the Union. Moreover, Capsalis' statement at the April 5 meeting that he could make no promises because he was legally prohibited from doing so, his statement at ,that meeting that the employees did not need a union and that some- thing could be worked out to resolve the employees' problems, and his similar statement to Employee Manzagol a few days later, clearly implied promises of benefit to the employees in exchange for renunciation of the Union. Finally, Capsalis' statement to employee Mast that union affiliation might cause him diffi- culty in securing other employment was, in context, a subtle threat that Mast's op- portunity for employment by Respondent in any capacity other than as a lithographer would be in jeopardy if he persisted in his union affiliation. For all of the fore- going reasons, I regard Respondent's reliance on the Board's Blue Flash doctrine as misplaced on the facts herein . In a recent case,13 the Board said: We find that [the Employer's] inquiries as to the employees' sympathies for the Union or what they expected to gain through organizing, and other state- ments that any problems between the employees and the Employer could be resolved without union representation . exhibit the . . . promissory thrust forbidden by the Act. [Emphasis added.] I regard this decision as applicable to the interrogations conducted by Capsalis herein. Accordingly, I find and conclude that Capsalis' interrogation of employees on April 5 and a few days thereafter, concerning their union membership and de- sires, and the implied promises of benefit and threat of reprisal contained therein, constituted interference, restraint, and coercion of employee,-' rights guaranteed by the Act, and thereby Respondent engaged in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. We come now to the consideration of whether the April 21 statement by Super- intendent Simo to the employees, that further discussion of the Union "must be done on their own time outside the Company premises or drastic measures would be taken," 14 constitutes restraint or coercion of employee rights in violation of Section 8(a)(1) of the Act. The Board's decisions recognize that an employer, in the exercise of his right to control the use of his property and to obtain the best productive efforts of his employees, may lawfully impose reasonable rules relating to their behavior for the purpose of preserving and protecting his property and main- taining order, discipline, and efficiency in the plant. As the Board said in Peyton Packing Company, Inc., 49 NLRB 828, 843, enfd. 142 F. 2d 1009 (C.A. 5), cert. denied 323 U.S. 730: The Act, of course, does not prevent an employer from making and enforcing reasonable rules governing the conduct of employees on company time. Work- ing time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicition during working 18 Barney's Supercenter, Inc, 128 NLRB 1325. 14 Respondent's Exhibit No 2 In view of the clear language of this exhibit, I reject as without merit Respondent 's contention that the prohibition of union discussion was limited to employees' working time. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. Since the rule as promulgated prohibited employees from engaging in lawful con- certed activities at the plant on their own time, that is during coffee breaks, lunch hours, and before and after working hours, and no special circumstances were shown that such a broad rule was necessary, it clearly interfered with the employees' rights and thereby violated Section 8 (a) (1) of the Act.15 We come finally to the question of whether the withdrawal of the privileges pre- viously accorded to employees to utilize the reproduction equipment for personal work during their spare time, constitutes a violation of Section 8 (a)( 1 ) of the Act. Simo's conclusionary testimony that the restriction on personal work was necessary because it interfered with production was not supported by either Supervisor Orvosh or Assistant Supervisor Scarmaes, Respondent's witnesses who were in the best position to know if that were so. Moreover, the testimony of the General Counsel's witnesses, that the personal work was only done during "spare" time was uncon- tradicted. Accordingly, I reject Simo's testimony that the restriction on personal work was necessary and conclude that the withdrawal of the privilege, as shown by the context of Simo's remarks at the April 21 meeting, was motivated by the Company's hostility to the union representation of its employees. Accordingly, I conclude that by withdrawing the privilege of using the Company's reproduction equipment for personal work because of antiunion considerations, the Respondent interfered with, restrained, and coerced employees in the exercise of their Section 7 rights, and engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 16 C. The discriminatory discharge of Harold L. Hunt As aforestated, the complaint herein alleges that Respondent's discharge of Harold L. Hunt on April 12, 1960, was discriminatorily motivated and an unfair labor prac- tice within the meaning of Section 8(a)(3) and (1) of the Act. Hunt was hired by Respondent on May 11, 1959, and worked in Respondent's reproduction unit, principally on a machine called a Xerox Processor, manufac- tured by the Haloid Company and leased by Haloid to Respondent. All of the other employees in the reproduction unit, as well as the supervisor and assistant supervisor, also perform work on the Xerox Processor. The Xerox Processor is a machine used for producing a copy or a master from written, printed, typed, or drawn material. Multiple copies can be made from the master on an offset press. The machine functions by putting an electrical charge upon a plate and transferring the charge through the use of a dry developing pow- der called "tone" to the master. Two types of trays, called a line tray and a tone tray, are used and inserted in the Xerox Processor in connection with its operation. They are made of stainless sheet steel and are identical in size and appearance except that the tone tray has a cover plate whereas the line tray does not. Another difference is that the tone tray apparently is used to produce "heavy coverage" or greater contrast and detail than the line tray. Both trays have flanges or "pivot pins" extending from both sides of the tray at the center. These pins are made of metal and are approximately V2-inch in diameter and 1 inch in length.17 They are attached to the sheet metal sides of the trays by spot welds. One of the operations in the production of a copy or master on the Xerox Processor is to slide the tone tray out of the machine and to sway it back and forth on an extension arm of the Processor by means of the pivot pins, for the purpose of evenly distributing the developing tone and to drop the excess tone to the bottom of the tray.18 Accord- ing to the manufacturer's operating manual for the machine, excess particles of tone should be removed "by tapping firmly on the edge of the plate frame." 19 On April 12, 1960, at about noon, Hunt was working on the Xerox Processor making a copy or a master of some material and was cascading the tone tray. As he had been instructed by Supervisor John Orvosh, Hunt tapped the top and sides of the tone tray to remove the excess tone from the copy or master.20 While thus 16 Walton Manufacturing Company, 126 NLRB 697. 19 By this finding, I do not intend to imply that the 'Company cannot lawfully prohibit the use of its equipment for personal work if the prohibition is not discriminatorily moti- vated. I merely conclude that in this instance, the prohibition was discriminatorily motivated. 17 See General Counsel's Exhibit No 10. 19 This operation is called "cascading." 19 General Counsel's Exhibit No 2. 20 This method of removing excess tone was contrary to that prescribed by the manual. THE BENDIX CORP., RESEARCH LABORATORIES DIVISION 607 engaged, one of the pivot pins pulled away the sheet metal side of the tray to which it was attached 21 This made the tray useless for further work. Since Supervisor Orvosh was out of the plant when this occurred, Hunt immediately reported to Assistant Supervisor Scarmaes that the tray was broken . Scarmaes walked over to the machine and looked at the broken tray. Then Scarmaes telephoned the Haloid Company to arrange for a service representative to either repair or replace the tray.22 Shortly after the tray broke, Hunt went to lunch. On his return to the reproduction room, Hunt suggested to Supervisor Orvosh who, in the interim, had returned to the plant, that aline tray be adapted for use as a tone tray, but Orvosh did not accept the suggestion.23 Orvosh did not then or at any time that day question Hunt regarding the cause of the break. About 5 minutes before quitting time that day, Hunt was called to the office of Personnel Director Capsalis and pur- suant to the recommendation of Superintendent Simo, was advised that he was dis- charged for "wilfull [sic] destruction of company property." 24 According to Respondent's witnesses Assistant Supervisor Scarmaes and Security Supervisor Beksa who gave virtually identical testimony regarding the manner in which the tone tray was broken, they were standing in the front of the reproduction room about 10 feet away from the Xerox Processor engaged in discussing a job for Beksa which was then in the reproduction unit, when their attention was attracted to Hunt by a loud "banging"; they turned and saw Hunt strike the tone tray twice with his hands with considerable force as a result of which the tray broke; 25 Scar- maes then walked over to Hunt's machine and asked Hunt why he had handled the equipment so roughly; Hunt replied, "So what, this is one way not to get a good print"; Beksa and Scarmaes then resumed their discussion of Beksa's job in the reproduction unit and then Beksa left. Although Beksa's position with Respondent admittedly included responsibility for Respondent 's plant and equipment, both Beksa and Scarmaes testified that Beksa did not walk up to the Processor to examine the tray after it broke, did not talk to Hunt regarding his rough handling of the Proces- sor, and, when Scarmaes returned to the front of the room after inspecting the tray and speaking to Hunt, neither he nor Scarmaes mentioned or discussed the abuse of the Xerox Processor which allegedly had just occurred in their presence. I am satisfied from the entire record and my personal observation of the wit- nesses and the Xerox Processor and trays in the hearing room, that I can place no reliance whatsoever on the credibility of either Beksa or Scarmaes and that their version of how and-what caused the tone tray to break is a complete fabrication. My reasons for these conclusions are manifold. 1. After Beksa purportedly had demonstrated on the Xerox Processor in the hearing room, the amount of force used by Hunt in "banging" the tone tray, I ob- served for the record that the tray upon which Beksa had demonstrated showed no sign of any damage. Later, Beksa testified that he had not used the same amount of force as Hunt because he did not want to damage the tray on which he had de- monstrated . Since Beksa's prior demonstration was purportedly intended to show me the amount of force used by Hunt on the tone tray, I consider his latter testimony as an obvious effort at advocacy to counteract the effect of my prior observation that the demonstration had caused no damage to the tray. 2. Although as aforestated , Beksa's position with the Respondent as supervisor of security included responsibility for the protection of the plant and its equipment against theft and damage, he apparently did not place any significance to the incident at the time it occurred since he did not walk over to the machine to examine it, did not interrogate Hunt regarding the reason for his alleged rough handling of the equipment, and did not even mention or inquire about the incident when Scarmaes returned to where he stood after the latter had examined the tray. A person in Beksa's position who had just observed abuse of equipment as described by him would undoubtedly have conducted an immediate investigation . Beksa did not. Significantly, although asked, Beksa was unable to furnish any plausible explana- 21 See General Counsel 's Exhibit No 9. 22 The foregoing version of how the tone tray broke is based on the credited testimony of Hunt which was corroborated by employee Mast who was working alongside of Hunt when the pivot pin pulled away from the tone tray. 23 On the following day, as suggested by Hunt, the Haloid service representative adapted a line tray for temporary use as a tone tray, and subsequently Haloid provided Respondent with a new tone tray , all without cost to the Respondent. 24 General Counsel's Exhibit No 5. 25 At the request of Respondent's counsel, Beksa demonstrated on the tone tray of the Xerox Processor which Respondent had brought to the hearing room, the manner and the amount of force with which Hunt had struck the tray. His demonstration caused no damage to the tone tray upon which he demonstrated. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion for his omissions in these respects. I regard Beksa's conduct at the time the tone tray broke gas incompatible with what he testified he observed and therefore do not believe he observed that to which he testified. 3. Beksa's testimony was inconsistent and contradictory in other respects: (a) Beksa's testimony that he resumed the discussion of his job with Scarmaes after Scarmaes returned from inspecting the damaged tray, is inconsistent with his affidavit to the Board 26 that he "heard a loud bang just as I started to leave" the reproduction room at the conclusion of the discussion. (b) Beksa testified at the hearing that he reported to Personnel Director Cap- salis on April 12, what he had observed in respect to Hunt's alleged rough treat- ment of the Xerox Processor. In his affidavit to the Board, Beksa said: "That afternoon Mr. Capsalis asked me into his office. Hunt was there when I arrived. Capsalis asked me if I was present and saw what happened in the reproduction room. I said I was . I did not relate the incident to Capsahs then or any other time. It was reported to him through Simo." When confronted with the obvious contradiction between his testimony that he had reported the incident to Capsalis and his affidavit that he did "not then or any other time relate" the incident to Cap- salis, Beksa testified that he regarded the word "relate" to mean a voluntary act on his part. I regard the attempted explanation as incredible. (c) Beksa also testified that from his position in the reproduction room, he could not see that the pivot pin had broken away from the side of the tone tray. Later he testified that he could see from that position that the pivot pin had broken, a direct contradiction of his earlier testimony. (d) Beksa's testimony regarding his written report of this incident,27 prepared 6 days after it occurred, vacillated. At first he denied that anyone told him to pre- pare a report, then he testified that he could not recall and finally testified that "no one did." 4. Like Beksa's, the testimony of Scarmaes was also inconsistent and contradictory: (a) On cross-examination, Scarmaes specifically denied that he had reported the incident to Capsalis. However, in his affidavit to the Board, Scarmaes said, "Later that day Mr. Capsalis called me to his office and asked about the incident and I related what happened." Thus, Scarmaes' affidavit flatly contradicts his testi- mony that he did not "discuss" or "report" the incident to Capsalis. (b) A number of witnesses for the General Counsel testified that several days after Hunt's discharge, Scarmaes told them that nothing could have been done to save Hunt's job because "the axe was sharpened and ready to fall." Scarmaes admitted at the hearing that he made this statement to the employees 28 However, in his affidavit to the Board, Scarmaes specifically denied making the statement that the axe was ready to fall. For all of the foregoing reasons as well as their de- meanor on the witness stand, I do not credit the testimony of either Beksa or Scarmaes in respect to the manner in which the tone tray of the Xerox Processor was broken 29 . In addition to my belief in the testimony of Hunt and Mast in respect to the manner in which the tone tray broke, there are other facets of the record herein which convince me that the damage to the tone tray was not the result of any mis- conduct on the part of Hunt. The repairman of the Haloid Company testified that the proper way of removing excess developing tone from a copy or master is, according to Haloid's operation manual, to tap the frame of the plate, not the tray, as Hunt was instructed to do. Continued tapping of the tone tray, thereby putting pressure on the pivot pins, could readily have caused a weakening of the metal at the point where the pivot pins are welded. Indeed , a line tray brought to the hearing by the Respondent, which had not been abused as Hunt was alleged to have abused the tone tray in issue, had several cracks in the metal at the point where the pivot pins are attached to the tray. The Haloid repairman testified that he had observed other tone trays with similar breaks at the pivot pins and that if the operator's instructions were not correct, as was the case here, the trays break sooner. Moreover, the repairman testified that the Haloid Company was now working on a new model of a tone tray with a larger piece of metal welded to the pivot pins, thus suggesting that the type of tone tray upon which Hunt had worked was structurally weak at that point. That inference is further buttressed ,B General Counsel's Exhibit No. 6. n Trial Examiner's Exhibit No 1. 's Although he protested that his statement regarding the "axe" was misinterpreted, Scarmaes was unable to give a plausible explanation of what lie meant thereby 29 Moreover, I find it difficult to believe that if Hunt had intended to abuse the Processor, for which no reason is suggested by the record, he would do so in the presence of the Company's security supervisor and his assistant supervisor. THE BENDIX CORP., RESEARCH LABORATORIES DIVISION 609' by the fact that just 15 months earlier, in December 1958, another tone tray used by the Respondent was broken by employee Manzagol in exactly the same manner and in the same spot as that on which Hunt worked on April 12.30 Finally, I am convinced that Hunt's operation of the machine was not negligent or improper by the fact that the Haloid Company did not charge Respondent to replace the damaged tone tray in question although, according to its service representative, charges are made when equipment failures are caused by negligent operation.31 In view of all the foregoing, I am persuaded and find that the damage to the tone tray was not due to any abuse of the Xerox Processor on the part of Hunt.32 Having concluded that Hunt had not engaged in the conduct for which he was discharged, the question still remains as to whether the General Counsel has estab- lished that his discharge was discriminatorily motivated to discourage adherence to the Union by the other employees in the reproduction unit. The Respondent contends that its discharge of Hunt was predicated on its reliance on the alleged report of Security Supervisor Beksa and Assistant Supervisor Scarmaes that Hunt had abused the Xerox Processor and not because of its hostility to the Union. My own appraisal of the record and of the credibility of the witnesses persuades me that Hunt's summary discharge was not based on reliance on the alleged report of Beksa and Scarmaes of Hunt's alleged misconduct. My reasons for this conclusion are as follows: According to Respondent's witnesses Superintendent Simo and Personnel Director Capsalis, Hunt was discharged by Capsalis pursuant to the recommendation of Simo after the latter had been advised of Hunt's alleged abuse of the Processor by Beksa and Scarmaes. Simo admitted that other than receiving a telephone report from Beksa and speaking to Scarmaes, he made no investigation of the incident before he recommended Hunt's discharge to Personnel Director Capsalis for willful destruction of company property. Indeed, Simo did not go to the reproduction room to view the extent of the damage, did not attempt to ascertain from the other employees in the reproduction room their version of the incident, and did not even speak to Hunt to ascertain whether and/or why he had willfully abused the Processor. I do not regard Simo's omissions in these respects as mere oversights. Even as- suming that Simo was too busy 33 at the time he received the alleged report to in- vestigate, there was no compelling need for Hunt's summary discharge that same day without a proper investigation of the incident. Such an investigation would have disclosed, as found above, that (1) the damage to the tone tray was the result of normal operation of the Xerox Processor, accelerated by the tapping of the tone tray pursuant to Supervisor Orvosh's instructions which were contrary to the manual for proper operation; (2) all the other employees in the reproduction room also worked on the Processor from time to time; (3) identical damage to the tone tray had occurred before without abuse of the equipment; (4) the Haloid Company did not regard the damage as due to improper operation since it made no charges for the repairs made by its service representative or for the substitution of a new tone tray; and (5) another tray not so allegedly abused had developed cracks at the pivot pins indicating a structural weakness in the construction of the 80 See General Counsel's Exhibit No 4-K. No discipline to Manzagol resulted. 81 Although requested by me, the Respondent did not bring to the bearing the contract between it and Rabid in respect to the Xerox Processor 32 In reaching this conclusion, I am cognizant of the fact that the Rabid serviceman who made the temporary repairs to the tone tray on the day following Hunt's discharge wrote on his service report "miss use [sic] of equipment by operator." However, as the record shows, the service representative was not an expert, had no knowledge of metallurgy, did not witness the operation of the equipment and thus was not qualified to give expert testimony regarding the cause of the break. Moreover, since as aforestated, the Xerox Processor was also worked on by all the other employees as well as by the supervisor and assistant supervisor in the reproduction unit, the "miss use" which caused the tone tray to break could have been attributable to any and all of the others who worked on the Processor and did not necessarily refer to Hunt Although I do not rely thereon, it is interesting to note that on Hunt's claim for un- employment compensation, despite the testimony of Beksa and Scarmaes, the referee sec- tion of the Michigan Employment Security 'Commission arrived at the conclusion that "the employer failed to submit a scintilla of proof in support of the charges" that Hunt had engaged in "misconduct" in connection with his work. General Counsel's Exhibit No 3. 83 Simo was not so busy that he did not take the time to speak both to Scarmaes and to Capsalis. 599198-62-vol 131-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tray at that point. Since to investigate before discharging an employee would appear to be the normal course of action absent other considerations , I do not credit Simo's testimony that he relied on Beksa 's report of the alleged abuse to the Processor. Moreover, I find it difficult, if not impossible, to believe that either Beksa or Scarmaes made a false report to Simo concerning Hunt 's alleged abuse of the Processor. No reason for them to do so appears in the record herein. Since I am convinced that Hunt did not abuse the Processor and that the testi- mony concerning the alleged abuse is false , I am impelled to the obvious conclusion based on Respondent's hostility to the Union hereinbefore found , its knowledge of Hunt's adherence thereto, and Simo's recommendation to discharge Hunt for willful destruction of property without investigation , that the breakage of the tone tray was seized upon by Simo as a pretext to discharge Hunt and thereby to discourage its remaining employees from further adherence to and membership in the Union 34 I am likewise convinced that the actual discharge of Hunt by Personnel Director Capsalis was motivated by the same discriminatory reason which prompted Simo's recommendation to discharge . According to Capsalis whom I, as aforestated,35 generally discredit , he was advised by Simo regarding the incident of the broken tone tray and Simo recommended to him that hunt be reprimanded , disciplined or even fired.36 Capsalis testified that it was Simo who used the word "wilful" in connection with his recommendation to discipline Hunt. Capsalis further testified that he thereupon interviewed Beksa and Scarmaes 37 and decided to discharge Hunt before he called him in and heard his version of the incident.38 On the entire record including the numerous contradictions in Capsalis ' testi- mony, my disbelief of the testimony of Beksa, Scarmaes, Simo and Capsalis, the peremptory manner in which Hunt was discharged without investigation, my con- clusion that Hunt did not abuse the Xerox Processor , Hunt's known adherence to the Union and Respondent's hostility to the Union representation of its reproduc- tion employees , I find and conclude that the broken tone tray was utilized as a pretext by Respondent to rid itself of Hunt to discourage its other employees from continuing in their adherence to the Union . Accordingly, I find and conclude that by its discharge of Hunt, Respondent discriminated in respect to hire and tenure of its employees , thereby discouraging membership in the Union in violation of Section 8 (a) (3) and (1 ) of the Act.39 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, 34 I am further persuaded to this conclusion by my disbelief , generally , in the veracity of Simo, who although superintendent of Respondent 's graphic arts department, stretched credulity by testifying that he had no authority to discharge employees but merely to recommend discharge, and that on several occasions , his recommendations to discharge were not followed. Cross-examination developed that the latter testimony was based only on one incident, the failure of Orvosh , a subordinate supervisor, to recommend, as sug- gested by Simo, the discharge of Hunt. Simo admitted that he did not require Orvosh's consent to discharge Hunt. Moreover, Simo also admitted that he signs all the termina- tion notices of employees in his department . On the record , I find and conclude that contrary to his testimony, Simo possessed authority to discharge and that only the me- chanics of termination were vested in Personnel Director Capsalis. 85 See footnotes 7 and 8, supra. Contrary to Capsalis, Simo's testimony was that he recommended only discharge. 87 As hereinbefore noted , Scarmaes denied on cross-examination that he reported the in- cident to Capsalis, and Beksa's affidavit to the Board stated that he did not relate the incident to Capsalis "then or any other time " sa After Capsalis realized the implication of his testimony that he decided to discharge Hunt before he had even spoken to him, be later testified that his prior testimony "might have been in error " I do not credit Capsalis' latter testimony and conclude that the decision to discharge Hunt, whether Simo's or Capsalis ', was made before Hunt was called in and given an opportunity to relate how the tone tray broke . In this respect, I credit Hunt's testimony that he was advised by Capsalis that he was fired as soon as he entered the latter's office. sa I reject as without merit the suggestion in Respondent's brief ( p. 14) that since Hunt was not "a leader in the union organizational movement," there can be no finding that his discharge was discriminatorily motivated . As stated by the Court of Appeals for the Fifth Circuit, "The fact that respondent retained some union employees does not exculpate him from the charge of discrimination as to those discharged ." N.L.R.B v. W. C. Nabors d/b/a W. C. Nabors Co., 196 F. 2d 272, 276 ( C.A. 5). CHECKER TAXI COMPANY, INC. 611 have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Harold L. Hunt was discriminated against with respect to his hire and tenure of employment, I shall recommend that the Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equiv- alent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him, by payment of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated . I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 9, Amalgamated Lithographers of America is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Harold L. Hunt, thereby discouraging membership in Local 9, Amalgamated Lithographers of America, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing conduct and by interrogating employees in respect to their union membership , activities and desires, promising benefits, threatening reprisals, prohibiting employees from union discussion at the Company 's premises without limitation as to time , and by withdrawing privileges of the employees, all to dis- courage the continued membership of its employees in the Union, Respondent has interfered with, restrained , and coerced employees in the exercise of rights guar- anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce. [Recommendations omitted from publication.] Checker Taxi Company, Inc. and Louis Linzer Checker Taxi Company, Inc. and Dominic Abata Checker Taxi Company, Inc. and George W. Weaver Checker Taxi Company, Inc. and Dominic Abata Checker Taxi Company, Inc. and James J. Gordon Yellow Cab Company and Dominic Abata Yellow Cab Company and Dominic Abata Yellow Cab Company and James J. Gordon Yellow Cab Company and Gordon Phinisey 131 NLRB No. 96.