Crown Cork & Seal Co., Inc.

CROWN CORK & SEAL COMPANY Crown Cork & Seal Company, Inc. and United Steelwork- ers of America , AFL-CIO and Sheet Metal Workers International Association , AFL-CIO, Local 243, Party to the Contract . Case 38-CA-700 May 22, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On October 31, 1969, Trial Examiner John F. Funke ,issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent, the Party to the Contract, and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs; the Charging Party filed an answering brief and cross-exceptions and a brief in support thereof; and the Respondent filed an answering brief to the cross-exceptions of the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions 2 and ' The following inadvertent errors, none of which affect our ultimate findings herein, are hereby corrected (1) the date April 27, (fifth par of sec. III, A,2) is corrected to read April II; (2) the Trial Examiner stated (eighth par sec III , A,2) that the collective-bargaining agreement between the Respondent and the Steelworkers (G. C Exh 3,A) covered employees at the Respondent 's Chicago plaint, whereas the exhibit indi- cates that it covers all employees at the plants listed in Appendix A thereto; (3) the Trial Examiner stated (seventh par. of sec. III, A,3) 13 employees would be required for the twin beverage line whereas the record shows the twin beverage line would require eight employees and P.ve support employees on the first shift (fewer support employees are necessary on the second shift), (4 ) the Trial Examiner stated (ninth par of sec III, A ,3) there were 31 employees at the time of the hearing whereas the record reveals there were 26; (5) the Trial Examiner stated (third par. of sec III, A,5) that Loyd met with the Steelworkers about I week after his employment whereas the record reveals Loyd met with them about I month after his date of employment, (6) in fn 7 the Trial Examiner obviously meant to refer to the 8(a)(2) aspect of the complaint, (7) the Trial Examiner stated (fifth par. of sec III, A,5) that Bishop told Loyd he was being "terminated for unsatisfacto- ry performance" whereas Bishop testified he told Loyd "he didn't think he would fit into our plans" and Loyd testified Bishop told him "he was not suitable'`for the work", (8) the date February 7, (second par of sec III, B,l) is corrected to read February 27, and (9) the Trial Examiner stated,(sixth par of sec III, B,l), "Representation was granted at a time when all the employees had been employed for less than a 2-week period" whereas the record reveals and the Trial Examiner indicates that McCorkel was hired on January 6, more than 2 months before recognition Y In the circumstances of this case we agree with the Trial Examiner's finding that Respondent 's recognition of the Sheet Metal Workers on March 10 was violative of the Act and that an examination of the 657 recommendations of the Trial Examiner as modified herein. THE REMEDY The General Counsel and the Charging Party except to the Trial Examiner's conclusion that reimbursement of dues and fees to the employees is not warranted in this case, and to his failure to order such reimburse- ment, contending that the remedy, should include reim- bursement of dues and initiation fees collected by Respondent in reliance on the contract. We agree. How- ever, we do not agree with the General Counsel's further contention that such reimbursement should apply to all employees who signed up with the Sheet Metal Workers subsequent to March 10, 1969, the date of unlawful recognition; rather, we are of the opinion that only those employees who signed up with the assisted union after the collective-bargaining agreement was exe- cuted-on April 11, 1969, and pursuant to the union- security clause included therein are entitled to reimburse- ment (See Lianco Container Corporation, 173 NLRB No. 219).3 For any dues, initiation fees, and other moneys paid to the Sheet Metal Workers subsequent to April 11, 1969, pursuant to the union-security clause executed on that date were deducted and paid under coercion and a reimbursement order is necessary to remedy the unfair labor practices and to establish an atmosphere wherein employees may voluntarily select or reject a bargaining representative as provided by the Act. Reim- bursement will not be ordered, however, for those employees who voluntarily joined the Sheet Metal Work- ers prior to April . 11, 1969, the date upon which the union-security clause was executed. It will, therefore, be ordered that Respondent reimburse all present and former employees, except those excluded above, for all dues, initiation fees, and other moneys exacted from them pursuant to the provisions of the union-security clause or pursuant to any union checkoff authorization Respondent 's motives was not necessary in reaching this determination However, to the extent that the Trial Examiner's statement in fn 11 to his Decision may be read to imply that in no case involving unlawful assistance and in no circumstance would evidence of the employer's motivation be relevant , we 'do not adopt such statement. 9 The Trial Examiner held that bad faith was not an issue with respect to premature recognition and that in fact it was irrelevant. He then stated , however, that bad faith must be considered in fashioning a remedy and found Respondent did not act in bad faith Since the Trial Examiner had excluded practically all evidence offered with respect to motive, we are unable to discern the grounds for his finding of lack of bad faith . In any event we find it unnecessary to consider the question of Respondent's good or bad faith herein, since we consider that the employees who joined the union pursuant to the union -security clause were coerced , Sinko Manufacturing and Tool Company, 154 NLRB 1474, 1476-77, enfd in part and revd in part on the facts 369 F 2d 229 (C A 7). Cf. Local 60, United Brotherhood of Carpenters and Joiners of America , fAFL-CIO, et al v N L R.B., 365 U S. 651, 654-655 Intalco Aluminum Corporation v N L.R.B., 417 F 2d 36, 43 (C.A 9), cited by the Trial Examiner , was said by the court to be "Admittedly a close case ." In any event the present case is distinguishable in that here reimbursement is to be made to those who made payments only because of the requirement of the collective- bargaining agreement, a limitation which the Court noted was not con- tained in the Board 's remedy in that case 182 NLRB No. 96 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards executed by them prior to the date of compliance with this Order " ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner , as modified herein , and hereby orders that Respondent , Crown Cork & Seal Company, Inc , Bradley , Illinois, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order , as so modified I Add the following as paragraph 2(b) and reletter the following paragraphs accordingly "(b) Reimburse , all present and former employees at the plant , except those employees who signed up for the Sheet Metal Workers prior to the execution of the union-security clause on April 11, 1969, for all initiation fees, dues, and other moneys , if any, paid by or withheld from them pursuant to the terms of the union-security agreement executed on April 11, 1969, or pursuant to any checkoff authorizations executed prior to the date of compliance with this Order, in the manner provided in The Remedy section of this Decision " 2 Add the following as the fourth indented paragraph of the Appendix WE WILL reimburse , all present and former employees of our plant , except those employees who signed up for the Sheet Metal Workers prior to the execution of the union-security clause on April 11, 1969, for any dues , initiation fees, and other moneys paid by the employees directly to the above-named Union or withheld by us from their wages pursuant to the union checkoff authori- zations signed by them prior to the date of our compliance with this Order , plus interest at 6 per- cent per annum " Reimbursement shall include interest on the moneys due to be computed in the manner set forth in Seafarers International Union of North America Great Lakes District AFL-CIO 138 NLRB 1142 fn 3 TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE JOHN F FUN KE, Trial Examiner Upon a charge and an amended charge filed June 26 and 30, 1969, respectively , by United Steelworkers of America, AFL-CIO, herein the Steelworkers , against Crown Cork & Seal Company , Inc herein the Respondent, and notice of said charge to the Sheet Metal Workers International Association , AFL-CIO, Local 243 , herein Local 243, the General Counsel issued complaint dated July 31 1969, alleging Respondent violated Section 8(a)(1)(2) and (3) of the Act Answers were filed by Respondent and Local 243 denying the material allegations of the complaint This proceeding , with the General Counsel, the Respondent, and the Steelworkers represented, was heard by me at Kankakee , Illinois, on August 26 and 27, 1969 At the conclusion of the hearing the parties were granted leave to file briefs and briefs were received on October 22 Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent is a corporation maintaining a plant at Bradley , Illinois, where it is engaged in the manufacture of containers and aerosol cans Respondent has, during the past 12 months, shipped and sold products from its Bradley plant valued in excess of $50,000 to points outside the State of Illinois and has received materials valued in excess of $50 ,000 from places outside the State of Illinois The Bradley plant is the only plant involved in this proceeding Respondent is engaged in comerce within the meaning of the Act II LABOR ORGANIZATIONS INVOLVED The Steelworkers and Local 243 are labor organiza- tions within the meaning of the Act III THE UNFAIR LABOR PRACTICES A The Facts I Background Respondent operates some 24 plants throughout the country where it has bargaining relationships with various labor organizations Sometime during the spring of 1968 Respondent determined to open a plant in the Kankakee area and in late 1968 a plant previously owned by Sears, Roebuck and Co , was purchased The prime purpose of the plant , according to Robert Thoma, director of production and planning , was to get a beer and beverage line in production in the midwest and also to establish an aerosol line for the production of aerosol 12-ounce cans for Colgate-Palmolive-Peet I Production was estimated at 300 ,000 cans daily The beer line, known as a twin beverage line, and the aerosol line were the original production lines A third line, an aerosol line, was contemplated and it was also contem- plated , according to Thoma, that the plant would operate on a two-shift basis William Bishop was named plant manager at Bradley in December 1968 Bishop was assisted in opening the plant and hiring its first employees by Scorton Anderson, assistant director of industrial relations of the Philadel- ' Thoma operated out of Philadelphia and was in charge of production and planning for Respondent s nationwide operations CROWN CORK & SEAL COMPANY phia office The first employee hired was George McCork- el, hired January 6, 1969 , as a shipping and receiving clerk According to Bishop , however , McCorkel general- ly performed the services of a caretaker until the plant went into operation 2 The contract with Local 243 On February 27, the first four production employees were hired at Bradley On March 3, three more were hired and on March 4 and 5, two more were hired (G C Exh 2-B) Thus on March 10, 10 employees including McCorkel, were on Respondent's payroll On March 3, Local 243 wrote Harold Abrams , director of industrial relations for Respondent , a letter demanding recognition for the Bradley plant (G C Exh 2-C ) This letter reads March 3, 1969 Mr Harold Abrams Director of Industrial Relations Crown Cork & Seal Company, Inc 9300 Ashton Road Philadelphia, Pa 19136 Dear Sir A majority of your employees at your Kankakee, Illinois, plant have designated the Sheet Metal Workers' International Association , AFL-CIO, Local 243 as their collective bargaining representa- tive On their behalf , the Sheet Metal Workers' International Association demands recognition as sole and exclusive collective bargaining representa- tive of all warehouse, maintenance , and production employees , excluding supervisors , guards, office clerical employees , and technical and professional employees , if any Bargaining conferences to negoti- ate an agreement covering wages , hours of work and other relevant terms and conditions of employ- ment are requested as soon as possible, but in any event , not later than two weeks from this date Sheet Metal Workers ' International Association, Local 243 is prepared to prove its claim of majority status by submitting to a neutral individual or group of neutral individuals authorization cards signed by a substantial majority of your warehouse, main- tenance , and production employees designating Local 243 as their collective bargaining representa- tive Each signature on one of our authorization cards can be compared with the same employee's signature on the Company 's record We recommend (but do not insist upon) a clergyman or group of clergymen for this function Would you please advise immediately as to your position Very truly yours, On March 4, Respondent replied in a letter (G C Exh 2-D) stating March 4, 1969 Sheet Metal Workers ' International Association Region No 2 5151 N Harlem Avenue Chicago , Illinois 60631 Attn Mr Raymond Messer 659 Dear Mr Messer In reply to your letter of March 3 , 1969 relative to our Kankakee , Illinois operations , be advised that we would be willing to have the authorization cards you allege to possess inspected for verifica- tion Understand that this is not to say we are willing to recognize your organization as the bargaining representative for our employees This decision will be made at a later date and then only in the event that bona fide evidence exists that estab- lishes the Sheet Metal Workers ' International Asso- ciation do in fact represent our employees as you claim My present plans and schedule are such that I will be visiting the Kankakee operations on Tues- day, March 11, 1969 If you can arrange to be there the same date, I will be happy to discuss this matter at that time Very truly yours, CROWN CORK & SEAL COMPANY, INC S E Anderson Asst Director Industrial Relations SEA/kch Anderson arrived in Bradley on March 10, rather than March 11 and met with Norman Sippel, business agent of Local 243 According to Anderson , Sippel showed him seven authorization cards signed by employ- ees then on the payroll designating Local 243 as their bargaining agent Anderson then called the employees into his office and told them Local 243 had demanded recognition , that he had counted the cards and found they had a majority He then told them he would be in the office for the rest of the day and they could come and talk to him He received no objection from any employee On that same day Anderson signed a recognition agreement with Local 243 (G C Exh 2-E) On April 27 , Respondent and Local 243 signed a collective-bargaining agreement (G C Exh 2-A) running through February 29, 1972 The recognition clause reads 1 0 The Company recognizes the Union as the sole collective bargaining agent for hours, wages and other conditions of employment for all produc- tion and maintenance workers engaged in jobs only with respect to its Plant at Bradley , Illinois (Plant #24), excluding all office employees , professional employees, plant clerical employees , supervisors and other employees as defined in the Act as amend- ed 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article II-Union Membership Requirements, pro- vides: 2.1 All employees covered by this Agreement shall be required, as a condition of employment, to become and remain members of the Union in good standing during the term of this Agreement. All employees shall make application for membership in the Union within thirty (30) days following the date of this Agreement, or the beginning of their employment, whichever is later. Upon the hiring of a production or maintenance employee the Com- pany shall notify the Union, in writing, of the employee's name, clock number, address, job clas- sification and hourly rate. All employees of the Company on the date of signing of this Agreement and who make application for membership in the Union within thirty (30) days following the date of this Agreement will not be required to pay an initiation fee. Article III-Checkoff, provides: 3.1 The Company shall check off the first (1st) pay of each month the Union dues for the current month, and initiation fees, not to exceed Twenty- five ($25.00) Dollars, ^ for every member who has signed proper authorization cards. The Company shall remit these Union dues and initiation fees to the Financial Secretary of the Union. The Finan- cial Secretary will notify the Company in writing as to the amount of autho*ized initiation fees and dues. At the time Local 243 was recognized as collective- bargaining agent for the employees at Bradley and at the time the contract was signed there was in effec't a collective-bargaining agreement between the Steel- workers and Respondent covering employees at Respondent's Chicago plant. (G: C."Exh. 3-2A.) This' contract contained the following clause in article I, section 2, Bargaining Unit Covered By This Agreement: The bargaining unit includes employees occupying jobs in the bargaining units set forth in Appendix A of this Agreement and the employees of any plant of the Company at which metal cans, crowns or closures are manufactured for whom the Union may during the life of this,agreement be certified or recognized; and all such employees are referred to whenever the term "employee" is -used in this Agreement.. The General Counsel does not contend that the employees at Bradley were covered by the terms of this agreement under the "accretion" theory. On June 24, the Steelworkers demanded recognition as collective-bargaining agent for the Bradley employees by letter (G. C. Exh. 3-F) and the demand was refused by letter from Respondent date June` 30. (G. C. Exh. 3-G.) The ground 'for refusal -was that the Bradley employees were already covered by the contract with Local 243. 3. The employment situation at Bradley A great deal of testimony was taken concerning the duties of the 10 employees employed on March 10 when recognition was granted Local 243. The testimony will be summarized as briefly as possible. The status and job classifications of the employees on Respondent's payroll on March 10 are shown on General Counsel's Exhibit 2-B as follows: General Counsel's Exhibit 2-B Cloca Seniority Job No. Name Date Classification Group Rate I , George McCorkel 1/6/69 Shipping & Rec Clerk 3 3 10 4/7169 Shipping & Rec Clerk 3 3 30 2 Fred Rivard 2/27/69 Production Worker 2 2 85 4/7/69 Production Worker 2 3 00 7/21/69 Quality Control Tech 3 3 30 3 Wayne Piekarczyk 2/27/69 Production Worker 2 2 85 4/7/69 Industrial Truck Oper 3 3 30 4 Donald Regmer 2/27/69 Production Worker 2 2 85 4/7/69 Production Worker' 2 3-110 7/14/69 Pallatiser Operator 3 3 30 5 Kent Chappell 2/27/69 Production Worker 2 2.85 4/7/69 Quality Control Oper 3 3 30 6. Floren Greenley 3/3/69 Mechanical Trainee, Pro- gression 4 3 15 417/69 Slitter Feeder B/M Seamer Feeder 3 3 30 4/22/69 Seamer Feeder 3 3 30 7 Harold Davis 3/3/69 Mechanical Trainee, Pro- gression 4 3 15 3/14/69 Mechanical Trainee, Pro- gression 4 3 15 8 Alex Boyd 3/3/69 General Maintainer, Pro- gression 6 3 65 4/7/69 General Maintainer, Pro- gression 6 390 9 William Williams ' 3/4/69 Mechanical Trainee, Pro- gression 4 3 15 4/7/69 Slitter Bodymaker Main- ', tamer, Prog 6 340 10 Ronald Kohan 3/5/69 General Maintainer, Prog 6 3 95 There is testimony as to what work these employees actually performed from the time of their hire until recognition was granted Local 243 on March 10. Two employee witnesses testified as to their duties during this period. McCorkel, hired January 6 as shipping and receiving clerk, testified that during January and February he did sweeping, painting and general mainte- nance and that during March and April he performed essentially the same services since there was not too much shipping and receiving. During this period some of the employees whom he designated as engineers were receiving and installing some machinery .2 Testimo- ny by McCorkel as to conversations with supervisors which took place during a period immediately prior to the hearing as to future possible expansions of person- nel have been disregarded as irrelevant and speculative. Donald Regnier, employed on February 27, testified that he did general maintenance work during the week or two after he was hired, including helping with the 2 On cross-examination McCorkel testified that in early March the employees hired to operate the plant machinery were learning to operate the machines and were working on machines and that at times they would be sweeping. CROWN CORK & SEAL COMPANY slitter, helping to set rails for the spray machine, and sweeping floors. He eventually became a palletizes opera- tor. Director of Production and Planning Robert Thoma testified that during the month of March the employees were adjusting the equipment and learning how to operate the machinery. The conveyor system was not complete at this time and a can could not be run through the line. Thoma testified as to the expected production at the Bradley plant both as to the beer line and the aerosol line. The beverage line would be a twin line and the aerosol line a single line. The beverage line would require 8 employees (13 for the twin operation) and the aerosol line 5.3 Three to four employees would be required as backup on the beverage line. The machinery for the beverage lines was installed at the end of February and went into production at the beginning of April. This production was in the nature of a testing operation and only obsolete materials were used,On May 2 the line was put into operation for production for customers. The aerosol line was not in production-at the time of the, hearing but was expected to be in production at the end of 2 weeks. While it was anticipated that the beverage line would operate on a double shift during the summer this anticipation was not realized and the double shift projection was then abandoned since the beverage line was to a certain extent seasonal. (More beer is sold during the summer than during the winter.) Thoma did testify that it was hoped that the company could maintain two beverage shifts in, the summer, reduced to one in the winter, and two aerosol lines in the winter, reduced to one in the summer.4 All of this testimony was prospective. Respondent's production figures show that on May 2, 14,400 cans were produced and that on no date up to and including August 19 were 300,000 cans prod- uced. (G. C. Exh. 2-H.) Shipments to customers com- menced on May 22. (G. C. Exh. 2-I.) On May 2, according to General Counsel's 2-B, 15 employees were working production and maintenance.-' On July 28, the concluding date of General Counsel's 2-B, 31 employees had been employed but the exhibit shows that 5 of these had been terminated. At the time of the hearing 31 employees were working. 4. The organization of the plant Regnier initiated the organization of the employees on behalf of Local 243. He had heard about the job at Bradley from his father, a sheet metal man, made application, and was accepted. Norman Sippel, business agent for Local 243, gave his (Regnier's) father some ' Resp Exh 3, a chart of plant operations shows that seven employees would be employed on the aerosol line The chart does not include backup employees or maintenance employees ' Thoma, both a knowledgeable and credible witness, testified at some length as to the work to be performed by each of the employees on the lines and also as to that of the backup men I do not find that any purpose would be served by repeating that testimony I accept it as factual s General Counsel's 2-B reveals that 2 of these 15 were subsequently terminated but does not reveal the dates 661 authorization cards which Regnier distributed in the plant, returning the signed cards to his father for delivery to Sippel." The first day he worked he obtained four signed cards. (Regnier must have been including his own card since on February 27 only four employees, apart from McCorkel, were employed including Regnier.) This is the only testimony in the record concerning the organization of the employees. Sippel testified, correcting his original testimony, that on March 1 he had cards from the employees who had been hired prior to that date (four) and called Messer to ask him to demand recognition from Respond- ent. The letter of Local 243 to Respondent on March 3, a Monday, was therefore based on the four cards in the possession of Sippel on March 1. There is no evidence as to how or by whom cards were obtained from three other employees prior to March 10. The General Counsel does not, however, contend that Local 243 did not have seven authorization cards from employ- ees on March 10. 5. The discharge of Dennis Loyd Dennis Loyd was employed by Respondent as a slitter feeder on May 19 and later became a quality control technician, the classification he carried from the start of his employment. (G. C. Exh. 2-B.) He testified that about I week after his employment he met with Bob Christensen, Joe Poechervina, and Ben Coren, all repre- sentatives of the Steelworkers, at the Holiday Inn. He was told that if the employees chose they could probably have an election at the Bradley plant and that ,the Steelworkers might win over Local 243. Loyd went back to the plant and spoke to the employees (about, 18 at that time) about his discussion and invited 6 or 7 to a Steelworkers meeting the following Monday, Junet23. On Monday he,received a telephone call from Fred Rivard, steward for Local 243, who asked him if he had ' heard there was to be a meeting and if he was going to attend. Loyd denied knowing of the meeting, but his denial was based on the fact that Rivard referred to a meeting at the Tri-K Restaurant and Loyd knew of no meeting there. The next day at breaktime he spoke to Rivard about the Steelworkers and was warned by Rivard that he might be fired if he tried to get another union in.7 About 3 p.m. that day Loyd was called to Bishop's office by the plant superintendent. Bishop, after locking the door, told Loyd he was not suitable for the work and that he was being laid off. Loyd then accused Bishop of firing him because he was trying to get the Steelworkers in the plant. Bishop told Loyd he did not know what he was talking about and Loyd got his check and left. Bishop testified that Norman Sippel, representative of Local 553, on a routine visit to the shop (the date was not fixed) asked him if he knew that he had "a " Except for the card of Dennis Loyd, no cards were received in evidence although the General Counsel stated he had them in his possession ' This testimony was admitted solely to support the 8(a)(1) aspect of the complaint 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man out there is talking Steelworkers Union." Sippel informed him it was Loyd and after Sippel left Bishop decided to look` at Loyd's personnel 'file which, so he stated, he had never seen. The file (Resp. Exh. 2) showed that,Loyd had been fired from his last job at Kankakee' Steel' and Bishop then decided to call Kankakee to determine the reason. He talked to Loyd's foreman, Earl Wilson, who told him Loyd had been fired for striking a foreman, but that "they" had to take him back; that later Loyd had organized a wildcat strike and was terminated for that; and that case was still pending before the Board (presumably of arbitra- tion)." Bishop then decided that he had a problem and called Abrams in Philadelphia and told the situation , 'includin'g the fact that Loyd had been, talking' Steelworkers in the plant. Abrams told him that did not make any difference, to fire him anyway." Bishop then called in Loyd and told him he,was terminated-for unsatisfactory performance and without discussion of Loyd's record at Kankakee Steel. Loyd, according to Bishop, accused him of firing him because of his activity on behalf of the Steelworkers and threatened to go to the Labor Board. B. Conclusion's 1. Violations of Section 8(a)(1), (2), and (3) The sole issue presented by Respondent's recognition of Local 243, on March 10 is, as I see it, whether Respondent had a representative number of employees working at that time and whether the plant was engaged in normal production. (Normal production does not -mean, of course, that the plant had achieved'full capacity 'production.) I The facts on which decision rest are not seriously in dispute. ' 1. -The, first four production employees were hired on February 7 and on either that or the preceding day signed cards designating Local 243 as their bargaining agent."' Five more production employees were hired before March 10 of whom three signed cards. '2. Local 243 demanded recognition of Respondent on March 3, a date on which only four employees had signed cards. 3. Recognition was granted on March 10 but it appears that this delay was due in part to the fact that Assistant Director of Industrial Relations Anderson did not arrive at Bradley until that date. There the cards were checked and recognition granted. 4. At this time the plant was not in production and the conveyor lines were not operating. 5. Test runs were not made until April and the first regular production run was made on May 2. At this time 1,5 employees were working and at the time of " Loyd was employed by Kankakee Steel at the time of the hearing " This telephone conversation was corroborated by Abrams They were apparently hired on February 26 and went to work on February 27 the hearing 31 were employed. The aerosol line was not operating at the time of the hearing. 6. Thoma's projection was that under normal opera- tions two shifts would be operating on the beer line in the summer and two on the aerosol line in the winter. A second 8-ounce aerosol line had been contemplated but had not been set up at the time of the hearing. Testimony indicated this line might be shifted to another plant. The definitive analysis on the issue of premature recognition (as all parties seem to recognize) is Trial Examiner Benjamin A. Theeman's decision in Lianco Container Corporation, adopted by the Board without comment, 173 NLRB No. 219. It should first be, noted that apart from its contract bar rule set forth in General Extrusion Company, Inc., 121 NLRB 1165, which the parties agree is not binding in an unfair labor practice case, the Board has established no mathematical formula nor any per selrule for resolving the issue. The equities which must be balanced are the right of employees to bargaining representation without undue delay and the right of employees to have their representa- tive selected by a normal and functioning complement within the prospective unit. ' Applying these principles I find Respondent recognized Local 243 at a time when neither a representative comple- ment of employees was employed nor were the employ- ees engaged in the normal operations . Representation was granted at a time when all of the employees had been employed for less than a 2-week period. None, since the line was not yet operating, had been performing at the job assignments' which they would be expected to fill. The most that could be said 'was that they were in training for such jobs but, since there was no line in operation, such training must have been at the minimal level. Admittedly a substantial portion of their time during this period was spent in maintenance work, includ- ing the installing of machinery as it was received. Under these circumstances I think Respondent was obligated to withhold recognition until its line had at least commenced operations , either as a testing unit or as a producing unit and when the numbers of employ- ees would be adequate to keep a line running. I do not find it necessary to examine Respondent's motives in reaching this determination." I simply find that, under my view of the law, Respondent violated Section 8(a)(1), (2), and (3) of the Act by recognizing " Evidence that it was not the policy of Respondent to recognize a union on the basis of a card check and that the Respondent was trying to keep all of the plants from being represented by the Steelworkers because, in event of strike, they could better service their customers, I find irrelevant to this decision . If the plant was engaged in production, although not necessarily full production , of finished products, had a representative complement of employees in designated job classifications, and Local 243 had proof of an uncoerced majority in an appropriate unit without conflicting claims from rival unions, Respondent could grant recognition regardless of motive Not every action taken by an employer out of self-interest is a per se violation of the Act, the General Counsel to the contrary notwithstanding This is not meant to imply that Respondent ' s motive in recognizing Local 243 was solely one of self-interest CROWN CORK & SEAL COMPANY Local 243 on March 10. Nothing could be added in support of this decision by way of citation beyond Lianco, supra, authorities cited, footnote 13. 1 The Discharge of Loyd I find that Respondent was at least partially motivated in its discharge' of Loyd by his 'activity on behalf of the Steelworkers and that it- thereby violated Section 8(a)(3).12 Although Loyd was still in his probationary period no fault was found with his work,nor his character until Sippel informed Bishop that Loyd was soliciting for the Steelworkers. This prompted Bishop to examine Loyd's application form on which he stated he had been discharged by Kankakee Steel. Although Bishop was told that Loyd had been discharged for striking a foreman he was also told that Kankakee had "had to take him back.", This might have alerted Bishop that the discharge might not have been a valid one or at least that Loyd might not have been at fault yet he made no inquiry of Loyd when he discharged him as to the circumstances of this discharge. As to the reason given by Kankakee for the second discharge, participation in a wildcat strike, Bishop was also informed that this discharge was pending before the board. Again Bishop made no effort to inquire into the circumstances when he discharged Loyd. He did not, in fact, give Loyd any reason for his discharge other than that he, (Loyd) did not fit into his plans. Without holding that there is an obligation on the part of an employer truthfully to advise an employee of the reasons for his discharge or , the information upon which it is based this is a factor to be considered in , 8(a)(3) cases where uncontrovertible evidence of motive is seldom if ever 'available. The abruptness and timing of a discharge are likewise intangibles which may be persuasive evidence of motivation. See N.L.R.B. v: MontgomeryI Ward & Co.,' 242 F.2d 497, 502 (C.A. 2). Both abruptness and timing attended the discharge of Loyd. IV. THE REMEDY Having found the Respondent engaged in and is engag- ing in certain unfair labor practices it is recommended that it cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. Having found Respondent discharged Dennis Loyd to discourage membership in a labor organization it shall be recommended that Respondent offer him full and immediate reinstatement to his former or substantial- ly equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings or other monetary loss he may have suffered by reason of the discrimination prac- ticed against him. Loss of earnings shall, be computed in accordance with the Board's formula set, forth in F. W. Woolworth Company, 90 NLRB 289, and Isis 12 N L R B v Symons Mfg Co , 328 F 2d 837 663 Plumbing,& Heating Co., 138 NLRB 716.13 The General Counsel and the Charging Party have asked that Respondent be required to reimburse all employees for dues paid under the checkoff provision of its contract with Local 243. The latitude of the Board in fashioning remedies is wide and its discretion will seldom be disturbed by the courts .'" Nevertheless remedies which are punitive in effect are-, beyond the power of the Board. The poles in this area are represented by Virginia Electric & Power Co. v. N.L.R. B.; 319 U . S.- 533, and N.L.R.B. v. Local 60, United Brotherhood of Carpen- ters, 365 U. S. 651. In Virginia Electric the Supreme Court found the company had created and dominated the union and then granted closed shqp and checkoff provisions to entrench the union among its employees. The payment of dues in Virginia Electric was a direct consequence of the company 's unfair labor practices. In Local-60, the Supreme Court distinguished Virginia Electric and found it not controlling . While dues were collected by Local 60 under an, unlawful preferential ihiring arrangement the 'Court found no evidence that either union membership , fees or dues were coerced, It then stated: Where no membership in the union was shown to be influenced or compelled by reason of any unfair labor practices , no "consequences of viola- tion" are removed by the order compelling the union to return all dues collected from the members; and no "dissipation " of the effect of the prohibited action is achieved. ' Clearly neither case is apposite to,the instant situation for we have neither a company -dominated union - in which membership was compelled nor a history of volun- tary membership on the part of the employees. The cases are cited to show that reimbursement is a remedy which may be appropriate in one instance and not in another , a fact emphasized by the Court in Virginia Electric. I think the equities in the instant case preclude an order of reimbursement . Here the Respondent recog- nized Local 243 as collective-bargaining agent only after a reasonably scrupulous card check and established that the Local represented a majority of the employees work- ing at that time and entered into a collective-bargaining agreement when it had no doubt that Local 243 represent- ed a majority. I find no evidence that Respondent acted in bad faith.'' While it is my finding that Respondent acted unlawfully in its grant of recognition that finding is grounded solely on the fact that it was granted at a time when a representative complement was not " The General Counsel requests that Trial Examiner give consideration to recommending that the Board give consideration to adjusting its interest rate to conform to current practice This Examiner made such a suggestion to the Board in Shepard Laundries Co , fn 30 In adopting the Trial Examiner's Decision in 176 NLRB No. 113, the Board did not comment on the suggestion " N L R B v Seine and Line Fisherman's Union, 374 F 2d 974, 982 " While holding that bad faith was not an issue with respect to premature recognition it must be considered in fashioning a remedy 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed and engaged in the normal operations at the plant. But Respondent violated no hard and fixed rule by such action. and it is only with some benefit of hindsight that a violation is found. The issue is at least arguable and the finding herein might well be subject to reversal upon review."' Respondent was not confronted with conflicting claims from rival unions when it granted recognition and no question concerning representation existed. I have also considered the fact that the dues were not retained by Respondent nor deposited in any fund controlled by it yet, since Local 243, the beneficiary of the dues checkoff, was not a party the full cost of reimbursement would fall on Respondent. This does not appeal to even a primitive sense of equity. In Intalco Aluminum Corporation v. N.L.R.B., 417 F.2d 36 (C.A. 9), the company recognized one union on the basis of a card check when it knew another union was competing for designation. Subsequent investi- gation determined that the recognition was granted on the basis of duplicate cards and that the card check determination was "not attended by appropriate safe- guards." Reversing the Board's order of reimbursement, the court found there was no specific finding that any of the employees suffered any loss or objected to the payment of the dues; that no distinction was made between those who would have voluntarily paid dues and those who paid only because required to by the checkoff agreement; and that no bad faith on the part of the Company was found. Reviewing the decisions on remedial reimbursement the court, admitting the case was close; found 'the'" provision for reimbursement of dues was in fact a penalty and could not be said to effectuate the purposes of the Act. To the argument that the i'ailµre to impose a reimburse- ment order leaves the employees without complete redress the answer may be ' that full redress is not always possible in Board cases. The employees did enjoy the fruits of the collective-bargaining contract and, so far as this record shows, enjoyed them without protest. There is no evidence that this was a "sweet- heart" contract or that the rights of the employees were vitiated by collusion between Respondent and Local 243. Did I not find that the facts in this case present a stronger argument in favor of the exercise of restraint than those in Italco I would find myself bound by the Board's decision but I dt so find. CONCLUSIONS OF LAW 1. By recognizing' Sheet Metal Workers International Association , AFL-CIO, Local 243 , as the exclusive ""The Board, with a staff' of over 100 legal assistants , may well meditate for months before determining whether Respondent has violated the Act . An employer may, however , be hanged for making an instant judgment in good faith even though the circumstances require instant judgment Where this is the case and his good faith in not subject to attack there are persuasive reasons for evaluating such facts in assessing an appropriate remedy , bargaining representative of its employees at its Bradley, Illinois, plant on March 10, 1969, and by executing a collective-bargaining agreement with Local 243 contain- ing a union-security clause on April 7, 1969, and by maintaining in effect and enforcing the provisions of said contract, including the checkoff provisions, Respondent Crown Cork and Seal Company, Inc., violat- ed Section 8(a)(1),(2), and (3) of the Act. 2. By discharging Dennis Loyd because of his activity on behalf of the Steelworkers and for the purpose of discouraging membership in the Steelworkers, Respond- ent violated Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is hereby recommended that Respondent Crown Cork & Seal Company, Inc., its officers, agents, succes- sors, and assigns , shall: 1. Cease and desist from: (a) Recognizing Sheet Metal Workers International Association, AFL-CIO, Local 243, or any successor thereto, as the bargaining representative of any of its production and maintenance employees at its Bradley, Illinois, plant , unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees. (b) Giving effect to or enforcing the collective-bargain: ing agreement between Respondent and Local 243 execu- ted April 7, 1969, or to any modification of- extension thereof as respects the recognition' clause, the union: security clause, or the checkoff authorization clause; provided, however, that nothing herein shall require Respondent to vary or abandon any wage, hour, seniori- ty, or clause relating to hours, wages, rates or pay, and other terms and conditions of employment. (c) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating against any employee in regard to his hire, tenure, or other terms and conditions of employment. (d) In any other manner , interfering with , restraining, or coercing its employees in exercise of the rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 243, or any successor thereto, as the exclusive bargaining representative of its production and maintenance employ- ees at its Bradley, Illinois, plant, for the purposes of collective bargaining , unless and until said organization shall have been certified as such exclusive bargaining representative by the National Labor Relations Board. (b) Offer Dennis Loyd full and immediate reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay CROWN CORK & SEAL COMPANY 665 or other monetary loss he may have suffered by reason of the discrimination practiced against him in the manner set forth in that part of this Decision entitled "The Remedy " (c) Notify Dennis Loyd if presently serving in the Armed Forces of the United States of his right to full and immediate reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order (e) Post at its plant at Bradley, Illinois, copies of the attached notice marked "Appendix "" Copies of such notice to be signed by the Regional Director for Region 38, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other mate- rial (f) Notify the Regional Director for Region 38, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith '" " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 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 In the event that the Board s Order is enforced by a judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board '" If these Recommendations are aaopted by the Board this provision shall be modified to read Notify the Regional Director for Region 38 in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith as the exclusive representatives of our production and maintenance employees at our Bradley, Illinois, plant for the purposes of collective bargaining unless it has been selected by our employees in an election conducted by the National Labor Relations Board WE WILL NOT give any force or effect to the collective-bargaining agreement, executed April 7, 1969, with the above-named Union and WE WILL NOT require an employee to become or remain a member of said Union nor will we check off the union dues of any employee and remit them to the Union as required by said contract WE WILL NOT vary or abandon the wages, hours, seniority, and other substantive terms of said con- tract WE WILL NOT discriitrmate against any employee by firing him or by making any other change in his terms of employment and his working conditions because he is a member of or active on behalf of United Steelworkers of America, or any other labor organization WE WILL offer Dennis Loyd his job back without any loss of seniority or other rights and WE WILL pay him for any loss of pay he may have suffered because we discharged him WE WILL notify Dennis Loyd if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application after in accordance with the selective service act and the universal military training and service act, as amended, after discharge from the Armed Forces All our employees are free to become or remain or to refrain from becoming or remaining members of any labor organization except to the extent that such right may be affected by a lawful union-security agreement with a duly designated collective bargaining agent Dated By APPENDIX NOTICE TO EMPLOYERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize the Sheet Metal Workers International Association , AFL-CIO, Local 243, CROWN CORK & SEAL COMPANY, INC Employer (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Fourth Floor, Citizens Building, 225 Main Street, Peoria, Illinois, 61602, (Telephone 309-673-9282)