Quality Rubber Manufacturing Co., Inc.

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quality Rubber Manufacturing Company, Inc. and United Steelworkers of America , AFL-CIO, Case 30-CA-780 May 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On December 6, 1968, Trial Examiner Sidney D. Goldberg issued his Decision 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 Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, the Charging Party limiting its exceptions to questions of remedy. The General Counsel filed a brief in support of the Trial Examiner's Decision. 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 the case, and hereby adopts the findings, ' conclusions,' and recommendations' of the Trial Examiner, as modified herein. 'The Respondent's request for oral argument is hereby denied as the briefs and record adequately present the issues and the positions of the parties. rrhe Respondent excepts to portions of the Trial Examiner's Decision on the grounds of alleged bias and partiality. After a careful review of the record we specifically reject the Respondent 's contentions, there being no evidence that the Trial Examiner prejudged this case or made prejudicial rulings. Canton Sign Co., 174 NLRB No. 133 . The Respondent further excepts to various findings of the Trial Examiner , on the ground that he erred in crediting the testimony of certain witnesses. It is the established policy of the Board not to overrule a Trial Examiner's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find no sufficient basis for disturbing the credibility findings in this case. 'We find, in agreement with the Trial Examiner, that the discharge of Sibley, Pikka, and Johnson violated Sec. 8(axl) of the Act, and we adopt his recommended remedy as to them . In these circumstances, we find it unnecessary to decide whether these discharges also violated Sec. 8(a)(3). American Art Clay Company. Inc.. 142 NLRB 624, in. 1; Pepperidge Farm, Inc.. 134 NLRB 1245, fn. 1. 'The Charging Party excepts to the Trial Examiner's failure to recommend that the Respondent be ordered to make employees whole for losses suffered as a result of the Respondent's refusal to bargain; mail copies of the notice to employees; and permit the Union to address In view of the Respondent's numerous violations of the Act directly preceding and subsequent to the Union's recognition and bargaining requests, we find that the Respondent acted in manifest bad faith by its refusal to bargain with the Union as the majority representative of its employees in an appropriate unit. We thus agree with the Trial Examiner's finding that the Respondent 's refusal to bargain violated Section 8(aX5) and (1) of the Act. We further find that an order directing the Respondent to bargain with the Union, upon request, is necessary to remedy the effects of its unfair labor practices. The record shows, and we so find, that the Union represented a majority of the employees in an appropriate unit and the Respondent, by its course of unfair labor practices, engaged in unlawful conduct designed to prevent the Union from establishing its majority status and, in so doing, clearly evinced a determination to reject the principle of collective bargaining. Therefore, we shall order the Respondent to bargain, upon request, with the Union to remedy both its violations of Section 8(a)(5) and its violations of Section 8(ax 1) and (3) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and hereby orders that the Respondent, Quality Rubber Manufacturing Company, Inc., Wakefield, Michigan , its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below. 1. Add the following as paragraph 1(b) of the Recommended Order, and renumber 1(b) as 1(c): "(b) Discouraging membership in United Steelworkers of America , AFL-CIO, or any other labor organization of its employees, by laying off or discharging its employees or discriminating against them in any other manner in respect to their hire or tenure of employment, or any other term or condition of employment." 2. Add the following as paragraph 1(d) of the Recommended Order: employees, and a Board agent to read the notice and answer questions, on company property. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving violations of Sec. 8(aX5), or violations of Sec. 8(aX3) and (1) where, as here, the record affords insufficient basis for additional remedial action. We therefore find no merit in these exceptions. See Monroe Auto Equipment Company, Hartwell Division, 164 NLRB No. 144; Marine Welding and Repair Works. Inc.; Williamson Engine and Supply. Inc., Greenville Manufacturing and Machine Works, Inc.; Greenville Propeller Work, Inc.. 174 NLRB No. 102, In. 5. 'See Bryant Chucking Grinder Company, 160 NLRB 1526, 1530, enfd. 389 F.2d 565 (C.A. 2) (Member Jenkins dissenting on other grounds) Fabricators, Incorporated, 168 NLRB No. 21; Louisburg Sportswear Co, 173 NLRB No. 101. 176 NLRB No. 7 QUALITY RUBBER MFG CO "(d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by 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, in conformity with the proviso of Section 8(aX3) of the Act ' 3 Substitute the following for the fourth indented paragraph of the notice We assure you that WE WILL NOT do anything that interferes with these rights, we specifically assure you that WE WILL NOT discourage you from membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging, laying off, or discriminating against you in any other manner with respect to hire or tenure of employment or any other term of employment We further specifically assure you that WE WILL NOT ask any employee why he joined the Union and WE WILL NOT threaten you with harder working conditions, cancellation of pay raises, loss of your jobs or that the plant will close, if you choose to be represented by a Union 4 Add to the list of names of those to be offered reinstatement and backpay, appearing in paragraph 2(a), the name of Douglas Twiggs TRIAL EXAMINER'S DECISION SIDNEY D GOLDBERG, Trial Examiner This case was commenced, pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), by the issuance of a complaint' alleging that Quality Rubber Manufacturing Company, Inc (herein called Respondent or the Company), through its plant superintendent, violated Section 8(axl), (3), and (5) of the Act by coercively interrogating employees, by threatening to discharge them and close the plant if they chose to be represented by a union, by discriminatorily discharging 12 employees, on February 21, 26, and 28, 1968, to discourage their union activities and membership, and by refusing to recognize United Steelworkers of America, AFL-CIO (herein called the Union), as the collective-bargaining representative of the employees although the Union was designed as such by a majority of the employees in an appropriate unit Respondent answered, denying that it had violated the Act as alleged in the complaint, and the issues so raised came on for trial before me at Wakefield, Michigan, on June 26 and 27, 1968 During the course of the trial, the General Counsel moved to amend the complaint to allege the wrongful discharge of an additional employee on May 5, 1968 The motion was denied but the Board, on appeal, directed that the amendment be permitted Respondent thereupon denied having wrongfully discharged that employee and this issue came on for trial before me at Wakefield, Michigan, on August 14, 1968 At all sessions of the trial, the General Counsel, the Union, and the Respondent were represented by counsel, were afforded an opportunity to adduce evidence, cross-examine witnesses, 'April 30 1968, on a charge fled March I and amended charges filed March 11 and 26 1968 41 and argue upon the facts and the law Briefs were filed by the General Counsel and by counsel for the Respondent and they have been considered For reasons hereinafter set forth in detail, I find that Respondent unlawfully discharged 11 of the 12 employees terminated in February but that the May 5 discharge was not unlawful, I also find that in February and March the Union was designated by a majority of Respondent's employees, in an appropriate unit, as their collective-bargain mg representative and that, therefore, Respondent's refusal to bargain with it was also unlawful Upon the entire record, and the demeanor of the witnesses, I make the following FINDINGS OF FACT I THE EMPLOYER Respondent operates a plant at Wakefield, Michigan, where it produces rubber gaskets for use, primarily, in automobiles It admits that during 1967 it shipped out of the State of Michigan products valued at more than $50,000, and imported products valued at more than $50,000, and that it is an employer engaged in commerce I so find 11 THE LABOR ORGANIZATION Respondent admits that the Union is a labor organization III THE UNFAIR LABOR PRACTICES A Background Respondent operates similar plants at Chicago , Illinois, and Wakefield, Michigan, but only the Wakefield plant is involved in this case William Tersmar, plant superintendent at the Wakefield plant since it was opened in July 1967, had previously been plant superintendent at Chicago for about 14 years The Wakefield plant consists of a single, rectangular building, about 100 feet wide and 224 feet deep, divided into four rooms, each the width of the building but varying in depth The front entrance is in the center of the west wall of the building and the openings between the rooms are in the center of the partitions A rough sketch showing the relative positions of the rooms and the approximate location of the furniture and machinery referred to herein (but not precise distances or dimensions) is set forth below ' In the pressroom there are several rows of machines, each containing an oven and a set of molds Raw material, usually pellets of rubber, is placed by the operator into each of the hundred or more cavities in the mold, which is then closed and moved into the oven where it is heated for the necessary interval, usually 8 minutes, when it automatically comes down The operator then pulls the mold out of the oven, pries it open, takes out the formed gasket, cleans the cavities with compressed air, and fills them for the next operation The estimates for this operation varied from 1-1/2 minutes claimed sufficient by Plant Superintendent Tersmar3 to the 4 to 8 minutes claimed necessary by employee Donald Pikka '[See p 42] 42 Each pressroom employee was responsible for three machines, filling and closing them in turn so that, when the third machine had been filled, the first had completed, or almost completed, its process and become ready to be opened and refilled. The only opportunity for the pressmen to rest would be during the time between the closing of the third mold and the necessity for opening and refilling the first one. After the formed gaskets are removed from the molds, they are placed in the tumbling machines where, at a temperature of 60 degrees below zero, they are tumbled to smooth their surfaces. They are then placed on a conveyor belt which takes them to the inspecting tables where the women employees check them for defects and, if not rejected, pack them for shipping. In February 1968, the plant operated on two shifts: the "day" shift, from 7 a.m. until 5 p.m. on the first 4 days of the week and from 7 a.m. until 3 p.m. on the fifth day; and the "afternoon" shift, from 5 p.m. until 3 a.m. There were no scheduled "breaks" on either shift. B. Outline of Relevant Events While there can be no dispute concerning the broad outline of the important events in this case, the detailed accounts of each of them, as given by the General Counsel's witnesses, were almost entirely controverted by Respondent. The record, however, shows that in January and early February, according to employee-witnesses, they discussed among themselves their dissatisfaction with their working conditions, particularly the lack of any lunch period.4 During the week February 12-16, the employees on the afternoon shift, after notifying John Tersinar, in charge of that shift, of their intention, took a 10-minute break for lunch. John Tersinar, the employees testified, appeared dissatisfied with their conduct but said nothing until the end of the week when he said that anyone who continued the practice would be discharged. The break was not thereafter taken.' On Wednesday of the following week, however, William Tersinar returned to the plant in the evening and discharged Ray Sibley. As Sibley was DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 North West Laboratory leaving, he stopped to talk with employees Donald Pikka and Herbert Johnson. Tersinar thereupon directed them to leave and not to return. During the following weekend, a number of Respondent's employees signed cards authorizing the Union to represent them, William Tersinar admitted that on Sunday afternoon he had a telephone call reporting this activity. On Monday morning, when the men reported for work, William Tersinar told them, they testified, not to clock in but to sit down and wait. At starting time, it is clear, seven of the eight employees left the plant and the remaining employee went to work. Later that morning, a representative of the Union telephoned Tersinar, informed him that a majority of the plant employees had designated the Union as their representative and requested that the seven men be returned to work. Tersinar refused, stating that they had quit. In later telephone calls that day and the day following, the union representative again stated that the Union was the agent of a majority of the employees and requested an opportunity to bargain with Respondent. On Wednesday afternoon George Golembeski, a day-shift employee who had been ill and not present Monday morning, telephoned the plant to say he was ready to return to work but Tersinar told him to stay home. On March 15, after an exchange of letters, the union representative met with Respondent's counsel and plant superintendent. Photocopies of the Union's authorization cards were examined by Respondent's representatives, who then announced that, since several of those cards had been signed by people who were no longer employed, the Union did not represent a majority of its employees, and they refused to bargain with the Union. 1".. if the man is fast." 'Plant Superintendent William Tersinar admitted having been asked about a lunch hour "early in the year" and having answered that there was "no such thing in the pressroom." 'John Tersinar denied this entire incident. +--- 224 feet 0 ITdmbL2M J Impaction U Conve Pressroom I Millroom I"-1 100 Picnic feet table Office Time cloc Women's Men's lockets washroom and washroom yorl East South QUALITY RUBBER MFG. CO. 43 C. The Issues The General Counsel contends that Respondent, by William Tersinar's threats and coercive interrogation from September 1967 through April 1968, interfered with the employees' rights of self-organization; that the discharges of 13 employees on February 21, 26, and 28, and May 5, 1968, were discriminatory and to discourage union membership; and that the Company's refusal to bargain with the Union on February 27, March 25, and thereafter violated Section 8(a)(5) of the Act. Respondent's counsel points out that the basic issue herein is whether the terminations of employment on February 21 and 26 were valid actions by the Company because, if they were, the Union did not represent a majority of the employees when it made its demand for recognition. With commendable candor, however, Respondent's counsel concedes that, if those terminations were unlawful, the Union did represent a majority and the refusal to bargain was also unlawful. No issue is raised by Respondent concerning the validity of the card authorizations or the appropriateness of the unit. D. Discussions and Conclusions 1. Union animus As background evidence of Respondent's basic hostility to self-organization among its employees, the General Counsel adduced evidence from Raymond Monti, an employee from June 21, 1967, until he was terminated on February 26, 1968, of a conversation he had with William Tersinar in April 1967. Monti testified that Tersinar was showing him around the machinery then being installed in the plant, in connection with the possibility that he, Monti, might apply for a job. At one point in their conversation, according to Monti, Tersinar stated that the "one thing" that would not be tolerated in the plant was a union; that the Chicago plant had a union but that "it did not pay" for the employees because "they got nothing but 5 cents an hour." Tersinar did not deny the incident, except to testify that he had not "at any time told anybody" that he did want a union in the plant. 2. Interference, restraint, and coercion The complaint includes nine subparagraphs alleging incidents of coercion and restraint perpetrated by Plant Superintendent Tersinar against employees. Seven of these subparagraphs deal with statements closely connected with, or subsequent to, the alleged discharges on February 21 and 26, and they can be best discussed in connection with those actions by Respondent. Employee Nels Luoma testified that, around the beginning of October 1967, a fellow employee, Ralph Olsen, was laid off; that the following day he asked Plant Superintendent Tersinar why this had been done and that Tersinar answered: "Because he's a union organizer." Employees Verner Mattson and Glen LeGassa testified that they overheard this conversation and they corroborated Luoma's testimony. Tersinar denied having made this statement. For the reasons set forth later in this decision, I do not credit Tersinar's denial and find that he made the statement. It constituted a clearly coercive threat of similar treatment to any employee who might attempt to exercise the right of self-organization guaranteed in the Act and, therefore, it violated Section 8(a)(l) thereof.' Employee Donald Pikka testified that, on the Friday preceding New Year's Day in 1968, i.e., December 29, 1967, he applied to Plant Superintendent Tersinar for work; that Tersinar asked him whether he belonged to a union and said they didn't want a union in the place; that he was hired and started work on January 2. Tersinar admitted, of course, that he had hired Pikka but testified that he did not remember the incident. He nevertheless denied having ever made these statements to Pikka or to "anybody in the plant or outside...." Here, again, I do not credit Tersinar's denial: I find that he asked the question, stated his determination not to have a union in the plant and that, in context, these were coercive in violation of Section 8(a)(l) of the Act. 3. The lunch break and the discharges of February 21 The employees of the plant were dissatisfied with the absence of a lunch break but had been unsuccessful in obtaining one.7 On Monday, February 12, according to employees Donald Pikka and Raymond Sibley, they conferred with Herbert O. Johnson, another employee on the afternoon shift, and decided to ask John Tersinar, in charge of that shift,$ for a 10-minute lunch break. They appointed Johnson as their spokesman and he asked John Tersinar to permit the break. Tersinar told Johnson, Sibley testified, that "we can't let the molds stop, we've got to keep them running." Nevertheless, according to Pikka and Sibley, they, plus Johnson, Matt Mattson, and George Golembeski, took a 10-minute break for lunch that evening and on Tuesday, Wednesday, and Thursday of that week. They testified that John Tersinar made no protest, but that his manner was harsher toward them than toward the other employees on the shift and that he assisted other employees but would not assist them. On Friday, however, as they were about to take the break, John Tersinar told Sibley and Pikka that, if they took a break that evening, "not to bother to come out Monday." They did not take the break again . About 2:30 'This incident is alleged in the complaint as violative of Sec. 8(aXl) and testimony fixes its occurrence well within 6 months prior to the filing of the charge. The statement in the General Counsel's brief that this incident cannot be found to be a violation by reason of Sec. 10(b) is regarded as inadvertent. 'Plant Superintendent Tersinar first denied but, when confronted with the contrary statement in his pretrial affidavit , admitted that at the beginning of the year an employee had asked him why they didn't have a lunch hour and that he had answered that "there was no such thing as a lunch hour in the pressroom." 'John Tersinar, son of Plant Superintendent William Tersinar , was less than 22 years old at this time. He had, however , been employed by Respondent for 4-1/2 years, the first 3 at the plant in Chicago and thereafter at Wakefield since it opened. Despite William Tersinar 's effort to downgrade his son's position by testifying that he "wasn't assigned to anything" and describing his duties as "a teacher of the employees," he admitted that his son was "running the second shift" of the press department, that his duties were "to we that everything was running to the orders I left him correctly and that everybody were on their job"; that he recommended hiring, promotions, and discharges and that he "responsibly directed" the work of the employees on the second shift . He also testified that he expected the men on the afternoon shift to take instructions from his son and that his son did relay his orders to the men . Both Sibley and Pikka, who were on the afternoon shift, testified that they took their orders from John Tersinar and that they had requested and been granted time off by him. It seems clear, and I find, that John Tersinar, although not empowered to hire and fire , did have the power "responsibly to direct" the pressmen on the afternoon shift rather than merely to relay orders and that he was a supervisor within the meaning of Sec . 2(11) of the Act 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a.m., their normal quitting time that night , John Tersinar directed them to put another load in their molds and that this required them to work about 15 or 20 minutes longer. On Wednesday evening, February 21, Plant Superintendent Tersinar returned to the plant about 7:30 and summoned Raymond Sibley to the office. Sibley testified that he found Tersinar there alone; that Tersinar asked him whether he "liked to work there" and he said he did ; that Tersinar was "saying something" when he, Sibley, said: "Well, quit beating around the bush, are you going to lay me off, or what?"; and that Tersinar then said : "Yes, that's the idea." Sibley then asked the reason for his layoff and Tersinar said it was "for giving his son trouble." Sibley asked for a layoff slip and Tersinar told him to come back for it and for his pay the following day. Sibley testified that as he passed along the row of machines he told Pikka that he had been laid off and that he then went to the picnic table to pick up his lunch pail whereupon William Tersinar told him to "get out." As he was about to leave, he testified, Tersinar said, without apparent reason; "I've dealt with the Labor Boards and the unions for 20 years." The following day, Sibley testified, he came to the plant for his pay and a layoff slip; he found both Pikka and Herbert Johnson there. He asked Tersinar for a layoff slip and Tersinar said : "What do you mean, I fired you." At that time John Tersinar and Johnson were having a discussion about the adequacy of the time on the molds and Johnson said that John Tersinar was too young to handle men; that William Tersinar then repeated the statement that he had dealt with the unions and Labor Boards for 20 years and could handle them. Pikka testified that on Wednesday evening, as Sibley returned from the office and passed along the line of machines, he told him he'd been laid off; that Johnson came over and they were standing together when John Tersinar came over to him and said : "You go, too." Pikka testified that he went to the picnic table to put on his coat when William Tersinar came to him and told him to punch out; that Johnson was close behind him and Tersinar told him, also, to punch out. According to Pikka, Johnson asked William Tersinar why Sibley was being laid off and Tersinar said he didn't have to tell him. At that point, Pikka testified, he told William Tersinar that he had been scheduled to get a raise in 30 days and he didn't get it whereupon Tersinar said he'd get whatever was coming to him . Tersinar continued, according to Pikka, by saying: "If you get a union in the place you'll have to work a lot harder." The three employees then left. The next day, Pikka testified, he came to the plant for his check and found Sibley and Johnson there; they received their checks and asked for layoff slips; William Tersinar said that they had quit but that they might get layoff slips the following week if the Company decided to grant them; and that Tersinar repeated his statement about having "dealt with Labor Boards for 20 years." Respondent's account of this incident is radically different: John Tersinar testified that Sibley's work was poor the first week of his 3-week employment and there was no improvement the second week ; that during the second week Sibley started to throw bits of material around and to wander away from his work. He stated that he called his father and told him about Sibley and that his father said to warn Sibley; he also testified that his father talked to Sibley, perhaps more than once, either in the pressroom or the office but he couldn't remember 'when that occurred. The evening of Sibley's discharge, John Tersinar testified, "was the worst"; that Sibley was throwing metal around and walking away from his press, so he called his father, who came to the plant and told him to send Sibley to the office. When Sibley came out of the office, Tersinar stated, he ran over to Pikka and Johnson and said: "I'm fired," whereupon both Pikka and Johnson said: "Let's go, then" and they waved to the other employees asking them to go out also but none of the others did. He also testified that nobody except Sibley ever threw metal or rubber about the plant. William Tersinar, who testified before his son, stated that he hired Sibley in January and that he thought, during the first week, that Sibley "was going to make a pretty good man"; but that then Sibley started to throw things about and fail to stay on the job. He told his son to warn Sibley that, if the horseplay continued, he would be let go and he testified that he once warned Sibley himself. On February 21, he testified, his son telephoned him and said he couldn't keep Sibley on the job and that he was throwing metal around; he went to the plant and summoned Sibley to the office; that Sibley came into the office saying: "You're going to fire me" but that he said: "Well, let's don't put it as `fire', we just can't use you if you're going to continue this horseplay." According to Tersinar, Sibley turned right around, went into the pressroom, waving his arms, and saying, "I got fired, let's get out of here." He saw Pikka and Johnson walking along with Sibley, Tersinar stated, so he went over to them and told them: "punch out, if you boys are going out, and don't come back." Both John and William Tersinar denied that there had been a lunch break in the pressroom or a request for one. Herbert Johnson did not testify. The two accounts of the events leading to and surrounding these discharges are in absolute conflict and neither is inherently improbable.' The testimony of each of the Tersinars, except for the relatively minor conflict as to whether Sibley was, during the second week of his employment, a good or poor employee, is mutually corroborative, and the testimony of Sibley and Pikka is also mutually corroborative. The interest of all who testified on this matter is also apparent: Sibley and Pikka are discharged employees who seek reinstatement and the Tersinars, as operators of the plant, are endeavoring to defend their own actions. It becomes necessary, therefore, to take into account the credibility of the witnesses. In this area, however, the task is easier : John Tersinar was very clearly-and not unnaturally-under the complete domination of his father, and William Tersinar made much of the fact that his son had no managerial discretion (although I have found to the contrary). As a witness, William Tersinar was agressive, yet frequently evasive, and he was forced to withdraw several of his testimonial denials when confronted with the contents of his pretrial statement. His manner in testifying convinced me that his answers were designed to justify his actions and support Respondent's defense rather than disclose the facts. After denying that the subject of a lunch break had ever arisen, he conceded that it had, and his answers with respect to this subject, constantly comparing the plant to those of other companies, were obviously based upon how he felt Respondent's plant should operate. Most important, however, in my conclusion that William Tersinar was not a credible witness, is his testimony in connection with the events of Sunday, February 25, the next incident to be discussed herein. 'Excepted from this comment are the statements, attributed to William QUALITY RUBBER MFG. CO. 45 The testimony of William and John Tersinar is rejected, therefore, and that of Sibley and Pikka is accepted. I find 'that Sibley, Pikka, Johnson, and some of the other employees on the afternoon shift took a 10-minute lunch break February 12 to 15 and discontinued it under threat of discharge . Only this background gives a reasonable explanation for the Tersinars' animosity toward Johnson and Pikka which led to their discharge on no greater provocation than their momentary conference with Sibley after his discharge, since neither of the Tersinars testified to any action by them that could be reasonably construed as walking out. Moreover , William Tersinar conceded that they were both good workmen whom he had not theretofore considered firing . I find that Sibley, Johnson, and Pikka were discharged in retaliation for their having sought and having taken a 10-minute lunch break. The complaint alleges that these three employees were "discriminatorily terminated . . . because of their union sympathy, and in order to discourage the union membership and activities of their fellow employees" and the argument, in the General Counsel's brief, that these three employees were discharged "to discourage union ... activities" is based upon his contention that the evidence shows that William Tersinar was aware of "union" activity.10 The credible evidence, however, does not support a finding that Respondent had knowledge of union - as distinguished from concerted - activity among the employees at this time. The final paragraph of the complaint, however, alleges that all the conduct set forth therein constituted "unfair labor practices, as defined in Section 8(a)(l), (3 ), and (5) of the Act" and the General Counsel argues, alternatively, Tersinar on both February 21 and 22 , that he had "dealt with the Labor Boards and the unions for 20 years " and that: "if you get a union in the place you'll have to work a lot harder." There is nothing to indicate that Respondent then had any knowledge of union activity and nothing in the record that gives these statements probability at that time, although I find that they were made at the time of the additional discharges on February 26. Accordingly, I do not find that Tersinar made these statements on February 21 and 22. "The General Counsel relies upon William Tersinar's antiunion statement to Raymond Monti in April 1967 that Respondent would not have a union in the plant ; upon Tersinar's statement that the reason for Olsen's layoff was because he was a "union organizer " (herein found violative of Sec. 8(aXl) of the Actk upon Tersinar's statement to Pikka before he hired him in late December 1967 that he didn't want a union in the place (also found herein violative of Sec. 8(aXl) of the Act); upon the statements of William Tersinar that he had "dealt with unions and Labor Boards for 20 years"; upon William Tersinar's statement that "if a union came in" the men would have to work harder; upon Mrs. Vilencia's testimony that William Tersinar warned her that her husband's involvement in union activities might get him diaduxged and that this occurred prier to her telephone converaatim with hhn on February 25 (altho, g her affidavit places this conversation on February 26), and upon the fact that such knowledge by Respondent is inferable because both the plant and the community are small. A serious difficulty with the General Counsel 's reliance upon these factors is that LaGassa's testimony shows that the first overt activity in support of the Union occurred on Saturday , February 24, when he obtained blank authorization cards and began soliciting signatures among his fellow employees. For this reason, there appears to be no foundation of probability for the statements attributed to Tersinar , at the time of these first discharges, concerning his dealings with Labor Boards and unions and to the likelihood that the men would have to work harder if a union came in, and I do not find that they were made . For the same reason I cannot justify an inference that Tersinar knew , because of the small size of the plant and the community, that there was current activity in support of the Union . Finally, Mrs. Vilencia's testimony concerning Tersinar's warning to her concerning union activity by her husband fixes the date of that warning both before and after her February 25 telephone call and , accordingly, proves neither date. that these discharges were to coerce the employees for their exercise of rights guaranteed in Section 7 of the Act, i.e., concerted activities for mutual aid or protection. While it now appears, by the exercise of hindsight, that it would have shown better judgement to have included an express allegation that Respondent's conduct also constituted "interference, restraint, and coercion," rather than simply using the less satisfactory shorthand device of stating that, by its conduct, "Respondent has engaged in . .. unfair labor practices, as defined in Section 8(a)(l), (3) and (5) of the Act," the Board and courts have nevertheless held that due process does not require rigidity in the relationship of pleading and proof but that the real questions are whether Respondent was adequately informed of the claims to be adjudicated and whether the issues were, in fact, fully litigated." I think that there can be no doubt that Respondent herein was adequately informed that the discharge of employees Sibley, Pikka, and Johnson on February 21 would be litigated as an unfair labor practice; whether the General Counsel's proof at the trial was on the basis of their concerted activity in seeking a lunch break or on the basis of their "membership in a labor organization" could not, and did not, have any material effect on the nature of Respondent's defense that Sibley was discharged for misconduct in throwing material around and that William Tersinar, when he saw Pikka and Johnson about to walk out, told them that if they did so they need not come back. Accordingly, I find that Sibley, Pikka, and Johnson were discharged in retaliation for having engaged in concerted activity in an attempt to affect their conditions of employment and that their discharge by Respondent for this activity interfered with their exercise of the right guaranteed in Section 7 of the Act to engage in concerted activities for mutual aid or protection and that Respondent thereby violated Section 8(a)(l) thereof.'I Moreover, Section 2(5) of the Act clearly indicates, and the Board has frequently held, that no particular formality of organization for concerted activities is necessary and that any group of employees, united for the purpose of dealing with their employer concerning conditions of their employment, constitutes a labor organization within the meaning of the Act." Accordingly, I find that Respondent's discharge of these three employees also constituted discrimination "to discourage union . activities" and an unfair labor practice as defined by Section 8(a)(3) of the Act. 4. Respondent's notice of union activity During the weekend of February 24-25, employee LeGassa persuaded many of his fellow employees to sign union authorization cards . The progress of the campaign, however, was not entirely smooth and an argument occurred at a gasoline station which resulted in a telephone call to William Tersinar by Mary Vilencia, wife of Mike Vilencia, a pressroom employee . Mrs. Vilencia told Tersinar that her husband had nothing to do with "Independent Metal Workers, Local I (Hughes Tool Company). 147 NLRB 1573, 1576-77; The Frito Company v. N L R B., 330 F.2d 458 (C.A. 9). "Washington Aluminum Company. 126 NLRB 1410, enforcement directed 370 U.S. 9. "Phaostron Instrument and Electronic Company, 146 NLRB 966, 1006; Dove Manfacturing Company. 128 NLRB 778; and see Latex Industries,Incorporated, 132 NLRB 1. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "the group of employees who were involved in union activities at the plant." According to Mrs. Vilencia," Tersinar answered that he had heard rumors of a union at the plant but didn't believe them; that "he hoped this didn't close the plant due to the high overhead" and that the men "should have waited a couple of years before they organized and had they waited the wages might have gone up to possibly $2.65 per hour this summer." Although William Tersinar admitted having received the call from Mrs. Vilencia and that she said her husband was threatened by some people "trying to have him sign some card," he claimed he was "not interested" in her call because he was watching television. He also said he could not recall that she said her husband "didn't have anything to do with union organization in the plant" although a portion of his pretrial affidavit, received in evidence, so states. Similarly, he was unable to recall, both when he gave a pretrial affidavit and when he testified, having said anything about plant closing or a raise in wages. He did not, however, dispute the testimony of Clarence Johnson, who is still employed, that he telephoned him at 6:30 Sunday evening to ask whether he had been asked to sign a union card and that he said "I'll tell you right now, if the union comes in we're going to close the doors."" Not only does Clarence Johnson's testimony refute Tersinar's statement that he was "not interested" in Mrs. Vilencia's message concerning the Union's card campaign, but it corroborates and recasts in clearly coercive language Mrs. Vilencia's testimony concerning his statement to her concerning the plant's closing. Based upon this incident, as well as the others noted herein and his demeanor while testifying, I conclude that William Tersinar was not a credible witness. Accordingly, I find that Tersinar threatened to close the plant if a union came in and held out a promise that, if the employees would forego self-organization, their wages might rise substantially" in the near future. Both the threat and the "promise"" constituted restraint and coercion of the employees in their exercise of the right of self-organization and were violative of Section 8(a)(1) of the Act. 5. The February 26 discharges The first pressroom employees at the plant on Monday morning, February 26, were Verner Mattson and Nels Luoma, who arrived at 6:30 a.m., met in the parking lot, and walked into the plant together. According to both of them, William Tersinar met them at the door and said that he wanted the employees to "help" him; that he had had a telephone call from Mrs. Vilencia saying that her husband had been asked to join a union, had refused, and felt that he was being threatened. Tersinar then asked "Mrs. Vilencia was a most reluctant and hostile witness: she quarreled with counsel and refused to answer questions . When confronted with her pretrial affidavit , she claimed not to remember the facts set forth in it, although she conceded that the information given to the investigating agent was true . Accordingly, the affidavit was received in evidence as past recollection recorded (3 Wigmore, Evidence 734, 746 (3d ed.) and has been considered as if testimomally given. "While being questioned concerning evidence that he had made a similar statement to employee Whitburn in April 1968 , Tersmar denied that he had ever told "anybody" that the plant would be closed if the Union came in. I do not regard this generalization as a denial of the specific testimony. "Six employees stated their wage rates : two received $I; five received $1.90; and two received $2.05. "While the complaint does not allege promises of benefit as interference, restraint, or coercion , it does allege "suspension of contemplated benefits" and this fits within that allegation. Luoma whether it was true that a union was trying to organize the plant and Luoma said that it was. Luoma testified that he also said that he did not know anything about a phone call. As the men moved toward the timeclock, Tersinar told them not to punch in, so they sat down at the picnic table, located in the same room. Both Luoma and Mattson testified that Tersinar then began talking to them about the Union, saying he didn't want a union and if it came in he would shut the plant down; that he drew comparisons between their own situation and that in Chicago, where there is a union, saying that at Chicago the men used to receive hams and turkeys at Thanksgiving and Easter and a bonus at Christmas and that he had intended to give his men hams for Easter. He also said that, although the men at Chicago had a 10-minute break before and after dinner, they wished they did not have the union and that, if the Union came in, each man would be given four presses instead of three and they would still get no break. Mattson and Luoma testified that at that time other employees began coming in. Leonard Westeen, a millroom employee, testified that he arrived at 6:40 with Douglas Twiggs and they were about to punch in but Tersinar told them not to do so but to sit down. Glen LeGassa testified that he arrived at 6:45, that he saw Luoma and Mattson at the picnic table and that Tersinar told him not to punch in. He testified that Tersinar, after saying that the men at the Chicago plant had received a $10 bonus the previous year, said that he was going to lay the employees off or fire them. At 6:50, according to employee Raymond Monti, he came in, saw the men around the table and went to it, asking Luoma what the trouble was. Luoma said, "We have labor trouble." Monti testified that Tersinar then said: "I will have nothing to do with the Union: I will not tolerate it: you fellows are all fired." Shortly thereafter, George Monti, who had arrived with his father but had been delayed in the parking lot, came in and also sat down at the picnic table. During all of this time, according to Mattson, Luoma, and LeGassa, Tersinar was walking back and forth near the picnic table, leaving the area for short intervals and then returning; that he was mumbling inaudibly some of the time and talking at other times to the men at the table. The testimony concerning Tersinar's statements was given by all five of the foregoing employee-witnesses: they did not all testify to all of the statements and their accounts of the order and terms in which Tersinar made the statements did not coincide with precision. Their combined testimony, however, adequately and credibly describes an intermittent and emotional declamation by Tersinar in which each of the described statements was made by him once or more and in which the paramount theme was his insistence that the plant would not operate if the men were represented by the Union. Mike Vilencia, the last to arrive, testified that he came in at 6:55 and that Tersinar directed him to sit at the picnic table. At that time, therefore, pressroom employees Mattson, Luoma, LeGassa, Twiggs, Raymond Monti, George Monti, and Vilencia, and millroom employee Westeen, were present. All of the foregoing employees who testified" agree that Tersinar then asked Mattson and Luoma, in turn, whether they were going to work and that they answered: "Not if the others don't"; that Tersinar then addressed the same question to some of the others with the same result except "Mattson, Luoma, LeGassa, Raymond Monti, Westeen, and Vilenc,a. QUALITY RUBBER MFG. CO. that Vilencia answered: "I have to go to work. I have a family to support." The employees all testified that Tersinar then said- "You are all laid off; no, you are all fired," and that he walked over to the timeclock and pulled out a number of timecards. All the employees at the picnic table, except Vilencia, thereupon went to the locker room, picked up their working clothes, and left the plant. William Tersinar's account of the morning's events is as follows: he arrived at the plant about 6:15; shortly thereafter he saw Luoma and Mattson coming in and he told them not to punch in "too early"; that he left that room, where the picnic table is located, to turn on some machinery and that, when he returned, he saw the two men and several others sitting at the picnic table and he saw some other men walking around that room or in the locker room. He testified that a few minutes--not more than 5-before 7 o'clock he went to the table and "saw that they weren't going to work" so he said, "Aren't you going to work?" Someone said "no" so he walked toward them and pointed to Luoma, who said "no"; he then pointed to Mattson and said "are you going to work?" and Mattson said "no," and he pointed to Twiggs, and Twiggs said "no." About that time, according to Tersinar, Mike Vilencia said "I have to go to work, I have a family to support," so he told Vilencia to punch in and get on the job. Tersinar also said that he told the others that it was time to go to work; that he said "get out of the plant" to the three people who said they didn't want to go to work; and he testified that, as they left, they took the rest of the pressroom with them. Tersinar admitted that he was at and away from the picnic table several times between the arrival of Mattson and Luoma at 6:30 and his inquiry, just before 7, as to whether the men were going to work, but he testified that he had no conversation with them. He also testified that he had been pacing back and forth in that room but insisted that he was only "watching the machines." He flatly denied having talked to the men at all prior to 5 minutes before 7 when he asked them whether they were going to work. Respondent also produced as witnesses several of the female employees who work as inspectors in the same room where the picnic table and timeclock are located. The one who claimed to have arrived earliest, Genevieve Salo, testified that she arrived between 6:35 and 6:40, having left her home at 6:30 and driven the "mile or so" to the plant; that she took off her winter coat and overshoes in the cloakroom, put on her shoes and jacket, and then entered the room containing the timeclock, the picnic table, and the conveyor belts. She saw "all the men" sitting at the picnic table as she passed on her way to the timeclock; she testified that the table was "crowded," and named five of the men she could recall, while stating that she was "sure there was more." After punching in, she went over to the conveyor belt and sat down. She testified that Tersinar was walking near the picnic table; that "just before time for working" she heard him ask the men whether or not they wanted to work and that the men "picked up their pails and they walked out the door." Mary Anderson testified that she arrived at the plant between 6:45 and 6:50 that morning; that she first went to the cloakroom where she took off her jacket and changed her shoes; that she went into the larger room, punched her timecard and was about to sit down at the picnic table when she noticed that "all the men were there" so she 47 went and sat down with Mrs. Salo near the conveyor belts. After 5 or 6 minutes, she testified, it got to be 2 or 3 minutes before 7 and time to begin work so she walked toward the picnic table to put her purse and lunch pail on it; as she approached the table, she heard Tersinar ask the men whether they were going to work or not, after which they left. Florence Beber testified that she arrived between 6:45 and 6:50, having left home at 6:40 and made a brief stop with her husband. She testified that she left her jacket in the cloakroom, changed her shoes, and entered the inspection room between 6:45 and 6:50. She saw the men sitting at the picnic table as she went to the clock so she punched in and then went over to sit with Mrs. Salo and Mrs. Anderson near the conveyor belts. A few minutes before 7 she walked toward the picnic table and saw Tersinar with the men there; she heard him ask them if they wanted to go to work, after which they picked up their lunch pails and started out of the plant. As the men went out, one of them she believed it was Luoma - said that she could work if she wanted to. Patricia Juopperi" testified that she arrived 10 minutes before 7, punched in her timecard, and went to the conveyor belt where the other women were seated. At that time, she believed, most of the pressroom men were at the picnic table and she saw William Tersinar also near it. She testified that she heard Tersinar ask all the men at the picnic table whether they wanted their jobs and they said "no" and walked out. She testified that it was about 3 minutes after she arrived at the plant that the pressroom employees walked out. Verna Morrison testified that she arrived at the plant between 6:50 and 6:55, took "a few minutes" to put away her coat and change from boots to shoes, and that she then went into the room with the picnic table; that when she entered the room she did not see any of the men at the picnic table but that she met them as they were coming out the door with William Tersinar directly behind them. She testified that she heard Tersinar say something similar to "alright, boys that's all" or "alright, boys, that's it," and that one of the men, Douglas Twiggs, said to her that the women could either work or go home. As stated above in connection with some of the incidents prior to February 26, I cannot regard William Tersinar as a credible witness. That conclusion is reinforced by the conflict between his testimony that on this date, other than cautioning Mattson and Luoma not to punch in "too early," he did not instruct anyone not to punch in, with the testimony of Respondent' s witness, Vilencia, who testified that, when he arrived at 6:55, Tersinar told him not to punch in. Tersinar also testified that, although he was pacing to and fro in the room near the picnic table, he was only "watching the machines" but the record is clear that none of the machines in that room - conveyor belts and tumbling machines - had been turned on. Moreover, I find it completely improbable that Tersinar had nothing to say to the men on the morning after being informed that a union organizational campaign was being conducted among them - particularly since the report he received featured "threats" by the union solicitors and his asserted lack of interest in that report is belied by his prompt investigatory telephone call to Johnson. On the contrary, the probability appears to me to lie with the "Mrs. Juoppen was called by the General Counsel but only identified her union card; the balance of her testimony was elicited by Respondent on cross-examination. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD account given by the male employees who testified." Accordingly, I find that William Tersinar made the statements set forth in the testimony of the male employees; that he threatened to shut the plant down if the Union came in; threatened that, if the men were represented by a union, they would be required to attend four instead of three presses and that they still would have no breaktime; and that he threatened to lay off or discharge the employees . All of these statements were coercive and violative of Section 8(a)(1) of the Act. Moreover, I find that by these statements, when viewed in context, Tersinar implied that the employees could not remain members of the Union and continue to be employed by Respondent . These statements also gave rise to a belief among the employees that some or all of them were scheduled for immediate discharge because of their self-organizational activity and their answers that they were not going to work unless the others did were an affirmance of their right to remain members of the Union rather than a refusal to go to work . I find that none of the employees quit, as Respondent contends, but that Tersinar's inquiry as to whether they were going to work was simply a part of his diatribe of threats and denunciations which really constituted a demand that, to continue in employment , they would be required to renounce their union activity and which , when most of the men expressed their solidarity with the others , culminated in his discharge of all the employees at the picnic table21 except Vilencia . These discharges were discriminatory and for the purpose of discouraging membership in the Union. Accordingly, they were in violation of Section 8(a)(3) of the Act. 6. The refusal to bargain a. Demand and refusal Later in the morning on February 26, Staff Representative Soltis of the Union telephoned Tersinar to request reinstatement for the seven employees who had been discharged. Tersinar refused, saying that they had quit but that he might reemploy one or two of them at some future time. Soltis protested , saying that the men had the right to organize and that a majority had designated the United Steelworkers as their representative. Tersinar said that, if the men wanted a union , he "would have got" them the union representing the employees at the Chicago plant. 22 Tersinar admitted that Soltis told him that a majority of Respondent's employees had authorized the Union to represent them. On the same day, the Union , over Soltis' signature, wrote Respondent that it represented a majority of the employees in a specifically "The testimony of the women employees does not contradict that of the men since I find that they minimized the time necessary to change from boots to shoes and tended to make the time of their arrival at the plant earlier than it was . Moreover, they merely testified that they heard nothing until Tersinar demanded to know, less than 5 minutes before 7, whether the men were going to work . Mrs. Salo, who arrived first, testified that when she came in at 6 40 "all the men" were at the picnic table , although Raymond Monti, whom she specifically named, testified that he arrived at 6:50. "Nell W. Luoma, Verner Mattson, Raymond Monti, George Monti, Douglas Twiggs, Glen LeGassa, and Leonard Westeen. The complaint also alleges that Respondent discharged Gary Lame but there is no evidence that he was present on the morning of February 26 or at any time thereafter. Respondent contends that Laine voluntarily quit by his failure to report for work and, since the record contains no evidence to support the allegation of the complaint as to him , it will be dismissed. described production and maintenance unit;" requested a prompt meeting for bargaining , and offered to submit the signed authorization cards to a representative of the Federal Mediation and Conciliation Service for verification of its claim to majority status. The next day Respondent answered the letter by listing its employees - 18 in number - and stating its readiness to bargain "with any organization when shown that said organization has been designated as the collective bargaining representative of our employees." On March 15 , the Union responded , offering to meet with the Company on March 25 , at the company office "for the purpose of agreement that the United Steelworkers of America , AFL-CIO, has been designated by the majority employees . ." and, on the 18th, Respondent wrote, agreeing to the meeting. Pursuant to this exchange of letters , Soltis, representing the Union, met with William Tersinar and Respondent's counsel . Soltis submitted photocopies of 20 signed cards and Tersinar gave them to Eivind Arentz , the plant chemist, who left the room with the photocopies. When Arentz returned, small "x's," not previously there, were on the photos of seven cards . 24 Tersinar then refused to recognize the Union on the ground that he saw copies of cards signed by "only five people" who were employees and that he regarded the "other fifteen " as no longer employees because "they refused to work and walked out . they quit." " The meeting lasted only 15 minutes and none was held thereafter. b. The unit At the trial, Respondent produced a list of its employees as of February 20, 1968, before any of the terminations in issue herein , which contained 34 names. One of these was an office clerk, specifically excluded from the unit for which the Union requested recognition;" another on this list is John Tersinar, found herein to be a supervisor and, therefore, also excluded. Accordingly, on that date, Respondent had 32 employees in the unit. The list of employees as of February 22 is the same, except for the omission of the three employees terminated on the 21st. Respondent's list of employees as of February 27 omits the three terminated February 21 and the seven terminated February 26. The names of Gary Laine and George W. Golembeski are also omitted from the list, with notations that these men failed to report for work on the day and evening shifts, respectively, on February 26.27 "This statement is not alleged in the complaint as a violation of the Act. ""All production and maintenance employees , at your Wakefield, Michigan Plant No . 2, excluding office clerical and professional employees, guards and supervisors, as defined in the Labor Management Relations Act." "Mrs. Juopperi, Taisto Hendrickson , Clarence Johnson, Eanar Johnson, Mrs. Morrison, Robert Whitburn, and Kathlyn Auvmen. "Tersinar's testimony that there were only five employees ' cards is refuted by the photocopy sheets which are in evidence and show "x's," on seven cards. His testimony that there were only five cannot be regarded as an attempt to prove the fact - that would be absurd - but as another instance of his readiness to weight his testimony in any way he believed would Justify his adamant opposition to union organization at this plant. The number 15 - of employees he testified "had quit" - was fixed, however, by his counsel's question, probably by the simple subtraction of Tersinar's conceded 5 employee cards from the 20 card photos admittedly exhibited at the meeting. "Respondent concedes that the unit is an appropriate one and admitted the allegation thereof in the complaint. "The letter written by Respondent to the Union on February 27, giving QUALITY RUBBER MFG. CO. 49 As noted above, there is no evidence that Gary Lame reported for work on February 26, or any subsequent day, and Respondent ' s contention that Laine quit as of the beginning of work on February 26 is accepted. The matter of the termination of Golembeski is treated hereafter and his discharge found unlawful. Accordingly, by adding Golembeski and the 10 employees also found to have been unlawfully discharged to Respondent's list of 20 employees as of February 27, 1 find that there were 31 employees in the unit when the Union requested recognition. Respondent does not contest the adequacy of the cards as authorizations of union representation or the validity of any employee's designation but bases its defense upon its contention that the employees terminated on February 21 and 26 had quit and that Golembeski was not unlawfully discharged, so that they were not employees when recognition was demanded and, therefore, their designations may not be considered. Since I find that these 11 men were unlawfully discharged, they continued, by virtue of Section 2(3) of the Act, to be employees in the unit. Accordingly, the Union, having been designated as bargaining representative by 1918 of the 31 employees in the unit, represented a majority when it demanded that Respondent bargain with it and Respondent's refusal violated Section 8(a)(5) of the Act. 7. Discharge of Golembeski George Golembeski had worked in the pressroom since November 6, 1967, and was on the afternoon shift during the week of February 12 to 16. He was one of those who took a 10-minute lunch break until John Tersinar threatened to discharge anyone who continued to do so. He was ill and did not report for work any day during the following week. On February 26, after the discharge of the seven employees on the day shift, he attended a meeting with the union representative and the discharged employees but, since he was still ill, he did not report for work that afternoon. The next day, while he was still ill and at home, he received a telephone call from LeGassa, who reported that the men on the afternoon shift had been assigned to the day shift. At 6:15 on Wednesday morning, February 28, he telephoned William Tersinar at the plant and asked whether it was true that employees on the afternoon shift had been transferred to the day shift. Tersinar said that the afternoon shift had been discontinued and the employees moved over to the day shift. Golembeski said he would be ready to go to work that day but Tersinar answered, according to Golembeski: "No, you'd better stay home, too." Tersinar testified that Golembeski called in on March 1, "four days after the 26th of February" and asked whether his job was still open; that he answered that he had warned Golembeski about staying home without calling in and that, since he, Golembeski, had not called in for 4 days, he could stay home. Tersinar testified that Golembeski's employment was terminated on March 1, the day he called in. a list of its employees, also omits George Grant and Anton Thorson, who appear on the list prepared for the trial This discrepancy has not been noted by any party herein and, since it makes no difference in the determination of any issue, it is ignored. "The card of Gary Laine is not counted. It is important to note that, on the basis of Tersinar's testimony, Golembeski's employment was not terminated by Respondent until he called in and that this occurred, as Tersinar insisted, after 4 days of absence .29 As Tersinar testified in connection with the Washburn discharge, however, any employee who fails to report for work is required, pursuant to company policy and the rule posted on the bulletin board, to call in "within three working days" and failure to do so results in his removal from the payroll. Had this rule been applied to Golembeski, as it was to Washburn, Golembeski would have been routinely terminated no later than the beginning of the fourth day of his absence - Thursday, February 29 - and Tersinar would, I am convinced, have pointed this out to Golembeski when he called. Moreover, Tersinar did not controvert Golembeski's testimony that he had been absent the entire previous week but nevertheless, according to his own testimony, Tersinar's reference to Golembeski's absence specified that it was for 4 days. It is a fair inference that Golembeski had already given Respondent proper notice of the reason for his absence some time during the prior week and had, therefore, complied with the company rule. For these reasons, as well as my refusal to regard Tersinar as a credible witness, I reject Tersinar's testimony that he referred to Golembeski's absence as a reason for discharge and I accept the testimony of Golembeski that, when he called in on Wednesday, stating his readiness to go to work that day, Tersinar's answer was: "No, you'd better stay home, too." This answer, particularly in its use of the word "too," convinces me, and I find, that Tersinar, recalling Golembeski's participation in the taking of the 10-minute lunch break, bracketed him with the seven employees he had discharged 2 days earlier, after he learned of the Union's organizing campaign. Accordingly, I find that Respondent's real reason for discharging Golembeski was its belief that he was involved in the organizational activity and that its purpose was to discourage union membership or activity among its employees. It follows, therefore, that the discharge was violative of Section 8(a)(3) of the Act. 8. Additional interference, restraint, and coercion Mrs. Vilencia's pretrial affidavit, which was received in evidence, states that before noon on Monday, February 26, the day following her telephone conversation with William Tersinar, she went to the plant to get some insurance forms and met Tersinar there." Tersinar said: I'm very disappointed. I understand Mike has been mixing with the fellows who have been talking union. I "Tersmar's testimony that he discharged Golembeski for unreported absence on March I is also contradicted by the fact that, when he listed the plant employees in his letter to the Union on February 27, Golembeski's name was not included . Moreover, it is mconsistent with the fact that, on the list of employees as of February 27, prepared for the trial of this case, Golembeski's name is also omitted with the explanatory note that he had failed to report on the 26th and had called in on the 29th "In her testimony, Mrs. Vilencia stated that her visit to the plant to get insurance forms did not occur on the day following the telephone conversation but "quite awhile before that ." In view of this contradiction as to the time of the conversation as well as the probabilities of the events involved, I refused to find, as set forth above, that her conversation with Tersinar occurred prior to the discharges of Sibley, Pikka, and Johnson, as the General Counsel contends in his brief. Nothing in Mrs . Vilencia's testimony, however, detracts from the evidence in her affidavit that she had a conversation, in the form set forth therein , with Terstnar, on February 26, and I find that it occurred as set forth. - 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD just hope it's not true, I might have to let him go if he is the instigator. It would be difficult to formulate a threat more clearly than this statement which, I find, Tersinar made to Mrs. Vilencia. It is no less restraint and coercion , violative of the Act, because made to the wife of an employee - particularly one who had already been in communication with Respondent's plant manager on the subject of union activity involving her husband - than if made to the employee." Accordingly, I find that by this statement Respondent violated Section 8(a)(1) of the Act. Robert Whitburn was hired in October 1967, and worked as a press operator on the day shift until February 22, when William Tersinar transferred him to the afternoon shift, and he worked on that shift Friday, February 23. At 4:40 p.m. on Monday, February 26, Whitburn testified, he reported for work and found both William and John Tersinar standing at the timeclock with employees Clarence Johnson, Eanar Johnson, and Taisto Hendrickson. William Tersinar said that the Company didn't want the Union in there and, if it came in, the doors would be closed. He also said that some of the employees at the Chicago plant had been fired and thought the union there could help them but it never did; that the employees at the Chicago plant didn't like the union and wanted to get rid of it; that if the men at Wakefield did get a union, they wouldn't want it. Whitburn testified that William Tersinar then asked him whether he had signed a card and, when he answered "yes," Tersinar said : "It didn't help you very much, did it?" The threat of plant closing is, of course, violative of Section 8(a)(l). Tersinar's inquiry as to whether Whitburn had signed a card was not justified since it was not part of a properly conducted poll of employees to determine whether the Union represented a majority as claimed and, therefore, is also violative of Section 8(a)(l) of the Act. Whitburn also testified that, some time in April, he was standing with the plant carpenter and employees Grant and Swearingen near the office, when Plant Superintendent Tersinar came out and told them that he had orders from Chicago to close the plant because of the Union's activity but that he and the plant chemist had purchased homes in the area and , therefore, he wanted to keep the plant open . He also said that, if the Union came in, he would close the plant. Whitburn testified that he heard Tersinar make the same statement to other employees in the plant about the same time. While Tersinar denied making these statements, I reject his denial and find that they were made . By these statements, Respondent violated Section 8(a)(1) of the Act. 9. The discharge of Whitburn The facts concerning this incident are not in dispute. Robert Whitburn, an employee since October 15, 1967, worked as usual Friday, May 3 , on the afternoon shift. On Sunday, May 5, he learned of a wedding in Superior, Wisconsin, 115 miles away, which he was to attend. Accordingly, he went to Superior and did not report for work on either Monday or Tuesday, May 6 or 7. He conceded that he did not inform Respondent of his proposed absence and did not call in on either of those "Redwing Carriers, Inc., 125 NLRB 322, 323, enfd . on this point 284 F.2d 397 (C.A. 5), an almost identical factual situation; see also Oswego Street Supermarkets . 159 NLRB 1735, 1737 days. On Wednesday, May 8, Whitburn reported for work at the usual time, 6:45 p.m., but could not find his timecard in the rack. He went into the office and asked Plant Superintendent Tersiner where his card was. Tersinar said: "We don't need you no more, you're fired." Whitburn asked for the reason and Tersinar said he had missed too much work; Whitburn protested that he hadn't missed as much work as employee Dave Swearingen, whereupon Tersinar responded that Swearingen had also been discharged and added that Whitburn was supposed to call in but hadn't done so. Respondent's stated defense to the allegation of the complaint concerning Whitburn's discharge was that the employee "was discharged for not complying with the rules . posted on the bulletin board." In support, Respondent produced a sheet of paper which, plant chemist Arentz testified, had been posted on the bulletin board "right next" to the timeclock a couple of months after the plant began to operate in July 1967 and had remained there until removed the day before the August 14 session of the trial for use in this case. This notice reads as follows: Any employee who can not show for work, is required to call this office or have someone call, within 3 - three - working days. If no message has been received by such time, the employee will be removed from the payroll. Management Whitburn denied having ever seen this notice. He testified, however, that he didn't know how often he looked at the bulletin board, saying, "Every day, I imagine." His testimony , considering the hesitant manner in which it was given , is not sufficient to overcome Respondent's evidence on this point and I find that this notice was posted on the bulletin board. Tersinar testified that he discharged Whitburn "for three or four different reasons" but specified that, when he actually terminated Whitburn's employment on May 8, the reasons were his absenteeism and his failure to call in. Tersinar also testified that his other reasons included the fact that Whitburn was an inefficient employee, that he made "an awful lot of rejects" and that he "was holding back production." Whitburn's timecard for the week May 6 - 11 shows no entry except the notation, in the space for Thursday, "Disch 5/9/68" which, plant chemist Arentz testified, he inserted at 7 a.m. on Thursday, May 9, at the direction of William Tersinar. The General Counsel's case with respect to Whitburn draws a comparison between this employee and employee Swearingen who, he contends, was absent at least as often as Whitburn and, when discharged for absenteeism, was rehired." Reliance is also placed upon Respondent's union animus as demonstrated by the February discharges and the coercive statements of William Tersinar; upon the fact that Whitburn had signed a union card - known to Respondent since March 25; upon the contention that Tersinar improperly applied the posted rule to Whitburn; and upon Tersinar's shifting reasons for Whitburn's discharge. "Tersmar testified, without contradiction, that Swearingen was discharged for absenteeism on May 6; that he was rehired May 13 on his promise to report more regularly and that he was finally discharged, again for absenteeism , on July 13. QUALITY RUBBER MFG. CO. 51 Respondent' s union animus has been amply demonstrated by Tersinar's conduct in the incidents described above in this decision. Moreover, the record shows that Tersinar knew that Whitburn had signed a union card and that Swearingen had not. It is not, however, clear that Tersinar's reasons for discharging Whitburn were shifting or false, or that Whitburn's admitted shortcomings were so similar to those of Swearingen that upon the differences in Respondent's treatment of the two men an inference of discrimination is required to be drawn. Tersinar testified that, although Swearingen was guilty of considerable absenteeism, he or his wife usually called when he could not report" and that Swearingen was a competent employee. Tersinar also testified that he rehired Swearingen upon Swearingen's promise to report regularly." Moreover, there is no evidence that Whitburn promised to do better in the areas of dissatisfaction or that he applied to be rehired. There is no dispute that Whitburn absented himself from work on May 6 and 7 without notifying Respondent and Whitburn's own testimony shows that Tersinar referred to the fact that an absent employee was "supposed to call in." Tersinar's reference at the time, to Whitburn's absenteeism" and his testimony that he took into consideration his unfavorable estimate of Whitburn's competence do not, in my view, convert his stated reason for firing Whitburn into a pretext. Finally, notwithstanding the General Counsel's suggestion that Tersinar's interpretation of the rule was "strained," I cannot find that it was so obviously unjustified by its text that I am required to infer that this, also, was a pretext. To sum up my view of this incident, it appears to me that at the time of Whitburn's discharge, the atmosphere at the plant had lost the highly charged quality created in Tersinar's mind by the activities of the Union and which, I have found, made the February discharges unlawful. Furthermore, it seems to me that Whitburn's absence from work for two days without notification may well be considered by an employer as employee conduct justifying discipline or discharge. Accordingly, I cannot find that the General Counsel has proved, by a fair preponderance of the evidence, that Whitburn was discriminatorily discharged to discourage membership in the Union and I shall recommend dismissal of the complaint insofar as it so alleges. described in section I, above, have a close, intimate, and substantial relationship 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. VI. THE REMEDY Having found that Respondent has engaged and is engaging in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, including the posting of an appropriate notice, to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged Raymond Sibley, Donald Pikka, Herbert O. Johnson, Nels W. Luoma, Verner Mattson, Raymond Monti, George Monti, Douglas Twiggs, Glen P. LeGassa, Leonard Westeen, and George W. Golembeski in violation of the Act, it will be recommended that they be offered immediate and full reinstatement to their former, or substantially equivalent, positions without prejudice to their seniority and other rights and privileges and that they be made whole for any loss of pay they may have suffered, computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the Union is the designated representative of Respondent's employees in an appropriate unit and that Respondent has engaged and is engaging in an unfair labor practice by refusing to bargain collectively with it, it will be recommended that Respondent cease and desist from refusing so to bargain; that it shall, upon request, so bargain and, if an agreement is reached, embody such agreement in a signed contract. In view of the nature and extent of the unfair labor practices found herein to have been engaged in by Respondent, which indicate its determination to interfere aggressively with its employees' rights of self-organization and its rejection of the principle of collective bargaining, I shall recommend a broad cease-and-desist order herein.36 Upon the basis of the above findings of fact and upon the entire record in the case, I reach the following: CONCLUSIONS OF LAW V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations "Whitburn testified that on one occasion in April Swearingen was absent 2 days and, on the 3rd day when he asked Tersinar where Swearingen was, Tersinar answered : " I don't know, he hasn't called in." While Tersmar was not questioned concerning this testimony and did not deny it specifically, Whitburn's comparison between himself and Swearingen, when it reached this point, became too perfect for belief and I do not credit it. "Although I have rejected William Tersinar's testimony in most instances where it was contradicted by credible testimony of other witnesses or incompatible with the probabilities of the situation, neither of these is present here and I do not feel justified in rejecting his testimony on this point. "Whitburn admitted that "some time" in March he came to the plant to pick up his paycheck, although he had not reported for work that day because of a sore throat , and that Tersinar said to hiln: "Missing too much work is going to hurt you." Whitburn also testified that, between that date and the day of his discharge, he was absent 4 or 5 days, not counting the 2 days immediately preceding it. 1. Quality Rubber Manufacturing Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating its employees concerning their union membership and activities; by threatening its employees that, if they exercised their rights of self-organization, scheduled benefits would be withheld; they would be subjected to more onerous conditions of employment, they would be discharged and operation of their place of employment would be terminated, said Employer has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. "See N L R B v Entwistle , Mfg. Co., 120- F.2d 532„ 536 (C.A. 4), Wabana, Inc , 146 NLRB 1162, 1186. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By terminating the employment of Raymond Sibley, Donald Pikka, and Herbert O. Johnson because they engaged in concerted activities for the purpose of mutual aid or protection, Respondent interfered with, restrained, and coerced said employees in the exercise of rights guaranteed in the Act and engaged and is engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. By terminating the employment of Raymond Sibley, Donald Pikka, and Herbert O. Johnson because they engaged in concerted activities for the purpose of mutual aid or protection, Respondent discriminated against them in their tenure of employment to discourage their membership in a labor organization and engaged and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 6. By terminating the employment of Nels W. Luoma, Verner Mattson, Raymond Monti, George Monti, Douglas Twiggs, Glen P. LeGassa, Leonard Westeen, and George W. Golembeski because of their membership in, or activities on behalf of the above-named labor organization, Respondent has discriminated against them to discourage their membership in the said labor organization and has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. The employees of Respondent in the following described unit constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Wakefield, Michigan, plant, excluding office clerical and professional employees, guards and supervisors as defined in the Act. 8. At all times since February 26, 1968, United Steelworkers of America, AFL-CIO, has been the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 9. By refusing on February 26, 1968, and thereafter, to bargain collectively with the above-named labor organization, Respondent has engaged and is engaging in an unfair labor practice within the meaning of Section 8(aX5) of the Act. 10. By the commission of the aforesaid unfair labor practices, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 12. Respondent's discharge of Robert J. Whitburn was for cause and it did not thereby engage in an unfair labor practice. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Quality Rubber Manufacturing Company, Inc., Wakefield, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their membership in or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization, threatening employees with loss of benefits, threatening the imposition of more onerous conditions of employment or threatening loss of employment for exercising the rights of concerted activity for mutual aid or protection guaranteed in Section 7 of the National Labor Relations Act, as amended. (b) Refusing, upon request, to bargain with the said labor organization as the collective-bargaining representative of its employees in the following described unit: All production and maintenance employees at the Wakefield , Michigan, plant, excluding office clerical and professional employees , guards and supervisors as defined in the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Raymond Sibley, Donald Pikka, and Herbert O. Johnson immediate and full reinstatement to their former positions, or to positions substantially equivalent to those which they held immediately prior to February 21, 1968, without prejudice to their seniority and other rights and privileges ; offer to Nels W. Luoma, Verner Mattson , Raymond Monti, George Monti, Glen P. LeGassa, Leonard Westeen , and George W. Golembeski immediate and full reinstatement to their former positions, or to positions substantially equivalent to those which they held immediately prior to February 26, 1968, without prejudice to their seniority and other rights and privileges ; and make each of them whole, in the manner set forth in the section of the Decision entitled "The Remedy," for any loss of pay they may have suffered by reason of the discrimination against them. (b) Notify Raymond Sibley, Donald Pikka , Herbert O. Johnson, Nels W. Luoma, Verner Mattson , Raymond Monti, George Monti, Glen P . LeGassa, Leonard Westeen, and George W. Golembeski , if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) 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. (d) Upon request , bargain with United Steelworkers of America, AFL-CIO, as the collective-bargaining representative of its employees in the unit described above, with respect to rates of pay, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such agreement in a signed contract. (e) Post at its plant in Wakefield , Michigan, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by its representative, shall be posted by it 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. "In the event that 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 In the further QUALITY RUBBER MFG. CO. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.JB IT IS FURTHER RECOMMENDED that the allegations of the complaint , insofar as not found in the Decision herein, be dismissed. event that the Board 's Order is 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 is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps it 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: After a trial at which all sides had the opportunity to give evidence, it has been found that we, Quality Rubber Manufacturing Company, Inc., violated the National Labor Relations Act, and that we should be ordered to post this notice to inform our employees of their rights under that Act. The Act gives all employees these rights: To organize themselves and to act together for mutual aid or protection; To form, join, or help unions; To bargain as a group through a representative they choose; To refuse to do any or all of these things. We assure you that WE WILL NOT do anything that interferes with these rights; we specifically assure you that WE WILL NOT ask any employee why he joined the Union and WE WILL NOT threaten you with harder working conditions, cancellation of pay raises, loss of your jobs or that the plant will close, if you choose to be represented by a union. It has also been found that United Steelworkers of America, AFL-CIO, was chosen by a majority of our 53 employees to represent them as their only collective-bargaining representative in the bargaining unit which is: All production and maintenance employees at the Wakefield, Michigan, plant, excluding office clerical and professional employees, guards and supervisors as defined in the Act. Accordingly, if that Union requests, WE WILL bargain with it on wages, hours, and conditions of employment, and any agreement we reach will be put in writing and signed. It has also been found that we discharged Raymond Sibley, Donald Pikka, and Herbert O. Johnson because they asked for and took a 10-minute break during their shift and that this was conduct for mutual aid which is protected by the Act; that we discharged Nels W. Luoma, Verner Mattson, Raymond Monti, George Monti, Douglas Twiggs, Glen P. LeGassa, Leonard Westeen, and George W. Golembeski because they joined the Union, and that all of these discharges violated the Act. WE WILL, therefore, give back to these employees the jobs which they held when they were discharged, with all their seniority, and make up any pay which they lost, plus 6 percent interest. If any of these employees is now in the Armed Forces of the United States, WE WILL notify them of their right to full reinstatement, upon application, in accordance with the Selective Services Act and the Universal Military Training and Service Act, as amended, after their discharge from the Armed Forces. Dated By QUALITY RUBBER MANUFACTURING COMPANY, INC. (Employer) (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, 2nd Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-272-3861.