Teknor-Apex Co.

TEKNOR-APEX CO. Teknor-Apex Co. and District # 2, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO. Case 1-CA-7542 February 15, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 30, 1971, Trial Examiner Samuel Ross issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief, and the General Counsel filed a brief in sup- port of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Teknor-Apex Co., its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as modified be- low: 1. Amend paragraph 1(a) of the recommended Order in the following manner: Strike the phrase "or in any other manner" and sub- stitute therefor the word "by." 2. Amend paragraph 1(e) of the recommended Order by striking the phrase "In any like or related manner" and substituting therefor the phrase "In any other man- ner." ' The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear prepon- derance of all of 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 have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner- On a charge filed by the above-named Union on March 10, 1971, a complaint issued on May 10, 1971, which alleges that Teknor-Apex Co. (herein called Respondent or the Company) engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 385 2(6) and (7) of the Act. In essence, the complaint charges the Respondent with various acts of interference , restraint, and coercion of employees in the exercise of their rights guaran- teed by the Act, and with the termination of the employment of one Alan J. Howard because of his activity on behalf of the above-named Union . The Respondent filed an answer to the complaint which denies the commission of unfair labor prac- tices. Pursuant to due notice a hearing on this case was con- ducted before me at Providence, Rhode Island, on June 28 and 29 and August 9 , 1971. Upon the entire record and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the following: FINDINGS OF FACTS I COMMERCE The Respondent, a Rhode Island corporation whose prin- cipal office and place of business is located in Pawtucket, Rhode Island, is engaged in the business of manufacturing, selling, and distributing rubber and plastic products such as soles, treads, and tire components. In the operation of said business, the Respondent annually ships products valued in excess of $50,000 from its plant in Rhode Island to places outside the State of Rhode Island. On these admitted facts, I find that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is not disputed, and I find, that at all times material herein District # 2, United Rubber, Cork, Linoleum & Plas- tic Workers of America, AFL-CIO (herein called the Union), has been a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Background Over the past 14 years, there have been many attempts by various labor organizations, including the Union, to become the exclusive collective-bargaining representative of Re- spondent's production and maintenance employees, but all have proved unsuccessful . In January 1971, the Union com- menced its most recent organizational campaign during the course of which the Respondent is alleged to have committed the unfair labor practices with which it is is charged in the instant complaint. It cannot seriously be disputed that the Respondent opposed the representation of its employees by the Union, since in an address on Feburary 13, 1971, to members of its Service Club,' Company Board Chairman Fain urged employees not to sign union authorization cards and to tell union solicitors "to go peddle somewhere else."2 B. The So-Called Temporary Layoff of Alan J. Howard The alleged discnminatee Alan J. Howard was hired by Respondent on November 6, 1968 . He was then 22 1/z years old. As detailed hereinafter, Howard worked for Respondent until February 26, 1971, when he was told that he was being laid off for lack of work. ' The Teknor-Apex Service Club is an organization composed of Re- spondent's supervisory employees and "all employees with 10 years or more of service " 'GC Exh 3 195 NLRB No. 74 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard's first job for Respondent was that of a material handler on the third shift in the press department. He worked at that job from November 1968 until June 1969, when he requested and was granted a transfer to the block department on the first shift. Howard worked at this job for only 6-8 days before his vacation began. After his vacation, Howard re- quested and was granted a transfer back to his former job on the third shift in the press department. He worked on this job from July 1969 until September 1970, when at his request Howard was transferred to the press department on the first shift. He thereafter worked in that department for 6 months under the immediate supervision of the department foreman Harry Izzo until his so-called layoff for lack of work on February 26, 1971.' Howard's starting rate of pay with the Respondent was $2.16 an hour plus 11 cents for shift differential. During his period of employment, Howard received several automatic increases "inherent with the job" at which he had com- menced working at the "starting rate." He also received sev- eral across-the-board general increases which were given to all employees. At the time of his termination, Howard's final rate of pay was $2.76 an hour. Howard first became aware of the Union's most recent organizational campaign in the latter part of January 1971.1 On February 9, Howard attended the first meeting of the Union, signed a union card at the meeting, and was appointed to the in-factory committee, whose function it was to promote the Union among the employees and to bring employees to meetings. Thereafter Howard brought one employee with him to the Union's second meeting on February 17, and took another employee with him to the third union meeting on February 24. In addition Howard promoted the Union in talks with employees in the Respondent's plant, both singly and in groups. In his February 13 speech to members of the Company's Service Club, Respondent's Board Chairman Fain told the employees about "the terribly unsettled conditions of the year 1970" during which "the economy was uncertain." Fain said, inter alia, Many companies in our area were badly hurt by these conditions and laid off large numbers of their workers. But at Teknor Apex we maintained full employment throughout the year, and actually added 14 more people to the payroll.' In this regard, Personnel Director Gaines testified that during his 20 years "on the job," there had been no layoffs since 1952, except for "one small department of females" who assembled "garden hose," a seasonal operation which later was discontinued.' Gaines also admitted that in the event of overstaffing in one department, it was the Respondent's policy "to make every effort to transfer [the excess] employees to another department." Notwithstanding the foregoing, on Friday, February 26, at about 2:30 p.m., Howard was notified by his foreman Harry Izzo that he had "bad news" for him. Howard then asked Howard was then about 25 years old and wore his hair long All dates hereinafter refer to 1971, unless otherwise noted. G.C Exh 3 Gaines later contradicted this testimony and asserted on cross-exami- nation that there had been "other layoffs," other than Howard 's on February 26 and that of the garden hose assembly department However, he gave no specific details of any other layoffs, and none were offered by Respondent. Because of this and other self-contradictions in Gaines' testimony, its admit- ted inaccuracy in several respects, its contradiction of other testimony of Respondent, its occasional implausibility, and his demeanor while testifying, I regard Gaines' testimony as generally unreliable , and in this regard , I credit only his admission against interest of no prior layoffs, and not his later contradiction of that admission whether he was being fired, but Izzo replied, "No, there's no reason to fire you," and he further told Howard that he was being laid off because the department was "overstaffed," production was "slow," and they "were down to 40 hours a week." Howard then said that the layoff fitted into his plans since he intended to visit California. He asked Izzo how long he would be "laid off," and Izzo replied that he couldn't "answer that question."' Admittedly, Howard was the only employee of Respondent who was laid off on February 26. Immediately after he was told about his layoff, Howard went to the office of William Duarte, the Respondent's production manager, and asked him how long the layoff would last. Duarte replied that the layoff would probably be for about 6 weeks, and he told Howard, "If you're going to California, Alan, go and have a good time, and don't worry about it." Despite his outward show of indifference over his layoff, Howard then visited the office of Robert Gaines, the Re- spondent's personnel director, and he asked Gaines why he was being laid off. Gaines replied because work was "slow." Howard said he thought there was an "opening on the third shift" on the very job he had once held, and he asked Gaines "if seniority counted" and whether he could "have the job." Gaines replied that "seniority did count," and that he would look into the matter for Howard and would let him know when Howard came in for his paycheck the following Thurs- day.' C. The Final Termination of Howard's Employment As Howard had suggested to Gaines, there was in fact an unfilled position on the third shift in the press department. Thus, according to the stipulation of the parties, one Frank Dombroski, an employee who had been hired on October 29, 1970, and who worked on the third shift in the press depart- ment, voluntarily quit during the week ending February 26. However, Gaines obviously had no intention of recommend- ing Howard for this vacant position, for instead of looking into the matter as he had promised Howard, upon the latter's departure from his office, Gaines admittedly "protested volu- bly" to Duarte for not having fired Howard previously be- cause of his assertedly excessive absentee record. Further- more, although Duarte told Howard on February 26 only that he was being laid off for lack of work, and that the layoff would last about 6 weeks, on cross-examination Duarte ad- mitted that it was his then intention "that under no circum- stances would he [Howard] ever be rehired."' According to Howard's credited testimony, when he re- turned to the plant for his paycheck on Thursday, March 4, he told Gaines that he knew that the vacant position on the The findings in the foregoing paragraph are based on the credited tes- timony of Howard The quotes , however, are from Izzo's testimony which is undisputed and credited to this extent. The findings above are based on the credited testimony of Howard whom I regard as a frank and reliable witness . According to Gaines, how- ever, Howard made no inquiry regarding the possibility of his securing a lob on the third shift but only as to whether a person with lower seniority might be transferred to the job from which he had just been laid off. I credit Gaines' version of this conversation only to the extent that it accords with that of Howard, for as previously noted I regard Gaines' testimony as generally unreliable and unworthy of credence The quotes are from Duarte's testimony on cross-examination which is regarded as an admission against interest and is credited to this extent. Prior thereto, Duarte had testified on direct examination that his decision on February 26 was merely "to lay him [Howard] off, rather than terminate him." Because of this, and other self-contradictions in Duarte 's testimony, its conflict with other testimony of Respondent, its implausibility in some respects, and his demeanor while testifying, I regard Duarte's testimony as generally unreliable and unworthy of credence. TEKNOR-APEX CO 387 third shift had been filled "by somebody with less seniority than me," and he asked Gaines why he "couldn't have it." Gaines replied that Respondent had "wanted to fire [How- ard] for absenteeism," but that he had been laid off rather than fired "as a favor" to permit him to qualify for immediate unemployment compensation benefits without waiting.1° Gaines also told Howard that he would not be rehired. Ac- cordingly, sometime between February 26 and March 4, Gaines admittedly entered on Howard's personnel jacket the notation "No R.H." which concededly is the Respondent's "code" for "no rehire."" I conclude from all of the foregoing that contrary to the statements of Izzo, Duarte, and Gaines to Howard on Febru- ary 26 that he was being laid off, the Respondent in fact intended to permanently terminate Howard's employment on February 26. D. The Shifting Testimony of the Respondent in Respect to the Duration and the Reasons for Howard's Termination 1. The so-called layoff for lack of work As previously noted, when Howard was notified of his termination, he was told only that he was being laid off tem- porarily for lack of work, and that the layoff would last for about 6 weeks. Duarte, who made the decision to terminate Howard, admittedly had no intention of recalling him, but that information was not imparted to Howard, assertedly because a discharge for cause would render Howard ineligible for unemployment compensation benefits for about 10 weeks. I regard both the lack of work reason asserted for Howard's termination, and the altruism which alledgedly motivated the failure to tell Howard of the permanence of his termination, as unworthy of credence. Obviously, the Respondent's as- serted reason for not officially recording that Howard was being discharged for cause did not prevent Duarte from truthfully telling Howard to look for other employment and not to expect reinstatement after about 6 weeks. To the con- trary, however, Duarte admittedly told Howard, "If you're going to California, Alan, go and have a good time, and don't worry about it [the layoff]," an obvious deception in the light of Duarte's admission that he had no intention of reemploy- ing Howard. Moreover, the Respondent's alleged humanitarian reason for not officially recording that Ho- ward's termination was for cause is belied by the Company's personnel record which discloses not only that the alleged layoff was for lack of work, but also that Howard would not be rehired, and that he was selected for termination, "not by strict seniority," but because of his allegedly "atrocious" at- tendance record and other reasons.12 In the light of the foregoing, I regard as unworthy of credence the Respondent's self-professed benevolence in respect to the reasons for telling Howard that his termination was a temporary layoff. I likewise regarded the assertion that lack of work was the Respondent's reason for Howard's termination. I base this conclusion on the following considerations. The Respondent employs about 350 persons in its Pawtucket plant. However, only Howard and no one else was laid off. I find it difficult to perceive how the layoff of 1 rank-and-file employee out of 350 could possibly have any significant impact on production 10 According to Rhode Island law, as explicated by both Gaines and Respondent's counsel, an employee who is terminated for cause must wait about 10 weeks before he can qualify for unemployment compensation benefits " Gaines' version of this conversation does not accord with that of How- ard credited above, but as noted above I regard his testimony as generally unreliable I therefore credit it in this regard only to the extent that it accords with that of Howard or constitutes an admission against interest " G C Exh 2 or be motivated by lack of work. In support of the assertion that work was slow and that production in Howard's depart- ment had fallen off, the Respondent submitted the production record of that department." It disclosed that in the week ending February 14, the soling molding (Press) department produced 42,275 sheets, that in the following week ending February 21, production of sheets dropped to 30,980, and that in the next week, ending February 28, the one in which it was decided to terminate Howard, production of sheets increased to 44,070. Clearly nothing in that exhibit discloses any need for a reduction in force. Moreover, up to and includ- ing the week in which Howard assertedly was "laid off" for lack of work (including the week when production dropped to 30,980 sheets), his department was working 6 days a week. There is no testimony that Howard, or any other employee, was standing around idle with no work to do. Moreover, it is the Respondent's admitted policy when work is slow in one department to transfer the employees to fill in elsewhere in the plant and not to lay them off. In this regard, it is also significant that in his antiunion speech on February 13, Chairman of the Board Fain boasted to the employee mem- bers of the Company's Service Club that despite "the terribly uncertain conditions" in 1970 when "the economy was uncer- tain," Respondent, unlike other employers in the area, "maintained full employment throughout the year, and actu- ally added 14 more people to the payroll." In fact, although the Respondent's production records disclosed that in the 3 weeks following Howard's termination, the production of soling molding sheets dropped substantially from 44,070 dur- ing the week of February 28 (when Howard was terminated) to 28,575 during the week of March 27, and although accord- ing to Duarte the department assertedly was overstaffed by two persons,14 he admittedly did not lay off anybody, because, as he explained, "It's not my practice. I never laid off any- body...... In the light of all the foregoing, I regard the testimony that Howard was either laid off or terminated for lack of work as patently implausible, unworthy of credence, and as a quite transparent pretext to conceal another reason for his dismissal. 2. Additional reasons asserted by Respondent for Howard's termination According to Duarte, the decision to "discharge" Alan Howard came about as follows: on Wednesday, February 24, he observed that Howard, while on his way to the plant cafeteria, was "flapping his arms and skipping, like he was jumping rope." Accordingly, because Duarte assertedly "had received complaints about his [Howard's] reckless driving [of the tow motor in the plant], and so forth and so on," he "immediately" called Izzo, Howard's supervisor, to his office and he asked Izzo, "What's the matter with this fellow, Alan?", and he told Izzo what he had seen. Izzo assertedly replied, "Oh, he's on pills," Duarte asked, "On pills?", and Izzo replied, "He pops pills." Duarte asked, "How do you know?", and Izzo responded that Howard had "admitted it." Duarte accordingly then instructed Izzo to notify Howard that same day that "he is through as of Friday." One would assume from the foregoing testimony of Duarte that the decision to terminate Howard was motivated by Duarte's sudden acquisition of knowledge for the first time that Howard was a "pill popper" or drug addict, and that therefore his presence in the plant, which included the opera- tion of a tow motor, created a hazard which had to be elimi- nated. That assumption was dispelled by Duarte on cross- " Resp Exh 9 " John Costa, a utility man, and Bob Baptista, an operator 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examination, for he then admitted that he had heard about Howard's so-called pill popping "very long ago," dating back "almost" to the time when Howard was first hired, Duarte then denied that his decision to terminate Howard was based either on Howard's alleged "pill popping" or "grass [marijuana] smoking," and he testified, "it [these alleged practices of Howard] didn't faze me, because I have enough respect for my supervisors to know whether a person is effi- cient and adequate for the job, aside from that." According to Izzo, Howard's foreman, the only complaint about his assertedly "reckless" operation of the tow motor came from. Duarte about "three or four months" before Ho- ward's termination, and Izzo orally warned Howard at that time to drive more carefully. There is no probative testimony that Howard's operation of the tow motor after the oral warning was other than satisfactory." Howard concededly had no accidents while operating the tow motor and he caused no injury to anyone or anything with it. Howard denied that he ever told Izzo either that he popped pills or smoked grass, and I credit his denial, especially be- cause I cannot believe that any supervisor in an industrial plant like Respondent's would knowingly tolerate the con- tinued employment of an admitted drug addict in a job which included the operation of a tow motor.16 I conclude from all the foregoing, including Duarte's obvi- ously self-contradictory testimony, that no credence can be placed in the apparent assertions that Howard's termination was motivated by either his exuberant flapping of arms and skipping while going to the plant cafeteria, his alleged pill popping and/or grass smoking, or by his alleged reckless driving of the tow motor. I regard all of these asserted reasons for his termination as pretexts and afterthoughts fabricated and/or dredged up by the Respondent to conceal another reason for his termination. absences occurred on Saturdays, a day on which Howard admittedly preferred not to work and frequently took off with the knowledge and consent of his foreman Izzo." In this regard, the Respondent's record of Howard's absences from November 1, 1970, until the end of 1970 (when as hereinafter described Howard received a warning notice for excessive absenteeism) discloses the following: 11-7-70 [ Saturday] 11-21 -70 [Saturday] 11-28-70 [Saturday] 12-5-70 [ Saturday] 12-12-70 [Saturday] 12-18-70 [ Friday] 3. Howard's absenteeism As previously noted, the Respondent's personnel record of Howard's employment (G.C. Exh. 2) contains a note conced- edly made by Personnel Director Gaines which states, inter alia, that Howard was "selected for layoff [for lack of work], not by strict seniority, but because he was the least reliable with regard to attendance." The same record also states that "Howard's attendance record was atrocious, averaging better than 3 days off a month." I have already found that Howard was not laid off by Respondent, but rather was permanently discharged by it on February 26, and I have also found that the "lack of work" reason asserted by Respondent for his termination is a quite transparent pretext. I now will consider the assertion that Howard was "selected" for termination because of his "atrocious" attendance record. The Respondent's personnel department maintains attend- ance records for all the Company's employees, and the record of Howard's attendance at work" discloses that in 1970 he was absent for a total of 36 out of approximately 280 working days," a clearly high percentage of the available working time. The record further discloses, however, that 13 of the 36 " Duarte testified that he received numerous complaints from his super- visors about Howard's assertedly reckless operation of the tow motor. None of the allegedly complaining supervisors was called by the Respondent to testify and no explanation was offered for the failure to do so I conclude therefrom and from Duarte's testimony in general that his testimony in this regard is also unworthy of credence 16 I accordingly do not credit lzzo's contrary testimony that Howard admitted to him that he "popped pills " G C Exh. 5 The departments in which Howard was employed frequently worked 6 days a week. The number of working days in the year is an estimate Asked to be abs. Called -- Ill Prearranged Prearranged Prearranged Called -Ill According to Howard's credited testimony, on either December 19, 1970, when he returned to work after his ab- sence the previous day, or on December 21, 1970, he received a written warning notice from his foreman Izzo which states on a yellow slip of paper that he had been "too many days absent." Howard admittedly then told Frank Cimino, a fel- low worker, that he was lucky not to have been fired, that he had in fact been excessively absent the last year, and that he "was going to smarten (sic) up." On cross-examination by Respondent's counsel, Howard was shown a Xerox copy of a written warning notice purportedly given him on December 28, 1970, and signed by Foreman Izzo, which not only states that he had been absent "too many days," but also purport- edly warned him of the following: He asked to get off 3 different jobs while on days. Mixing dept. was too dirty Block dept. was too heavy Soling packing was too boring. Howard denied that any warning notice was given to him on December 28, 1970, and he denied that the notice he received contained a reference to anything other than "too many days absent." On the following day, pursuant to request, Personnel Director Gaines produced the original of the Xerox copy previously shown to Howard, a written warning notice form 19 According to Howard's credited testimony which was not contro- verted by Izzo, the latter would notify him on Friday when there was Saturday work, Howard would advise Izzo whether or not he was "going to come in," usually, that he would not, and Izzo would say, "All right," or "O K," Izzo's testimony in this regard was substantially to the same effect, that Howard told him that he would "lust as soon not work Saturdays," and that he, Izzo, replied, "OK " TEKNOR-APEX CO. 389 printed on pink paper upon which there was writing in blue ink.20 Gaines testified that this warning notice "was complete in that form" when he received it a day or two after December 28, 1970, and that all copies of the warning notices issued by Respondent are printed on pink paper. Close examination of the exhibit disclosed, however, that the date, Howard's name, the words "Too many days absent," Izzo's signature at the bottom, and the word "Press" department, were written with dark blue ink, and that the additional statements quoted above (which Howard had denied was on the warning notice that he received) was written with a lighter, different shade of blue ink. No explanation was offered by the Respondent, or by Izzo when he testified, as to why a warning notice was issued for excessive absence on December 28 when Howard's last absence had occurred 10 days earlier on December 18. Furthermore, Izzo's testimony regarding the warning slip referred only to his excessive absenteeism, and significantly omitted any reference to any of the other items which appear on the exhibit. Thus, Izzo testified on cross-examination re- garding Howard's warning notice as follows: Q. (By Mr. Rosemere) Now, I believe you told us that you gave Howard a warning. Is that correct? A, Yes. Q. That's a so-called pink slip? A. That's the -yes. Yellow one, I think it is.2' Q. Do you recall what you put on that slip? A. Yeah. I think it was-too many days off, or too many days absent-or something to that effect, anyway. Finally, the items on the exhibit other than absenteeism quite clearly refer to transfers which Howard had requested and received before he worked under Izzo's supervision. The last such transfer had occurred in September 1970, and no reason was offered or given why Howard would be warned on December 28 by Izzo for transfers which Howard had re- quested and received before he began to work under Izzo's supervision in September 1970. I conclude from all the foregoing that Respondent's Exhibit 1 is an altered version of the warning notice which was given to Howard on December 19 or 21, 1970. The Respondent's record of Howard's absences after the warning notice discloses that he was off on Saturday, January 9, by prearrangement, and on Saturday, February 13, because he "doesn't want Saturday work." Howard also took off on January 20 because of trouble with his car, and on January 28, and February 1 and 2 because of a bout with the flu. Izzo conceded that after he gave Howard the warning notice for too many days off, Howard's absence record was "pretty good," that Howard "worked during the regular week pretty steady," and that he took off on Saturdays only after Howard "asked" him "about it" and received his "OK." In the light of all the foregoing, including the fact that Howard's last absence occurred on February 13, 2 weeks before his termination, that he was told on termination only that he was being laid off for lack of work, and the alteration of the warning notice, I find that excessive absenteeism was not the real reason for Howard's termination, and that the assertion of this reason for his discharge is merely an addi- tional pretextual device by which the Respondent seeks to conceal another reason for his dismissal.22 30 Resp Exh 1 " The reference to a yellow warning notice corroborates Howard's tes- timony that that was the color of the warning notice he received, and contradicts that of Personnel Director Gaines that all the warning slips of Respondent are printed on pink paper " In reaching this conclusion, I have not overlooked the fact that the Respondent has terminated other employees for excessive absenteeism 4. Howard's allegedly poor work record Although the Respondent assertedly terminated Howard for "lack of work," it adduced testimony that he was desig- nated ineligible for rehire, inter alia, because of poor work performance prior to his termination. In this regard, Person- nel Director Gaines testified that immediately after Howard was "laid off," he "examined" Howard's personnel file, con- ducted "an investigation," and then and there made "a deci- sion" which "was fairly firm in my [Gaines'] own resolve," that he "would never rehire him." According to Gaines the reason for that decision was in part because Howard was "undependable," "unadaptable," he was "willing [only] to work on the simplest job," he was "completely without ambi- tion to progress further," and he "rejected every opportunity to advance to a better paying job." Production Manager Duarte testified in this regard that although he told Howard that he was being laid off temporarily for lack of work, he did not intend to recall him, inter alia, because of Howard's "inadequate efficiency," and "his overall attitude." Aside from these conclusions of Gaines and Duarte quoted above, their only specific testimony about Howard's alleged in- competence appears to be that he requested the transfers referred to in the warning notice which, as found above, the Respondent altered in its effort to justify Howard's termina- tion. Significantly, the last such transfer was requested by, and given to, Howard 6 months before his termination. Moreover, contrary to the testimony of Gaines and Duarte, Howard's foreman Izzo evaluated Howard as "not a bad worker, when present."2J Thus, according to Izzo, he made this evaluation of Howard's work performance and competence "a consider- able amount of time before he was let go," and he, Izzo, had "no cause" to change his opinion "up to the time he [How- ard] was let go." Furthermore, as Howard credibly testified without contradiction, at the time Izzo told Howard that he was being "laid off," Izzo also said that "there was no reason to fire you." In the light of Izzo's and Howard's testimony above, I regard the implication that Howard was designated as ineligible for rehire because of poor work performance or "attitude" as unworthy of credence and as another pretextual device to conceal the real reason for Howard's termination and the refusal to reinstate him." 5. The Respondent's belated investigation of Howard's application for employment During the investigation of the merits of the unfair labor practice charge in this case, an agent of the Board interviewed Personnel Director Gaines and asked him whether or not Howard was eligible for rehire. Upon advice of counsel, Gaines refused to answer the question. About 10 days later in May 1971, the Respondent employed "a regular profes- sional agency" called Fidelifacts to investigate the veracity of the application for employment which Howard had com- See G.C. Exh 2, the Respondent's personnel record of Howard 10 Since Izzo admittedly regarded Howard as "not a bad worker when present," I regard it irrelevant that Frank Cimino , a coworker of Howard, regarded him as "slacking off towards the end," as "getting cocky," or that in Cimino's opinion, "he [Howard] did not give a damn about his job or what had to be done," that "he just took it [the job] for granted " Although asked, Cimino provided no factual probative support for his conclusionary tes- timony quoted above Moreover, Cimino's demeanor at the hearing clearly disclosed that although he was not a supervisor he resented the failure of young Howard, who worked with him, to respond to his orders and direc- tions with sufficient alacrity. I therefore give little credence and accord no probative value to Cimino's conclusionary testimony regarding Howard's attitude to his job and his allegedly improper work habits 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pleted and signed 2% years earlier when he was hired by Respondent on November 19, 1968.25 At the hearing in this case, the Respondent asserted that its decision not to reemploy Howard after his temporary layoff for lack of work was based on the findings of the investigative agency, and it sought through Personnel Direc- tor Gaines to establish that Howard's employment applica- tion was untrue in two respects.26 Apparently, the Respond- ent has now abandoned this contention for its brief makes no reference thereto. I regard the Respondent's belated investigation of Ho- ward's employment application as evidence that it was then seeking to find a plausible and credible justification for its failure and refusal to reemploy Howard which obviously had been based on another reason or reasons. I base this conclu- sion on the fact that contrary to the contention advanced at the hearing that Respondent's decision not to reemploy How- ard was based on the alleged falsity of his employment ap- plication, Duarte had admitted on cross-examination that at the very time that he told Howard that he was being "laid off" for "lack of work," that the layoff would last about 6 weeks, and for Howard not "to worry about it" and to "have a good time" in California, Duarte admittedly had no intention of ever reemploying Howard.21 Under the circumstances, the later investigation of Howard's employment application clearly was a search for evidence to justify a decision already made, and for which the reasons then existing were not re- garded as sufficient. E. The Respondent's Knowledge of Howard's Union Activities As previously noted, in February 1971, shortly before he was terminated by the Respondent, Howard became an active supporter of the Union and a member of its in-factory com- mittee. He attended union meetings, brought other employees to the meetings with him, and promoted the Union in talks with employees in the plant. The Respondent contends that there is no testimony that it or "any foreman or supervisor knew of any [union] activity by him [Howard]."" Contrary to this contention, there is substantial evidence that the Respondent knew the identity of all the Union's advocates at the Pawtucket plant, including Howard. The record in this respect discloses as follows: 1. When Howard's foreman Izzo was asked by Respond- ent's counsel whether he knew at the time he discussed Ho- ward's discharge with Duarte on February 24 "whether Mr. Howard was active in the union," he answered that he did not know "for certain," and he explained that "you hear all kinds of scuttle butt, but you can't get a formal opinion on scuttle butt." I infer from this testimony that Izzo had at least heard " The findings above are based on Gaines' testimony which is credited to this extent. 36 According to the Respondent's offer of proof, Howard's application assertedly failed to disclose that he had been discharged from a prior posi- tion, and he allegedly falsely stated therein that he had not previously been "arrested," whereas he assertedly had been "arrested for furnishing liquor to a minor." The offer of proof was rejected because Gaines admittedly had no personal knowledge of the matters concerning which his testimony was being offered Thereafter , notwithstanding that Respondent was advised that such testimony would be received and "accepted" if offered through "a proper witness with personal knowledge " of the matters involved , it made no further effort to establish the asserted falsity of Howard's application for employment " A similar decision admittedly was made by Personnel Director Gaines between February 26 when Howard was laid off and March 4 when Howard returned to Gaines' office for his paycheck. " Brief, p 3. by scuttle butt prior to his conversation with Duarte that Howard "was active in the union."29 2. On Saturday morning, February 27, the day after Ho- ward's termination, Merrill Raymond, a supporter of the Union, met Martin Regan, an admittedly recently appointed supervisor of Respondent, and employee Arthur Laroche, in the Keg Tap bar "next door" to the plant. The relationship between Raymond and Regan admittedly was a friendly, "convivial" one and over the years of their acquaintanceship they had drunk together at bars on frequent occasions, some- times as often as two or three times a week. On February 27, when Regan came in to the bar and joined Raymond and sat down beside him, the latter asked Regan "what the story was" regarding Howard's layoff. According to Raymond's credited testimony, Regan replied that at a supervisors' meet- ing which he had attended, "they picked out who was union and who wasn't union. And that was the reason he [Howard] was-you know-laid off." At the same time, Regan also told Raymond "they knew about [the union advocacy of] Ronald Sito and me ... about all of us ...."'0 I conclude from all the foregoing that the Respondent had knowledge before Howard's termination that he was an advo- cate of the Union in its plant. F. Concluding Findings in Respect to Howard's Termination I have found above that the Respondent's many shifting reasons for the termination of Howard's employment and the failure and refusal to reemploy him are all unworthy of cre- dence or belief. In sum I have found that: 1. Howard's asserted layoff for lack of work was contrary to the Respondent's policy of transferring its employees to other departments when work in a department was slow. 2. The production figures submitted by Respondent dis- closed no need for a layoff of employees; production had increased in the week that he was laid off; and when production did drop substantially after Howard's termina- tion, the Respondent laid off no additional employees, not- withstanding that it assertedly was overstaffed by two per- " Izzo later contradicted his testimony above by testifying that he thought he heard the "scuttle butt" after Howard was terminated, but I do not credit this later contrary testimony. 30 In respect to Raymond's testimony credited above, Regan admitted that he had spoken to Raymond several times in the Keg Tap, he denied that he ever talked to Raymond about union activities, and he also denied that he told Raymond "to watch out, that we-the supervisors-knew who were the Union and working with the Union " Regan further testified that Ray- mond's testimony about their conversation was not "true." Regan also de- nied that he ever had discussed the union campaign with fellow supervisors, and he further denied that he "ever attended a supervisor's meeting " Regan admitted that he had visited and drunk with Raymond frequently at another bar, the Log Den, but he could recall only two occasions in the last 5 '/ months that he had been at the Keg Tap with Arthur Laroche, and he was positive that on neither such occasion, including one that could have been in late February, had he encountered Raymond there In the light of tes- timony adduced by Respondent through Personnel Director Gaines, that meetings of supervisors were held during the Union's organizational cam- paign, and the documentary evidence that Respondent's Board Chairman Fain was aware of the Union's campaign on February 13, and was concerned about it, I regard Regan's testimony that he never attended any meetings of supervisors or discussed the union campaign with other supervisors as implausible and unworthy of credence Moreover, Raymond's supervisor Robert Leech testified that he had known Raymond since 1966 when the latter started to work for Respondent, and that to Leech's knowledge he had always found Raymond to be a truthful person. That also is my assessment in general of Raymond's testimony on both demeanor and inherent plausi- bility For the same reasons, I regard the testimony of Regan as iii general unreliable, and I therefore do not credit his denials of Raymond's testimony above. TEKNOR-APEX CO. 391 sons. Moreover, there was no evidence that Howard or any other employee was standing idle with no work to perform, and it was and is regarded as incredible that "lack of work" could be the reason for the layoff of one employee out of a total complement of 350. Furthermore, there then existed a vacant position for which Howard was qualified, the one that resulted from the voluntary resignation of Frank Dombroski. 3. At the very time that Howard was told by Production Manager Duarte that he was being laid off for about 6 weeks, Duarte had no intention of ever reemploying Howard. 4. Although Howard assertedly was selected for termina- tion because he had the least seniority in his department, there is no evidence that Respondent followed a policy of departmental seniority. To the contrary, the record discloses that interdepartmental transfers was its policy and occurred frequently. On a plantwide basis, there were approximately 30 employees with less seniority than Howard, but the Re- spondent admittedly made no effort to determine whether one of them, rather than Howard, should be terminated for "lack of work." 5. The assertion that Howard was terminated on February 26 because of excessive absenteeism is regarded as incredible in the light of his admittedly improved attendance after re- ceipt of a warning notice in December 1970, and the fact that he had not been absent for at least 2 weeks when he was terminated. Moreover, many of the later absences recorded on Howard's record were on Saturdays which he admittedly took off with the permission of his foreman Izzo. 6. Howard's asserted reckless driving of the tow motor is another unbelievable reason for his termination since he had never had an accident or caused injury or damage with it, and the assessment of his work performance by Howard's fore- man was that he was "not a bad worker." 7. The alleged pill popping and grass smoking by Howard as the reason for his termination was clearly injected into the case to create prejudice against him, and is regarded as in- credible and pretextual, for the Respondent, even by its own incredible testimony, was aware of it almost from the date Howard was first employed. 8. The assertion that Howard was terminated because he was undependable, unadaptable, and without ambition to undertake anything other than the simplest jobs, clearly was based on his requests for transfers over a 2%year period, the last of which occurred 6 months prior to his termination. These assertions are regarded as incredible in the light of the assessment of Howard's foreman that he was "not a bad worker" and the fact that, at the time of Howard's termina- tion, he was performing practically the same work as that done by Frank Cimino whom Foreman Izzo regarded as his right hand. 9. Last but not least, I have found that the Respondent not only altered the warning notice issued for absenteeism to Howard in December 1970 to include references to his prior requests for job transfers, but it also conducted a belated investigation of Howard's original application for employ- ment with Respondent. This clearly suggests that the Re- spondent sought thereby to obtain and establish evidence to justify its termination of Howard which was motivated by some other reason. In Shattuck Denn Mining Corporation v. N.L.R.B., the Court of Appeals appropriately said:" Nor is the trier of the fact-here the trial examiner- required to be more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to " 362 F 2d 466 , 470 (C A 9) conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that infer- ence. [Emphasis supplied.] In the light of the pretextual, shifting, and discredited reasons assigned by Respondent for Howard's termination and for the failure and refusal to reemploy him, its real motive for Howard's dismissal is not difficult to perceive. The Respondent is opposed to the representation of its employees by the Union . Howard became an active supporter of the Union in the plant in February 1971, and as found above the Respondent acquired knowledge of his union ac- tivities. Howard was terminated by Respondent just a few weeks after he commenced his active support of the Union, and the reasons asserted by the Respondent for his termina- tion have been found to be implausible , incredible, and pre- texts to conceal another reason for his termination. I con- clude from all the foregoing that the Respondent 's concealed and true motivation for Howard 's termination was his ac- tivity on behalf of the Union. The Respondent urges that such could not have been its motive because other known active supporters of unions in prior campaigns have not been discharged and are still in the Respondent's employ . However, it is well settled that a dis- criminatory motive, otherwise established , is not disproved by the fact that the Respondent did not weed out all known union adherents." Accordingly, I conclude that by terminating Howard's em- ployment on February 26, 1971, and by thereafter refusing to reemploy him because of his activities on behalf of the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." G. Interference, Restraint, and Coercion of Employees 1. As found above, on February 27, Supervisor Martin Regan told employee Merrill Raymond that at a supervisors' meeting which Regan had attended , "they picked out who was union and who wasn 't union." At the same time, Regan also told Raymond , "they knew about [the union advocacy of] Ronald Sito and me ... about all of us ...... The complaint (paragraph 8(b)) alleges , and the General Counsel contends, that by these "utterances" of Regan, the Respondent conveyed to employees the impression that their union activities were the subject of surveillance by the super- visors. Regan's statement to Raymond clearly conveys that impression, and I therefore conclude that thereby the Re- spondent interfered with , restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act and engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. On Thursday, February 25, the day before Howard's termination, Robert Leech, the third shift foreman of the plastics department , told employee Merrill Raymond that he was designating him as a temporary leadman during the ab- sence of the regular leadman . At the same time, according to the credited testimony of Leech , he told Raymond , "If you see any soliciting of any kind , or passing out of [union] cards -bring it to my attention."" " Nachman Corporation v. NL R.B., 337 F.2d 421, 424 (C.A. 7); N.L.R.B. v. Shedd-Brown Mfg. Co., 213 F 2d 163, 174-175 (C A. 7); N.L.R.B. v Nabors, 196 F 2d 272, 276 (C.A 5) " Shattuck Denn Mining Corporation v. NL.R.B, supra. " Raymond's version-of this instruction was that Leech told him to "fire" anyone he saw "passsing out white [union] cards." Notwithstanding that I regard Raymond's testimony in most respects as reliable , I regard his version of Leech's instruction as overstated since it is not disputed that leadmen have no authority to fire employees and are not supervisors within the meaning of the Act See NL.R.B. v. Universal Camera Corp., 179 F 2d 749, (Cont.) 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint (paragraph 8(a)) alleges that Respondent violated Section 8(a)(1) of the Act by Leech's instruction to leadman "to discharge any employee observed distributing cards for the Union." The Respondent appears to contend that no violation of the Act can be based on Leech's admitted statement to Raymond, because he in effect was asking Ray- mond merely to enforce the Respondent's no-solicitation in the plant rule." I regard the contention as without merit since, as previously noted, leadmen are not supervisors, and Leech, in effect, was requesting Raymond, an employee under the Act, to engage in surveillance of the union activities of other employees and to report such activities to him. I find that the Respondent thereby further impinged on its em- ployees' Section 7 rights, and further violated Section 8(a)(1) of the Act.36 3. On Friday, March 12 about 7:30 a.m., after the third shift ended, Foreman Leech and a number of the employees who worked under him the the plastics department," and some from the hose department, visited Duffy's Tavern, a bar near the Respondent's Pawtucket plant. Most of the em- ployees drank beer, but Leech imbibed whiskey, and the talk was mainly about the union campaign . Sometime between 9 and 10 a.m., Leech told the employees that they were foolish to "get involved in the thing [the Union]," that employees who pushed the last organizational campaign were no longer employed by Respondent, that the Company "knew all the guys that were involved in the Union," and that if the Union "didn't get in," they would all "be gone." Pointing to Ronald Sito, Leech said that he and the "frog" "would be out."36 Leech then asked Raymond and employee Al Demastro if they had signed union cards, and, after receiving an affirma- tive reply, Leech said that if they didn't watch their step, they too would be out.39 I therefore conclude that Leech's statements on March 12 to the employees at Duffy's Tavern: (a) clearly implied that their union activities had been subjected to surveillance by Respondent; (b) constituted coercive interrogation of em- ployees regarding their union membership and support; and (c) threatened employees with discharge for supporting the Union if the latter lost its organizational campaign; and that thereby the Respondent further interfered with, restrained, and coerced employees in the exercise of statutorily guaran- 754 (C A. 2), reversed and remanded on other grounds, 340 U.S. 474, in which Judge Learned Hand wrote. It is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. " Resp. Exh. rule 43. The rule appears on its face to impinge on em- ployees' Section 7 rights, but since the complaint does not allege a violation of the Act based thereon , and the issue was not litigated , no finding of violation will be based thereon. 16 Indeed, since Leech's instruction to Raymond was not limited to watching and reporting solicitation that occurred during working time, it would be violative of the Act even if Raymond was a supervisor " These included Merrill Raymond, Ronald Sito, and Richard Combies. " This was the nickname of an employee of French descent whose sur- name was not recalled by the witnesses 11 The findings above are based on a composite of the credited testimony of Raymond, Sito, and Combies Leech, a witness for Respondent, was asked whether he threatened anybody, and whether he said "we know who you are and you'll end up like Sito and the frog," and he replied, "I don't think I said anything like that," Moreover, Leech admitted that his recollec- tion of the events of that day, which included being struck by a thrown glass which cut his face, "was pretty well blotted out-because of the amount of alcohol that [he] consumed that day." I therefore regard his uncertain denial of the statements attributed to him by the employees as less reliable than their testimony which I have credited above. teed rights, and engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.40 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent terminated the employ- ment of Alan J. Howard and thereafter failed and refused to reemploy him because he engaged in union and concerted activities guaranteed by the Act, I will recommend that the Respondent be ordered to offer him immediate reinstatement to his former position or, if it no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges. and make him whole for any loss of earnings he many have suffered by reason of the discrimi- nation by the payment to him of a sum of money equal to the amount he normally would have earned from the date of his termination to the date of reinstatement, less his net earnings durin* said period, with backpay computed on a quarterly basis in the manner established by the Board." I will also recommend that the Respondent 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 and determine the amounts of backpay due under the terms of this recom- mended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Teknor-Apex Co., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. District #2, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Alan J. Howard, by terminat- ing his employment, and by failing and refusing to reinstate him because of his support of the Union, the Respondent has " ° In reaching this conclusion , I have considered and rejected the Re- spondent's contention that no violation should be based on Leech's utter- ances because of the social nature of the occasion at which they were made, because of the admitted horseplay which had occurred (which included Leech being asked to sign a union card and doing so by affixing thereto the name of one of the employees), and because of the amount of drinking which had preceded Leech's statement I am not persuaded by the record that at the time Leech made these statements, his consumption of alcohol was such that his words were less coercive than what they clearly conveyed It may well be that but for his drinking, Leech might not have said what he did, but in this regard, the Latin maxim, in vino veritas, clearly seems to apply " F W Woolworth Company, 90 NLRB 289, backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 TEKNOR-APEX CO. 393 engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by coercively interrogating employees regarding their union membership and sympa- thies, by requesting employees to engage in surveillance of the union activities of other employees, by conveying to em- ployees the impression that it has engaged in such surveil- lance, and by threatening employees with discharge or other reprisals for engaging in union activities, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclu- sions of law, and upon the entire record in this case, I hereby issue the following recommended:" ORDER Respondent, Teknor-Apex Co., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of District # 2, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or of any other labor organ- ization of its employees, or in any other manner discriminat- ing in regard to hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating employees regarding their un- ion membership, activities, or sympathies. (c) Engaging in surveillance of the union activities of its employees, or in conduct which gives the impression of sur- veillance, or requesting employees to engage in such surveil- lance. (d) Threatening employees with discharge or other repris- als for engaging in union or other activities protected by the Act. (e) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist District # 2, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Offer Alan J Howard immediate and full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges enjoyed, and make him whole for any loss of pay he may have suffered as a result of the dis- crimination against him in the manner provided in the section of this Decision entitlted "The Remedy." " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, automati- cally become the findings, conclusions, decision and order of the Board, and all objections thereto shall be deemed waived for all purposes (b) Notify Alan J. Howard, if presently serving in the Armed Forces of the United States, of his right to full rein- statement 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, person- nel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this recommended Order. (d) Post at the Respondent's plant located in Pawtucket, Rhode Island, copies of the notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Decision, what steps have -been taken to comply herewith." " In the event that the Board's Order is enforced by a judgment of the 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 " 44 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify said Regional Director for Region 1, 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 After a trial at which all sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order of the Board. The Act gives all employees these rights: To engage in self-organization; To form, join, or help unions; To bargain collectively through a representative of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discourage un- ion activity or membership in District # 2, United Rub- ber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization by dis- criminating against you if you choose to engage in union activity or join that union or any other union. WE WILL NOT coercively interrogate you regarding your union membership, activities, or sympathies. WE WILL NOT engage in surveillance of your union activities or in conduct which gives the impression of such surveillance, and WE WILL NOT request you to en- gage in such surveillance for us. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten you with discharge or other reprisals for engaging in union activities. Since it was decided that we violated the Act by ter- minating the employment of Alan J. Howard because he engaged in union activities, WE WILL offer him full rein- statement to his former job, and WE WILL pay him for any loss he suffered because we fired him. WE WILL respect your rights to self-organization, to form, join, or assist any labor organization , or to bargain collectively in respect to terms or conditions of employ- ment through the Union named above, or any represent- ative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our em- ployees in the exercise of these rights. You, all our employees, are free to become members of any labor organization or to refrain from doing so. TEKNOR-APEX CO. (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by any- one. 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, 7th Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.