Mallow Plating Works, Inc.

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mallow Plating Works, Inc. and International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local Union No. 4351 Mallow Plating Works, Inc. and Delivery Drivers, Warehousemen and Helpers Local Union No. 435, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 27-CA-2986 and 27-RC-3860 October 7, 1971 hereby orders that the Respondent , Mallow Plating Works, Inc., Denver, Colorado, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Arlen K. Dunbar was discharged because of his interest in and activities on behalf of the Union. IT IS FURTHER ORDERED that the petition in Case 27-RC-3860 be dismissed and all proceedings ther- ewith be vacated. DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 14, 1971, Trial Examiner James R. Hemingway issued his Decision in the above-entitled consolidated proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. The Trial Examin- er also found that certain conduct of Respondent had interfered with the election held on July 30, 1970, in Case 27-RC-3860 and recommended that the elec- tion be set aside and that Case 27-RC-3860 be thereafter closed by the National Labor Relations Board in a manner consistent with the Trial Examin- er's recommended remedy in Case 27-CA-2986. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and 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 proceeding 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 the briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions,-; and recommendations of the Trial Examiner. 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 recommended Order of the Trial Examiner, and I The name of the Union in the representation case is as shown in the petition for certification and the names in the C case is as shown in the charge and amended charges The Trial Examiner found that it is the same union % The Trial Examiner's finding that by June 3, 1970, the Union had secured authorization cards from 19 employees out of approximately 32 in the unit is supported by the record i We agree with the Trial Examiner that Respondent's conduct preceding the election , which included threats to the employees , including threats to close the plant , interrogation , prohibiting employees from discussing union activities on company premises , and a discriminatory layoff, has undermined the Union 's majority status and impeded the election process in our opinion , a bargaining order is warranted in this case on the basis of these 8(a)(l) violations alone Our conclusion is further supported by the 8(a)(3) violation as found by the Trial Examiner Therefore, a bargaining order is justified here , even in the absence of an 8(a)(5) allegation , to remedy Respondent's unlawful conduct which has not only interfered with the election , but has rendered it improbable that a fair and meaningful second election could be held N L R B v Gissel Packing Company, 395 US 575, 615-6616 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner : This is a consolidation of hearings on objections to an election and a complaint case based on alleged unfair labor practices under Section 8(a)(1),(3), and (5) of the National Labor Relations Act, as amended, 51 Stat. 151 et. seq., herein called the Act. The original charge was filed on June 4, 1970, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 435, herein called the Union, ' against Mallow Plating Works, Inc., herein called the Respondent, alleging violations of Section 8(a)(1) and (3) of the Act. An amended charge was filed on June 16, 1970, adding another alleged violation of Section 8(a)(3) of the Act. Upon these charges, a complaint issued on June 30, 1970, alleging that Respondent had discharged its employees Ed Johnson , on June 3, 1970, and Arlen K . Dunbar on June 12 , 1970, because of their interest in and/or activities on behalf of the Union; that Respondent on June 4, 1970, had unlawfully interrogated an employee and created an impression of surveillance and that on June 9, 1970, Respondent had prohibited employees from discussing union activities on Respondent's premises in violation of Section 8(a)(1) of the Act. Respondent filed an answer on July 17, 1970, denying the commission of the ' The name of the Union in the representation case is as shown in the petition for certification and as shown in the C case is as shown in the charge and amended charges Different business agents signed the respective documents it is the same union, i find 193 NLRB No. 96 MALLOW PLATING WORKS, INC 601 alleged unfair labor practices. On November 13, 1970, the Union filed a fourth amended charge2 alleging a violation of Section 8(a)(3) and (4) of the Act. An amendment to the complaint issued on December 29, 1970, alleging a threat to employees by the Respondent, on July 29, 1970, that they would lose all favorable working conditions if they should choose the Union to represent them in the election on July 30, 1970, a threat that Respondent might close its place of business should the employees choose a labor organization to represent them, and a direction to employee Dunbar to rescind and withdraw his statement given before an agent of the National Labor Relations Board, herein called the Board. The amendment to the complaint also alleged an appropriate unit, a majority in that unit by the Union, and an averment that the Union, at all times since June 2, 1970, has been the representative of the Respondent's employees for the purposes of bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On January 8, 1971, Respon- dent filed an answer to the amendment to the complaint in which it denied all the allegations of the amendment except those of the appropriate unit. The Union lost the election held on July 30, 1970, and filed objections to the election on August 4, 1970. The objections are substantially the same as the alleged 8(a)(1) and (3) violations occurring during June and July 1970. The Regional Director, in his Report on Objections, issued on September 15, 1970, ordered a consolidated hearing in the complaint and representation cases Pursuant to the aforesaid order, duly served on Respondent, a hearing was held before me in Denver, Colorado, from January 27 to 29 and on March 11, 1971. At the close of the General Counsel's case in chief, the General Counsel moved to amend the complaint to conform it to evidence of additional alleged violations of Section 8(a)(1) of the Act. The motion was granted. The Respondent then moved to dismiss the 8(a)(3) allegations of the complaint on the ground that they had not been supported by probative evidence and that the General Counsel had not made out a prima facie case. Respondent's motion was denied. At the close of all the evidence, the parties waived oral argument but requested time in which to file briefs and time was granted. Within the time granted, a brief was received only from the General Counsel From my observation of the witnesses and upon the entire record in the case, I make the following. FINDINGS OF FACT I RESPONDENT'S BUSINESS The complaint alleges, the answer admits, and I find, on such admitted allegations and on all the evidence, that Respondent is a Colorado corporation engaged at its Denver, Colorado, plant in the business of straightening automobile bumpers and plating them and other objects. In the course and conduct of its business, Respondent annually purchases and receives goods and materials valued in excess of $50,000 directly from sources located outside the State of Colorado. I find that the Board has jurisdiction and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization, within the meaning of the Act, claiming to represent a majority of Respondent's employees on the following unit alleged in the amendment to the complaint to be the appropriate unit and conceded so to be in Respondent's amended answer: All production and maintenance employees, includ- ing production employees, shippers, wrappers, and drivers employed by the Respondent at its Denver, Colorado plant, excluding all office clericals, sales representatives, guards, and supervisors as defined in the Act. This is substantially the same as the unit described in the Stipulation for Certification upon Consent Election,3 and I find it to be an appropriate unit within the meaning of Section 9(b) of the Act. The General Counsel seeks a Gissel remedy in this case, the evidence showing that by June 3, 1970, the Union had secured authorization cards from 19 employees out of approximately 32 in the unit.4 The remedy will of course depend on the findings hereinafter made as to the unfair labor practices alleged in the complaint. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. The facts The authorization cards for the Union were signed between May 31 and June 2, 1970. On June 3, 1970, the Union filed with the Board a petition for certification. Respondent admits that it received a copy thereof in the mail on the morning of June 4, 1970. (All dates hereinafter will be in the year 1970 unless otherwise stated.) A disputed point is whether the Respondent learned of the drive for signing of union authorization cards by June 3, as the General Counsel contends it did, or not until the morning of June 4, when the Respondent received notice of the filing by the Union of a petition for certification, as the Respondent contends it did. However resolution of this issue will affect only the question of the propriety of the layoff of Ed Johnson on June 3. On about June 3, according to James Johnson (no relation to Ed Johnson) at approximately 10:30 a.m., Manager Kokesh called him into the office and, according to Johnson, asked him what his grievance was. (Whenever the name Johnson is used hereafter without an initial or 2 The intervening amended charges having been withdrawn J The Stipulation for Certification upon Consent Election does not mention maintenance employees, but there is no evidence that Respondent employed any 4 The Respondent contests the validity of most of the cards because proof as to most of them was confined to testimony of Strausborger that he gave blank cards to individual, named employees and that in each case the employee returned the card filled in and signed This had been held sufficient proof of execution of the authorization cards Northwest Engineering Company, 158 NLRB 624, Lifetime Door Co, 158 NLRB 13, enfd 390 F 2d 272 (C A 4), Gordon Manufacturing Company, 158 NLRB 1303, Ship Shape Maintenance Co, Inc, 189 NLRB No 58, McEwen Mfg Co, 172 NLRB No 99 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given name, it will refer to Ed Johnson.) J Johnson told Kokesh that he did not like having his wages cut, as had happened earlier when he had been transferred from polishing to inspection. Kokesh, according to J Johnson, remarked, "We have been together a long time " J Johnson at first testified that Kokesh had said that he did not know if he could do anything "about this" (the wage cut) or not, but he promptly amended his answer to quote Kokesh as saying, "I don't know if we can do anything about this Union bit or not . . . I don't know " J Johnson may have been confusing two different conversations, but the confusion was never straightened out, and Kokesh was not questioned specifically about this conversation. Respon- dent's counsel asked Kokesh only if he had ever had a conversation with James Johnson about getting rid of Ed Johnson, a conversation that James Johnson had not testified was with him.5 Despite the lack of direct denial by Kokesh, however, the Respondent did cast some doubt on the accuracy of James Johnson's testimony. The latter had testified that the cut in his wages had been in May, that he had spoken with Kokesh about it then, and that his wages were later restored to the original rate as a result. The Respondent's records show that the paycut that Johnson was speaking of occurred during the week ending April 8. His original wage rate was restored during the week ending April 22 But subsequently, when Respondent's counsel asked, "Now you never discussed the Union with Bob Kokesh, did you?" J. Johnson replied that he had done so at his home after the Respondent had received notice that the Union had filed a petition However, J Johnson demon- strated that he did not think of the conversation with Kokesh in the office as one "about" the Union, and he fixed the date of June 3, he testified, by a statement he had given the Board on June 8 J. Johnson testified that, by the time Kokesh had called him to the office on June 3, Kokesh knew about the authorization cards because "somebody slipped out that the cards had gotten out " I do not take this as evidence of what Kokesh knew before June 4, and I believe that J Johnson was mistaken about the date. Since there is evidence that other employees were also called in to be questioned about their reasons for wanting the Union, but on June 4, I find that Kokesh did call J Johnson into the office to learn his reasons for wanting a union. However, I find that the date of this was more likely June 4. On June 4, in the afternoon, Kokesh called employee Floyd Archuleta into the office and told him that DO. (President Mallow) had asked him to call in the older employees and ask why they were dissatisfied and why they wanted a union (Archuleta had been employed longer than any of the other production employees.) Kokesh added that Mallow had been upset and had gone home that morning Archuleta told Kokesh that he wanted the Union because he wanted job security. He told Kokesh that he knew that Mallow was against the Union During the conversation, according to Archuleta, Kokesh told Archuleta that he could not tell him how to vote-that he should vote according to his conscience Archuleta testified that Kokesh also said that he knew that "the Union had come out of the polishing room, the cards had come out." The cards had, in fact, been distributed by a polisher. Although the conversation lasted 20 or 30 minutes, Archuleta gave no more of it. On June 5, Kokesh called groups of employees into the office, one employee from each department in each group, and, as General Manager Korte put it, "went over the guide lines of union organizational attempt" that was provided to the Respondent by the Mountain States Employers' Council. According to one employee, Daniel Dorman, Kokesh had a list of companies that had unions and the rates of pay at such places. Employee Robert Elias quoted Kokesh as saying that he could not ask questions directly but that they could volunteer information if they wanted to. The General Counsel makes no claim that there was anything improper in what Kokesh told the employees at the meetings on June 5. On June 9, a group of four or more production employees were standing near the coffee pot in the straightening room, talking and drinking coffee. Three of them were bumper straighteners-Henry Dorman, Arlen Dunbar, and Marvin Naggatz.6 A fourth, Daniel Dorman, brother of Hank, was a grinder.7 President Mallow approached them and said, "If you are going to talk union, go punch the time clock and go outside the-gate." The employees returned to their stations, but Mallow followed Henry Dorman and said, "If you don't like the people you work for get the-out of here." Mallow then went to Dunbar's table and told him, according to Dunbar, "Dunbar, I don't want you down there discussing Union with the rest of them guys." Dunbar said that they were not discussing the Union, that he was the first to mention it. Mallow slapped a magazine on Dunbar's table and said, according to Dunbar, "I Just spent $1600 to fight this thing and I'm going to fight it all the way." Mallow also threw some dollar bills on Dunbar's table for a reason not brought out by the testimony but picked them up before he left. On July 29, the day before the scheduled union election, Mallow went around to a majority of the production employees while they were working and spoke to each in substantially the same way. According to Daniel Dorman, a grinder, Mallow said, "As you know, there is going to be a union election here tomorrow." When Dorman said, "Yes," Mallow said, "Well, I don't want the Union, I would rather have Hitler and his armies than the Union.. . If I get the Union in here, I'm going to close the place down." According to Ed Johnson, Mallow told him that he would rather have Hitler than the Union and that, if the Union did get in, he would get some Hitters to run the plant. Mallow carried with him, to show the employees, a supposed financial statement. He would point to it and say, "This is what I made last month." According to witnesses for the General Counsel, it showed a figure of $1600 on the page. The document was not produced at the hearing and the production sheets in evidence show figures of about $87,000 as the list price of bumpers produced in May as well as a figure for 65 percent of that. June production figures show a gross of $83,000 list price. No net profit figure was shown 5 J Johnson had testified that he had overheard a conversation between conversation J Johnson had had with Kokesh in the office Korte and Kokesh, when they were quite close to where he was working, 6 These employees were paid on a piece-rate basis about getting rid of Ed Johnson for lack of work shortly after the 7 Dunbar gave the name of James Roller as another in the group MALLOW PLATING WORKS, INC. for any month. David Strausborger, a polisher, quoted Mallow as saying to him, after showing him the financial statement: "We don't need a union. I don't want the union I don't want you voting for the union." According to Strausborger, the financial statement showed "costs of materials and other articles " At another point, Strausbor- ger testified that the paper showed "total earnings close to the bottom of $1600." I deduce that the employees did not see the statement closely enough to be certain of its nature and, since it was not introduced in evidence, I make no finding as to the exact nature of the document Mallow testified that he had asked the employees if they knew who the owner of the business was and that he did not want the Union to come in. He testified that, although he had no intention of doing so, he wanted the employees to know that he "could" close the plant Later that same day, July 29, Arlen Dunbar, a straightener, who had been discharged on June 12 but who had been rehired a short time later, told Mallow that he had changed his mind and would vote against the Union. He also told Mallow that he intended to call Field Examiner Nutt and "drop his complaint" over his discharge. Dunbar that same afternoon or on the day of the election told General Manager Korte that the vote at the election would be 17 to I I against the Union.8 Korte asked how he knew. Dunbar replied that hejust knew the men. On the day after the election, Mallow asked Dunbar and Korte or Kokesh each to make up a list of the men and the way they thought they had voted so that the lists could be compared. According to Dunbar, he did not prepare a list, but he testified that he had looked at Korte's list. Korte denied having made one up. I infer that it was Kokesh's list. After looking at that list, Dunbar told Mallow that his list would be the same except for one man-James Johnson, who, he told Mallow, he thought had voted for the Union. Mallow said he found this difficult to believe, but Dunbar said that he was "almost sure" of it One day in early November, when Dunbar was turning in his daily production list to Korte, the latter asked Dunbar if he had withdrawn his complaint (at the Board's Regional Office.) Dunbar replied that he assumed it had been dropped. He had told the Field Examiner of his change of heart. Korte told Dunbar that he would have to write a letter explaining everything. Dunbar asked Korte to write it and said he would sign it. Korte refused, saying that it should be in Dunbar's own words. Dunbar asked to whom he was supposed to write the letter. Korte wrote on a piece of paper the name W. Bruce Gillis, Jr., acting Regional Director, and handed it to Dunbar. Dunbar took it to the attorney for the General Counsel On November 13, the Union filed a fourth amended charge alleging, in addition to the discharges of Ed Johnson and Arlen Dunbar a paragraph reading in substance that on about November 2, the Respondent, acting by and through Merle Korte, threatened, induced, and encouraged Dunbar to rescind and withdraw his statement given to an agent of the Board. Upon receipt of a copy of this charge, 8 The vote was actually 17 to 10 against the Union with one ballot challenged 9 The first question Respondent's counsel asked Dunbar on cross- examination was whether or not he had been convicted of the felony of 603 Korte asked Kokesh to learn if Dunbar had written the letter he was going to write. Kokesh went to Dunbar and asked if he had written the letter. Dunbar replied, "No," and Kokesh left. Later, Kokesh called Dunbar to the office and inquired further. Dunbar said that he had gone to the Board office to talk about it and "he" (presumably the field examiner) said that Dunbar could not retract his statement (charge) that it was up to the Union, who had filed it. Kokesh said that Korte wanted to get this cleared up before Mallow got back from his vacation. Before Dunbar left the office, Korte returned and asked about the statement in the charge. He asked Dunbar, "Did I threaten you?" Dunbar replied "No, but it was in the air." 9 On January 22, 1971, when Daniel Dorman was leaving work for the day, Manager Kokesh asked him when he was going to the State Compensation Insurance Fund hearing about his hands, which were allergic to steel dust and tended to break out. Dorman told him that that hearing was on January 26 and added that he did not think he would have to go to the Board hearing on January 27 because he had not received a subpena. According to Dorman, Kokesh laughed and said that he'd better not. Dorman said that his brother did get a subpena to the Board hearing and Kokesh remarked, according to Dorman, "Yes, that's a shame, because Dunbar is going to drag Hank [Dorman] down with him." Dorman remarked that there was a saying that a drowning man always tries to take somebody with him. Kokesh said, again according to Dorman, "It would be best if Hank did not bring up anything about the past." Kokesh was not asked about this conversation and so did not deny it. 2. Conclusions regarding interference, restraint, and coercion Respondent reacted to the notice of the Union's petition for certification by calling to the office on June 4 some of the older men for questioning. Whether or not the older men were selected because they were thought less likely to favor a umon and more likely to reveal the facts than newer men does not appear directly, but the selection of older men must have had some basis. I infer that it was because they were expected to be more likely to reveal the facts. In any event, these men were questioned about their own reasons for wanting a union to represent them. Unless the Respondent had already asked them and received a response, it does not seem logical that Respondent would have assumed that these men favored the Union and that it was proceeding from there to learn their reasons. So I infer that Respondent knew, through some source, perhaps by questions asked the employees, perhaps by volunteered information, that the questioned employees were union- minded and was asking the reason. Although there was no evidence of intimidation by Kokesh, questioning of this character has an inherently coercive tendency, because it requires employees to reveal their personal beliefs under receiving stolen property Dunbar affirmed that he had been about 8 or 9 years earlier I have taken this into account and I have scrutinized Dunbar's testimony carefully. I find sufficient corroboration of Dunbar's testimony to convince me that this portion of his testimony is reliable 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances where they are aware of the disapproval of the employer, as they were here 10 The Respondent had no legitimate reason for questioning the employees in this case since the Union had not demanded recognition on the basis of its authorization cards I conclude, therefore, that by Kokesh's questioning of James Johnson and Floyd Archuleta about their union views on about June 4, 1970, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Prior to June 9, there had been no rule against gathering at the coffee urn to talk about anything they pleased as long as they got their work done. By prohibiting employees from talking about the Union in the plant at any time, as Mallow did on June 9, 1970, (the promulgation of a rule neither previously existing nor valid as applied to the employees' own time in the plant), I find that Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. I likewise find that the Respondent violated Section 8(a)(1) of the Act by Mallow's threat on July 29 to close the plant if the union should win the election, by his threat to get some Hitters to run the plant if the Union came in, by Mallow's attempt to learn the identity of the union supporters through a list which he asked Dunbar to prepare of how the employees had voted in the union election, by Korte's putting pressure on Dunbar to withdraw from the case by writing a letter to the acting Regional Director,it in November 1970, and by Kokesh's statement to Daniel Dorman, on January 22, 1971, that his brother should not testify about the past events at the Board hearing which was to open on January 27, 1971 B. Discrimination 1. The Layoff of Ed Johnson a. Employment history Ed Johnson was hired by the Respondent as a polisher on February 11, 1970 He had worked elsewhere as a polisher and grinder since 1948. On his application blank at Respondent's plant he noted that he could also do plating and this was known to Manager Kokesh Although Johnson had had about 3 or 4 years ' experience as a grinder, he did not reveal this on his application blank. In the process of repairing old bumpers , the Respondent first had the straighteners put them in the proper shape, usually with the use of dies as well as by hammering, then the rough bumpers went to the grinders who ground off the roughness ; from there they moved to the polishers, and finally to the platers . According to President Mallow, polishing requires the most skill , although it takes longer to 10 Heck's, Inc, 180 NLRB No 82, Louisburg Sportswear Co, 180 NLRB No 114 11 I find that Korte did not limit himself to a mere question of the status of Dunbar's case but persisted in reminding Dunbar to write a letter 12 The employees knew in advance that Johnson was going for the cards 11 Korte testified that he did not believe he had talked to Martin in his office on June 3 Martin did not testify I credit Johnson's testimony 14 The Respondent sought to make Johnson's layoff appear to be the result of a joint decision, but I find that the idea originated with Korte and train a straightener. But polishing requires the next longest training of the four steps In mid-April, James Johnson (no relation to Ed Johnson), who also was a polisher, was transferred to inspecting, and at that time General Manager Korte reduced Johnson's wage rate from $4.25 to $4. Although Manager Kokesh succeeded in getting J. Johnson' s rate of pay back to $4 25, the incident gave nse to talk about a union. Johnson was a union advocate. In early May, he told Kokesh that if the latter did not straighten the place up, there would be talk of a union. Kokesh replied, according to Johnson, that the Union might come in but that he was still the boss. Thereafter, Johnson talked to the other men about the advantages of a union and the need for union representa- tion. Late in May, Johnson went to the Union and was given a number of blank authorization cards.12 After signing one himself on Sunday, May 31, Johnson gave the remainder, on Monday, June 1, to David Strausborger, a polisher, to distribute to other employees. Strausborger passed out about 23 cards. On June I and 2, 19 men signed and returned their cards to Strausborger, who turned them over to Johnson. Johnson then took them back to the Union on the evening of June 2. One employee, James Martin, to whom Strausborger had given a card, and then a second one, later returned both unsigned. Martin had already expressed himself as not in favor of the Union. Johnson testified that on the morning of June 3 he saw Martin in Korte's office.13 On the morning of Wednesday, June 3, Korte decided to lay Johnson off and, after discussing the move with Kokesh, did so at the end of the day. 14 When Korte called Johnson into the office to receive his paycheck, he told Johnson that he was laying him off because production was down and because Johnson was lowest in seniority. Johnson quoted Korte as saying that the Respondent had lost $10,000 in May and that Korte was $100,000 in debt. Johnson argued with Korte that Martin was lower in seniority than he was,15 but Korte, according to Johnson, said, "He's going, too . . . We got to kind of look over Jim Martin because he owes us some money." Korte threw Johnson's check to him across the desk and, as Johnson stood to leave, he noticed, lying to the side of Korte's desk, address side up, a card bearing the Union's address, similar to that which appeared on the back of an authorization card. Korte denied that he had such a card, claiming that Johnson might have seen an advertising card such as he frequently gets. I find that Johnson was telling the truth. If he had been disposed to give false evidence to help his case, he could have given more damaging testimony than this. In any event, I find that Johnson was a credible witness. On July 23, Johnson was at Respondent's plant to talk with some of the men. Kokesh saw him and asked him to that Kokesh felt obliged to go along with the move Kokesh testified, "We discussed this together, [of I course he [Korte ] has the last word " I deem it probable that he did not even reveal to Kokesh his real reason for laying off Johnson 15 Martin had originally been employed in February 1969 However, in the Fall of 1969 Martin broke his leg (not at work) and was away for 6 or 8 months He was reemployed in 1970 after Johnson was hired The Respondent took the position that Martin had been on leave So far as appears, no other cases of disability leave had been given If any policy was adopted, it was adopted to fit Martin's case MALLOW PLATING WORKS, INC. return to work the following week Johnson testified that he returned on Monday, July 27. An exhibit supplied to the General Counsel by the Respondent shows the date of Johnson's rehire as July 29, the day before the union election . The eligibility date for voters in the stipulation signed by the parties was the payroll for the period ending June 24. This might have excluded Johnson, except for the unfair labor practice charge. Nevertheless, Johnson not only voted in the election but his ballot was not even challenged. The Respondent explained Johnson's layoff as follows: (1) The straighteners (there were three at the time) and the grinders were unable to turn out enough bumpers to keep the polishers busy full time. In addition to maintaining a very large stockpile of damaged bumpers (or cores, as they are called), the Respondent was accustomed to buy from another plant die-form bumpers-bumpers that had already been straightened and ground, and these were ready to be polished when the supply of bumpers straightened at the Respondent's plant was inadequate to keep the polishers busy. The Respondent usually kept these in the job shop to keep them from rusting out. If it had too many to keep there, it stored them out in the yard In mid- May, when Respondent sought to order more die-form bumpers, it learned that a company in Missouri from which it had been buying die-form bumpers had gone out of business. Respondent therefore sought a supply elsewhere but was unsuccessful until June when, on June 7, Korte took a load of bad bumpers, for which Respondent had no dies, to a company in Los Angeles, California, which had all the dies There he traded them in on a supply of die-form bumpers He returned with a load of such bumpers on June 13. (2) According to Korte, the Respondent had tried to get the straighteners to work overtime in order to increase the supply of bumpers for the polishers, but they would not do so because they were paid on a piece-rate basis and did not want to work overtime. (3) Respondent had been trying to hire additional straighteners but had not succeeded in getting any Korte had decided to move Martin out of polishing and to have him trained as a straightener under the tutelage of Arlen Dunbar,16 one of the best straighteners, but this never took place because Kokesh had a problem with absenteeism in the polishing department and had to keep Martin there.17 Korte disclaimed any knowledge of union activity in general or in Johnson's case in particular. His first knowledge came, he claimed, with notice of the Union's petition in the mail on the morning of June 4. b Concluding findings as to Johnson 's layoff The Respondent's explanations for the layoff, although plausible, require close scrutiny In the first place, although iri He spoke to Dunbar about this on June 3 17 The absent employee was James Roller who had operated an automatic belt machine, unlike the other polishers, but when Roller was absent, it was not Martin who replaced him, it was Homer Westmoreland, who had been an inspector is In 1963, Respondent had laid off a plater, and in 1965 had laid off a straightener 19 On June 2, the Respondent hired a bumper straightener trainee and on June 4 it hired another straightener It also hired another grinder on 605 the Respondent's business is seasonal, rising in the winter and dropping in the summer, Respondent did not produce only to order. It maintained an inventory and continued to manufacture bumpers in the summer albeit at a slower pace. Yet, despite this seasonal trend, Respondent had never, since Korte had been with the Respondent (since 1959), laid off a polisher before.18 The polishers worked in teams, and if one polisher is laid off, that breaks up the team. When Johnson was laid off, the Respondent (although attempting to obscure the fact) took James Johnson off of inspecting and returned him to polishing. Then it shuffled other employees in order to handle the inspection work. Hence, Respondent continued to use the same number of polishers that it had while Johnson was working.19 According to the General Counsel's evidence, there was still a supply of die-form bumpers in the Job-shop room on June 3 20 and that there was a pile of bumpers in the yard that had already been ground by the Respondent's grinders. Johnson testified that on his final day, June 3, there had been no shortage of bumpers for him to work on, that he had turned out 40 bumpers that day (his quota) just as he had each day.21 David Dorman, a grinder, testified that he and two other grinders had been turning out 70 to 80 bumpers every day. Since Dorman had an allergy from steel dust and was absent some each month, his estimate could have been high. However, Johnson had testified to the pile of ground bumpers in the yard that was waiting to be ground as well as the pile of die-form bumpers in the job shop. Had the Respondent wished to remove all doubt, it could have produced records of production for each operation, but it chose not to do so. It produced records only of finished bumpers. Records of finished bumpers show that, in May, Respondent produced 1,872 bumpers and, in June, produced 1,877 22 Korte's testimony that Respondent had been attempting to get the bumper straighteners to work overtime is another example of misleading testimony. According to Kokesh (when he was pinned down), he had made a request for overtime work only twice in the 60-day period before June 3, and this request was made to Henry Dorman alone, when Kokesh needed a bumper for the next day. In each instance, Dorman had worked about 1/2 hour overtime. I am not convinced, either, that lack of bumper straighteners contributed in any material degree to the decision to lay off Johnson. The bumper straighteners that they had were not kept supplied with damaged cores at a rate sufficient to keep them constantly busy. The hinng of a bumper straightener trainee on June 2, while not pronusing a substantial increase in bumpers straightened, would have created an expectation of enough more to avoid laying off a polisher. And when a straightener was hired on June 4, this did not lead to the reemployment of Johnson although the June 4 20 Respondent did not reveal its inventory of die-form bumpers as of June 3 21 Korte testified that, with three teams of polishers, the Respondent liked to turn out 120 bumpers a day (40 for each team) but that, on June 3, they were turning out only 80 In the absence of records of the production of the polishers on June 3, 1 do not credit Korte's testimony and I credit Johnson's testimony as to the number he turned out 22 July was lower, with 1,795 bumpers produced 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extra straightener might have been expected to have raised production materially The General Counsel points to another out-of-the- ordinary feature of the case-in the normal operation of business, it was Kokesh who hired or terminated employ- ees, whereas in Johnson's case it was Korte rather than Kokesh who made the decision and who notified Johnson of his layoff. Although Johnson was later reemployed, as previously related, it is noteworthy that Korte did not tell Johnson, when he laid him off, that he would be recalled when production picked up. And when Johnson was rehired, it was Kokesh and not Korte who did the hiring. The facts that polishing is a skilled job and that Respondent had not previously laid off a polisher are sufficient to arouse an expectation that Respondent would avoid laying off a polisher in 1970 in the absence of a more pressing reason than a seasonal slowing down of business. I am not convinced by Korte's explanation of the shortage of work for polishers, especially not in the face of the testimony of work on hand and of the production figures for June, which were no lower than for May Nor am I convinced that Korte was without information as to Johnson's union activity as he claimed Kokesh knew of Johnson's attitude regarding a need for union represent- ation and Kokesh knew, as he told Archuleta on June 4, that the authorization cards had come from the polishing department. It is inconceivable that Kokesh would have withheld his knowledge from Korte. Even if Korte was not informed by Martin of the card signing, Kokesh's knowledge is attributable to the Respondent The Respondent conceded that the decision to lay off Johnson originated suddenly with Korte on the morning of June 3 after Johnson had seen Martin in Korte's office 23 Since the employing and terminating of employees was customarily Kokesh's function, Korte's sudden interven- tion strongly suggests more than usual reason for Korte's action. But, the Respondent may contend, if it had a discrimina- tory motive for terminating Johnson, why should the Respondent rehire Johnson before the date of the election? A number of explanations not consistent with a pure motive for Johnson's layoff may be suggested-advice of counsel, cutting off of possible backpay liability, a supposition that, even if Johnson were rehired, he would be ineligible to vote if rehired after July 24, the cutoff date for eligibility, or a belief that Respondent had already succeeded in getting enough employees lined up to vote against the Union so that Johnson's vote would be unimportant Failure to challenge Johnson's vote could have stemmed from the conviction that a challenge of Johnson's vote would be sustained because Johnson's layoff had turned out to be temporary and because a challenge might give rise to a claim by the Union and by the General Counsel that Johnson's layoff was designed adversely to affect the result of the election. On balance, I am of the opinion that Johnson's rehire does not purge Respondent of its discriminatory motive in laying Johnson 23 Korte testified that he and Kokesh had been considering the necessity for laying off a polisher for 2 weeks before June 3 but that they had delayed I do not credit this testimony 21 Dunbar testified that he had once turned out 90 bumpers in a 7-hour day some time earlier, when straighteners were being paid by the hour, off. Accordingly, I find that Respondent laid Johnson off on June 3, 1970, in order to discourage union activity and sentiment in violation of the Act. B. The Discharge of Arlen Dunbar 1. History of Dunbar's employment Arlen Dunbar testified that he had worked for the Respondent off and on for about 13 years and that for the last 10 of those years he had been the Respondent's most competent bumper straightener. He considered himself a personal friend of President Mallow. The Respondent's records introduced in evidence show Dunbar's last period of employment began on October 1, 1969. Although Dunbar did not lack conceit, he was highly regarded as a bumper straightener by the Respondent, and at one time, while the Respondent still used one, Dunbar was the leadman. He was capable of working fast and efficiently,24 and he was the only straightener the Respondent had who could splice bumpers (cut off the bad part of two bumpers and weld the good parts together). Respondent kept a huge supply of damaged bumpers, or cores, as they were called, in its yard, and the yardman would sort these according to automobile make, model, and year. When Manager Kokesh needed repaired bumpers to keep his inventory up, he would direct the yardman to bring into the straightening room the number of bumpers of the makes and year models he needed. The yardman would bring the cores in from the yard and lay them in a pile on the floor. The straighteners (whose hours were from 7 a.m. to 3:30 p.m.) would then help themselves, usually selecting the easiest first, because the piece rate was the same for all of the same classes of bumpers 25 except special jobs, i.e., very difficult jobs, for which a rate would be fixed at the time. At times, bumpers would be needed in a hurry to fill orders, presumably when they were not in inventory and Manager Kokesh might bring this in himself. When the supply of cores was exhausted, the straighten- ers wouldjust have to stand around until the next batch was brought in. They were not permitted to go to the yard to make their own selection, even if they had nothing to do. The cores were usually brought in during the morning. By noon, the supply was often exhausted and, rather than stand around with little chance of getting more work, Dunbar would take his daily production record to the office and punch out on the timeclock. Sometimes he even forgot to punch out and Kokesh would have to note the time of Dunbar's departure by hand. Since there was no hourly pay, Dunbar was very casual about his hours, usually arriving as late as 8 or 9 a.m. and leaving early, as early as noon or soon thereafter, yet he turned out what he termed as his quota in the shorter time because he was faster than the other straighteners. For about a year or two before his discharge, Dunbar had made it a practice of attending, nearly every Tuesday, an auction with his uncle, who was also a straightener for the when the men were allowed to go to the yard to get their own bumpers After the straighteners went on piece rate in 1969, they were no longer permitted to get their own bumper cores to work on 25 There were three classes of bumpers according to car, make, and year Each class had its own piece rate MALLOW PLATING WORKS, INC. 607 Respondent They would leave the plant as early as 9 or 10 a.m. on these days. Kokesh had approved of this at first, but sometime in May had asked Dunbar not to do this any more and Dunbar had ceased doing so prior to his discharge Dunbar conceded that President Mallow had often "chewed him out" for not punching in or out, but the Respondent had tolerated Dunbar's irregularity of hours and had kept him on because of his skill and the difficulty of getting good bumper straighteners. In fact, the Respondent had no objection ordinarily to Dunbar's early departure but wished only that Dunbar should notify Kokesh and get the latter's approval for leaving early, because Kokesh would know whether or not he would be needing any more bumpers during the rest of the day. Usually Kokesh would give his assent when asked. Dunbar agreed to follow this routine but, if he could not find Kokesh when he wanted to leave, he would leave anyway during the time before his discharge and he tended to lapse into the habit of leaving without advance approval, if he thought someone around the place knew where he had gone One of the straighteners, Henry Dorman, was frequently late in the morning (about 7.30 a nn ), but he usually stayed on until quitting time, and twice in the 2-month period of April and May, Kokesh had asked him to stay a short while overtime to finish up a needed bumper and he had done so. During that time, the straighteners were doing an average of 20 to 24 bumpers each per day, but both Dorman and Dunbar testified that if they had been supplied with bumpers to keep them busy, they could have turned out a great many more Henry Dorman had left more than an hour early at times without notice, but he did this less frequently than, and not so early as, Dunbar. Regular hours were 7 a.m. to 3:30 p.m (or actually 3.25 p.m ), but the picture portrayed by Dorman and by Dunbar is that the straighteners had long periods of idleness between loads of bumpers, during which time they would drink coffee and stand around talking, if they remained at the plant. Dunbar estimated that he usually spent only about 3 hours a day in actual bumper straightening a day. The rest of the time when he was there, he was just standing around waiting for bumpers to work on. One reason for Dunbar's early departure from work was furnished by an arrangement he had made with the driver of a cement truck When the driver had made a delivery to a customer and had had an excess over what was needed, he would telephone Dunbar, and the latter would then leave work to receive and use the cement mix on one of several projects he had planned at his house or that of a relative. The first time this had happened, about a year earlier, Dunbar explained to Kokesh, who had approved his leaving. Thereafter, Dunbar instructed the receptionist to call him immediately if the truckdriver should call him, and he would leave at once to receive the cement with no specific notice to Kokesh before leaving. This had happened nearly every week for a while before his discharge On June 10, Dunbar received a telephone call from the cement driver and he immediately left the plant, as usual without notice to Kokesh other than turning in his production record or leaving it with Dorman to turn in. Dunbar testified that he had worked on the pouring of the cement until late at night and, as it was cool and as he had worked without a shirt, he felt bad the next day; so his wife had called the plant to say that Dunbar was sick. When Dunbar reported for work on the morning of June 12, his time card was not in the rack. He spoke to Kokesh about it, but Kokesh said that he would have to see Mallow. Dunbar went to Mallow and asked if he had been fired.26 Mallow told him to go back to work and he would "verify" it After talking with the other men for a while, Dunbar returned to see Mallow. Mallow and Kokesh took Dunbar into Korte's office, where Mallow told him to sit down and they would discuss this. Dunbar did so, and Mallow handed him the following letter: June 11, 1970 Mr. Arlen Dunbar Employee It has come to my attention lately that we are suffering from a loss of business sales volume and which I have discovered is due to several causes, namely poor quality and service. Some of the instances are pure carelessness on the part of key personnel. Complete disregard of proper attention given to make certain that the customer has the best quality obtainable and as their orders delivered as scheduled. In some instances, complete disregard for use of patterns in order to be certain that proper shaping of the bumper has been made, in many instances the surface alignment has been left for the polishing section to accomplish surface finish which should have been accomplished before reaching that department. Also improper distribution of cores as to condition thereby causing inter-employee resentment and thereby the company being placed at loss of personnel. Complete disregard for management by abandonment on several occasions of thejob. If this situation were done by all then we would have to have 3 people for everyjob. In case each employee takes the same privileges, then we have a phantom crew and have no schedule of production. Personnally of late, I have observed that too frequently considerable loafing and intermittent unassigned coffee breaks, time out for no reason has been taken by you and as a consequence others have taken same additional and unnecessary "breaks". In some instances work has been done on bumpers as and when convenient to the employee. In many cases some JOB bars have been discarded THRU THE BACK DOOR and no record and advice given, until later when the order was to have been in the customer's place. On Wednesday of this week you left the job about noon, you failed to register your time card out and did not inform management or supervisors of your intentions to NOT return for work. I have decided that 26 Dunbar testified that when a man named Andrew Haywood had been hired a% a straightener on Jum 4, he had been told by other employees that Haywood had been hired to replace him 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you do not have any regard for the proprietorship of this business neither for your responsible place as head straightener. Therefor this is to inform you that effective as of this date your services with this firm has terminated. Arlen you are a good and qualified man but this method of working and attending your fob as you demonstrate will not be permitted 27 Mallow Plating Works s/ D.O. Mallow After Dunbar had read this letter, Mallow asked him to comment on it, and, according to Mallow, admitted the criticism was accurate, but according to Dunbar, he admitted that "some of it" was true. According to Dunbar, Mallow said, "Arlen, I'm backed into a corner on this thing. I don't know what to do. We'll probably want you back." Mallow denied making the statement as quoted but testified that he had said that Dunbar was a good man and that he might later be reinstated to his position I find that Dunbar was placing in his own words the substance of Mallow's statements. I also find that, if Mallow made any statement similar to "backed into a corner" he was alluding to the fact that Kokesh had pressed him to do something to make Dunbar more responsible and that he had disliked discharging Dunbar, but felt constrained to do so. Dunbar told Mallow that he would go to the Union about his discharge. Mallow testified that this was the first intimation that he had that Dunbar had any interest in the Union At some point in this meeting, Mallow went out to get Dunbar's check. When Mallow had left, Kokesh asked Dunbar if he would "go for" straightening bumpers for the Respondent on the side According to Dunbar, Kokesh offered to supply the bumpers and the dies. Dunbar hesitated, because he had once tried it out with Korte and it had not worked out, but then he replied that he would do it for Kokesh although he would not do it for Korte, and he told Kokesh to let him know when he wanted him to start. Dunbar quoted Kokesh as saying, after Mallow had left the room, "Don't feel too bad. Mr. Mallow also wanted me to fire Dave Strausborger," and he testified that Kokesh opened the drawer and said, "See? I have Dave Strausbor- ger's check here. Mr. Mallow wanted me to fire him and I won't fire him. There's some things I have control over and some things I don't." Kokesh was not questioned specifically about this portion of Dunbar's testimony, but despite the lack of denial, I do not credit this portion of Dunbar's testimony. In the first place, Kokesh did not impress me as the kind of man who would reveal a confidence such as this would have had to be; in the second place, I can see no reason why Kokesh should have brought such a matter up when he was only trying to take care of Dunbar's interim needs; and, in the third place, I do not believe that Kokesh could have defied Mallow, if Mallow had told him to discharge Strausborger 28 Korte was away getting a load of bumpers in California, as previously related, between June 7 and 13, so he was not present when Dunbar was discharged. Dunbar went to the Union concerning his discharge, and the Union filed an amended charge on Tuesday, June 16 , alleging discrimina- tion against Dunbar, as well as Johnson, and the Respondent received a copy thereof on June 17. During the week of June 15 to 19, Dunbar was at the plant and spoke with both Korte and Kokesh, but the record is vague as to the date or dates when he was there and as to which conversation took place first. In one incident, Dunbar was asked by Korte why he was not at work and Dunbar told him he had been terminated. Korte told him not to go away, that he would be right back and talk this over. Korte returned and told Dunbar not to take anotherjob-that he would be in touch with him. On Thursday, June 18, Korte wrote Dunbar the following letter: We are offering you your job again with this company. We want you to observe the house rules that are posted on the employee's bulletin board In addition, you will perform your duties in a workmanship like manner. Making sure that all bumpers are fitted to their respective patterns. Likewise, you will co-operate with your fellow employees in your department regardless of their color and creed or the section of the country from which they might originate. Again, you will work those bumpers designated by your supervisor, in the order in which he might want them worked. You were terminated for the infractions above, and any further infractions of the above will lead to immediate dismissal. We feel the above is fair and in keeping with the best interests of Mallow Plating Works, Inc. [Signed] Sincerely, MALLOW PLATING WORKS, INC. s/Merle Korte Merle Korte, Gen. Mgr. cc:2 I accept the above conditions and will abide by them, signed. [Signature] On one occasion during that same week, Kokesh also spoke with Dunbar and asked if he would like to return to work. This could have preceded Korte's conversation with Dunbar.29 Dunbar told Kokesh that he would like to but that he could not return until the following week because he had to take a load of something to St. Louis. Kokesh asked if he would be back on Monday (June 22) and Dunbar said that he would be. 27 Mallow testified that he, himself, had typed the letter Obviously, he intended the apostrophes as commas but was unfamiliar with the operation of the typewriter 28 1 am not finding that the Respondent would not have liked to discharge Strausborger for his part in the organizing of the Union, but, by June 12, 1 believe the Respondent would have received and been likely to have acted on advice it was receiving from outside 29 If so, this conversation could have preceded the date of receipt by the Respondent of notice of the filing of the amended charge. MALLOW PLATING WORKS, INC 609 There is no evidence that Dunbar signed at the bottom of Korte's letter of June 18, as intended by Korte, but Dunbar did return to work on June 22 and was still working at the time of the hearmg.t0 2. Conclusions as to Dunbar's termination The record shows no strong indication that Mallow was aware of any interest by Dunbar in the Union. According to Dunbar, at the meeting of the group he was with, when his group was called to the office to hear Kokesh's prepared statement about unions on June 5, he asked Kokesh "if this had anything to do with . Ed's [Johnson's] layoff, and he replied quickly-very quickly-'No, we are not discussing Ed Johnson here at all . I also asked him if I would be next . . . He said, `Definitely not, I would never get rid of you,' and I told him I did not believe him and I did not believe Merle Korte." Another witness for the General Counsel, Daniel Dorman, who was named by Dunbar as one of those in his group, testified, "I believe we asked Bob Kokesh why Johnson was laid off," and that Kokesh had replied that "he was laid off because of production." Not only did Dorman not testify to the rest of what Dunbar claimed he had said, but I consider the remainder as something that Dunbar might think but would not have had the audacity to say. Dunbar impressed me as the kind of person who would try not to offend either side . I do not, therefore, credit that portion of Dunbar's testimony where he purportedly asked if he would be next and followed Kokesh's purported reply with the audacious statement that, in effect, called both Kokesh and Korte liars. The only other evidence that might have given rise to even a suspicion of discrimination was that of the incident of June 9, heretofore related, when Mallow interrupted a group discussion and told those who wanted to talk about the Union to punch out and then individually told Dunbar that he did not want him discussing the Union with the rest of the men. Dunbar interpreted this to mean that Mallow thought he was in favor of the Union and might sway the other men toward the Union and this meaning is the one advanced by the General Counsel in his brief I find it just as reasonable to believe that Mallow thought the other men might influence Dunbar and that he wished to prevent this. Dunbar failed to testify as to all that Mallow said in this conversation and I suspect that had he done so, it might have shown that Mallow did not think of Dunbar as union- minded Although I find that Mallow overstepped the bounds of legality in prohibiting union talk in the plant, I am not convinced that he thought of Dunbar as a union advocate and do not so find. The General Counsel finds it unusual that, when Dunbar was terminated on June 12, Mallow had given him a letter of discharge. This was, it is true, not the practice, but I do not interpret this as necessarily disclosing antiunion motivation. Mallow had long had a close relationship with 30 The straightener trainee, Harry Alexander, who had started on June 2, was terminated on June 17 as not performing satisfactorily The straightener who had been hired on June 4, Andrew Haywood, who had complained that Dunbar was getting all the easy bumpers, was terminated on July I, as he also had proved unsatisfactory A straightener who was hired on July 6, Ernest Westbrook, was terminated on September 2 Dunbar, as the latter conceded. Furthermore, Mallow appeared to be acting not merely on his own, but as a result of Kokesh's complaint. Kokesh had not been successful in getting the utmost cooperation from Dunbar and it was because of Dunbar's leaving early on June 10 (without checking with Kokesh) for purely personal interests and remaining away on the 11th because of the result of his personal activities that Kokesh had consulted Mallow, who, presumably knowing Dunbar better and feeling better able to handle the matter, told Kokesh that he would handle it, himself. The question of discipline was, therefore, initiated by Kokesh and not by Mallow,31 although Kokesh agreed that a termination for a short time might help the situation. It may be argued that, but for the Union, Mallow might have meted out a less severe discipline. This, I believe, would be speculative. It appears that Mallow fully expected that Dunbar's termination would not be permanent. This suggests that Mallow felt it desirable to give Dunbar ajolt which would bring him around to a better sense of responsibility. Mallow's use of a letter to state the grounds of discharge apparently was designed as a basis of discussion, although conceivably it could also have been prompted by advice from the Mountain States Employer's Council (whose identity is shown on the amended charge and who was mentioned by Korte as furnishing the material for the June 5 group meetings). The General Counsel deems it significant that Mallow dredged too deep into the past and brought up outdated complaints about Dunbar, as, for example, "the improper distribution of cores." Dunbar, as leadman (or head straightener, as Mallow called him in the letter) had had the responsibility of distributing cores, but he had not been a leadman or head straightener for a long time before Mallow's letter was written. So it appears that Mallow was listing every complaint he had ever heard against Dunbar even though it might include ancient history. This does give rise to suspicions of an ulterior motive. However, in the absence of greater proof than was offered to show that Mallow had reason to believe he was terminating a union advocate, I am not persuaded that Mallow had any other motive than that of shocking Dunbar into what Mallow regarded as better habits, even if a temporary discharge was necessary to effect the desired result. My impression of Dunbar, from seeing him and hearing him is that he was a young man who had attained, because of his recognized skill and the fact that he had served as a leadman, a sense of self-importance that had destroyed his perspective and his ability to see himself as a member of a team which could function only as well as its individual parts. It seems reasonable to believe that Mallow saw Dunbar in the same light and hoped to produce a change for the better. The fact that Korte offered Dunbar reinstatement so soon after receiving notice of the filing of the charge may also furnish a basis for argument to the General Counsel. However, I note that the Respondent did not , at the same Another straightener, who was hired on July 8, Dale Heskin, apparently was still employed at the time of the heanng 31 Kokesh did not appear to be motivated by malice Some of the acts of interference, restraint, and coercion attributed to Kokesh , I believe, were the result of his following instructions from Mallow or Korte-or Just being loyal to his employer-rather than the result of his own inclination 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, offer to reinstate Johnson, whose name was in the same charge I conclude that Respondent was more influenced by the fact that the straightener trainee (who was terminated on June 17) and the new straightener hired on June 4 were proving inadequate to do even as much as Dunbar had done when he put in only part time and that Respondent feared it would lose the services of a valuable worker Although the case is not without its suspicious elements, I conclude, on all the evidence that a case of discrimination has not been shown as to Dunbar. IV. THE OBJECTIONS 10 THE ELECTION The Union's first objection to the election is that "since on or about June 4, 1970, the above-named Employer and/or its agents unlawfully interrogated its employees as to their Union sympathies." I recommend that this objection be sustained as to the questioning by Kokesh, at the Respondent's request, of "some of the older employees" on June 4. I find no further instances of questioning thereafter. The Union's second objection is that "since on or about June 4, 1970, the above-named Employer and/or its agents told the employees that they were aware of who had started the union activities at its place of business and thereby created the impression of surveillance." This objection is based on Kokesh's statement to Archuleta on June 4 that he knew the union cards had come out of the polishing room Although I have credited Archuleta that Kokesh expressed this thought, I find the evidence of giving the impression of surveillance too inconclusive to sustain such a finding. Although Archuleta and Kokesh talked for 20 to 30 minutes, Archuleta gave very little account of how the quoted statement came into the conversation. For all that appears, Archuleta could have mentioned the fact that the movement to sign union authorization cards had started in the polishing room and Kokesh could have replied, "I know it." As an admission of knowledge, this aids Johnson's case. However, even supposing that Kokesh made the quoted statement with no prior statement from Archuleta to prompt it, can it be said that Archuleta would necessarily be led to believe that Kokesh had received his information through surveillance9 In Archuleta's place, I might more readily deduce that some other employee had already informed Kokesh of the place and manner of distribution of the cards than that Kokesh had spied on the activity, especially since the evidence showed that the cards were handed out when no representative of management was present. I recommend, therefore, that the Union's second objection be overruled. The Union's third objection, that "since on or about June 9, 1970, the above-named Employer and/or its agents prohibited employees from discussing union activities on Company premises," is based on the evidence hereinbefore related when Mallow told the employees that, if they wanted to talk union, they would have to punch their time cards and go outside the gate. I recommend that this objection be sustained. The Union's fourth objection, also alleged as a violation of Section 8(a)(1) and (3) of the Act, that since on or about June 3, 1970, the Employer discriminated in the hire and tenure of its employees by discharging and failing to reinstate Ed Johnson with reimbursement for wages lost because of his interest in and/or activities on behalf of the Union" has been heretofore found to be a violation of the Act. I recommend that the Union's fourth objection be sustained to the extent herein found. The Union's fifth objection is to the alleged discrimina- tion against Arlen Dunbar by discharging him on June 12, 1970. This is the same as the alleged violation of Section 8(a)(3) in Dunbar's case, the findings as to which have heretofore been set forth. Since I have found no discrimination against Dunbar, I recommend the Union's objection number 5 be overruled. The sixth objection by the Union is the same as the alleged violation of Section 8(a)(1) on July 29, when, on the day before the election, President Mallow went from employee to employee telling them that he would rather have Hitler and his followers than the Union, that if the Union came in, he would get some Hiders to run the place, and that, if the Union came in, he would close the plant. Since I have found that such statements were made, I recommend that the Union's objection number 6 be sustained to that extent. There was no evidence offered to support other alleged statements contained in the Union's objection number 6. Except, therefore, as to facts heretofore found and as to the extent the objection is here sustained, I recommend that the remainder of the objection be overruled. I further recommend that the election held on July 30, 1970, be set aside and that the Board close Case 27-RC-3860 and take action consistent with the remedy hereinafter recommended in Case 27-CA-2986. 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 Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off Ed Johnson on June 3, 1970, and by thereafter refusing to reinstate him until July 29, 1970, because of his union sentiments and activities, Respondent has discriminated in regard to his hire and tenure of employment and has thereby discouraged membership in the Union in violation of Section 8(a)(3) of the Act. 4. By discharging Arlen Dunbar on June 12, 1970, for a nondiscriminatory motive, Respondent did not violate Section 8(a)(3) of the Act. 5. By interfering with, restraining, and coercing its employees in the manner found in section III, A, hereof, as well as by the conduct mentioned in paragraph 3, above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. All production and maintenance employees includ- ing production employees, shippers, wrappers, and drivers employed by the Respondent at its Denver, Colorado, plant, excluding all office clericals, sales representatives, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 7. On and at all times since June 2, 1970, the Union has been and now is the exclusive representative for the purpose MALLOW PLATING WORKS, INC. 611 of collective bargaining of the employees in the unit described in paragraph 6 above within the meaning of Section 9(a) of the Act. 8. The unfair labor practices hereinabove found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action as provided in the Order recommended below, which I find necessary to effectuate the policies of the Act. Since I have found that Respondent discriminated in regard to the hire and tenure of employment of Ed Johnson by laying him off on June 3, 1970, and by not reinstating him until July 29, 1970, I shall recommend that Respondent make him whole by paying him an amount equal to that which he would have earned in Respondent's employ but for the discrimination less his net earnings elsewhere, if any, during said period of time, in accordance with the Board's customary backpay formula,32 plus interest at the rate of 6 percent per annum until paid.33 Although the complaint did not allege a refusal to bargain, and none is found, the General Counsel contends that, at the time of the filing of the petition for an election, a clear and substantial majority of employees had requested through authorization cards that the Union represent them and that because of Respondent's unfair labor practices and conduct aimed at destroying the Union's majority, only a bargaining order could restore the situation. Current Board decision support the General Counsel's position. It is no longer necessary, before a bargaining order will be deemed necessary to remedy unfair labor practices which have not only interfered with an election but which have rendered it improbable that a fair and meaningful second election could be held, that there be proof of a specific request by the Union and refusal to bargain by the Respondent.34 The Respondent, by its unfair labor practices preceding the election, deliberately set about to create an atmosphere of fear and misgiving which destroyed the conditions under which its employees could determine freely for themselves whether or not they wished to be represented by the Union in their dealings with Respondent. These unfair labor practices began with the discriminatory elimination of the employee who was responsible for arousing the interest of the employees in the Union and who had made their expression of choice possible by bringing blank authoriza- tion cards to the plant. This was followed by coercive questioning of employees by Respondent, by Respondent's prohibiting the employees from talking about the Union in the plant, and by threatening to close the plant or to hire Hitlers to run the plant if the Union should come in. The foregoing conduct of Respondent not only precluded the holding of a fair election in the representation proceeding e2 F W Woolworth Company, 90 NLRB 289 33 Isis Plumbing & Heating Co, 138 NLRB 716 34 Ship Shape Maintenance Co, Inc, 189 NLRB No 58, Great Plains Steel Corp, 183 NLRB No 96, Heck's, Inc, 180 NLRB No 82 35 In the event no exceptions are filed as provided by Section 102 46 of which the Union had instituted, but was, I find, of a sufficiently pervasive and extensive character (even without the unfair labor practices committed after the election, although the effect of these may be considered also in prospect) as to render it unlikely that the status quo ante could be restored so as to ensure a fair and meaningful election. I conclude, therefore, that the designation of the Union as the collective-bargaining representative of the employees by the authorization cards obtained before the occurrence of the unfair labor practices provides a more reliable test of the desires of the Respondent's employees than would a rerun election and will better safeguard employee rights. For this reason, I shall recommend that the Respondent recognize and, upon request, bargain with the Union as the designated representative of all the Respondent's employees in the appropriate unit. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 35 ORDER Mallow Plating Works, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting employees from talking about the Union during their own time or so prohibiting piece-rate employees at times when they are not provided by Respondent with work. (b) Coercively questioning employees concerning their union sentiments or those of other employees. (c) Threatening employees with plant closure if they choose to be represented by a labor organization in their dealings with their employer. (d) Threatening to use despotic supervisors if the employees should choose to be represented by a labor organization. (e) Inducing or attempting to induce employees to identify other employees who may have voted in favor of a union in a Board conducted election. (f) Exerting pressure on any employee whose interests are involved in an unfair labor practice case pending before the Board to withdraw his statement or claim of unfair labor practice. (g) Threatening or intimating that unfavorable conse- quences will result if an employee should testify in an unfair labor practice case before the Board as to the facts in the case. (h) Discouraging membership in Delivery Drivers, Warehousemen and Helpers Local Union No. 435, International Brotherhood of Teamster, Chauffeurs, Ware- housemen and Helpers of America, or in any other labor organization of its employees by laying off, discharging, or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (i) In any other manner interfering with, restraining, or the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing its employees in their exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Delivery Drivers, Warehousemen and Helpers Local Union No. 435, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the unit heretofore found appropriate with respect to rates of pay , wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached , embody such understanding in a signed agreement (b) Make Ed Johnson whole for any loss sustained by him because of his discriminatory layoff on June 3, 1970, by paying him a sum of money computed as set forth in the section hereinabove entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, time cards, personnel records and reports, and all other records necessary to determine the amount of backpay due Ed Johnson. (d) Post at its plant in Denver, Colorado, copies of the attached notice, marked "Appendix "36 Copies of said notice, on forms provided by the Regional Director for Region 27, after having been duly signed by an authorized representative of the Respondent, 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 warehousemen 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. (e) Notify the Regional Director for Region 27, in writing, within 20 days from the date of receipt of this Decision, of what steps Respondent has taken to comply herewith.37 I FURTHER RECOMMEND an order that the petition in Case 27-RC-3860 be dismissed and that all proceedings held in connection therewith be vacated. I ALSO RECOMMEND an order dismissing the complaint insofar as it alleges that Arlen K Dunbar was discharged because of his interest in or activities on behalf of the Union. as In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 77 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provisions shall be modified to read "Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Delivery Drivers, Warehousemen and Helpers Local Union No. 435, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, by laying off or otherwise terminating the employment of any of our employees, or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate any employee or employees concerning their union membership, activi- ties, views, or sympathies, or those of other employees. WE WILL NOT prohibit employees from talking in the plant about the above-named Union or any other labor organization during their own time or during times when employees who are paid on a piece-rate basis are not provided with work WE WILL NOT threaten to close the plant or to impose harsher supervision on employees for exercising their choice of being represented by the above-named or any other labor organization. WE WILL NOT try to induce any employee who it named in a charge filed with the National Labor Relations Board to withdraw his name from such charge, or to withdraw any affidavit or statement given by such employee to the Board or any agent thereof, not will we discriminate in any way against any employee for any testimony he might give in a hearing before a Trial Examiner or Hearing Officer of the said Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through represent- atives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities 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 authonzed in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL make Ed Johnson whole for any loss he may have suffered as a result of his discriminatory layoff on June 3, 1970, by paying him an amount equal to that which he would have earned in our employ between June 3 and July 29, 1970, less his net earnings elsewhere during said period, plus interest on the net amount due him at the rate of 6 percent per annum until paid. WE WILL, upon request, bargain collectively with Delivery Drivers, Warehousemen and Helpers, Local Union No. 435, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of our employees in the appropriate unit noted below with respect to wages, rates of pay, hours of employment, and all other terms and conditions of employment and, if an understanding is reached , will embody such understanding in a signed agreement . The collective- bargaining unit is: MALLOW PLATING WORKS, INC All production and maintenance employees, including production employees, shippers, wrap- pers, and drivers employed by us at our Denver, Colorado, plant, excluding all office clericals, sales representatives, guards, and supervisors as defined in the National Labor Relations Act, as amended You are free to become or remain members or to refrain from becoming or remaining members of the above-named labor organization or any other labor organization. MALLOW PLATING WORKS, INC. (Employer) Dated By 613 (Representative ) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, New Custom House, Room 260, 721 Nineteenth Street, Denver, Colorado 80202, Telephone 303-837-3555.