Barberton Plastics Products, Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges, and we will make him whole for any loss of pay suffered as a result of his discharge. OMEGA FOOD PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 703, Market Building, 830 Market Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its provisions. Barberton Plastics Products, Inc. and International Chemical Workers, AFL-CIO. Case No. 8-CA-?854. March 7, 1963 DECISION AND ORDER On December 20, 1962, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, 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 [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Trial Examiner's Recommended Order with the following modifications : 1. The following paragraph shall be substituted for paragraph 1(d) of the Recommended Order : (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to join or assist any labor organization, to bargain collectively through 'For the reasons stated in their dissenting opinion in the 184 case, Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board's remedial authority. While adhering to such view, for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due. 141 NLRB No. 23. BARBERTON PLASTICS PRODUCTS, INC. 175 representatives of their own choosing, to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. The following paragraph shall be substituted for the fourth paragraph in the notice : WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on July 11, 1962, by International Chemical Workers, AFL- 'CIO, the General Counsel of the National Labor Relations Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued his complaint dated August 29, 1962, against Barberton Plastics Products, Inc., herein called Respondent or the Company. In substance said complaint, as amended at the hearing, alleges that Respondent has engaged in and is engaging in unfair labor practices as defined in Section 8(a) (1) and (3) of the National Labor Relations Act, herein called the Act, and affecting commerce as comprehended by Section 2(6) and (7) of the Act. Respondent has answered admitting some facts but putting in issue the unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner James V. Con- stantine at Akron, Ohio, on October 29 and 30 and November 5 and 6, 1962. All parties were represented at and participated in the hearing and were given full oppor- tunity to introduce evidence, examine and cross-examine witnesses, submit briefs, and offer oral argument. The General Counsel and Respondent argued orally. A brief has been submitted by Respondent. At the hearing Respondent moved to dismiss the complaint when the General Counsel rested and again at the close of the case. This was denied solely on the ground that this type of motion presented only a question of law, and that, treating the General Counsel's evidence in the most favorable light to him, it could not be ruled as a matter of law that he had failed to make out a prima facie case. Denial of that motion of course does not control decision of the case on the facts, where among other things questions of credibility 1 are involved. Upon the entire record in this case, and from my observation of the witnesses, I make the following: 1 Credibility issues are not open on a motion to dismiss because, solely for the purposes of testing the sufficiency of the General Counsel's case on the motion, his evidence is assumed to be true. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, a Delaware corporation, is engaged at Barberton, Ohio, in the busi- ness of manufacturing plastic products. Annually it ships goods valued in excess of $50,000 directly to points outside the State of Ohio. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over it in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Chemical Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Many of the factual issues were controverted. Where dispute exists, it has been resolved in accordance with my evaluation of the credibility of the witnesses and the more probably inferences from the evidence, without reciting the evidence. The findings which follow are based upon my assessment of the whole record pursuant to the foregoing evaluation and inferences. A. The discharge of Paul T. Hetrick Paul T. Hetrick was hired by the Company in 1957 as a maintenance man and gen- eral helper He started at $1.60 an hour and, at the time of his discharge, was receiv- ing $2.25 an hour. Hetrick described his duties as embracing "maintenance work, carpenter work, and any kind of work that was to be done, I did it." Some of the "odd jobs" which he performed included packing and shipping "every once in a while . . . but not steady." 2 About a month before his discharge, which occurred on April 30, 1962, Hetrick was called to the office of Bruce Miller, the Company's vice president, and was given a raise from $2.10 an hour to $2 25 an hour. Hetrick testified that Miller gave him the increase because Hetrick was doing good work and Miller was pleased with it. Miller testified that he told Hetrick the raise was awarded to straighten out Hetrick, who by then had become a problem employee. Miller also testified that the raise was given to protect an investment in Hetrick. I find that the raise was given despite Hetrick's faults as an employee, but do not resolve the conflict in the evidence as to the reason for it. On or about April 4, 1962, Hetrick refused to perform certain tasks assigned to him by Supervisor Agnes Baker. Baker then called Hetrick to the office of Vice President Miller, where, after originally refusing to obey Miller's command to per- form this work, Hetrick relented and consented to do it "for a while." Thereafter, on the same day, Miller by written memorandum directed Hetrick to perform this and other enumerated tasks. Shortly before this, Miller, who considered that Hetrick had a legitimate complaint when torso packing interfered with other duties which Edward L. Starcher and Baker directed him to do, finally orally outlined to Hetrick, in the presence of Starcher and Baker, the order of importance of his work, the pri- ority of each, and the general procedure to be followed in cases of doubt. Shortly thereafter, as a result of this argument with Miller, Hetrick got in touch with Charles Ashton, a representative of the Union. (Hetrick had, previously to this, talked to Ashton and to employees about unionizing the plant.) As a conse- quence thereof, Ashton set up a meeting of the Company's employees for April 7, and Hetrick solicited them to attend. At that meeting five employees, including Hetrick, signed union "authorization cards." It was also decided at that meeting that, to have a majority, the Union needed an additional "one or two more to sign cards," and Hetrick was designated as the person to obtain them In his efforts to induce employees at the plant to join the Union. Hetrick spoke to a few employees, including Mary Ainscough.3 Edith Nemeth. and Pat Ulichney He had also called Ulichney at her home on the evening of April 6, requesting her to come to the union meeting the next day. 2 As recited hereinafter , Hetrick was instructed by written memorandum to do this work "steady " All dates herein refer to 1962 except as otherwise noted 'When Hetrick spoke to Ainscough , she told him he would be fired if he kent on with "the union thin, " Another employee , whom Hetrick solicited to attend the union meet- ing, declined with the comment, "You guys are going to be fired." BARBERTON PLASTICS PRODUCTS, INC. 177 Agnes Baker, whom I find to be a supervisor under Section 2(11) of the Act, is in charge of the finishing and shipping departments. Early in April, but after April 7, employee Pat Uhchney complained to Baker that Hetrick had appealed to her at home over the telephone to solicit the girls to join the Union. Employee Nemeth also complained at the same time that Hetrick tried to induce her to join. Baker then conveyed this information to Vice President Miller because, according to Baker, Hetrick had been previously warned not to talk to the girls. Hetrick was then called to Miller's office. He found Miller and Baker there. When Baker, in the presence of Miller, asked Hetrick if he had called employee Ulichney about unionizing the Company, Hetrick denied it and asserted that Ulichney, rather than he, wanted a union there. Miller then warned Hetrick not to bother the girls any more and said that "if you want a union in here, Paul, come out and say you do, and get it." Later the same day, when the female employees were on their coffee break, some of them informed Baker that Hetrick was soliciting for, and distributing cards of, the Union. Baker asked one employee, May Duta, if she had received a card from Hetrick; but she also inquired of every girl if she had been approached by Hetrick to join a union because Baker "was trying to prove that Hetrick was the one to get a union in and that he was lying about it" when he denied the same to her and Miller. Baker later that day asked the girls if Hetrick had telephoned them or approached them to join the Union. In addition, Baker conveyed to Ulichney and Nemeth, Het- rick's denial of the call to them and asked each to confirm their statements to Baker that Hetrick had solicited them to join the Union. Edward L. Starcher, whom I find to be a supervisor as defined by Section 2 (11) of the Act, is the foreman in charge of the casting department. About 3 or 4 weeks before Hetrick's dismissal Starcher was asked by Supervisor Baker if the casters had been approached about a union. Starcher replied that they had not been. There- upon Starcher proceeded to ask each caster if he had been so approached by the Union and each replied in the negative? Starcher also asked employees Ervin Cole and Thomas Gunter to inform him if either was solicited by the Union later. Shortly after April 7, Hetrick told some employees and Supervisor Starcher that he heard a rumor in the plant that a layoff was imminent. When Hetrick's statement reached Miller, the latter castigated Hetrick for uttering such a statement and ob- served, "If you fellows think we don't treat you fair, go ahead and get a union." Miller then added that they did not need a union because he thought the Company was "paying wage scales." Hetrick replied, "Just like I have been told before, if anyone tries to get a union they would get fired " President Francis Miller was also present during this time.5 Hetrick then went to Bruce Miller's office at the latter's request. Thereupon both Bruce and Francis Miller asked him why he thought "they needed a union" since "they paid wage scales." When Hetrick replied that a union would protect seniority on layoffs, Bruce replied, "Nobody is going to tell me how to run the shop. We will close the damn doors," and Francis stated that the Union was not going to ruin his investment. Or or about April 9, 1962, Hetrick was called to Bruce Miller's office. Supervisor Agnes Baker was also present. After telling Hetrick that they did not see why they needed a union, that they were fair to their employees, and that they were paying "wage scales," they asked him why Hetrick thought they needed a union. Miller also asked Hetrick if he was passing out union authorization cards in the shop. Hetrick replied in the negative.6 On another occasion as Hetrick and Miller were walking on the runway leading to the machine shop, Miller asked him who was giving out union cards in the plant, and whether employee Cole was back of the union movement in the shop. Hetrick replied that he, and not Cole, was "back of this," and handed him Ashton's calling card as a representative of the Union. Miller asked Hetrick as to Ashton's identity, and Hetrick replied that he was the man whom Hetrick contacted about the Union. Miller then returned the card to Hetrick and warned him that "you get a union in and you will be one of the first ones fired." On Friday, April 20, it was decided to close the plant for the following week, but Hetrick and the supervisory staff was notified to work during that period. However, 4 Patently some of the employees were withholding the truth, for five of them, including Cole, had been approached and had already signed cards for the Union This prevaricat- ing was prompted by rumors in the plant that, as employee Gunter credibly testified, those favorable to a union would get fired I make no finding as to whether those rumors were unfounded or not. 5 This was in the presence of the casting department employees who had been in- formally assembled for the purpose. 6 This was not true, as Hetrick in fact had solicited in the shop on behalf of the Union 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Miller discovered that Hetrick had not performed his work well Miller revoked the previous direction authorizing Hetrick to work during the week of the shutdown; but Miller did tell Hetrick to see him on the following Friday, April 27. But on April 27, when Hetrick's wife, rather than he, called for his paycheck at the plant, Bruce Miller asked her to have Hetrick call him. When Hetrick telephoned in, Miller told him that he wanted to see him on the following Monday. When Hetrick came in on Monday, April 30, Miller told Hetrick that, after a long discussion with his father, Francis Miller, over the weekend, it was decided to let him go because his work was not satisfactory. Upon inquiry by Hetrick for particulars, Miller (1) referred to a pump which Hetrick failed to clean prior to April 20, but which remained undetected until April 27, when Supervisor Starcher found it still uncleaned , and (2 ) mentioned that Hetrick was neglecting his work so that Miller had to constantly check to see if it had been performed. Miller did not particularize the tasks which he claimed were not performed on time, although requested to do so by Hetrick. Respondent maintains that Hetrick was discharged for cause because of an accumu- lation of disservices , and has proffered extensive evidence in support thereof. This may be condensed as follows: 1. Hetrick was insubordinate, refusing to perform some tasks at the request of Supervisor Baker until ordered to do so by Vice President Miller,7 and constantly griped or complained to supervisors and employees that Baker had no right to give him orders 2. Hetrick refused or neglected to follow safety procedures in that: a. He would not wear safety goggles, even though a State safety inspector warned him to do so, and gave him a pair for the purpose. b. He created fire hazards by leaving kerosene exposed in open containers, so that a State inspector once had to reprimand him for it. c. He failed to make use of a safety guard or hood when operating the saw. d. The State safety inspector, Robert Leonard, found 11 safety violations, al- ledgedly attributable to Hetrick. Although Hetrick corrected these for a short while, he soon resumed his habit of ignoring safety procedures. 3. Hetrick was involved in 12 accidents compensable under the Ohio workmen's compensation law. The cost to Respondent of these accidents was 74 percent of its total costs under this law in the 5 years preceding his discharge. 4. Hetrick engaged in unusually heavy absenteeism, i.e., about 1,300 hours in 5 years. 5. Hetrick threatened physical violence to employees and to Supervisor Starcher. 6. Hetrick twice engaged in fights with Starcher, in one of which Hetrick drew a knife. 7. Hetrick often failed to perform work tasks on time so that Vice President Miller often had to check on him. 8. He made articles for himself at the plant on company time. 9. He negligently repaired some machinery , thereby causing damage to it; and he also damaged some gears as well in repairing them. 10. He often left empty cartons and debris on stairs or in hallways or aisles, thereby creating hazards of stumbling or tripping thereon and imperiling the safety of others. 11. He idled away his time talking to and annoying the girls in the office, and also neglected his cleaning duties in the office so that trash often overflowed onto the floor. 12. He often boasted that he could not be laid off except by a lump sum payment to him of $50,000, because he had suffered a disability arising from an injury on the job. 13. He smoked in prohibited areas. 14. He inexcusably delayed the April 1962 inventory by postponing the weighing of grummets for an inordinate length of time. 15. His work was inadequate, especially in the packing of torsos. This was so notwithstanding specific written instructions to him on April 4 to heed orders of Supervisor Baker concerning such packing. 16. He failed to remove some steel shafts which had been delivered and left in a hallway by the delivery truck. Some of this evidence was controverted and some, such as the fights with Starcher, was admitted but sought to be explained by the General Counsel. It is not necessary to resolve the differences between the parties, for I am of the opinion that the merits of Hetrick's derelictions or departures from Respondent's standards are not before me. The question is not whether Respondent was justified in discharging Hetrick for misconduct; the real issue is whether Hetrick was discharged for misconduct as the 7 After many oral orders by Miller, Hetrick was given a written command by Miller's memorandum dated April 4, 1962, as noted above. BARBERTON PLASTICS PRODUCTS, INC. 179 employer saw it, or for engaging in protected activity. N.L.R.B. v. C. & I. Camp, Inc. et al. d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113 (C.A. 5). Hence, for the purposes of this case I have assumed that adequate cause existed for Hetrick's discharge, and proceed to ascertain whether it or Hetrick's union activity was the actual cause which prompted Respondent to terminate Hetrick's employment. Concluding Findings as to the Discharge of Hetrick In my opinion, Paul Hetrick was discharged because he was a member of and actively supported, aided, and assisted the Union and not because he was an unde- sirable employee. I so find. While this conclusion is based upon the entire record, the ensuing factors enumerated below contribute substantially toward sustaining this conclusion: 1. Respondent had a union animus as displayed in (a) interrogation of employees as to their union activities or affiliation by Vice President Miller and Supervisors Starcher and Baker, and Starcher's request that employees report to him any union activity, (b) Bruce Miller's statement that he would close down the plant before he would allow a union to come into the plant, (c) Francis Miller's statement that he would not let a union boss him when he had only recently invested a large sum in the plant, and (d) Bruce Miller's statement that the employees did not need a union. This result is not weakened by the fact, which I find, that Bruce Miller accompanied some of his statements with assurances that the employees were free to have a union, since these assurances were made in an atmosphere of pronounced union hostility and a context of possible recrimination should a union be selected. Cf. Savoy Leather Mfg. Corp., 139 NLRB 425. 2. Bruce Miller warned Hetrick that if the plant became organized Hetrick would be one of the first to be fired. 3. Hetrick received wage increases, the last occurring in February 1962, approxi- mately 2 months before his discharge. While it is true that Respondent's testimony discloses that the last raise was given to encourage Hetrick to reform his ways as well as to protect an "investment" in him, these alleged reasons cannot be reconciled with other testimony adduced by Respondent. This other evidence reveals that Hetrick was not only an insubordinate employee, but also a negligent one who railed to carry out his duties and disregarded safety practices, time and again after he was warned and even given one reprieve. Moreover, there is no evidence of any "invest- ment" in Hetrick. Hence I conclude and find that the raises in pay may be taken into consideration in ascertaining the motivating cause for his discharge. 4. Hetrick was discharged almost immediately after Respondent learned that he was the prime mover of the Union at the plant, although cause existed for his dis- charge for several months prior to the acquisition of such knowledge. Cf. New French Benzol Cleaners and Laundry, Inc, 139 NLRB 1176. Although the record shows adequate cause for the discharge of Hetrick for at least 6 months prior to April 30, 1962, nothing was done about it until after April 7, 1962, when the union meeting was held and Hetrick actively espoused unionism among the employees. While it is true that Respondent's evidence shows that Bruce Miller and Francis Miller on April 1, 1962, had discussed Hetrick's failure as an employee and agreed that Bruce could fire Hetrick, yet it also is patent that Bruce did not do so notwith- standing that Hetrick had been so remiss in his duties thereafter that Bruce canceled Bruce's determination to have Hetrick work during the week of April 20, 1962, when the plant was shut down. Manifestly, if between April 1 and 20, Hetrick had con- tinued to lag in his performance of work, it is reasonable to expect that he would have been discharged in view of the discussion by the Millers on April 1. Yet the only discipline enforced was the rescission of a direction to work during a week (April 20 to 27, 1962), when the plant was not operating. 5. Inconsistencies in the evidence adduced by Respondent through Bruce Miller support the fact, which I find, that Hetrick was discharged for union activity and that Hetrick's misconduct, which I also find existed, was not the motivating cause but was used to cloak the real reason for such discharge. Bruce testified that he explained to Starcher and Baker on April 27, 1962, that he was firing Hetrick and that Hetrick was not coming back because of the pump clean- 8 The existence of lawful grounds for discharge does not destroy this conclusion, for the discriminatory motive need not be the only reason It is sufficient that union activity be a substantial or motivating reason, and I so find. N.L R B. v. Whitin Machine Works, 204 F 2d 883 (CA. 1) ; N.L.R.B. v. C. & J. Camp, Inc., et al. d/b/a Kibler-Camp Phos- phate Enterprises, supra. 708-006-64-vol. 141-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing incident which was discovered earlier the same day. But he contradicted him- self when he testified that he had not decided what to do about Hetrick until April 28 or 29, when he talked to President Francis Miller, and that then it was agreed be- tween them to discharge Hetrick only after a long discussion .9 Finally, Bruce again contradicted himself when he testified that he decided to fire Hetrick on April 30, 1962, and then only because Hetrick blew his top at the time in his presence. 6. On May 1, when Hetrick telephoned Francis Miller on a personal matter, Miller volunteered to help Hetrick in obtaining another job. In addition Hetrick was paid $180 for vacation pay after his discharge. 7. In a few instances some of Hetrick's derelictions were mentioned for the first time at the hearing, and appear not to have been considered at the time of his dis- charge. Only a few need be mentioned, such as Hetrick (a) improperly cleaned the offices and also idled away time talking to the office clericals, (b) failed to submit timely "maintenance schedule and performance" sheets, (c) told an employee in the office that he was going to stop deliveries to the plant, (d) failed to obtain proper initialing on his timecards when they were inaccurate, (e) threatened physical harm to some employees, (f) told some employees that he could not be discharged without a lump sum payment to him of $50,000 because he was injured on the job, (g) delayed the April 1962 inventory by failing to weigh some materials, and (h) caused one employee to threaten to quit because Hetrick was obnoxious to her. Respondent has stressed that Hetrick's testimony is unreliable because (1) he lied to Bruce Miller when he denied activity on behalf of the Union and sought to throw suspicion on employee Ulichney for advocating the Union, and (2) he sub- mitted an employment application form studded with false information. In assess- ing Hetrick's credibility I have not overlooked these contentions, and I have taken them into consideration. Nevertheless I have credited Hetrick in large part. It is also desirable to point out that, with respect to the denial of union activity, some justification exists in the record for an employee to refuse to readily concede to supervisors when asked whether he or she favored the union movement. Thus employee witnesses for both the General Counsel and Respondent testified that, when interrogated by supervisors, they were afraid to admit being solicited by the Union lest they be discharged. Such fear was generated by a rumor, whether well founded or not, that an employee who evinced an interest in or sympathy for the Union or who was even approached by the Union would lose his job. In fact, in a conversa- tion with Bruce Miller, when Miller told Hetrick to get a union, Hetrick replied, "Just like I have been told before, if anyone tries to get one they would get fired." Finally, employee Ainscough, a witness for the Respondent, testified that when she received a union application card from Hetrick, she intentionally misinformed him that she had signed and mailed hers to the Union, contrary to fact. Thus it is manifest that employees, including Hetrick, did not hesitate to deny to supervisors or even to fellow employees that they desired a union, and therefore little weight can be given to such denials since they were not made under oath. The incorrect information on Hetrick's employment application blank is relevant in evaluating his credibility. Nevertheless I have not given this much weight. I am of the opinion that as an applicant for employment Hetrick may well have exag- gerated his past experience to induce his selection. But I find that the unsworn misstatements on the application do not detract from Hetrick's sworn testimony.10 B. Interrogation of employees As found above, Vice President Miller and Supervisors Baker 11 and Starcher inter- rogated employees as there more fully described. This is coercive. It is no defense that the questions were asked in an effort to prove that Hetrick lied about his union activity and because Hetrick had denied talking union to Ulichney. If it was Respondent's intention to establish that Hetrick called Ulichney at the latter's home in a vexatious or annoying manner, it was sufficient to prove that the call was made and that it upset Ulichney. But for management to insist upon proving that the call 9It is not clear why Bruce had to discuss the matter again with Francis at this time, since Francis on April 1, 1962, told Bruce that Bruce had the permission of Francis to discharge Hetrick without further discussion. 10 In fact, Respondent did not bother to check with Hetrick's prior employers, although it was customary to do so with respect to new employees, and did not even detect that the year of the application's execution was incorrectly stated to be 1956 instead of 1957 This latter was first brought out at the hearing when the erroneous date was first noticed 11 Baker also asked Starcher if his men had been approached by a union, but since Starcher is a supervisor this question is not found to violate the Act. BARBERTON PLASTICS PRODUCTS, INC. 181 related to unionism was not necessary; even if necessary, certainly it went beyond legitimate inquiry to ask all other employees if they had been approached by a union and to report this fact 12 when it occurred. And if it was necessary to show that Hetrick engaged in union activity on company time, it is sufficient to observe that neither has a rule against the same been shown in the record nor has Respondent contended that the activity on company time entered into the reasons for his discharge. It follows, and I find, that such interrogation constitutes interference, restraint, and coercion of employees as those terms are used in Section 8 (a)( 1 ) of the Act. Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399. C. Threats of reprisals As found above, Bruce Miller remarked that he would close the plant if the Union came in, Francis Miller also uttered a statement substantially similar, and Bruce Miller also said that Hetrick would be fired if the Union came in. These utterances were made to employees; hence I find that they contain the ingredients of inter- ference, restraint, and coercion. Accordingly, I find that this conduct contravenes Section 8(a)(1) of the Act. While the complaint does not expressly include this specific conduct in the list of activities alleged to violate Section 8(a)(1), it was nevertheless fully litigated at the hearing. Hence I am of the opinion, and find, that I do not lack the power to make findings with respect thereto. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent found to be illegal as set forth in section III, above, occurring in connection with the operations of the Respondent as set forth in section I, above, 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 obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent engaged in specified unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effecutate the policies of the Act. In view of the findings that Respondent discriminated with respect to the tenure of Hetrick's employment, the Recommended Order will require Respondent to offer him imme- diate and full reinstatement to his former position or one substantially equivalent thereto, without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of earnings suffered by his discriminatory discharge by paying to him a sum of money for such loss. Said sum shall be equal to such earnings as he would have earned as wages from the date of his discharge to the date of reinstatement, or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Computation thereof shall be calculated in accordance with F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and, upon request, make available to the Board or its agents, all pertinent records and data necessary to assist in an analysis and determination of the amount of backpay due. Since Respondent's discharge of Hetrick goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4)), it will be recommended that the remedy be coextensive with the legislative design as promulgated in Section 7 of the Act. Hence a broad order is warranted. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the definition thereof in Section 2(5) of the Act. 2. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By coercively interrogating its employees concerning their union sympathies, activities, and desires, and by threatening employees with closing of the plant and with discharge if the Union organized the plant, Respondent has engaged in unfair labor practices as defined in Section 8 (a) (1) of the Act. 'a Only Starcher asked employees to notify him as soon as they were solicited on behalf of a union. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By discriminating in regard to the tenure of employment of Hetrick, thereby discouraging membership in a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Barberton Plastics Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning their union sympathies, activi- ties, or desires. (c) Threatening to close the plant or to discharge employees if the Union or any other labor organization organized the plant. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, designed to effectuate the policies of the Act: (a) Offer Paul Hetrick immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss or pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant at Barberton, Ohio, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director of the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighth Region, in writing, within 20 days from the receipt of this Intermediate Report, or, in the event this Recommended Order is adopted by the Board, within 10 days from the date of the Board's Order, what steps the Respondent has taken to comply herewith. It is further recommended that unless the Respondent shall within the prescribed period notify the said Regional Director that it will comply, the Board issue an order requiring Respondent to take the action aforesaid. 18 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in International Chemical Workers, AFL-CIO, or in any other labor organization , by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of their employment. WE WILL NOT coercively interrogate employees concerning their union sym- pathies, activities , or desires. WE WILL NOT threaten to close the plant or to discharge employees if the above-named Union, or any other labor organization , organized the plant. AUSTIN POWDER COMPANY 183 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer Paul Hetrick full and immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay, plus interest, suffered by reason of the discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining members of International Chemical Workers, AFL-CIO, or any other labor organization. BARBERTON PLASTICS PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue , Cleveland 15, Ohio, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Austin Powder Company and Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 9-CA-2598. March 7, 1963 DECISION AND ORDER On October 31, 1962, Trial Examiner Sidney Sherman issued his Intermediate 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 attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 Intermedi- ate Report and the entire record in the case, including the exceptions and brief, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations with the following additions and modifications. 1. We find, in agreement with the Trial Examiner, that by the following conduct the Respondent violated Section 8(a) (1) of the Act: (1) On March 27, 1962,' the Respondent's supervisors solicited 1 Unless otherwise specified all dates are In 1962. 141 NLRB No. 20.