Lube Devices, Inc.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lube Devices, Inc. and District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 30-CA-1641 and 30-RC-1539 June 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 10, 1972, Trial Examiner John G. Gregg issued the attached Decision in this proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in his Decision. He also found that certain employees were eligible to vote in a Board-conducted election held on August 20, 1971, and recommended that the ballots of the eligible voters be opened and counted and that the Board order such disposition as it may deem appropriate in the circumstances. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 brief and the entire record in this proceeding and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Lube Devices, Inc., Manito- woc, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that Case 30-RC-1539 be, and it hereby is, severed from this proceeding and remanded to the Regional Director for Region 30 for the purpose of opening and counting the challenged ballots of Michael Meissner, John Van Ells, and Thomas Kornek and thereafter issuing the appropri- ate certification. TRIAL EXAMINER'S DECISION JOHN G. GREGG, Trial Examiner: This consolidated proceeding was heard at Manitowoc, Wisconsin, on October 12, 13, and 14, 1971. Subsequent to the trial, the General Counsel moved to correct the transcript. It appearing that the motion is appropriate and there being no objection, the motion is hereby granted. The representation proceeding in Case 30-RC-1539 was initiated by a petition filed by the Union on July 2, 1971. A stipulation for certification upon consent election was executed on July 27, 1971, and approved by the Regional Director on July 28, 1971, followed by an election on August 20, 1971, which the Union lost. The tally of ballots showed that of approximately 20 eligible voters 9 votes were cast for the Union, 11 against, and 3 ballots, the ballots of Michael Meissner, John Van Ells, and Thomas Kornek, were challenged by the Employer on the ground that these employees had been lawfully terminated prior to the election. Pursuant to charges, as amended, filed by the Union herein, against the Employer in Case 30-CA-1641 a Complaint and Notice of Hearing therein issued on September 10, 1971, alleging that the Employer discrimina- torily discharged employees Meissner, Van Ells, and Kornek because of their interest in and/or activities on behalf of the Union and in order to discourage member- ship in and activity on behalf of the Union, in violation of Section 8(a)(1) and (3) of the Act. On September 16, 1971, an amendment to the complaint in Case 30-CA-1641 was issued, alleging unlawful surveillance of union activities by the Respondent in violation of Section 8(a)(1) of the Act. On September 30, 1971, the Regional Director for Region 30 issued an Order consolidating the cases and a notice of hearing on the challenged ballots. At the trial, the complaint was further amended to add an additionally alleged act of interference, restraint, and coercion by the Respondent arising from an alleged threat of refusal to offer an employee part-time work during the school year because of the employee's union membership, activity, and sympathy. The issues raised herein are whether the Respondent discriminatorily discharged Messrs. Meissner, Van Ells, and Kornek and whether the Respondent unlawfully interfered with, restrained, and coerced its employees as alleged in the complaint as amended. Upon the entire record herein, my observation of the witnesses as they testified, and after careful consideration of the briefs herein, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation, is engaged in the manufacture of lubrication devices at its plant located at Manitowoc, Wisconsin. During the past calendar year, a representative period, the Respondent sold and shipped goods valued in excess of $50,000 in interstate commerce to points located outside the State of Wisconsin. At all times material herein, the Respondent is, and has been an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. 197 NLRB No. 122 LUBE DEVICES, INC. 771 II. THE LABOR ORGANIZATION INVOLVED At all times material herein, District No. 10, Internation- al Association of Machinists and Aerospace Workers, AFL-CIO, the Union herein, is and has been a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint as amended alleges that on or about June 30, 1971, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by the conduct of Gus Lukas, Floyd Bydalek, and Ronald Daline in engaging in surveillance of a union meeting in violation of Section 8(a)(1) of the Act; that the Respondent discriminatonly discharged Michael Meissner, John Van Ells, and Thomas Kornek and has failed and refused to reinstate said employees to their former positions of employment, all because of their interest in, and/or activities on behalf of, the Union in order to discourage membership in, and activity on behalf of, the Union, in violation of Section 8(a)(1) and (3) of the Act; and that the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act through threats by Shimon to refuse to offer Hartman part-time work during the school year because of Hartman's union membership, sympathy, and activity. A. The Alleged Interference, Restraint, and Coercion The record indicates that around 4 p.m. on June 30, 1971, the day that Kornek was discharged, the Respon- dent's employees were notified by the union representative of a meeting to be held at the Dogs and Suds Drive-In located about 2 1/2 miles from the plant. Thomas Kornek testified that about 4:15 p.m. that day there was a meeting at the Dog and Suds Drive-In. Kornek stated that he and the Machinists representative went to the plant and when the men came out they were told there would be a meeting at the Dog and Suds and that anybody who was interested should be down there. The meeting was held in the parking lot at the Dog and Suds with about 15 employees present. According to Kornek, during the meeting Bydalek was noticed driving past, Daline drove past, and Mark Lukas drove past. After going by, according to Kornek, they came back and went past again within a period of say 5 minutes. I credit Kornek who testified in a straightforward sincere manner . Additionally, there was testimony of record by Joseph Pnkop, whom I also credit as a sincere witness, that during this meeting Bydalek, Daline, and Mark Lukas each separately drove past twice, each going past westerly and returning in an easterly direction. There was no unqualified denial by Bydalek and Mark Lukas of the allegation that they drove by the meeting place at the time of the meeting. Daline did not testify. The location of the site of this meeting being vis-a-vis the location of the plant, the facts that Bydalek and Daline were members of management and Mark Lukas the son of the Respondent's president, and the obvious weakness in the testimony of these two individuals insofar as setting forth a reasonable basis for driving past that particular site at that particular time, all lead me to conclude that through this maneuver the Respondent indeed engaged in surveil- lance of the union activities of its employees in violation of Section 8(a)(1) of the Act. There was testimony by Joseph Shimon with respect to the alleged threat by the Respondent to deprive Thomas Hartman of part-time employment. In his testimony concerning his discussion with student employee Hartman, Shimon testified that Hartman asked him if he could figure on a job next summer and Shimon told him yes, if there were work available. Q. Did you say anything else? A. No. Q. Did you discuss the role he played with the Union at that conversation? A. Yes I did. I told him that we tried to teach him as much as we could so he could always use that experience in other jobs; and when we needed his help, he kicked us in the teeth. According to the testimony of Hartman, when Hartman asked Shimon about work for the holidays "and he really in the beginning didn't know what to say and then he said when the Company needed me I was against them, and he says what can I do, and I told them I was only trying to better myself, and he said how could you when you were leaving... . Based on my observation of the demeanor of the witnesses as they testified, I am convinced that both were testifying truthfully. I am convinced that Shimon had advised Hartman that he would be hired in the future if work were available. However, I view his additional remarks expressing displeasure at Hartman's union activity and labeling Hartman's activity as a kick in the teeth for the Company as going beyond the protection of Section 8(e) of the Act. In the circumstances of this case, the supervisor discussing future employment with a student -part-time employee at an exit interview at the end of a summer employment-I find that Shimon's remarks constituted a threat and were designed to chill his union activity, thereby constituting interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. B. The Alleged Discriminatory Discharges The record discloses that Meissner was discharged on June 25, 1971, Van Ells was discharged on June 25, 1971, and Thomas Kornek was discharged on June 30, 1971. The Respondent herein alleges essentially that the discharges of Meissner and Van Ells were the culmination of an effort which had begun months before to improve production in the employer's assembly department. As for Kornek the Respondent claims essentially that Kornek was discharged as the result of an incident of misconduct. The General Counsel contends that the Respondent had knowledge of the employees' union activity and sympathies prior to the time they were discharged and that it was such knowledge that formed the basis of their alleged discrimi- natorily motivated discharge. Gus Lukas, president of the Respondent and plant manager of the facility, testified that his office was less 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than 50 feet removed from the production area, that in connection with his duties he went into the production area of the plant on a daily basis, and that he personally would become directly involved with production problems on the floor when there was a problem. He testified also that in a general way he was personally acquainted with all of the employees in the plant. Lukas testified that during the summer his son Mark, who is 17 and a student, worked full-time doing yard work and assembly work, working in the production area of the plant. Lukas testified that a nephew also worked in the production area and in the machining and assembly area. Lukas testified that the first time that he became aware there was an organizational campaign among his employ- ees was when he was advised of that fact by Tom Kornek at roughly 10 o'clock in the morning on June 30, 1971, just subsequent to the discharge of Kornek. According to Lukas, this was the first he was aware that there was any discussion among his employees with respect to forming a union. Lukas testified that at the time Meissner and Van Ells were discharged on June 25, 1971, he was not aware that there was a union organizational campaign taking place among his employees. Lukas testified that he personally made the determina- tion to terminate Kornek, Van Ells, and Meissner. With respect to the discharge of Meissner, Lukas testified, "We reorganized assembly and were putting efficient people in and we had originally created a job for him. He was not adept at the work that we had plus the fact that he told us he was leaving." According to Lukas, months before the discharge, Meissner had told Backey, one of the Respon- dent's officers, that he would leave when he found another job. According to Lukas, Meissner was not suited for the job as he was not mobile in moving about and was limited to "testing gages and a few other jobs. " Lukas described his reorganization effort as the straight- ening out of the assembly area indicating that for some time the assembly area had been a mess, sloppy, with parts laying all over and no productivity, and that this had been getting progressively worse over a period of 5 or 6 months. With respect to the discharge of Van Ells, Lukas testified that he was discharged because he "went against the word that he had given to the supervisor who had hired him." According to Lukas, Van Ells was hired on the basis he would not look for employment in his primary field of forestry for which he had trained, but at which he was not employed, and that the Respondent would not have taken him in ,the first place had he not made a strong statement that there were no government appropriations, that he would not have a government job for 3 years, and that he would stay with the Respondent. According to Lukas, after Van Ells had been with the Respondent for less than a week and a half he broke that promise by checking on employment with the State of Michigan. According to Lukas, when he was informed of this by Backey, on June 18 or 19 1971, Lukas made the determination that Van Ells would be discharged. With respect to Kornek, Lukas testified that his reason or discharging Kornek was because Kornek had stated he was sick at home and then appeared in the plant parking lot later in the day not sick and in an ensuing discussion called Lukas a liar. According to Lukas, on the afternoon of June 29, he made the decision to terminate Kornek. Thomas Kornek testified that he began his employment with the Respondent in June 1966 working as a setup man on automatic turret lathes in the machine shop production department, and was discharged on June 30, 1971. Kornek stated that he was the longest term employee in the plant except for Jim Matson. Kornek also testified that 1 week prior to his discharge he was given an increase in pay from $2.40 an hour, which he had been paid since 1969, to the rate of $2.61 an hour. Kornek testified that in the fall of 1970 he talked to a union representative and then talked with five or six people at the plant about the Union, but there wasn't too much support for it. Subsequently in May 1971, according to Kornek, he, Jean Ahrens, and Mike Meissner asked Roger Marquardt to arrange a meeting with Lukas at which they could air their differences and their grievances . According to Kornek, the meeting took place in the plant in the production shop and was attended by all employees and management. Kornek testified that the discussion encom- passed wages, insurance, and fringe benefits. Kornek stated that he raised the question of why better wages couldn't be paid when a new office had been put up. According to Kornek, Lukas replied that it was a personal investment and none of Kornek's concern and that he didn't wish to discuss it any further. Kornek stated that Lukas then seemed to be in favor of a plan advanced by another employee to evaluate the worth of employees according to the type of job they were performing. Additionally, the matter of exhaust fans in the plant was raised by Kornek and discussed. Kornek testified that he had asked about exhaust fans a number of times over a period of 2 years and the only satisfaction he could get was that it would be looked into. Kornek stated that at times insurance would be discussed and Lukas stated that he hadn't found a suitable policy. According to Kornek, after the meeting, Roger Mar- quardt said that Lukas would put out a wage schedule on June 15. When the schedule was not posted on June 15, Kornek talked to Backey on June 18 and said that if the wage schedule were not posted he was not going to punch in and would not work until they had put it up. Kornek believed he also discussed this with Roger Marquardt. According to Kornek, when the schedule was not posted by June 21, he told Marquardt that he wanted to speak to Lukas about it. Subsequently, about 2 o'clock on June 23, 1971, Kornek met with Lukas in his office. Also present was Roger Marquardt. Kornek testified concerning this meeting, "I think the first thing I said was that we had taken a vote . . . we had taken a vote among the employees and that we were in favor of a union, and he said, well you can have a union he said, but I think he said Grummans in Two Rivers has a union and they had cut back employment quite a bit." According to Kornek, a general discussion followed covering insurance , wages, and profits, and, as for the wage schedule, Lukas stated that it would not be posted out in the shop. According to Kornek, he told Lukas that there was no communication between Backey and the men in the shop. They also discussed exhaust fans and Kornek stated that if there would be any LUBE DEVICES, INC. 773 reason why he would quit it would be because of lack of exhaust fans . Kornek also stated that it got smokey in the plant and it was not the best thing to be breathing. According to Kornek, Lukas himself brought up the subject of a raise for Kornek, "he said that he realized that I hadn't had a raise since March of '69 and he said he was going to give me a 21 -cent raise retroactive to the week before." Kornek testified additionally that during the conversa- tion with Lukas he advised Lukas that one of the employees, Meissner, had said that he wasn't receiving as much as another employee who had just started. Kornek stated that prior to this meeting with Lukas he had discussed it with almost all of the employees in front of the plant, right out on the walk, and that many of the employees had ideas about what Kornek should tell Lukas. According to Kornek, a vote had been taken out in the parking lot after work on June 21 , 1971. Meissner took the vote on a piece of paper to which the employees were to sign their names and whether a union was wanted or not. Kornek stated that at the meeting with Lukas on June 23, 1971, Kornek made reference to this vote that had been taken among the employees. With respect to the vote taken on June 21 , Kornek testified that he had discussed the matter with other employees on that date, prior to the time the vote was taken and that Meissner and Ahrens had suggested that Kornek pass out slips to employees in the production shop. According to Kornek, these conversations took place around 2 o'clock or 2:30 during working time , and Kornek went to the production area and mentioned what he was doing to Roger Marquardt who told him that he should not pass the slips out during company hours. It was then decided that Meissner would pass the slips out after work in the parking lot. According to Kornek, the vote was taken in the parking lot around 5 minutes after 4 o'clock. According to Kornek, when he went off duty at 4:30 he went out to the car and Meissner handed him the slips of paper which turned out to be 12 to 3 in favor of the Union. According to Kornek, he advised the employees of this the next day. Kornek stated that after his meeting with Lukas on June 23 , he reported to his fellow employees that he thought it was futile and that they would not get satisfaction from their request , that they would be better off to try to get a union . These discussions took place, according to Kornek, out in front of the plant at noon hour and perhaps in the shop during the day. Kornek stated that these discussions with employees were also had with Roger Marquardt. Kornek testified that on Monday, June 28, 1971, he sent a letter to the Machinists Union. Subsequently , he arrived at work a little before 7 o'clock and the automatic machines were producing quite a bit of smoke throughout the plant. It was a hot day with windows closed and the smoke made him nauseous. Kornek stated that he complained about the situation to Marquardt. The following day, Tuesday, June 29, 1971, Kornek arrived a little before 7 o'clock and started running the same job. It was a hot day, the windows were shut and it didn't take too long before the area was smokey. Kornek stated that at 8:30 he phoned Marquardt and said he was going home at 9:30 at breaktime, that the area was smokey, and he didn't feel good, especially from the day before. Subsequently, Backey came out and said he was going to open the windows and that if Kornek wanted to he could go home, but he was going to open the windows and try to get the smoke out of the shop . Kornek stated that he told Backey he was going to go home and he went directly home as he did not feel good. According to Kornek, about 2 o'clock that afternoon he received a telephone call from the representative of the Machinists Union who wanted to talk with him and the other men in the plant. Subsequently, Kornek met the representative at the Dog and Suds Drive-In in Manitowoc around 3 :45 p.m. They found a place at the armory at Manitowoc for the men to meet . Kornek testified that he went back to the plant arriving there a little before 4 o'clock, just before the men came out, and he talked with the men when they came out. He told them there was a representative who wanted to talk to them about a union. According to Kornek, these conversations took place about 30 feet from the plant . He spoke first with three employees who came out first and then a few more came out and he spoke with them . Lukas and Bydalek came out while Kornek was talking to some men and Lukas asked him where he had been that day . According to Kornek, he told Lukas that he had been home sick. Lukas said that he wasn't sick, "I told him that it was just a matter of getting some fresh air. I said that as soon as I left the plant I felt a hundred percent better." According to Kornek , Lukas then said that he had called and Bydalek had called and there was no answer at Kornek's house and, according to Kornek, Lukas said that Kornek was not home that afternoon. Kornek said that he was "and he told me that I should watch out, that this was private property and I shouldn't bite off more than I can chew." Kornek stated that during this conversation he believed that several employees were present but could not say for sure. Kornek denied calling Lukas a liar. According to Kornek, later that evening he and Meissner went to see a Steelworkers representative in Manitowoc and they discussed the same items that they had previously discussed with the representative for the Machinists concerning their grievances . Kornek testified concerning the meeting which was held around 4:15 that afternoon in front of the armory located about a mile and a half from the plant. Later that evening, there was a meeting with the Steelworkers downtown attended by Kornek , Meissner, Ahrens, Kovak, Van Ells, and others. According to Kornek, the following morning, June 30, 1971, while he was on his break at about 9:30 in the morning, he passed to all employees that were present outside certain information that had been given to him by the Machinists representative for distribution to the employees. Essentially this material consisted of literature relative to the right of I Americans to join the IAM, a pamphlet concerning the conduct of elections by the government, a union card, and related material. Kornek testified that he passed out the literature during the break and right in front of the plant on the lawn and he thought that almost everybody was out there except perhaps the girls in assembly and a few of the men that remained in the 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. According to Kornek, two of the foremen, Mar- quardt and Shimon , were also out there. Kornek stated that Shimon asked Kornek if he could have some information and Kornek gave him all the literature he had been passing out. Kornek thought that he also gave copies of the literature to Marquardt. Kornek stated that while Marquardt remained outdoors during the break Shimon went back into the plant. Kornek testified further that around 10 :30 or 10:45 Marquardt came to him in the plant and said that Lukas wanted to speak to him. They both went to Lukas' office. According to Kornek , in the office he was told that since he didn't wish to cooperate and the plant was detrimental to his health they were going to terminate his employment. He was asked to sign a termination paper which he would not sign. Present during that meeting were Marquardt, Shimon, Lukas, Backey, and Bydalek. Michael Meissner testified he was employed by the Respondent in October 1970 working in the assembly area and on automatic orders with Jean Ahrens as his supervisor. He started at $1.65 an hour and was earning $1.75 an hour at the time of his discharge receiving an increase around January 1971. Meissner testified that he and Kornek had discussed forming a union frequently, but it really "got going" after the meeting with Lukas at which the employee grievances were discussed . According to Meissner, when Lukas failed to post the promised wage schedule by June 15 , 1971, the men were willing to discuss the Union. These discussions took place "mostly at break outside of the building ... . Meissner stated that he discussed his own feelings with respect to the Union with Supervisor Marquardt prior to his discharge. Meissner testified that on June 21, 1971, at his work table his supervisor, Aherens, told him that she had talked with a Steelworkers representative and asked if Meissner and Kornek would take a vote to see if it would be worthwhile for the representative to start a campaign. Subsequently, Meissner took the vote after 4 p .m. that day on the corner of the parking lot directly in front of the plant over a period of 15 to 20 minutes . Meissner stated that during this period he saw Floyd Bydalek drive by within 10 or 15 feet. After the vote, Meissner gave the slips to Kornek . According to Meissner, the next morning the men were informed of the vote result, Meissner informing those in the assembly area before 7 :30 a.m. Concerning the meeting of Kornek with Lukas on June 23, Meissner stated that Kornek had advised the men of the meeting the day before and during the noon hour that day the men discussed their grievances which were written down by Kornek for representation to Lukas the next day. According to Meissner, when the meeting with Lukas was over Kornek told the men what had transpired and told Meissner that during the meeting he had told Lukas about the vote the men took on June 21 , 1971. He also told Meissner that Lukas had said that if a man thought he was worthy of a raise he should see Lukas personally. Meissner testified that on June 25 he asked to see Lukas about a raise, but Backey, after seeing Lukas, advised Meissner there was no raise coming for him. According to Meissner, Backey told him that Lukas had said that Meissner had missed a day without calling and a few months before had given Lukas an ultimatum that he would start looking for a new job if he didn 't get a raise. According to Meissner , at 4 p.m. that day he went into the office where Backey discharged him. According to Meiss- ner, Backey stated the basis for the discharge as the reorganization of the assembly department "and he didn't think I would be able to fit in," and that Meissner had given an ultimatum that he would start looking for a new job if he didn't get a raise. Meissner testified that he had missed work without calling in on May 20 , 1971, and was told that if it happened again he would have a 3 -day layoff. Meissner also testified that he had asked for a raise once or twice before the May meeting and that he had told Backey that if he didn't get a raise he would look for another job. According to Meissner, in May another employee, Cote- zon, didn't call in at least three times and had been given a 3-day layoff. Meissner testified that during his tenure at the plant he had never received complaints about his work but had been complimented , by. Backey and' Bydalek. John Van Ells testified that he was employed by the Respondent around June 1971. At his employment interview he told Backey that forestry and recreational land management was his field, but, because of budgetary cuts, there would be no Federal or state hiring for 3 or 4 years. Van Ells stated that he worked in assembly until his discharge on June 25, 1971. According to Van Ells , around June 14 he received a telegram from the Michigan Department of Natural Resources advising him of an error in the scoring of his examination and asking him to come to Lansing, Michi- gan, for an oral interview . Van Ells showed the telegram to Backey, asked to take a day off, and Backey approved. When Van Ells subsequently returned to work , Backey asked if he had been offered a job. "I said, no, I was not. All this amounted to was putting my name on the list with many other applicants for this job." According to Van Ells, during his employment by the Respondent discussions took place among the employees with respect to forming a union. Items discussed were the lack of exhaust fans and the failure to post a pay schedule. According to Van Ells, the men had talked about walking off the job, but Van Ells had suggested forming a union. These discussions took place, according to Van Ells, while the men worked and during lunch and other breaks outside the building. Van Ells recounted an incident in which he and Jean Ahrens were discussing the Union in the assembly department when he became aware that Backey was standing about 10 feet away. Van Ells stated that he participated in the vote in the parking lot. According to Van Ells , on June 24, 1971, Backey called him to the office and said he was being let go because "things didn't work out" and that Van Ells might take a better job if it were offered . Van Ells stated he had never had a complaint about his work. There was testimony on record by Margaret Erdman, who testified that at the time of the discharge of Meissner and Van Ells she was employed in the engineering department at the Respondent's plant , that Bydalek and Backey were in that department and that the department was located practically adjacent to the door of Lukas' office. Mrs. Erdman recalls having a conversation with LUBE DEVICES, INC. 775 Lukas on the day that Meissner and Van Ells were terminated . Erdman recalled telling Lukas that she was sorry for the "crippled boy" referring to Meissner. And, according to Erdman, Lukas said "that they were doing reorganizing, and they had to lay off some of them and, well, we were sort of talking back and forth like that, and he said, too, that he was sorry to let Mr . Meissner go, and he said that . . . something about organizing a union out in the shop ...... Mrs. Erdman stated that she told Lukas that was rather ridiculous , that any union would bother with a place that small , and Lukas responded that "you would be surprised they really are trying." Erdman also stated that during this conversation something was said about a union meeting out on the parking lot, but that as far as she was concerned she had not been aware of any. Mrs. Erdman testified further concerning her discus- sion with Lukas on the day of the discharge of Meissner and Van Ells that she recalled Lukas giving her some campaign letters, that is, union letters . When queued on cross-examination as to whether it would have been possible to look out into the parking lot from any of the company offices, Mrs. Erdman testified, "Well I don't know why it wouldn't be possible . . . . When he said something about union guys passing out literature we ran and looked out of the windows. I looked out of McAlpine's but they had gone already." There was testimony by Jean Ahrens, who testified that the day after the straw vote was taken out on the parking lot she asked Meissner how the vote came out and he was telling her and they were saying something about the Union when she heard a noise , turned around, didn't see anyone at the time, but a little later saw Backey at the aisle. In her testimony, Ahrens stated that before the discharge of Van Ells and Meissner there were no changes in the operation of the assembly department and that there were no changes in the manner in which the work is performed at her end. Ahrens testified that she worked regularly with Meissner and she felt that Meissner did everything he was hired to do and that there had never been any complaints about ' the quality or ' quantity of Meissner's work. There was testimony of record by Gus Lukas on the Respondent's direct case in which Lukas testified that, in the first 3 weeks of June 1971 , he had too many people in the assembly department and he instructed the supervisors to call off the ones that were not needed and keep the good ones. Lukas stated that he gave these instructions to Mr. Backey repeatedly. Lukas stated that when he hired Mike Meissner he did so on the recommendation of a consulting engineer who had stated that he had good luck and good results with handicapped people. With respect to Van Ells, Backey stated that after Van Ells' employment interview he, Lukas, and Backey agreed that they would hire him, if he would reassure or if he would give assurance that he had no intention of joining the forestry department after the Respondent spent time training him. Lukas stated that when he heard from Backey that Van Ells had received a telegram from the Michigan Civil Service and had had a job interview, Lukas suggested that Backey replace Van Ells. Lukas testified he himself made the decision as to who would be terminated in the assembly department inasmuch as Backey was procrastinating. Lukas stated that he made the decision to terminate Van Ells as soon as he found out that Van Ells was leaving and he made the decision on Meissner and another employee the following Monday which was around June 20. Lukas stated that he had instructed Backey to have these men continue until the end of the week, unless they were involved in something that demanded immediate dismissal. Lukas described his conversation with Kornek on the date that Kornek had taken off early allegedly ill and then reappeared later in the afternoon on the parking lot to engage in concerted activity. Lukas testified that he asked Kornek what he was doing there as Lukas thought he was sick. Lukas stated that Kornek said that he had been home and Lukas said that he couldn't have been because "we called you." According to Lukas, Kornek then said, "You couldn't" and called Lukas a damn liar. Lukas stated that as he walked back to the plant following this incident he made up his mind that Kornek was through and he told someone either with him or at the door "that was it." Lukas testified that that night he consulted an attorney who advised him to put the chronology in writing or to outline the problem in writing and Lukas then drafted a letter that evening and sent it the next morning to the lawyer to have it approved . According to Lukas, around 8 o'clock that morning all supervisors were notified that Kornek would be terminated. Lukas testified further that after the general talk meeting in May, either on June 21 or 23, he called Kornek into the office to discuss his wage . Lukas stated that he did most of the talking, telling Kornek that he had not gotten a merit wage because of his moodiness and inability to grasp the functions of the machines and, while he was going to give him an increase, it was strictly a cost-of-living arrange- ment. Following this wage discussion , according to Lukas, they talked somewhat about the fumes and the misunder- standing about the posting of a wage scale and Lukas stated that he told Kornek that there was no definite statement that the wage scale was to be posted, but that wage scales were being worked on. Lukas stated that, while he began work on this project, he never completed it because he didn't have the necessary help. Lukas denied that Kornek, at any time during the conversation, told him that the employees had taken a poll as to the Union . He denied that Kornek ever told him that Kornek had approached the Union , and stated that there had been no discussion whatsoever about a union at the meeting. In his testimony, Lukas denied that he had ever seen any poll taken by any of the employees ; that he had ever heard prior to June 30, 1971 , that such a poll had been taken; that the first time he heard that such a poll had been taken was in a discussion with his lawyer ; and that he had ever heard Van Ells talk about anything outside his window, or Meissner say anything outside his window. Lukas also denied that he had ever heard from any supervisor that Van Ells had talked about a union or that Meissner had talked about a union or that Kornek had talked about a union prior to June 30 , 1971. Lukas denied that he had ever heard from any employee that Meissner, Kornek, or Van Ells had talked about a union . According to Lukas, during working hours in the plant one must be very close to another person to hear what they say in 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD normal conversation because of the steady drone of the running machines and the intermittent shop noises. In his testimony, Lukas denied ever instructing any supervisory employee to drive past the Dog and Suds Drive-In on June 30, 1971. Lukas stated that no supervisory employee of Lube told him that he had driven by the- Dog and Suds Drive-In on that day. Lukas stated that he did not instruct his son nor Benecke to drive past the Dog and Suds on June 30, 1971. There was testimony of record by Thomas Hartman, a college student who testified that he began employment with the Respondent July 1, 1968, worked full-time during the summer and part-time during the school year until August 17, 1971, working basically in the machine shop. According to Hartman, Shimon and Marquardt were his foremen. Hartman testified that occasionally he helped Kornek on the automatic screw machines. Hartman testified that there was a problem with respect to fumes in the machine shop and that subsequent to Kornek's termination a change was made in the amount of oil put on the machine. Hartman testified that on or about June 21, 1971, a vote was taken in the parking lot and slips of paper were handed out by Meissner about 50 feet from the plant. Hartman stated that he saw Floyd Bydalek in the area at that time in or about his car and then saw him drive out of the driveway. Hartman testified that on the morning of June 30, 1971, during a break from 9:30 to 9:40 Kornek passed out union literature to most of the employees and to supervisory personnel, Shimon and Marquardt. According to Hartman, when Shimon received the pamphlets from Kornek, Shimon took them into the office, where, according to Hartman, he handed them to Backey. Hartman testified further that later that afternoon the union meeting took place at the Dog and Suds Drive-In where 15 of the employees met. During the course of that meeting, according to Hartman, he observed Bydalek driving past and about 5 minutes later driving past in the other direction. On cross-examination, Hartman stated that he did not see Backey read the literature that Shimon handed him and he did not see what Backey did with the literature. He did not see Lukas reading the literature. In effect, Hartman only saw the literature being handed to Backey. According to Hartman, at a conference with Lukas on August 31, Lukas did tell him that if there were work during the holidays he would get it. Hartman testified that he did not recall any prior to June 30, 1971, but that such discussions could have been conducted inside the plant during lunchtime prior to June 30, 1971. Hartman testified that prior to June 30, 1971, Roger Marquardt would have been aware of the union activity at the Respondent's plant because he knew about the vote that was taken and Hartman talked to him about it prior to June 30, 1971. In a written statement made by Lukas' lawyer recording a discussion with Hartman at the plant on August 31, 1971, Hartman stated "There was very little talk whatsoever about a union prior to June 30, 1971, the day Kornek was discharged. I think the day Tom got fired was the first day any supervisor could have known about any interest in a union because that day Tom gave some literature to Joe Shimon and said to Joe `you should know what's going on here too. . . .' I don't know of any way that any supervisor could have found out before that. Nobody saidjust a heck of a lot about it." Joseph Prikop testified that he worked for the Respon- dent for about 4 1/2 years and is currently employed as the shipping and receiving clerk. Prikop testified that on June 28 and 29 there were fumes in the plant and the smoke was quite heavy. There had been such fumes on prior dates, several times before and after , on other dates prior to and subsequent to these dates. According to Prikop, he was present at the discussion on June 29, 1971, m the parking lot between Kornek and Lukas, and Prikop testified that Kornek did not call Lukas a liar. Pnkop testified concerning the incident that when Kornek passed out literature to Shimon and Marquardt that they both took several copies of the literature and that subsequently Prikop returned to his working area which was less than 25 feet from the engineering department where he observed Joe Shimon, Floyd Bydalek, and Earl Backey looking at the literature. According to Prikop, after he, Prikop, had resumed working he saw Lukas come into the engineering department and look at the same literature for over a period of approximately a half hour to an hour. According to Pnkop, Bydalek, Backey, Lukas, and Marquardt were in that office together all morning and at about 10:45 that morning Kornek entered the engineering department. Prikop testified that there were discussions among employees outside of Lukas' office about the Union and these discussions took place at the lunchbreak, the noon hour break from 12 to 12:30, quite frequently just about every day, and they were also held sometimes at the 9:30 to 9:40 break in the morning. Prikop testified that there were occasions during the 10- minute break period when Shimon and Marquardt were present when employees were discussing the Union and that some of these occasions occurred prior to June 30, 1971, and that in none of these discussions did Shimon or Marquardt directly participate. Earl Backey testified that he started working at the Respondent's plant February 15, 1971. Backey testified that the first time he became aware that any employee of the Respondent was interested in forming a union was on the morning of June 30 when Marquardt brought Kornek into the office to give him his written termination. Concerning the incident of the receipt of union literature, Backey testified that at 9:30 that morning prior to the Kornek discharge, Shimon came into his office while he was working threw some papers on the top of Backey's desk and said "here's some papers." According to Backey, he didn't even look up to see if Shimon stayed. Backey testified that he let the papers lay until he cleaned off the top of his desk and then he put the papers in his desk drawer with the intention of looking at it later. According to Backey, he did not take the papers out of the desk drawer until after Kornek was escorted out of the plant after his discharge. According to Backey, at that time, when he was in the office with Shimon, Shimon told him that he had given him some union literature that had been handed out in the morning. According to Backey, Lukas said, "What literature?" and Backey gave Lukas the LUBE DEVICES, INC. 777 literature. Backey testified that the first he became aware that Kornek was to be discharged was on June 29 on the parking lot at 4 o'clock, when Kornek called Lukas a liar. According to Backey, as they went into the plant, Lukas said "get rid of that man, I don't want him around here." Concerning the vote taken in the company parking lot by employees, Backey stated that he would not be able to see that from his office and he didn't know anything about it. Backey stated that he never heard or never overheard Mrs. Ahrens, Meissner, or Van Ells talk about a union in the shop. Backey testified that the situation in the assembly department was a mess early in June 1971; "we were not able to get orders out of the plant. We were not able to find the parts in the place. The bins and the parts were thrown in many places and they weren't supposed to be. There had to be a whole organizational of this assembly department so we could make money on it." According to Backey, the first thing he did to remedy this situation was to say that he needed help, needed to have a supervisor, and had to have a reorganization of the department. Backey stated he hired four new employees in June. According to Backey, starting a week after he hired these men, Lukas ordered him to clean house as he couldn't afford to have all those people in that department at one time and "they weren't working out like they should have." According to Backey, when Backey advised Lukas that Van Ells wanted a day off for an interview with the State of Michigan, Lukas said "get rid of him, we can't afford to train a man and then he leaves." In his testimony, Backey stated that Meissner told him twice that he was going to look for another job, within a month before he was discharged. The record indicates that, in a statement to the investigator for the Board, Backey stated that Meissner told him he was going to look for another job once. Roger Marquardt testified that he was an employee of the Respondent over a penod of 7 or 8 years and that he was supervisor on the automatics. Marquardt stated that the first time he became aware that any employees of the Respondent were forming or were interested in forming a union was on June 30, 1971, and that he became aware of that at the time of Kornek's discharge. Marquardt stated that he was not aware of it before the discharge. Concerning his receipt of union literature from Kornek on the day of Kornek's discharge, Marquardt testified that he recalled that the break penod on that day he received a piece of paper from Kornek which was "something about a warning to supervisors or something like that." Q. When you received that, what did you do with it? A. Put it in my pocket. I was talking to another man. Marquardt stated that Kornek never asked him for permission to pass out slips for a petition in the plant. Marquardt stated that he did not see a poll taken by employees in the parking lot and that the first time he heard that such a poll had taken place was in July 1971. Marquardt stated that Meissner never talked to him about forming a union at the Respondent's plant and that within the 2 or 3 months before his discharge Kornek did not talk to him about a union. Marquardt did recall a meeting of plant employees and management personnel in May 1971 at which time a conversation took place between Lukas and Kornek. According to Marquardt, during this exchange between Lukas and Kornek, Lukas told Kornek that he was moody and his work wasn't what Lukas expected and Kornek mentioned that he didn't like the wage he was getting. In his version of the conference between himself, Kornek, and Lukas around June 29, Marquardt stated that Lukas gave Kornek a 21-cent raise specifying that it was not a merit raise; that wages were discussed and that insurance might have been brought up; that the wage schedule was discussed and ventilators were discussed. According to Marquardt, Kornek at no time during that meeting indicated that the employees had taken a poll or that the employees were interested in getting a union. Marquardt stated that Kornek was called into the office and discharged shortly after the break on June 30, and that the absolute first time he ever knew there was a union organizing campaign going on was when Kornek men- tioned it during his discharge interview in the office. In testimony at his second appearance on the stand, Lukas stated that he had never told Mrs. Erdman that Meissner was fired because of his interest in or activities on behalf of the Union. Lukas stated that he did converse with Erdman concerning the Machinists Union in general terms and did this frequently during the penod from July 1, 1971, to the date Mrs. Erdman left. There was testimony of record by Floyd Bydalek in which he said that on June 29, 1971, Marquardt came to him and told him that Kornek had gone home sick and that a bushing was missing. Bydalek stated that he called Kornek at home after lunch and there was no answer and he reported that to Lukas who instructed him to call again later which he did and there was still no answer. Bydalek stated that later that afternoon he was told that Lukas was out in the parking lot talking to Kornek, he approached, and according to Bydalek, Lukas said to Kornek that he thought Kornek had been at home and Kornek said he was, and Lukas said that he had tried calling Kornek and Bydalek had tried calling Kornek, and according to Bydalek Kornek said "you're liars." According to Bydalek, Kornek took "perhaps" a half step toward Lukas and Lukas said "Tom, remember, you're on private property." According to Bydalek, as he- and Lukas walked back into the plant, Lukas told him "we can't put up with this kind of nonsense anymore." According to Bydalek, later that evening he talked to Lukas on the telephone and Lukas told him that he had sought legal advice on how to handle the matter of discharging Kornek. According to Bydalek, the next morning Lukas had a letter written which he gave to Bydalek to be taken down to the lawyer's office for approval. When Bydalek returned to the plant a final draft of the letter was typed and the discharge of Kornek was effected. Bydalek testified further that after Kornek left the plant after his discharge, the fact came out that literature had been passed out during the breaktime and that Shimon had brought it to Backey and Backey had put it in his desk 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drawer without looking at it. According to Bydalek, that was the first notice that he or Lukas had had about union involvement. Bydalek stated that he had never seen any poll taken by any employees in the parking lot; that he was never instructed to drive past the Dog and Suds on June 30, 1971, as he had spent the greater part of the afternoon attending a hearing on unemployment compensation. Joe Shimon testified that he was employed by the Respondent as shop foreman and had been employed since 1962 and had served on a bargaining committee for the Machinists Union at one time. Shimon stated that the first time he became aware that any employee was interested in getting a union at the Respondent's plant was on the morning of the break when Kornek gave him the literature. Shimon stated that Kornek told him that he might as well know what's going on, too. Shimon stated that he glanced at the literature to see which Union was handing it out and took it into the office and gave it to Backey . According to Shimon, Backey was behind the desk working on papers. He handed Backey the material and walked out. Shimon testified he ordinarily ate lunch by the packing bench and took his coffeebreak outside occasionally and that he had never heard the men talk about a union during those breaks in June. Analysis and Discussion , Findings, and Conclusions A threshold question is whether or not the Respondent at the time of the discharges of Meissner , Van Ells, and Kornek had knowledge of the union activity in the plant. The record discloses that in May 1971 employees and management attended a meeting in the plant at which differences and grievances were aired . It is clear from the record that Kornek was the key figure in the presentation of concerted grievances for the employees. It is also clear from the record that the men took a vote on the parking lot on June 21 with Kornek and Meissner key figures and that Marquardt was aware of this activity and the subsequent discussions by the employees both in and out of the plant concerning the vote favorable for unionization. Based on my observation of the demeanor of the witnesses as they testified, I do not credit Lukas' testimony that the first time he was aware of union activity on the part of his employees was subsequent to Kornek's discharge the morning of June 30, 1971 . I found Lukas too smooth and contrived to be credible. His testimony was lacking in conviction. Credit- ing Kornek's versions of his meeting with Lukas on June 23, I find that Kornek advised Lukas at that time that a vote had been taken and also made Lukas aware that Meissner was involved in the activity . I do not credit Lukas' denial . With respect to the conflicting versions of Lukas and Kornek over the question of whether Kornek called Lukas a liar that afternoon , I credit Kornek and find that he did not call Lukas a liar . I do not credit Lukas' testimony in this regard nor the attempt by others of Lukas' management to corroborate Lukas' version. It is also clear from the record that on the morning of June 30, Kornek passed out union literature while on the 9:30 break in the presence of Marquardt and Shimon, and Kornek gave Shimon copies of the literature. It is also clear that Shimon promptly and before the break was ended carried the literature to Backey's office where Backey, according to his incredible testimony, placed the papers in his desk without looking at them. In this regard, I do not credit Shimon's and Backey's testimony with respect to what transpired at that time. Shimon testified that he dropped the union literature on Backey's desk and did not recall what he said, "if I said anything." Q. Didn't you consider it, at that time, pretty significant, the fact that there was a union that was trying to organize the employees? A. Mr. Backey was busy. I didn't care to disturb him any more than I had to. I simply do not credit Shimon's testimony nor do I credit Backey's statement that the first time he became aware of the substance of the literature was subsequent to Kornek's discharge. The testimony of Lukas , Shimon, and Backey had an unmistakable flavor of fabrication. In the close and interwoven working relationship established on this record between Backey and Lukas, I am thoroughly convinced that Backey came into possession of the union literature through Shimon, was promptly aware of the situation, and passed this critical news on to Lukas prior to the discharge of Kornek . Additionally, it is clear from testimony by Erdman, which I credit , that Lukas was aware of the vote on the parking lot which had occurred on June 23 and that in a discussion with Erdman, subsequent to Meissner's discharge, Lukas linked Meissner's decreas- ing effectiveness as a worker with union activity. I am persuaded and I find from all of the foregoing that the Respondent indeed had knowledge of the union activity in its plant prior to the discharges of Meissner , Van Ells, and Kornek. In so finding, I credit the testimony of Prikop and Erdman who impressed me as sincere witnesses. While much was made of the incident in which Backey allegedly overheard Ahrens and Meissner conversing with respect to the Union, I do not view this incident as critical as there is ample credited testimony of record to establish knowledge by the Respondent without reliance on the Backey incident. It is well settled that direct evidence of a purpose to discriminate is rarely obtained , especially as employers require some sophistication about the rights of their employees under the Act, but that such purpose may be established by circumstantial evidence . In the case at hand, following the vote for a union openly taken on the parking lot on June 21 in which Meissner and Kornek were key participants and the meeting on June 23 between Kornek and Lukas, at which time Lukas was advised that a poll had been taken, it is clear to me that the actions of the Respondent in discharging Meissner and Van Ells sum- marily on June 25 and also summarily discharging Kornek on June 30 were discriminatory and that the reasons asserted for the discharges advanced by the Respondent were pretexts to mask the discriminatory discharge. N.LR.B. v. Montgomery Ward Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829. In so finding, I have taken into account the abruptness, manner, and timing of these discharges and the nature of the Respondent's rationale for the discharges. LUBE DEVICES, INC. 779 The Respondent went to some length to establish an economic rationale for a so-called reorganization of the assembly area. I am persuaded that the rationale is invalid, particularly since management was content to let this alleged situation exist and was motivated to take action to change it only after it became aware of the organizational campaign and then precipitously. Additionally, I was not impressed by the rationale for the discharges of Meissner, Van Ells, and Kornek. The discharge of Meissner was presumably based on his inability to move about, when in fact over the penod of his employment he had clearly functioned satisfactorily, and had been commended for his work. Lukas' dissatisfaction with Meissner and his alleged inability to function effectively is clearly coincidental with the development of union activity and the Respondent knowledge thereof. The discharge of Van Ells was presumably based on the Respondent's concern that Van Ells would be lost at some future time to other employ- ment, and the discharge of Kornek was allegedly for lying and calling the boss a liar, both of which reasons have not been established by the evidence on this record. While the Respondent argues in its brief that the decision to make personnel changes in the assembly department had been made long before any of the reorganization activity occurred, on the contrary, the record discloses that the decision was made sometime after June 1, 1971, and perhaps a week or 2 prior to June 25, 1971. What is more significant in my view is that the record does not establish that this decision involved the discharge of Meissner or Van Ells, but that the decision to terminate these individuals coincides with the conduct of the employee poll on June 21, 1971. With respect to the Respondent's argument that Meiss- ner was discharged because in effect there was no job for him which he could perform, this is simply belied by the fact that Meissner on this record had performed satisfacto- rily and was not given the opportunity to perform under the reorganized system. The record indicates that underly- ing the failure of the Respondent to give Meissner the opportunity to perform is the testimony of Lukas linking Mei§sner's allegedly worsening performance to the advent of union activity. In sum, I am not persuaded on this record that Meissner and Van Ells were candidates for discharge prior to the advent of union activity and knowledge thereof by the Respondent, nor am I convinced that there was no job for Meissner which he could perform. For while it is well settled that an employer may discharge an employee for any cause or for no cause at all, it is also well settled that he may not discharge an employee because of his union or other protected concerted activity. Assuming, arguendo, that the bases for the discharges of Meissner, Van Ells, and Kornek were clearly valid, I would nevertheless find, on the basis of the record herein, the knowledge of the Respondent of the union activity was a motivating or substantial reason for the discharge, notwith- standing the existence of a valid ground for such discharge. Accordingly, I find that the discharges of Meissner, Van I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. Ells, and Kornek • were each discriminatory and each in violation of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. By unlawfully threatening employees and by engag- ing in surveillance of the union activity of its employees, the Respondent engaged in unfair labor practices constitute ing interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. 2. By unlawfully discharging Michael Meissner, John Van Ells, and Thomas Kornek, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of the Act. 4. Michael Meissner, John Van Ells, and Thomas Kornek having been discriminatorily discharged by the Respondent prior to the election held on August 20, 1971, are eligible to vote in that election. IV. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary, and recommend, that the Respondent be ordered to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining, or coercing its employees. Affirmatively, I recommend that Respondent offer to Michael Meissner, John Van Ells, and Thomas Kornek immediate and full reinstatement to the position which each respectively held at the time of discharge or to a substantially equivalent position, without prejudice to seniority and other rights and privileges, dismissing if necessary and employee hired subsequent to the date of such discharge. I further recommend that the Respondent make Michael Meissner, John Van Ells, and Thomas Kornek whole for any loss of earnings suffered because of the discharge, by paying to each of them a sum of money equal to that which would have been paid by Respondent from the date of discharge to the date on which Respondent offers reinstatement as aforesaid, less net earnings, if any, during the said penod. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the discharges of Meissner, Van Ells, and Kornek were unlawful and that they were eligible to vote in the election, I will recommend that their ballots be opened and counted. 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: i ORDER The Respondent, Lube Devices, Inc., its officers, agents, successors, and assigns, shall: 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. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: a. Unlawfully threatening its employees and engaging in surveillance of the union activities of its employees. b. Unlawfully discharging employees or otherwise unlawfully discriminating in regard to their hire, tenure of employment, or any term or condition of employment because of their interest in and activities on behalf of District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union. c. In any other manner interfering with, restraining, or coercing its employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action: a. Offer to Michael Meissner, John Van Ells, and Thomas Kornek, each of them, immediate and full reinstatement to their former or a substantially equivalent position, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them, in the manner and to the extent set forth in the section herein entitled "The Remedy." b. Notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. c. Preserve and make available to the Board or its agents on request, for examination and copying, all payroll records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this recommended Order. d. Post at its plant in Manitowoc, Wisconsin, copies of the attached notice marked "Appendix." 2 Copies of said notice on forms provided by the Regional Director for Region 30, after being signed by a representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. e. Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith .3 Finally, it is recommended that the ballots of Michael Meissner, John Van Ells, and Thomas Komek in the election in Case 30-RC-1539 be opened and counted and that the Board order such disposition as it may deem appropriate in the circumstances. 2 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 3 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 the Regional Director for Region 30, in writing , within 20 days from the date of this Order, what steps have been taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully discharge employees or otherwise discriminate against them because of their union activities. WE WILL NOT unlawfully threaten employees nor engage in surveillance of union activities. WE WILL offer to restore Michael Meissner, John Van Ells, and Thomas Kornek to their jobs and pay each of them for wages lost because of their discharges. LUBE DEVICES, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.