John L. Lutz Welding and Fabricating, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD John L. Lutz Welding and Fabricating, Inc. and Boisy Benjamin John L. Lutz Welding and Fabricating, Inc. and Shopmen's Local Union No. 545 of the Internation- al Association of Bridge, Structural and Ornamen- tal Ironworkers, AFL-CIO, Petitioner. Cases 22- CA-7495 and 22-RC--7040 December 5, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 10, 1978, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. 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 below. We find that the uncontradicted testimony of John Lutz, Respondent's president, indicates that employ- ee Boisy Benjamin was rehired on May 9, 1977, as a temporary employee. Because such reinstatement does not fully remedy Respondent's obligation to of- fer permanent reinstatement with backpay, we shall amend the order to provide for the usual reinstate- ment and backpay remedy for employee Benjamin. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Borad adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, John L. Lutz Welding and Fabricating, Inc., Flemington, New Jersey, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Boisy Benjamin, Steve Matukaitis, Richard Baudoux, and Robert Pursell immediate and full reinstatement to the positions in which they were employed prior to the discrimination imposed upon them or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. Make employees Steve Matukaitis, Boisy Benjamin, Rich- ard Baudoux, and Robert Pursell whole for any loss of pay they each may have suffered by reason of discrimination against them in the manner set forth in the section herein entitled 'The Remedy.'" 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the challenges to the ballots of Boisy Benjamin, Richard Baudoux, Robert Pursell, and Steve Matukaitis, in the election held on April 7, 1977, in Case 22-RC-7040 be, and they hereby are, overruled. IT IS FURTHER ORDERED that Case 22-RC-7040 be, and it hereby is, remanded to the Regional Director for Region 22 for the purpose of opening and count- ing the challenged ballots of Boisy Benjamin, Rich- ard Baudoux, Robert Pursell, and Steve Matukaitis, preparing and serving on the parties a revised tally of ballots, and issuing and serving on the parties the appropriate certification. ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge you, lay you off, issue verbal or written warnings, or transfer you to different shifts or positions of employment or otherwise discriminate against you because you have engaged in organizing activity for or are a member or supporter of Shopmen's Local Union No. 545 of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, or any other union. WE WILL NOT ask you whether you or other employees are union members or are helping the above-named Union, or any other union. WE WILI. NOT give the impression that the union activities of our employees are under sur- veillance. WE WILL NOT threaten our employees with dis- charge, loss of benefits, or other reprisals be- cause they engage in urion activities or express prounion sentiment. 582 JOHN L. LUTZ WELDING AND FABRICATING, INC. WE WILL NOT promise our employees im- proved conditions of employment or induce them to withdraw or withhold their support from Shopman's Local Union No. 545 of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, or any other union. WE WILL NOT offer employees who supported the above-named Union, or any other union, severance pay, vacation pay, or any other cash payment to induce them to quit their employ- ment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer employees Boisy Benjamin, Richard Baudoux, Robert Pursell, and Steve Matukaitis reinstatement to their jobs which they held prior to the discrimination against them or, if any of those jobs no longer exists, to jobs substantially equivalent to their respective former jobs, without prejudice to their respective seniority or other rights and privileges. WE WILL make whole Boisy Benjamin, Rich- ard, Baudoux, Robert Pursell, and Steve Matu- kaitis for any loss of pay each may have suffered because of the discrimination which we inflicted upon him. WE WILL issue a written retraction of the writ- ten warning slip issued to Steve Matukaitis on February 14, 1977, and expunge from our rec- ords any reference to such warning. WE WILL issue a written retraction of the ver- bal warnings we gave to employees Boisy Benja- min and Richard Baudoux on February 16, 1977, and expunge from our records any refer- ence to those verbal warnings. JOHN L. LUTZ WELDING AND FABRICATING. INC. DECISION STATEMENT OF THE CASE LEONARD M WAGMAN. Administrative Law Judge: Upon a charge and amended charges filed by Boisy Benjamin in Case 22-CA-7495, the Regional Director for Region 22 issued a complaint on April 7, 1977.' The complaint, as amended at the hearing, alleged that the Company, John L. Lutz Welding and Fabricating, Inc., had violated Section 8(aXI) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), referred to herein as the Act, by coercively interrogating employees concerning their I Unless otherwise stated, all dates refer to 1977. union activity and membership in Local 545, International Association of Bridge, Structural and Ornamental Iron- workers, AFL-CIO, by threatening employees with plant closure and discharge because of their union activity and sympathy toward the Union, by offering to adjust employ- ee grievances and raise employee wages as a reward for employee abandonment of the Union, by informing its em- ployees that it knew which employees were responsible for their joining the Union, and by offering employees who supported the Union money and other inducements to per- suade them to resign their employment. The complaint also alleged that the Company issued warnings, verbal and wnt- ten, to three employees, transferred two tanployees to the night shift, laid off four employees, and discharged an em- ployee, all because of their union activities, and thereby violated Section 8(aX3) and (1) of the Act. In its answer, as amended at the hearing, the Company denied commission of all the alleged unfair practices. Pursuant to a Stipulation for Certification Upon Con- sent Election in Case 22-RC-7040. executed by the parties and approved by the Regional Director, an election was held among the Company's employees on April 7 in a unit described in the Regional Director's report on challenged ballots, order consolidating cases, and notice of hearing as follows: [A]ll regular full-time and regular-part time produc- tion and maintenance and shipping and receiving em- ployees, including truck drivers, employed by the Em- ployer at its Route 12, Kingwood, New Jersey, facility during the payroll period ending Wednesday, March 9, 1977, but excluding all managerial employees, office clerical employees, professional employees, salesper- sons, guards and supervisors as defined in the Act. Of the 15 valid ballots counted, 6 were for and 9 were against the Union. Seven ballots were challenged, suffi- cient number to affect the results of the election. On May 27, the Regional Director ordered a hearing on the issues raised by the challenges to the ballots of Boisy Benjamin, Larry Raimond, Richard Baudoux, Robert Pursell, and Steve Matukaitis, all of whom are alleged discriminatees named in the complaint. The consolidated hearing was held before me on June 27, 28, 29, and 30 and on July II and 12, at Newark, New Jersey. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company is a New Jersey corporation, with princi- pal office and place of business at Flemington, New Jersey, where it is engaged in the fabrication and manufacture of metal products and related products. During the year end- ing April 7, which period was representative of its opera- tions, the Company manufactured at its Flemington facil- ities products, goods, and materials valued in excess of $50,000, of which products, goods, and materials valued in 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of $50,000 were shipped from the Company's Flem- ington plant to points outside the State of New Jersey. From the foregoing admitted commerce data, I find, and the Company concedes, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Company admitted, and I find, that Local 545, In- ternational Association of Bridge, Structural and Orna- mental Ironworkers, AFL-CIO, is a labor organization within the mearn!.g ,f S :cti'r; 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction By letter distributed to his Flemington plant employees during the first week of November 1976, Company Presi- dent John L. Lutz announced that, because of adverse business conditions, he would be unable to provide a Christmas party, a bonus, or an increase in wages for 1976. Lutz held out the possibility of a bonus during the next year. At the end of December 1976, the Company discon- tinued providing commuting expense money to seven em- ployees and discontinued providing a station wagon for the use of three commuting employees. In early January, in reaction to these developments, employees Robert Pursell and Steve Matukaitis discussed the possibility of obtaining union representation. Pursell suggested exploring the senti- ments of fellow employees. Union activity began in mid-January when employee Boisy Benjamin contacted the Union about obtaining col- lective-bargaining representation for himself and his fellow employees. On or about January 28, Benjamin and two fellow employees obtained authorization cards from the Union and began a campaign on the Union's behalf which resulted in a Board-held election on April 7 among the Company's Flemington plant employees. The issues presented in this case are whether a prepon- derance of the evidence shows that in countering the Union's organizing effort the Company violated Section 8(a)(1) of the Act by: (a) Coercively interrogating employ- ees regarding their union activity and membership in the Union; (b) threatening employees with discharge and plant closure if they joined or supported the Union; (c) inform- ing employees that it knew which employees were responsi- ble for organizing the plant for the Union; (d) soliciting grievances and offering to adjust them to persuade employ- ees to abandon the Union; (e) offering wage increases to induce employees to abandon the Union; and (f) offering employees who voted for the Union vacation pay and other accrued fringe benefits to induce them to quit their employment, and Section 8(a)(3) and (1) of the Act by: (a) issuing a written warning to employee Steve Matukaitis, transferring him to a less desirable work shift, and thereaf- ter discharging him because he supported the Union; (b) transferring employee Robert Pursell to a less desirable work shift and thereafter laying him off because he sup- ported the Union; (c) issuing verbal warnings to employees Boisy Benjamin and Richard Baudoux and thereafter lay- ing them off because of their union activity; and (d) laying off Larry Raimond because of his union activity. B. Interference, Restraint, and Coercion On a morning in early January, employees Boisy Benja- min and Steve Matukaitis engaged fellow employee Hugo in a discussion of the Union. Later that same morning, Benjamin observed Hugo conversing with Company Presi- dent Lutz. Following this conversation, Lutz approached Benjamin at the latter's work station. Benjamin inquired as to when the Company would obtain a new welding ma- chiinc. Lutz replied, "I don't know whether to invest any more Ilione, ii. this husin,SS ot not with this union talk I hear going i..: and." Following a brief response by Benja- min, Lutz directed himself to employee Steve Matukaitis' work station.2 Confronting Matukaitis, Lutz asked, "[W]hat's this stuff about a union?" Matukaitis denied knowing anything. At this point, Lutz started to say something about Hugo tell- ing him something. Instead, he stopped and proceeded on a different tack. He asked Matukaitis if he, Matukaitis, was involved with the Union. Matukaitis said he was not. Lutz went on and asked Matukaitis to identify employees who were involved with the Union. Despite Matukaitis' denial, Lutz persisted in questioning him about his possible in- volvement with the Union. Plant Manager Paul Oceanak joined in the conversation. He warned Matukaitis that "Unions are bad for you." Oceanak also suggested that union activity could lead to plant closure.3 Lutz' remark to Benjamin and Oceanak's remark to Ma- tukaitis suggested that the Company would use its econom- ic power vengefully against its employees if they supported the Union. These remarks amounted to threats which tend- ed to restrain and coerce employees in the exercise of their right to join and support a labor organization. Accord- ingly, I find those remarks violated Section 8(aX1) of the Act. I also find that in these confrontations Lutz coercively interrogated Benjamin and Matukaitis in violation of Sec- tion 8(a)(1) of the Act. On another occasion, at the end of January, President : My findings regarding Lutz' remarks to Benjamin and the time of the entire incident are based upon employee Benjamin's credible testimony. Lutz admitted having a conversation with Benjamin about the Union pnor to February 15 but did not deny making the remarks attributed to him by Benjamin Instead he testified about a conversation with Benjamin some- time in the latter half of January in which he stated his view that Benjamin was antiunion and asked Benjamin to assist in an antiunion campaign. In return Benjamin assertedly expressed antiunion sentiment. However, in Light of Benjamin's leading role in the inception of that campaign and his full and forthright manner in testifying about his union activity, I find it unlikely that he could carry on the conversation described by Lutz. Further, of the two. Benjamin impressed me as being more candid. 'My findings as to Lutz' and Oceanak's remarks are based upon Matu- kaitis' testimony. Matukaitis appeared to be candidly giving his full recol- lection of his conversations with employee Hugo, President Lutz, and Plant Manager Oceanak in early January. Lutz appeared reluctant to provide details about a conversation with Matukaitis which, according to his testi- mony, occurred in February. Nor was I persuaded by Oceanak's testimony on direct examination regarding this incident, for that testimony consisted of denials in response to broad leading qurstions by Respondent's counsel. I also noted that on cross-examination Oceanak appeared evasive when pressed for details of a January conversation with Matukaitis. 584 JOHN L. LUTZ WELDING AND FABRICATING. INC. Lutz came to night-shift employee Larry Raimond's work station and questioned him about his sentiment toward the Union. Raimond replied that he was not sure because he had not seen a collective-bargaining agreement. The con- versation then turned to the possibility that if the Union "came in" Lutz might find it necessary "to shut down the plant and get out of the business...." 4 Here again I find that Lutz violated Section 8(a)(1) of the Act by coercively interrogating Raimond and by threatening loss of employ- ment if the Union achieved representative status among the Company's employees. Late on the afternoon of January 27, Company Presi- dent Lutz held a meeting 5 of his employees at which he discussed business conditions. He assured his audience that the Company had sufficient work to provide continued em- ployment. He then turned his attention to union activity, mentioning that he had heard about "union talk going around." Lutz asserted that a union was not necessary as a middleman between himself and the employees. Lutz warned that "unions can force you out of business and close you down." Lutz complained that bargaining with a union would interfere with his business activity. He cau- tioned his listeners that union representatives are money hungry and pursue a high lifestyle. Lutz advised his em- ployees that if they wished to bring complaints about working conditions to his attention they should select a spokesman to present such problems. Lutz praised the em- ployees and assured them that if they were patient business would improve and reward them with improved wages. Lutz discussed the current shift. He notified the employ- ees that they would have first preference for employment on that shift, which would entitle them to a $1 hourly wage increase. Lutz concluded his speech, repeating his anti- union theme. By encouraging his employees to select a spokesman to present their complaints to him, Lutz was soliciting grievances and holding out the possibility that he would deal favorably with them. In the context of his antiunion speech. Lutz' solicitation of grievances constituted interference with his employees' rights to engage in union activity and support a union. Thus, I find Lutz once again violated Section 8(a)( ) of the Act. It is undisputed that, about the third week in January at the plant, employees Steve Matukaitis, Robert Pursell, and Dallas Anderson were discussing their views of union rep- resentation. Company President Lutz approached the trio and said, "[I]f you have anything to say, say it in my office. Don't loiter on company time." I find the Company again violated Section 8(a)(1) of the 4Lutz denied questioning Raimond, but admitted warning him that a successful union organizing campaign would force Lutz to close the plant. Unlike Raimond, Lutz did not give a detailed account of the entire conver- sation. His denial of alleged interrogation was in response to a leading question on direct examination. In contrast, Raimond appeared to be con- scientiously tapping his memory for a complete account, much of which Lutz corroborated when he admitted threatening plant closure. Thus, Rai- mond impressed me as the more reliable witness. I have therefore credited his version of this encounter with Lutz. My findings regarding Lutz' remarks at the employees' meeting of Janu- ary 27 are based upon the composite detailed testimony of employees Ben- jamin, Baudoux. and Pursell. which was largely corroborated b) Lutz' somewhat sketchy account. Act in early February when Oceanak asked Matukaitis if he had found out anything about the Union. Matukaitis replied, "I think I am going to have to go with the union because my job is constantly threatened." On February 14, Plant Manager Oceanak handed Steve Matukaitis a written warning that unless he ceased "loitering and conversing unnecessarily with other employees, Matukaitis would be terminated." As he handed the written warning to Matu- kaitis, Oceanak remarked: "This is because of your persist- ing in your union talk."6 From Oceanak's remark, it is clear that by its written warning the Company was pressur- ing Matukaitis to abandon his suspected union solicitation. I find, therefore, that this written warning was a threat violative of Section 8(a)(1) of the Act. In late January Lutz, in a conversation at the plant, asked employee Richard Baudoux what he knew "about this union business." Baudoux denied any knowledge of that subject. Lutz expressed surprise, asking, "You mean to tell me that no one has approached you and told you about this Union[?]" Baudoux persisted in his disclaimer. Lutz warned that the Union would not do Baudoux "any good" and advised him to "use [his] head in this matter." In the same conversation, Lutz announced that he was giving Baudoux the retroactive portion of a 25-cent hourly wage increase granted in either December 1976 or January. Bau- doux, whom the Company hired in March 1976, had asked for the raise, claiming that he understood that after 3 months' employment with the Company a 25-cent hourly wage increase became due. On the same day, after granting the raise. Lutz said he would pay the retroactive portion of the raise "in a couple of weeks, when I get some money .... " The complaint does not allege that the wage in- crease announced in Lutz' conversation with Baudoux was violative of the Act. However, as the undisputed facts relat- ing to the wage increase were fully developed, I find it necessary to consider whether or not a violation has been made out. The evidence does not establish whether Lutz promised the retroactive payment after the eruption of the employees' union activity and his attempts to thwart such activity. However, Lutz made the announcement of the payment in the context of antiunion remarks and coercive interrogation designed to explore Baudoux's sentiment. Further, by late January, Lutz had manifested union ani- mus by threats of reprisal and coercive interrogation. From these circumstances, I find that Lutz attempted to use the announcement of the retroactive payment to drive home his antiunion argument with Baudoux. Thus, I find that the announcement of the wage payment to Baudoux was viola- tive of Section 8(a)( ) of the Act.7 I also find that the inter- ' Oceanak denied making the quoted remark. However, as previously not- ed, Oceanak did not impress me as a reliable witness Indeed, further grounds for my appraisal arose when he testified. contrary to Lutz, that the latter's January 27 speech to employees contained no reference to a union. Matukaitis appeared to he more straightforward in his testimony. Therefore. I have credited his testimony that Oceanak made the quoted remark. Lutz admits discussing the Union with Baudoux but denies questioning him Lutz was vague about when this incident occurred and did not provide a detailed account of the asserted conversation Further. Lutz' denial and vague testimony left much of Baudoux's a.:count unchallenged. In contrast, Baudoux appeared to be providing a reasonably coherent and detailed ac- count Accordingl. ms findings were based upon Baudoux's testimony. 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rogation which occurred in the same context was coercive and thus violative of Section 8(a)(1) of the Act. In another late January incident, John Lutz questioned employee Dallas Anderson about "who was behind this union" and if it was Steve Matukaitis. Anderson said that he didn't know. Lutz responded with the warning that if he found out "who was behind this union, he would remove him from the plant" and "clean this place up, so that he could get the shop back on the ball, so that he could make some money." Anderson concluded this exchange by as- serting that he knew nothing about the matter. 8 I find that by pressing Anderson for information regarding the union sentiment of a fellow employee, Lutz was engaged in coer- cive interrogation violative of Section 8(a)(1) of the Act. I also find that Lutz' threat of economic reprisal against the employee "who was behind the union" constituted a threat of economic reprisal which tended to restrain, coerce, and interfere with employees engaged in union activity protect- ed by Section 7 of the Act. Accordingly, I find that Lutz' threat was also violative of Section 8(a)(1) of the Act. During the second week in February, Lutz told Matukai- tis that he, Lutz, had received a union letter requesting recognition as bargaining representative. Lutz went on to ask Matukaitis what he knew about it. Matukaitis denied knowledge. Lutz pressed Matukaitis to identify thos" who might be involved. Lutz rejected Matukaitis' d&n.al and insisted that Matukaitis do something about the union let- ter. When Matukaitis said he knew nothing, Lutz advised him that he "had better find out who was behind it." Final- ly, Lutz asked if Dallas Anderson was involved with the Union. Matukaitis said, "[Niot to my knowledge." In this encounter, I find, Lutz engaged in coercive interrogation regarding Matukaitis' union activity and sentiments and the union activity and sentiments of another employee, all in violation of Section 8(a)(1) of the Act.9 About the same time, according to employee Benjamin's credited testimony, Lutz attempted to learn Benjamin's at- titude toward the Union. Thus, during the second week in February, Lutz approached Benjamin at the plant, saying, "I have never known you to be a union man before." Ben- jamin smiled and said nothing. Lutz pressed on, asking, "Isn't there any way that you can talk these guys out of this union business?" Benjamin insisted that he could not. Lutz again asked Benjamin, "[Clan't you talk to the guys?" In the conversation which ensued, Benjamin disclosed that he had spoken to his fellow employees and learned that they wanted union representation to obtain improved wages and conditions. I find that Lutz' questions constituted an attempt to draw out Benjamin's union sentiments and en- list him against the Union.l' By this conduct, I find that the Lutz denied questioning Anderson about Steve Matukaitis. He also de- nied making the threat attributed to him by Anderson. However, while admitting that he discussed the Union with Anderson in late January, Lutz provided no details. Instead, he testified that at some unspecified time An- derson expressed antiunion sentiment. Further, company counsel did not give Lutz an opportunity to deny questioning Anderson about "who was behind this union." These factors, together with Anderson's apparent can- dor and the fact that he was a company employee at the time he testified, persuaded me to resolve the issues of credibility regarding this incident in Anderson's favor. 'My findings as to this incident are based upon Matukaitis' credible testimony. 10 In his testimony regarding the dialogue, Lutz insisted that he stated his Company interfered with, restrained, and coerced Benja- min and other employees in the exercise of their Section 7 rights and thereby violated Section 8(a)(1) of the Act. I also find from Benjamin's credited testimony that in mid-February Plant Manager Oceanak warned him that the Company would issue written warnings to employees found conversing away from their work stations. I have considered the warnings in light of the earlier unlawful written warning issued to Matukaitis and the Company's repeated manifestations of union animus. Here, I find the Company uttered a threat which employees were likely to understand as a prohibition directed only at prounion dis- cussions. Accordingly, I find Oceanak's threat violated Section 8(a)(1) of the Act." From Matukaitis' testimony, I find that Oceanak made further threats. In the context of discussing the Union's campaign with employee Matukaitis, Oceanak also repeat- edly warned, in substance, that "John [Lutz] could close down the shop and we all will be out of a job and it won't benefit you. If you go out on strike we will work and keep the shop going while you are out on strike." I find these warnings of plant closure and loss of employment in repri- sal for union activity violated Section 8(a)() of the Act. Shortly before the April 7 representation election, Presi- dent Lutz told Dallas Anderson, in substance, that as soon as the employees rejected the I'nion, he would grant a plantwide wage increase. ]2 By th,' , ,enring a wage increase as reward for rejecting the Unio', .lutz interfered with his employees' Section 7 right to chose a labor organization as their bargaining representative and thereby violated Sec- tion 8(a)(1) of the Act. Also, I find, from Anderson's testimony,'3 that approxi- mately I week after the election in which 6 of 15 counted ballots were cast for the Union, Lutz called a meeting of employees. In his remarks Lutz included an offer to pay the six employees who had voted for the Union their 2 weeks' vacation pay, 2 weeks' severance pay, and I week of belief that Benjamin was opposed to the Union. However, the record evi- dence shows Benjamin's strong prounion sentiment. More important in as- sessing Lutz' testimony, the record is bare of any showing that Lutz had any basis for the asserted belief. This gap in Lutz' attempt to establish the Com- pany's defense arouses my suspicion that Lutz made no such remark to Benjamin. This suspicion, together with my earlier stated impressions of Lutz and Benjamin, persuaded me to base my findings as to this conversa- tion upon Benjamin's testimony. t As this matter was fully litigated, I have considered it, notwithstanding the absence of any reference to it in the amended complaint. 12 Lutz denied making this remark which Anderson attributed to him. However, as previously stated, Anderson impressed me as the more reliable witness. Here Lutz gave me further cause to doubt his reliability. He did not deny having a conversation with Anderson shortly before the election. Fur- ther, the denial that he uttered the offer came in answer to a leading ques- tion in which company counsel used the exact verbiage of the complaint and ventured no further. 13 Lutz admitted that he held the postelection meeting referred to in Anderson's testimony. However, after denying the complaint allegation in almost the very words used by the General Counsel, Lutz embarked upon a spare description of his remarks to the assemblage. He described the offer of benefits to employees who wished to leave the Company. On cross-examina- tion, he admitted expressing the Company's pleasure at its apparent election victory. However, in testifying on direct examination, Lutz did not go into detail about the context of the offer. Instead, he testified about his senti- ments at the time he made the offer. Lutz' choice of euphemisms such as "dissension" and "unhappiness" in the shop to describe his reasons for making the offer, rather than prounion and antiunion, and his reluctance to give details of his speech, suggested that Anderson's version was credible. 586 JOHN L. LUTZ WELDING AND FABRICATING, INC. sick leave, provided they quit their employment. Lutz went on to explain that he believed that the six employees who voted for the Union were not satisfied with their current employment. Beyond question, Lutz' offer, coming in the wake of other unfair labor practices directed at the union supporters, was apt to be no less coercive than express threats of economic reprisals, for they carried the implica- tion that if the offer were rejected harsher treatment would be forthcoming. I therefore find that Lutz' offer to pay off the six union supporters, upon condition that they quit their employment, was violative of Section 8(a)(1). C. The Alleged Discimination I. Boisy Benjamin and Richard Baudoux a. The facts The Company hired Boisy Benjamin on March 12, 1974. Thereafter, until his layoff on February 17, the Company employed him as a production welder. The Company rein- stated Benjamin on May 9. In January, approximately I week after his first conver- sation with Lutz about the Union, Benjamin made contact with the Union, where he obtained authorization cards and advice on organizing. Thereafter, Benjamin became an ac- tive union supporter. On the morning of January 28, Benjamin, Dallas Ander- son, and employee Charles Allen were 2 hours late for work because they stopped at the Union's office to obtain authorization cards. That same day Benjamin signed a union authorization card and distributed several cards to fellow employees. On February 3. Benjamin attended a union meeting at the home of Richard Baudoux. On February 13 or 14, following employee reports that John Lutz was "harassing" them regarding union activity and their union sentiments, Benjamin and Baudoux ap- proached Plant Manager Oceanak about the matter. Benja- min and Baudoux asked Oceanak to arrange a conference between the two employees and President Lutz regarding "union matters." Oceanak expressed his thought that Ben- jamin and Baudoux were "the union delegates." Benjamin and Baudoux agreed that they were. Oceanak immediately conveyed their request to Lutz. Lutz admitted that Oceanak also told him that Benjamin and Baudoux had identified themselves as "union dele- gates." 14 Oceanak soon returned with the advice that Lutz did not wish to converse with Benjamin and Baudoux. On the evening of February 15, Company President Lutz told employee Matukaitis that he had learned that Benja- min and Baudoux were "behind the union." Lutz also de- clared that the two had admitted as much and that he, Lutz, "would find a way to get rid of them."'5 14 Lutz testified that he had a conversation with Benjamin and Baudoux on February 15 or 16, after Oceanak's report. He also testified that at that point Baudoux revealed that he and Benjamin were union delegates. In recounting this conversation, Lutz went into considerable detail. On cross- examination, however, Lutz testified that Oceanak was the source of the revelation. Lutz did not explain this self-contradiction. However. in light of my earlier appraisals of Lutz' testimony, it appeared that this admission was a lapse in his otherwise careful improvisation. During the period between February 14 and 16, it is undisputed that Paul Oceanak on several occasions cau- tioned Benjamin and Baudoux about wearing safety shoes. He also warned Benjamin that failure to comply with Lutz' safety shoe requirement would result in a written warn- ing.' Benjamin remarked that there were at least four or five employees who were also without safety shoes and asked why Oceanak was not speaking to them. Oceanak replied that he would talk to the other employees. That same day Oceanak took up the subject of safety shoes with employee Keller. In his response to Oceanak, Baudoux pointed out that as a matter of practice he was not wearing safety shoes and that Lutz knew that he was not wearing them because they bothered him. When Baudoux asked why Lutz was complaining about his failure to wear safety shoes, Oceanak replied to the effect that Lutz was "getting upset" because of the employees' union activity."7 Richard Baudoux, whom the Company hired and em- ployed as a production welder from March 1976 until his layoff on February 17,joined with Benjamin in the attempt to organize the Company's employees. On January 28, Baudoux signed and returned a union authorization card which he had received from Benjamin that same day. On February 3, a union meeting was held at his home. Be- tween the end of January and February 17, Baudoux on at least three occasions articulated his prounion attitude in conversations with Oceanak. The last of these exchanges occurred immediately after Oceanak's warning regarding Baudoux's safety shoes.'8 On the morning of February 17, at the plant, Oceanak approached Baudoux and Benjamin and began a conversa- tion about the Union. Oceanak began by asking a rhetori- cal question about whether the two employees knew what they were doing. The two replied that they knew what they were doing. Oceanak remarked that "Lutz hates unions. He despises them." After a further exchange, in which Ben- jamin expressed the need for union representation, Ocea- nak repeated Lutz' dislike of unions, adding: "You know if you lose what is going to happen." After a further ex- change, the conversation broke off." Later on February 17, the Company laid off both Benja- min and Baudoux. There is no showing that either employ- ee received a warning that the layoff was imminent. Com- pany records show that for the last week prior to the layoff Benjamin worked 47-1/2 hours of overtime. During that same period, Benjamin and Baudoux engaged in produc- tion welding on a job known as the ethylene project. Bau- doux and Benjamin went back to the plant during the week following their layoff. They observed other employees working on the ethylene project, doing production welding. '' My findings regarding Lutz' remarks are drawn from Matukaitis' testi- mony. i Oceanak testified that written warnings were issued to Benjamin, Bau- doux, and employee Vince Keller. The Company did not produce copies of such notices The testimony of Baudoux and Benjamin. which I have credit- ed shows that the warnings they received about safety shoes were oral. Oceanak denied making this remark. However, as Baudoux impressed me as the more candid of the two and presented a logical account which was largely undisputed, I have credited his account Oceanak admitted talking to Baudoux and Benjamin about the Union "'iln a general way. . My findings regarding this incident were based upon Benjamin's lesti- mon . 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soon after Benjamin and Baudoux were laid off, Lutz told Dallas Anderson that the Company "had gotten rid of the troublemakers and we still have a few more in the shop, and ... they probably have to go too ... " Lutz assured Anderson that the troublemakers "would never come back in the shop anymore ... they were finished...." b. Analysis and conclusions The record shows that employees Benjamin and Bau- doux were active and outspoken in support of the Union. By February 15, the Company was satisfied that Benjamin and Baudoux were "behind the Union." Lutz' remarks to Matukaitis that evening, that he had learned of their role, suggested that the Company was watching the employees with an eye to singling out union supporters. Thus, I find Lutz' remarks were violative of Section 8(aX)() of the Act. His threat to get rid of Benjamin and Baudoux, uttered at the same time, revealed his unlawful intentions and also violated Section 8(a)(l) of the Act. The timing of their un- heralded layoffs so soon after that announcement strong- ly suggested that union activity motivated the Company. Further evidence of Lutz' hostility surfaced during the 2 days prior to February 17. During that interlude Oceanak, on Lutz' order, warned Benjamin and Baudoux of the com- pany requirement that they wear safety shoes, a warning which Oceanak revealed with attributable to Lutz' being "upset" about union activity among his employees. Any doubt as to President Lutz' unlawful design was eradicated by his subsequent admission to employee Anderson, so soon after the two layoffs, that the Company "had gotten rid of the troublemakers...." This statement, which vio- lated Section 8(aXl) of the Act, also made plain that the Company had laid off Benjamin and Baudoux to rid itself of the employees it held responsible for stirring up a union organizing campaign at its plant. In attempting to avoid findings that Benjamin and Bau- doux were laid off unlawfully, the Company raised eco- nomic defenses. The Company urged that a lack of busi- ness required a reduction in its work force and that it selected Benjamin and Baudoux for reasons having noth- ing to do with union activity. However, in view of the di- rect evidence of unlawful motive, it appears unnecessary to analyze the grounds urged by the Company, for, as I have found above, President John Lutz revealed the unlawful discrimination when he announced that the Company laid off Boisy Benjamin and Richard Baudoux because of their union activity. Accordingly, I find that by laying off Benja- min and Baudoux, the Company violated Section 8(a)3) and (I) of the Act. I also find that the oral warnings issued to them by Oceanak, which were admittedly motivated by the Company's union animus, also violated Section 8(a)3) and (I) of the Act. 2. Steve Matukaitis a. The facts The Company hired Steve Matukaitis on September 16, 1974. According to the Company's records, the Company fired Matukaitis on November 20, 1974, for poor atten- dance and for talking to his fellow employees at the plant during working hours. The Company rehired Matukaitis in December 1974 and thereafter employed him in various production and maintenance capacities until his termina- tion on February 24. Prior to the January 27 employees' meeting called by Lutz, Matukaitis discussed the benefits of union represen- tation with his fellow employees. Beginning in January and until Matukaitis' discharge, Lutz discussed the Union with Matukaitis on several occasions.20 In these conversations, Lutz warned Matukaitis that he would close down the shop if the Union's organizing campaign were successful. He also advised Matukaitis that the Union was solely interest- ed in the employees' money and did not care about the employees. During this same period, Lutz warned Matu- kaitis, "[I]f you don't stop this union thing, I am going to make things very hard for you." He also warned Matukai- tis that if union activity did not cease, even if the Union's organizing campaign succeeded, he, Lutz, "would find a way to get rid of [Matukaitis]." On January 27, in the course of his speech to his employees, Lutz turned to Ma- tukaitis and said, "Il]t seems like you have a lot to say lately, why don't you take the floori?]. . ." As shown above, in late January Lutz asked Dallas An- derson about Matukaitis' role in the union campaign. Lutz' suspicion also appeared on the morning of January 28, when employees Benjamin, Anderson, and Allen were 2 hours late for work due to their stop at the Union's office. Prior to their arrival, Lutz approached Matukaitis and told him: "[Glet your stuff and get out." When Matukaitis in- quired as to the reason for this abrupt order, Lutz respond- ed that as Matukaitis was aware, three employees "didn't come in because of you and this union talk." Matukaitis protested that he did not know what Lutz was talking about. Lutz relented. He directed Matukaitis to work, add- ing, "I will let you know my decision later." Nothing more was said by Lutz regarding this incident. A day or two later, Lutz engaged Matukaitis in a discus- sion about the Union's campaign. Matukaitis volunteered that he was not "behind this union at all." Lutz responded with misgivings about not having fired Matukaitis and the belief that Matukaitis was "going to cause trouble for [Lutz] anyway." Matukaitis supported the Union. During lunchbreak on January 28, Matukaitis signed an authorization card which he received from employee Benjamin and promptly re- turned. In early February, Matukaitis attended a union meeting at Richard Baudoux's house. As found above, in early February Oceanak had pressed Matukaitis to admit his prounion bent. Later, on February 14, the Company issued a written warning to Matukaitis to persuade him to abandon his prounion discussions with fellow employees. Concurrent with the issuance of the warning, Oceanak announced Matukaitis' transfer to the night shift. Upon receiving the written warning and shift change, Matukaitis went to Lutz. Lutz warned Matukaitis that the written warning was issued "becausc of this union talk." 20 My findings regarding encounters between Matukaitis and Lutz were based upon Matukaitis' testimony. 588 JOHN L. LUTZ WELDING AND FABRICATING, INC. Lutz also warned "IT]he next time you are out the door." Matukaitis insisted that he knew nothing about the Union. Matukaitis also questioned the decision to put him on the night shift. Matukaitis asked if he had a choice. Lutz said no. LutL told Matukaitis he would be on the night shift for "around three weeks." The question of Matukaitis' transfer to the night shift first arose in the early part of January. At that time Lutz asked Matukaitis if he would agree to work on the night shift as a supervisor. Matukaitis declined the transfer, say- ing that it would separate him from his carpool and subject him to a long trip daily by himself. The transfer to the night shift meant that Matukaitis would go to and from work by himself, late at night, on a trip that took I hour in each direction. In early January Lutz listened to Matukai- tis' objections and asked him to consider the transfer. Lutz also pointed out at the time, "[t]t is your choice if you want to work nights, it is up to you." On the night of February 23, during his lunch break, Matukaitis left the plant and returned with a six-pack of beer. While lunching with his shift, Matukaitis consumed one container of beer and started on a second, in the lunchroom. 21 At this point, John Lutz, accompanied by his son, entered the lunchroom. Matukaitis put down his beer and began talking to Lutz about the loading of a trailer.22 The two proceeded from the lunchroom to the work area. Lutz and Matukaitis also conversed about the Union. Lutz advised Matukaitis, "[T]his is your last chance to tell me who is behind the Union now, and if you are involved you can still stop this." Matukaitis denied knowing any- thing about the matter. Shortly after, Matukaitis returned to loading the trailer with employee Robert Pursell. In a few moments, President Lutz' son came to the work area and announced that his father requested everyone's presence in the lunchroom. After the employees gathered in the lunchroom, Lutz opened a locker and confronted the group with the remains of Matukaitis' six-pack of beer. Matukaitis admitted that the beer was his. Lutz said, '"Y]ou know what this means." Lutz directed Matukaitis to complete his shift, adding: "I will talk to you tomorrow about it." The following day Lutz' daughter notified Matu- kaitis that he was terminated. On the night of February 25, employee Robert Pursell arrived at work and immediately encountered Plant Man- ager Oceanak. Pursell expressed disapproval of Steve Ma- tukaitis' discharge. Oceanak replied, "[Y]ou knew Mr. Lutz was out to get him. He should have been more careful." 23 b. Analysis and conclusions The General Counsel argues that the Company transfer- red Matukaitis to the night shift and then discharged him 2 On direct examination Matukaitis revealed that he willfully omitted references to his purchase and consumption of beer on the evening of Febh- ruary 23. He attributed this omission to his fear of governmental reaction to disclosure that he was drinking beer at the plant. I have accepted this expla- nation given with sincerity. 22 There is no showing whether Lutz saw Matukaitis drinking or holding the container of beer. 23 My findings as to this incident were based upon employee Pursell's uncontradicted testimony. because he was a suspected union activist and that the rea- son given by Lutz was pretextual. The Company seeks to avoid findings of unlawful termination by showing that Lutz transferred and terminated Matukaitis for reasons un- related to union activity or sentiment. However, I find that the General Counsel has established by a preponderance of the evidence that Matukaitis' transfer to the night shift and his termination were both violative of Section 8(a)(3) and (I) of the Act. In early January Lutz first evidenced suspicion that Ma- tukaitis harbored prounion sentiment. At that time Lutz asked Matukaitis at one point, 'W]hat's this stuff about the Union?" On January 27, Lutz singled out Matukaitis for attention at the meeting at which Lutz concerned him- self with the Union's campaign. At that juncture Lutz pressed Matukaitis for a response to Lutz' antiunion re- marks. The following day, when employees Benjamin, Ander- son, and Allen were absent from the plant because of union activity, it appears that Lutz suspected as much. He also manifested his impression that Matukaitis was in- volved as well. At that point, Lutz hastily ordered Matu- kaitis out of the plant because of his suspected role in the union activity. Notwithstanding that Lutz soon rescinded the order, I find that his ordering Matukaitis out of the plant amounted to a threat of discharge if he persisted in advocating the Union. I therefore find that this manifesta- tion of animus violated Section 8(a)(I) of the Act. I also find that Lutz violated Section 8(aX)(I) with his repeated warnings in January and February that he would close the plant if the union campaign succeeded. These incidents also showed that Lutz had labeled Matukaitis as a pro- union employee. As found above, early in February Matukaitis revealed his prounion sentiment to Oceanak. It is likely that Lutz soon learned of this revelation. Lutz' hostility toward Ma- tukaitis' prounion sentiment and suspected union activity surfaced on February 14. On that date the Company issued a written warning to Matukaitis which I have found viola- tive of Section 8(a)(1) of the Act, for it was designed to squelch Matukaitis' suspected prounion talk. I also find the warning was discriminatory and thus also violative of Sec- tion 8(a)(3) of the Act. On the same day, contrary to Matu- kaitis' request and notwithstanding the inconvenience it would impose upon him, Lutz transferred Matukaitis to the night shift. From Lutz' previous threats to punish Matukai- tis if he assisted the Union, and from the timing of the transfer to accompany the unlawful written warning, I find that the Company violated Section 8(a)(3) and (I) of the Act by selecting Matukaitis for transfer to the night shift as a reprisal against his suspected continued union activity. However, Lutz was considering harsher treatment for Matukaitis. At the time of the transfer, Lutz threatened: "[T]he next time you are out the door." Earlier, Lutz warned Matukaitis that if he did not desist from his "union talk" Lutz "would find a way to get rid of you." These threats, I find, violated Section 8(aXI) of the Act. They also set the stage for the discharge which followed. On the night of February 24, Lutz found "a way" to get rid of Matukaitis. That night Lutz gave Matukaitis a last chance to reveal the names of those employees who sup- 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ported the Union. This incident marked another violation of Section 8(a)(1) of the Act. It also revealed Lutz' contin- ued union animus. A few moments later, Lutz confronted Matukaitis with a six-pack of beer from Matukaitis' locker. On the following day, the Company discharged Matukaitis. Within hours Plant Manager Oceanak told employee Pursell that Lutz "was out to get [Matukaitis]." 24 In sum, the General Coun- sel has presented strong evidence of unlawful motive. In defense of Matukaitis' discharge, the Company urged his six-pack as an infraction of plant rules serious enough to warrant discharge. However, the record does not sup- port the Company's position. Both Lutz and Oceanak testi- fied that the Company maintained a prohibition against alcoholic beverages in the plant. Oceanak admitted, how- ever, that he had never seen it in writing. When asked how the rule was disseminated, Oceanak appeared reluctant to answer. However, after some considerable prodding he as- serted: "[Iln orientation it would come across." However, he did not claim any role in its dissemination, nor did he assert that the rule had ever been disseminated in his pres- ence. Instead, he testified that Lutz announced the rule as a standard procedure in interviewing new employees. Lutz did not corroborate Oceanak's testimony regarding dissem- ination of the asserted rule. As it appeared to me that Oceanak was improvising, I did not credit his testimony that such a rule was ever disseminated to company em- ployees. Nor am I persuaded that such a rule existed prior to Matukaitis' discharge. On the contrary, the credited testi- mony of Richard Baudoux revealed that on three occa- sions Plant Manager Oceanak brought beer into the plant for the employees during their lunch period. I also find from Baudoux's credited testimony that on another occa- sion Lutz observed employees drinking beer in the locker room during their lunch break and made no adverse com- ment. Matukaitis credibly testified that on one occasion Lutz provided beer at the plant during a shift. Further, there was no showing that prior to Matukaitis' discharge the Company disciplined any employee for con- suming beer during lunchbreak. The Company showed only that it discharged two employees who had become inebriated at the plant and were unable to work. Oceanak admitted that employees openly consumed beer on compa- ny premises during lunch without suffering punishment. It thus appears that consumption of beer on company prem- ises was not considered grounds for discipline until Lutz caught Matukaitis. This sudden change of attitude came in the wake of Lutz' threats to punish Matukaitis because of his suspected active support for the Union. Thus, I find that the Company seized upon Matukaitis' six-pack as a pretext for discharging a known union supporter who was suspected of engaging in union activity. I further find Ma- tukaitis' discharge violative of Section 8(a)(3) and (1) of the Act. 24 My finding regarding this incident was based upon Pursell's testimony. 3. Larry Raimond and Robert Pursell a. The facts The Company hired Larry Raimond on June 28, 1976, as a helper. On January 17, the Company transferred Rai- mond, at his own request, to operate a press brake on the night shift. On March I, the Company laid him off. When Raimond inquired about the night shift, Lutz stat- ed that the shift would be in operation 6 weeks.2 On Feb- ruary 1, Lutz told Matukaitis that the night shift would soon run out of work and be terminated. Matukaitis spread this information to employees Raimond and Pursell. Dur- ing the last week of February, Raimond asked the same question of Plant Manager Paul Oceanak. Oceanak replied that he expected the night shift to last "for a long while, like a couple of months." 26 On January 28, Raimond received a union authorization card from Dallas Anderson, which he signed and returned forthwith to Anderson. Raimond discussed the Union with Matukaitis and other employees at the plant beginning in January. During his employment on the day shift, Rai- mond regularly took his lunch breaks on the plant premises in company with Dallas Anderson, Boisy Benjamin, and Steve Matukaitis. On the night shift, following Matukaitis' transfer, Raimond regularly hlnched with him and Pursell. During the union campaign, Raimond was also singled out for attention by Lutz. As found above, at the end of January, Lutz interrogated Raimond about his union senti- ment. Rainiond replied that he was uncertain about his attitude toward union representation. In the same conver- sation, Lutz threatened plant closure if the Union's cam- paign succeeded. Employee Robert Pursell entered upon his employment with the Company on December 2, 1976. The Company employed him first on the day shift as a maintenance em- ployee. Later, he also operated a brake press. The Compa- ny transferred him to the night shift on or about February 10. He was laid off on March 1. In early January Pursell and Matukaitis discussed their views regarding the need for union representation and the possibility of obtaining it. As found above, about the third week in January, at the plant, Pursell, Steve Matukaitis, and Dallas Anderson were discussing the topic of union representation. Lutz came up to them and said, "[I]f you have anything to say, say it in my office. Don't loiter on company time." On January 28, Pursell signed and re- turned a union authorization card which he had received from Dallas Anderson that day. On February 3, Pursell attended the union meeting at Richard Baudoux's house. On or about February 6, Pursell approached Steve Ma- tukaitis and Paul Oceanak, who were discussing the Union. Matukaitis turned to Pursell, saying, "Bob, you are a union man, aren't you?" Pursell answered, "[Y]es but it depends 25 Raimond testified that Lutz assured him that the night shift's expected duration would be 6 months. Lutz testified that he asserted 6 weeks as the shift's duration. As Matukaitis credibil) testified that at about the same time Lutz told him the night shift would run for 6 weeks, I have credited Lutz' lesllmon, :6 My findings regarding this inquiry about the night shift's duration were based upon Raimond's credited testimony. 590 JOHN L. LUTZ WELDING AND FABRICATING, INC. on what union it is." Pursell went on to reveal that he had previously been employed at a unionized paper mill. Be- fore returning to work, Pursell observed that his former employer "didn't have the problems that this plant seems to have without a union. . . 27 The Company transferred Pursell to the night shift, ef- fective February 10. I find from Pursell's credited testi- mony that in a prehire interview Lutz explored Pursell's sentiment toward night work. Pursell gave a negative re- sponse. 28 I find from President Lutz' uncontradicted testimony that he instituted the night shift in January to accommo- date work on what was referred to as the Tower Iron Works Contract. This contract had a specific delivery schedule in February, March, and April. The work, ac- cording to Lutz, required use of the Company's two press brakes, which were being used to full capacity during the day shift. A night shift provided the time to use the press brakes to accomplish the Tower Iron Works Contract. Lutz also testified that at least four employees were re- quired to accomplish this work on the night shift. Unable to obtain volunteers from the day shift, Lutz placed an ad in the newspaper. Lutz thus recruited three employees, Mi- chael Luchich, Harry Sneft and William Miller. In addi- tion, day-shift employees Raimond and Fleming volun- teered. The night shift began on January 17, with the five employees named. At the outset, according to Lutz, the night-shift production was "rather poor." Lutz told the newly hired employees that the night shift would probably last about 6 weeks. According to Lutz, in the face of the poor results on the night shift, he laid off employee Miller, transferred Fleming to the day shift, and replaced them with employees Pursell and Matukaitis. Lutz admitted that at the time he made the decision to transfer Matukaitis and Pursell he knew that neither employee would be happy with the new arrangement. The night shift terminated on March I. Of the four employees remaining on the night shift on March 1, only one, Luchich, continued in the Company's employ. Pursell, Sneft, and Raimond were laid off. Lutz found Luchich was a very skilled worker, whose versatility made him valuable on the day shift. Luchich also assured Lutz that because of a pending government job in Virginia he could remain with the Company only for I or 2 weeks. The record does not show whether Luchich had revealed his attitude toward the Union.2 9 The remaining employees laid off on March I, Pursell, Sneft, and Raimond, were not skilled. The Company hired Pursell and Raimond essentially as laborers. The record reveals neither Sneft's classification while employed by the Company nor his attitude toward the Union. M findings regarding this consersatlon were based upon Pursell's tes- timons :a According )o Lutz, when he asked Pursell if he .,ould go on the light shift, Pursell said that "he didn't want to take that crap. 291 hase credited I utz' uncontradicted testimon, regarding the estah- lishment and terminati on of the night shift and Luchich's retention A.l though the Compan) did not present records or other testimony to corrohob- rate him, his forthright manner and the logic of h1, testimons here persuad- ed me that he was a reliable witness at this point. b. Analysis and conclusions The issues raised by the pleadings are whether the Com- pany assigned Pursell to the night shift and thereafter ter- minated him and Raimond because Lutz suspected that they were union supporters. The Company argues that union activity or consideration of union activity played no part in any of the decisions affecting the job security of these tAo employees. I find, however, that the record sup- ports the General Counsel's contentions only as to Pursell. There is ample evidence of unlawful motive in Pursell's transfer. In the third week of January, Lutz discovered Pursell discussing the union campaign with Steve Matukai- tis, a suspected union activist, and Dallas Anderson, whose uncontradicted testimony reveals that Lutz strongly sus- pected that he was also an active union advocate. Later, during the first week of February, just before his transfer to the night shift, Pursell revealed his former adherence to a union and suggested a prounion attitude in conversation with Plant Manager Paul Oceanak. That Lutz would prob- ably react harshly to such a revelation has been shown. I have previously found that Lutz' union animus motivated the layoffs of Benjamin and Baudoux and Matukaitis' dis- charge. I have also found that Matukaitis' transfer to the night shift was punishment for expressions of prounion sentiments. It thus appears likely that Lutz would seize upon Pursell's stated dislike for the night shift as an oppor- tunity to punish him for his apparent prounion attitude. In its effort to refute the General Counsel's case, the Company falls short of the mark. The Company sought to establish its defense as to this aspect of the case with Lutz' testimony that after he had recruited three employees from outside the plant the poor production of the night shift necessitated drawing from inside the plant. Thus, accord- ing to the Company, it was necessary to put Pursell on the night shift. This raises the question of the Company's mo- tive in selecting Robert Pursell from among 19 other em- ployees, knowing his dislike for the night shift. As to this the Company offered no explanation. Thus, I am left with the answer urged by the General Counsel. I find, therefore, that Pursell's transfer to the night shift was in response to his apparent prounion attitude. Accordingly, I further find that the transfer violated Section 8(a)3) and (I ) of the Act. I am persuaded that the Company was anxious to get nd of union supporters Matukaitis and Pursell. At the time he forced them onto the night shift, Lutz had reasonable ground for expecting that shift to terminate in 6 weeks. Indeed, Lutz told Raimond and Matukaitis of his expecta- tion roughly I month before the shift terminated. It thus appears that Oceanak's assertion that the shift would con- tinue beyond that date was erroneous. I find that soon after he spoke to Raimond and Matukaitis Lutz saw the night shift as an opportunity to get rid of Pursell and Ma- tukaitis. When vacancies occurred during the first half of February, Pursell and Matukaitis were transferred against their wishes. Thus. shen the shitt was no longer needcd. the two prounion employees would be in a pos.tion to b - laid off Matukaitis and Purscil found themselves on the nigh: shift because I utz put them there. In both instapces union anlrius rmotivaLed .lutz' action. A convenient pretext h;a- 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tened Matukaitis' departure on February 23. However, Pursell's layoff occurred on March 1, as arranged by Presi- dent Lutz. In short, I find that Pursell's layoff was the end product of a plan motivated by union animus. I further find, therefore, that by laying Pursell off, the Company violated Section 8(a)(3) and (I) of the Act. However, I am not persuaded that Raimond's layoff vio- lated the Act, for despite Lutz' warning that the shift would last only 6 weeks, Raimond volunteered. Thus, Raimond placed himself in peril. His prounion sentiment played no part in the decision to change his shift. Further, the General Counsel has failed to establish that Raimond, who was essentially a laborer, with little skill, was denied available work on the day shift after March I. Accordingly, I find that the evidence fails to sustain the complaint's allegation that his layoff violated Section 8(aX3) and (I) of the Act. I shall recommend dismissal of that portion of the complaint. IV. THE CHALLENGED BALLOTS IN CASE 22 RC-7040 A Board agent challenged the ballots cast by Boisy Ben- jamin, Richard Baudoux, Steve Matukaitis, Larry Rai- mond, and Robert Pursell at the Board-held election on April 7. The grounds for challenge was that the names of the five employees did not appear on the election eligibility list submitted by the Company. I have found that the Company unlawfully laid off em- ployees Boisy Benjamin and Richard Baudoux on Febru- ary 17; that the Company unlawfully laid off Robert Pur- sell on March I; and that the Company unlawfully discharged employee Steve Matukaitis on February 23. Therefore, these four employees continued to be the Com- pany's employees on April 7, the date of the election, and thus were eligible to vote on that date. It follows that the names of Boisy Benjamin, Richard Baudoux, Robert Pur- sell, and Steve Matukaitis should have appeared on the eligibility list for that election. I shall therefore recommend that the challenges to these four ballots be overruled and that their ballots be opened and counted. Upon the foregoing findings of fact and the entire rec- ord, I make the following: CONCLUSIONS OF LAW 1. John L. Lutz Welding and Fabricating, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 545, International Association of Bridge, Struc- tural and Ornamental Ironworkers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and prounion sentiment, by threatening employ- ees with discharge because of their union activity and pro- union sentiment, by soliciting grievances from its employ- ees and offering to adjust them to induce them to abandon the Union, by giving its employees the impression that their union activities were under surveillance, by offering to increase employees' wages and granting retroactive wag- es to persuade them to abandon support for the Union, and by offering employees who supported the Union cash payments to induce them to quit their employment, the Company has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, thereby engaging in unfair labor practices violative of Section 8(a)(l) of the Act. 4. By issuing a written warning slip to employee Steve Matukaitis and verbal warnings to employees Boisy Benja- min and Richard Baudoux, by transferring employees Steve Matukaitis and Robert Pursell to the night shift against their will, by discharging Steve Matukaitis, and by laying off Boisy Benjamin, Richard Baudoux, and Robert Pursell, all because these employees supported, or engaged in activities in support of the Union, the Company engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The Company has not violated Section 8(aX3) and (l) of the Act by discriminating against Larry Raimond. THE REMEDY Having found that the Company has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company issued a written warn- ing slip to Steve Matukaitis and verbal warnings to Boisy Benjamin and Richard Baudoux in violation of Section 8(aX3) and (1) of the Act, I shall recommend that the Com- pany issue to each of the employees named a written re- traction of the warnings and that any record of such warn- ings be expunged from their personnel records. Further, having found that the Company violated Section 8(a)3) and (1) of the Act when it transferred Steve Matukaitis and Robert Pursell to the night shift, laid off employees Boisy Benjamin, Richard Baudoux, and Robert Pursell, and dis- charged Steve Matukaitis, I will recommend that the Com- pany offer each of these employees immediate reinstate- ment to the jobs which they held prior to the discrimination against them or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. The Company shall also make each of them whole for any loss of pay suffered by reason of the discrimination against them, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpora- tion, 231 NLRB 651 (1977).3° Upon the basis of the foregoing findings of fact and con- clusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: 30 See. generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). 592 JOHN L. LUTZ WELDING AND FABRICATING. INC ORDER 3 The Respondent, John L. Lutz Welding and Fabricating, Inc., Remington, New Jersey, its officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in and support for, or ac- tivities on behalf of, Local 545, International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO, or any other labor organization by discriminating in any manner against any of its employees in regard to their hire and tenure of employment or any term or condition of employment because of their union membership, sympa- thies, or activities. (b) Coercively interrogating employees about their union membership, activities, or sympathies or the union membership, activities, or sympathies of other employees. (c) Threatening discharge, loss of benefits, or other re- prisals because its employees engaged in union activity or expressed prounion sentiment. (d) Creating the impression that the union activities of its employees are under surveillance. (e) Soliciting grievances from employees, offering in- creased wages or other benefits, or offering to adjust griev- ances to induce them to abandon their support of Local 545, International Association of Bridge, Structural and Or- namental Ironworkers, AFL-CIO, or any other labor organi- zation. (f) Offering employees who supported Local 545, Inter- national Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, or any other labor organization, the cash equivalent of vacations, severance pay, or other moneys or benefits to induce them to abandon their sup- port for Local 545, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, or any other labor organization. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed un- der the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations be adopted by the Board and become its findings. conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. (a) Offer Steve Matukaitis, Richard Baudoux, and Rob- ert Pursell immediate and full reinstatement to the posi- tions in which they were employed prior to the discrimina- tion imposed upon them or, if these positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges. Make employees Steve Matukaitis. Boisy Benjamin. Richard Baudoux, and Robert Pursell whole for any loss of pay they each may have suffered by reason of discrimination against them in the manner set forth in the section herein entitled "The Remedy." (b) Issue written notices of retraction of the written warning issued to employee Steve Matukaitis on February 14, 1977, as well as of the verbal warnings issued to em- ployees Boisy Benjamin and Richard Baudoux on Febru- ary 16, 1977. (c) Expunge from the Company's records all references to the unlawful warnings issued to employees Steve Matu- kaitis, Boisy Benjamin, and Richard Baudoux. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records and reports and all other records required to ascertain the amount of any backpay due under the terms of this recommended Order. (e) Post at its place of business in Flemington, New Jer- sey, copies of the attached notice marked "Appendix." 32 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by its au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. IT IS FURTHER ORDERED that the ballots to which chal- lenges have been overruled be opened and counted. ': In the event that this Order is enforced by a judgement of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 593