Keller Industries, Inc.

KELLER INDUSTRIES 365 Keller Industries, Inc. and United Electrical , Radio, Machine Workers of America. Case 20-CA-4792 February 10, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 7, 1968, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, both the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision, with supporting briefs. 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 connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Keller Industries, Inc., Merced, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'As we adopt the Trial Examiner 's finding that Kepics was a supervisor within the meaning of the Act at the time of his discharge, we deem it unnecessary to pass upon whether the discharge would have been violative of Section 8(a)(3) and ( 1) of the Act had he been found not to be a supervisor at that time The Respondent's request for oral argument is hereby denied, as the record and briefs adequately present the positions of the parties December 13, 1967, as amended on December 21, 1967, and February 6, 1968, a complaint herein was issued on February 13, 1968. The complaint alleges that Keller Industries, Inc., hereinafter referred to as the Respondent or the Company, violated Section 8(a)(1) and (3) of the Act. Respondent, by its answer, denies that it committed the unfair labor practices alleged. Pursuant to due notice a hearing was held in Merced, California, on July 1 and 2, 1968, before the duly designated Trial Examiner. At said hearing the General Counsel and the Respondent were represented by counsel; no appearance was entered on behalf of UE. Briefs were submitted by the General Counsel and the Respondent within the time designated therefor. Based upon my observation of the witnesses and upon the entire record,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Florida corporation with a place of business located in Merced, California, is engaged in the manufacture of aluminum household ladders and other aluminum household products . During the year preceding the issuance of the complaint, Respondent , in the course and conduct of its business operations, purchased and received at its Merced plant supplies valued in excess of $50,000 directly from outside the State of California. Respondent is, and at all times material has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED As is conceded by Respondent, UE is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Background Information Respondent's plant in Merced consists of three separate buildings in which are employed approximately 200 persons. During the entire period material herein and extending until June 1968, Respondent had a collective-bargaining agreement with the United Brotherhood of Carpenters and Joiners of America, Local Union No. 1496, AFL-CIO, herein referred to as Millmen's Union, with respect to its production and maintenance employees. It appears that there was dissatisfaction with the Millmen's Union among some of the members of the aforesaid unit and, in particular, among some of the members of the unit employed in the tool and die department. During most of the period material herein, there were four persons employed in the tool and die department.2 As a result of discussions among various workers of their dissatisfaction with the Millmen's Union, Michael Kepics, one of those employed in the tool TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based upon a charge filed by United Electrical, Radio, Machine Workers of America, hereinafter referred to as UE, on 'General Counsel has filed a motion to correct the transcript of the hearing. Said motion was unopposed except with respect to three items to which the Respondent filed opposition From a study of the record and the context in which the three items appear, it is concluded that said corrections are appropriate , and therefore the motion is granted with respect to all items 'It appears that on December 11, 1967, a fifth person was added to said 174 NLRB No. 58 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and die department, arranged a meeting with William Freitas, a representative of the UE, which meeting took place on December 12, 1967. Seven or eight persons employed by Respondent attended this meeting including Kepics and Michael Wytiaz. At this meeting both Kepics and Wytiaz signed cards authorizing the UE to represent them for the purposes of collective bargaining as well as cards authorizing them to organize on behalf of the UE. On December 13, 1967, Wytiaz was discharged, and on December 14, 1967, Kepics was discharged. All of the foregoing findings of fact are based upon uncontradicted testimony which is credited. The Issues Following are the issues to be resolved in this proceeding: 1. With respect to the discharge of Wytiaz, whether it was unlawfully motivated. 2. With respect to the discharge of Kepics, (a) whether or not Kepics was, at the time of his discharge, a supervisor within the meaning of the Act, and (b) if he were not a supervisor but rather an employee, whether his discharge was unlawfully motivated. 3. Whether Respondent, through Lenwood Rosignol, an admitted supervisor, engaged in conduct constituting independent violations of Section 8(a)(1) of the Act. A. The Discharge of Wytiaz In August of 1967, Wytiaz was hired to work in the tool and die department by Kepics, who at the time was plant superintendent.3 It appears that the two were friends of many years standing. As indicated above, Wytiaz was discharged on December 13, 1967.4 On the morning of December 13, in the period between 6:40 and 6:50 a.m., Wytiaz passed out authorization cards for the UE to employees in the lunchroom, explaining the purpose of the cards. According to Wytiaz' credited testimony, he passed out about 20 cards and received about 15 of them with signatures affixed. According to credited testimony of both Wytiaz and Rosignol, while Wytiaz was doing this, Rosignol, who had observed his activity in the lunchroom, asked him what he was doing. Wytiaz told Rosignol that he was passing out cards for the UE. Work started at 7 a.m., and, according to the testimony of Wytiaz, about 7:15 a.m., James B. Polk, Respondent's general manager, came into the tool and die department. Wytiaz testified as to what occurred as follows: And Mike Kepics was helping me on the die and as I looked up Jim Polk was walking in, you know, straight to me. And he said to me, "I understand you are pushing for a new union." And I told him, "Yes, I was," and he told me to close my box and get out. So I asked him if he knew that I was protected by law to try and organize a new union, and he just repeated himself saying, "Close your box, you are fired." So I closed up my box, and I was gathering up my tools, I should say, and he asked Mike Kepics if the tools in my tool box were mine, and Mike looked and said, "Yes, they were," so then Mr. Polk then told me department it does not appear that any of the parties attach any significance to this fact 'Kepics' title at that time is also referred to in the record as "production manager." 'It is noted that Wytiaz testified that he returned to work for the Respondent on June 17, 1968 to bring my tool box and follow him into the office. Kepics' testimony corroborates the above testimony of Wytiaz. Polk testified as to his discharge of Wytiaz. According to his testimony, when he arrived at the plant on the morning of December 13, he went straight to the tool and die department at "approximately five after 7.00." He further testified that he told Wytiaz to close his toolbox and come with him to his office and that, during the time he talked with Wytiaz, Kepics was at the other side of the toolroom and unable to overhear his conversation with Wytiaz. He also testified that he told Kepics to check Wytiaz' toolbox after he had finished his conversation with Wytiaz In addition, he testified that he did not learn from Rosignol that Wytiaz had been passing out union cards in the lunchroom until about an hour after he had discharged Wytiaz. Douglas Livingston, who worked in the tool and die department and who was appointed foreman after Kepics was discharged the following day (December 14), testified that he saw Rosignol confront Wytiaz in the lunchroom and overheard their conversation (in which Rosignol asked Wytiaz what he was doing and Wytiaz replied that he was passing out union cards). Livingston further testified that immediately after Rosignol left the lunchroom he observed Rosignol walking into the building which contained several offices including that of Polk and that he did not come out of the office area until 4 or 5 minutes later. On the other hand, Rosignol testified that after his conversation with Wytiaz in the lunchroom he went directly to his own department which is in an area of the plant other than where the said offices are located, and that it was not until some time later that he informed Polk of Wytiaz' activity in the lunchroom. He denied that he talked to Polk right after talking to Wytiaz. However, he was asked to read a portion of his pretrial statement and the following appears in the record: Q. Do you recall now what time of day you spoke to Mr. Polk? A. In the neighborhood of 8:00 o'clock in the morning. Q. Did you make this statement in your affidavit, "I don't recall what time this was"? MR. THOMPSON: Mr. Examiner, I object to that. TRIAL EXAMINER: You may read the entire paragraph into the record. Read the entire paragraph into the record. MR. ORENSTEIN: "Within this hour I felt it was my duty to tell Mr. Polk and told him that Wytiaz was soliciting for another union. We were alone in his office I recall only that Polk nodded his head. I don't recall whether he was angry or not. I don't recall what time this was." Livingston corroborated the testimony of Wytiaz and Kepics that Kepics was close enough to Wytiaz to overhear the conversation between Polk and Wytiaz, that Kepics was within 6 or 7 feet from Wytiaz at the time Polk talked to Wytiaz. Polk and Rosignol were not convincing witnesses with respect to the incident of Wytiaz' discharge. Polk testified that he had evaluated the production of the tool and die department over the weekend and decided to discharge Wytiaz, apparently in explanation of why he fired Wytiaz as soon as he entered the plant without first going to his office. However, when it was pointed out to him that December 13, the day of discharge, was a Wednesday, he changed his testimony to state that he made the KELLER INDUSTRIES evaluation on Tuesday Rosignol appeared to be far from a candid witness. For example, when he was shown his pretrial statement he, at first, denied that the initials appearing in various portions of the statement were his and then later admitted that they were his initials. Also, he changed his testimony with respect to another incident (which is discussed hereinbelow), when he was shown a relevant portion of his pretrial statement. It is noted that according to Rosignol's statement with respect to his report to Polk of Wytiaz' activity in the lunchroom, Polk did no more than nod his head when he received the information. It would appear that, if the report had been made to him after he had discharged Wytiaz, rather than merely nodding his head, Polk would more likely have indicated that he had already fired Wytiaz. The fact that he did not so inform Rosignol tends to support the inference that the report was made to him before he discharged Wytiaz. Based upon the above considerations and upon observation of Rosignol and Polk upon the witness stand, the Trial Examiner is of the opinion that their testimony cannot be credited and that the above testimony of Wytiaz, Kepics and Livingston should be credited. Polk testified as to the reasons for the discharge, dissatisfaction with Wytiaz' attitude and the quality of his work, basing his dissatisfaction, in the main, on two incidents. It appears from the record that the incidents did occur, but that they occurred sufficiently prior to the discharge to eliminate them as having precipitated it.' It is inferred from the credited testimony that about 7 a.m., Rosignol went to Polk's office and informed him of Wytiaz' activity in the lunchroom (that of passing out union cards), that immediately thereafter Polk went to the tool and die department and accused Wytiaz of engaging in such activity, and that Wytiaz' said activity precipitated his discharge. Therefore, it is concluded that Wytiaz' discharge was discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act. This conclusion is further supported by the credited testimony of Martha Thomas, an employee, with respect to a conversation she had with Rosignol approximately 2 or 3 hours after Wytiaz was discharged. Her testimony of their conversation is as follows: A. He [Rosignol] asked me if I knew that Little Mike [Wytiaz] had been fired, and I said, "Little Mike?" I had never heard him called that before. And he said, "Yes, Buddy." And I said, "No." And I asked him why, and he said, "For stirring up union trouble." He said that they had nipped it in the bud or so they thought. Rosignol, at first, categorically denied her above testimony. However, he was shown his pretrial statement which contained the following: I don't recall ever telling Martha Thomas that Michael Wytiaz had been fired for stirring up union trouble. and was asked if it refreshed his memory. His testimony at that point continues as follows: A. A little bit. Q. Now, it will be your testimony that you don't recall whether you told Mrs. Thomas that or that you just didn't tell her that? A. I don't recall. 'Wytiaz placed the time of the last of the two incidents approximately a month before his discharge and Polk about a week prior thereto 367 TRIAL EXAMINER: Let me understand. This is a common problem that occurs in hearings. Is it that you recall that you did not tell her that or is it that you don't recall whether or not you did tell her that? Do you understand the difference? THE WITNESS: Yes, I understand the difference. TRIAL EXAMINER: Now, which one is it? THE WITNESS: It is that I don't recall whether I did tell her or did not tell her. TRIAL EXAMINER: You may have told her? THE WITNESS: It is possible. As above indicated Rosignol did not appear to be a convincing witness' in contrast to Thomas. Furthermore, Rosignol admitted the possibility that Thomas' testimony was correct. Consequently, the testimony of Thomas that Rosignol made such a statement to her is credited. It is inferred that Rosignol was privy to Polk's decision to terminate Wytiaz, since he was instrumental in initiating it. Therefore, it appears appropriate to conclude that he was aware of the motive for the discharge and that his statement to Thomas is of probative value as to said motive. It is also concluded that said statement was an implied threat of discharge for engaging in activity on behalf of UE in violation of Section 8(a)(1) of the Act.' C. The Discharge of Kepics Michael Kepics was employed by Respondent in May of 1967 at the rate of $3.75 per hour,' in the tool and die department. About 6 weeks after he started his employment he was promoted to plant superintendent at a salary of $260 per week. The record does not reveal whether he was or was not foreman of the tool and die department before he became plant superintendent. For approximately 2 to 2 1/2 months, he served as plant superintendent and then, at his request, he stepped down from the position of plant superintendent to that of foreman of the tool and die department. He was asked by Heaston, Polk's predecessor as general manager, whether he would be satisfied with the rate of pay of $4.50 per hour to which he replied in the affirmative. It appears that Kepics' rate of pay of $4.50 per hour was "greater than many of the other foremen,"' and that it was $1.50 higher than the next highest hourly rate of pay of the other men in the tool and die department. All of the foregoing is based on the uncontradicted and credited testimony of Kepics. On November 1, 1967, Polk, who had been in charge of the extrusion department, became general manager. It appears to be the position of the General Counsel that about a week after Polk became general manager he had a conversation with Kepics during which he demoted Kepics from his job as foreman and converted his status to that of an employee within the meaning of the Act. On direct examination, Kepics testified with respect to said conversation as follows: 'Based upon the previous analysis of his credibility and the change in his testimony after being confronted with his statement. 'Although this conduct was not specifically alleged in the complaint and was not referred to in General Counsel ' s brief as an independent violation of the Act, nevertheless, it was fully litigated and is closely related to the allegations in paragraph VI of the complaint. It appears that 60 days after his employment he would have been entitled to an automatic raise to $4.25 per hour. 'According to Kepics' testimony, there were "between 10 and 13" foremen among the 200 employees of Respondent. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, he said that he was paying me a lot of money and that he expected me to work in there and keep the dies in good serviceable condition. Q. Did he say anything else that you recall? A. I can't recollect anything. Kepics further testified that thereafter he spent all of his time doing physical work. On cross-examination, he amplified his testimony as to his aforesaid conversation with Polk, as follows. A All he said was that he was paying me good money and that I was to work on the dies and not loaf around. A. He asked me to work together with him. Q. Now, isn't it, true that at no time did he ever tell you that you weren't tool and die room foreman? A. I don't believe so. Q. Heaston had put you in there as tool and die foreman, is that correct? A. Yes, sir. Q. And Polk never told you that you weren't tool and die foreman; is that correct? A. Yes, sir. The General Counsel elicited testimony purporting to show that in the period after the aforesaid conversation between Polk and Kepics, Kepics did not exercise or possess any of the responsibility or authority attributed to supervisors within the meaning of the Act. However, there is testimony to the contrary. Kepics was questioned as to whether, during the period of 4 or 5 weeks prior to his termination and after the aforesaid conversation with Polk, he had granted time off to employees to which he responded that he had not. However, when he was asked what procedure was followed when they requested time off, he testified as follows: A. They would come over and tell me that they were going to leave and for what reason and I would relay the message when I was confronted as to why the person left. Q. But they would come to you and tell you about it first? A. Yes, sir. It would appear from his answer that he did grant time off without consulting anyone else in management and informed management of his action only when asked why an employee was absent. It is clear from the testimony of both Kepics and Polk that Polk continued to hold Kepics responsible for the production in the tool and die department. On two occasions , Polk complained to Kepics about Wytiaz' attitude and production and Kepics, in turn, spoke to Wytiaz about Polk's complaints. Kepics testified about an occasion approximately 3 weeks before his termination when Polk "called him on the carpet" because a die had not been repaired over the weekend according to his instructions to Kepics. Kepics explained to Polk that he had "told,"'" Livingston to repair the die and had no way of knowing that Livingston had failed to do so. Kepics further testified that, even though he informed Polk that he had relied upon Livingston to do the work, Polk held him responsible and terminated him at that time. However, it appears that after a long discussion with Kepics Polk reconsidered his action and reversed his decision to discharge him. 1'Although he first testified that he had "asked" Livingston to work, he Polk testified without contradiction and his-testimony is credited that he had several conversations with Kepics about the excessive amount of overtime in his department and told him to "lay someone off or cut down on the excessive amount of overtime that was being spent in his department." Polk further testified without contradiction, and his testimony is credited, that Kepics replied that "he didn't think he could lay anybody off at that time," so he (Polk) dropped the subject of layoff. Thus, it is clear that Polk continued to consider and treat Kepics as a foreman until the date of his termination. Even if it were assumed that Kepics did not exercise any of his authority as a foreman during the 4 or 5 weeks before his discharge, that mere fact would not prove that Kepics no longer had any such authority It is clear from the testimony of Kepics that Kepics was never informed that he was divested of any of the authority of a foreman or that he was no longer foreman The fact that he was required to spend all or most of his time doing physical work does not, without more, permit the conclusion that Kepics was demoted from his position as foreman. It is noted that his rate of pay remained at $4,50 an hour until his termination. It is also noted that immediately after Kepics was discharged, Livingston was designated as foreman and was given an increase in pay from $2.37 per hour to $3 per hour, an amount considerably less than Kepics' rate of pay had been. It appears reasonable to infer from the record that Respondent's foremen were supervisors within the meaning of the Act. It is concluded from the foregoing analysis of the record that at the time of his discharge, December 14, 1967, Kepics still enjoyed the status of foreman and, therefore, was at said time a supervisor within the meaning of the Act." Consequently, even if Kepics' discharge had been motivated by the fact or suspicion that he was active on behalf of UE, his discharge could not be found to be unlawful, since it is well established that such activity ' on the part of a supervisor is not protected under the Act. It having been found that Kepics was a supervisor, the issue of whether or not he was discharged for engaging in activity on behalf of UE need not be resolved. Even if it were assumed that Kepics was not a supervisor, nevertheless, it is noted that the record would not support a finding that the General Counsel has established by a preponderance of the evidence that his discharge was motivated by his activity on behalf of the UE. True, there is sufficient evidence in the record to raise such a suspicion: that Kepics arranged for the meeting of employees with a representative of the UE and attended the meeting, that he did engage in discussions with employees with regard to the advantages of having UE represent them; that the discharge occurred just 2 days after the meeting with the UE representatives; and that employee May Lou Paz credibly testified that Rosignol had told her Kepics was discharged because he had been caught signing up people for the UE in the ladder department. Paz, who` was no longer -an employee of Respondent at the time of the hearing,' 2 testified that admitted that he had stated to the Labor Board agent that he had "told" Livingston to repair the die over the weekend . This is a further indication that he continued as foreman "It is noted that in its brief Respondent points out that although there was a union security clause in the Millmen's Union contract with the Company, Kepics did not become a member of said union However, the Trial Examiner does not rely upon this fact as an affirmative reason for arriving at the conclusion that Kepics was a supervisor. "She testified that she voluntarily terminated her employment in April of 1968. KELLER INDUSTRIES Rosignol had made said statement to her when she asked him, about a week after Kepics' discharge, what had happened to Kepics. She further testified that, at that time, Rosignol warned her not to get involved with the UE or she would be discharged for doing so. Although Rosignol denied this testimony as well as her testimony that sometime in January 1968 he again warned her not to get involved with the UE, Rosignol's denials are not credited since, for the reasons indicated hereinabove, Rosignol was not a convincing witness. On the other hand, Paz impressed the Trial Examiner as a witness who was testifying to the best of her recollection. It does not appear that there is sufficient support in the record for a finding that Respondent had any knowledge of Kepics' aforementioned activities on behalf of UE or even that Respondent suspected him of engaging in such activities. The credited testimony of Paz as to the statement made to her by Rosignol as to the reason for Kepics' discharge has not been overlooked and has been considered. However, Rosignol was only a minor supervisor, having eight men in his department, and there is no showing that he was privy to the decision to terminate Kepics.13 There is nothing in the record to support Rosignol's statement that Kepics was caught signing up people for the UE in the ladder department, or even to support a finding that Kepics had engaged in such activity. It appears that Rosignol followed the practice in moving around the plant of stopping to chat with employees. It could very well have been that Rosignol stopped to chat with Paz and merely passed on to her a rumor that he had heard or that he himself had concocted. This appears no less likely than an assumption that he had been informed by Polk of his reason for discharging Kepics, since there is no evidence to support a finding that the statement was true. The record clearly discloses that Polk was very dissatisfied with the production and excessive overtime in the tool and die department and held Kepics responsible for that department's deficiencies. Furthermore, as indicated above, he had discharged Kepics just 3 weeks prior to December 14 because of his dissatisfaction with Kepics. Although he reconsidered the discharge action at that time, there is no showing that his dissatisfaction with Kepics had diminished. This was ascribed as the reason for his termination and it cannot be found from the record that Polk's dissatisfaction with Kepics' performance was a mere fabrication and thus a pretext for the discharge. Consequently, it is concluded that the General Counsel has failed to prove that Kepics' discharge was motivated by his activity on behalf of the UE. The credited testimony of Paz hereinabove as to the warnings given to her by Rosignol with regard to getting involved with the UE constituted threats of reprisal for a protected activity and consequently were violative of Section 8(a)(1) of the Act Additional Independent Violations of Section 8(a)(1) Paz testified that on the day Wytiaz was fired (December 13), Rosignol asked her if she had signed one of the cards Wytiaz had been passing out and warned her that if she signed a card she would be fired Rosignol also denied this testimony. For the reasons indicated "Unlike the situation with respect to the discharge of Wytiaz in which it was found heremabove that he was privy to the discharge, having initiated it by reporting Wytiaz' protected activity to Polk 369 hereinabove, the Trial Examiner is of the opinion that Paz' testimony should be credited. It is concluded that this conduct of Rosignol constituted unlawful interrogation' and a threat of reprisal for engaging in protected activities in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III above, occurring in connection with its operations 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 thereof. V. THE REMEDY It having been found that the Respondent engaged in various unfair labor practices, it will be recommended that Respondent be ordered to cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discharged Michael Wytiaz in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that Respondent be ordered to make him whole for any loss of pay he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of discharge to the date he was reinstated' S less his net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sum, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. It having been found that General Counsel has failed to prove by a preponderance of the evidence that the discharge of Michael Kepics was violative of Section 8(a)(3) and (I) of the Act, it will be recommended that the allegations of the complaint relating thereto be dismissed. Based upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The UE is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent discharged Michael Wytiaz for activities on behalf of the UE in violation of Section 8(a)(3) and (1) of the Act. 4. Respondent threatened , restrained, and coerced employees in violation of Section 8(a)(1) of the Act by unlawfully interrogating an employee as to whether she signed an authorization card on behalf of the UE and by threatening employees with economic reprisal should they desire to have the UE act as their collective-bargaining "Although this is the only instance in the record of interrogation, it is not considered isolated and of little significance in view of the context in which it occurred, i.e., coupled with an unlawful threat and closely linked to the unlawful discharge of Wytiaz. "It appears that Respondent reemployed Wytiaz on June 17, 1968. There is no showing or contention that said reemployment did not constitute reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative. 5. Michael Kepics was, at the time of his discharge, a supervisor within the meaning of the Act and his discharge was not violative of Section 8(a)(3) or ( 1) of'the Act. IT IS FURTHER RECOMMENDED that the allegations of the complaint with respect to the discharge of Michael Kepics should be and are hereby dismissed. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and upon the foregoing findings of fact, and conclusions of law, and the entire record in this case, it is ordered that Keller Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing its employees by unlawfully interrogating them with respect to their adherence to the United Electrical, Radio, Machine Workers of America, or any other labor organization and threatening them with economic reprisal should they desire to have said Union or any other labor organization represent them as their collective-bargaining representative. (b) Discriminating in regard to the hire and tenure of employment or any term or condition of employment of any employee for engaging in activities on behalf of said Union or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Make Michael Wytiaz whole for any loss he may have suffered by reason of his discharge in the manner and to the extent set forth in the section entitled "The Remedy." (b) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records and reports and all other records necessary or useful to determine the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant in Merced, California, copies of the attached notice marked "Appendix"" Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and remain posted for a period of 60 consecutive days from the date of posting, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith.'' "In the event that this Recommended Order be 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. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully interrogate our employees as to their adherence to the United Electrical, Radio, Machine Workers of America, or any other labor organization. WE WILL NOT unlawfully threaten our employees with discharge or economic reprisal should they desire to have said Union or any other labor organization represent them as their collective-bargaining agent. WE WILL NOT discharge any of our employees or otherwise discriminate in regard to their hire or tenure of employment, or any terms or conditions of employment, because they have engaged in activities on behalf of said Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make Michael Wytiaz whole for any loss he may have suffered as a result of our discrimination against him. KELLER INDUSTRIES, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.