Impact Die Casting Corp.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Impact Die Casting Corporation and Mildred Boyce and International Molders' and Allied Workers' Un- ion of North America, AFL-CIO. Cases 38-CA- 1309-1 and 38-CA-1309-2 September 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 16, 1972, Administrative Law Judge I Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, a motion to reopen record for receipt of newly discovered evidence, and a supple- ment thereto clarifying its motion, and the General Counsel filed a brief in support of the attached Deci- sion and an opposition to Respondent's motion. 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 at- tached Decision in light of the exceptions and briefs and the motion to reopen the record 2 and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Impact Die Casting Corporation, Sand- wich, Illinois, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2In its motion Respondent contends that it has recently discovered evi- dence which, if it were allowed to present would prove previous knowledge by the discriminatee of the duplicate insurance coverage which gave rise to Respondent's defense that she was discharged for falsification of an insur- ance claim. We deny the motion. The Administrative Law Judge has already found that Boyce had "untruthfully indicated on the claim form that no other group insurance applied to her family," but for the reasons fully explicated in his decision, with which we agree, he nevertheless found this asserted reason for the discharge to be pretextual . Additional evidence of the kind sought to be introduced would add nothing except further support for his finding of the untruthfulness of Boyce's representation . Furthermore, the record reveals that at the hearing Respondent was put on notice of the existence of the evidence it now seeks to introduce when, during Respondent's cross-examination of Boyce's husband's insurance carrier's representative, he testified that other claims had been filed in the preceding year for the family by the husband. Respondent, however, either neglected or chose not to pursue examination on this subject , and it apparently has done so only since the hearing. In these circumstances, we do not consider the evidence Respondent now proffers to be "newly discovered." 3 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance 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 SAMUEL M. SINGER, Trial Examiner: This proceeding was heard before me in Yorkville, Illinois, on January 15-26, 1972, pursuant to charges filed on November 3 and 18, and complaint issued on December 9, 1971. The basic issues litigated were whether or not Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act through interference, restraint, and coercion, and through dis- charging and refusing to reinstate an employee. All parties appeared and were afforded full opportunity to adduce rele- vant evidence and otherwise be heard. Briefs were received from General Counsel and Respondent. Upon the entire record, I and from my observation of the testimonial demeanor of the witnesses, I make the follow- ing: Findings and Conclusions 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED Respondent, a Delaware corporation with office and place of business in Sandwich, Illinois, is engaged in alu- minum and zinc die casting. It annually sells and delivers to purchasers in other States, and purchases and receives from sellers in other States , products valued in excess of $50,000. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act. International Molders' and Allied Workers of North America, AFL-CIO (the Union) is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. The organizational drive In mid-August 1971 2 employee Mildred Boyce (the al- leged discriminatee) spoke to Plant Superintendent Leon Co- quelin and then to Company President Carl Becker about a raise. Receiving no satisfaction, on April 24 Boyce ob- tained the name of a union organizer from a fellow employ- ee and asked him what the plant employees "had to do to have ... or join a union." The next day (August 25), Boyce again telephoned the organizer (John Grady, representative of Local 369), telling him that a "group" was ready to meet i General Counsel's unopposed motion to correct the transcript in certain respects is hereby granted. Further inadvertent errors have also been correct- ed. 2 All dates are 1971 unless otherwise indicated. 199 NLRB No. 32 IMPACT DIE CASTING CORP. 269 with him on Saturday, August 28, in the home of employees Haskell and Loreta Hill. At the meeting held on that day, attended by six or seven employees, Grady explained the purpose of a union, asked those present to sign authoriza- tion cards, and handed out literature and other cards for distribution among plant employees, cautioning them not to solicit on company time. All signed authorization cards. Boyce later explained to employees in the plant what Grady had told her, showed them union literature, and invited them to her home to sign cards.3 2. Plant Superintendent Coquelin and Company President Becker question employee Boyce concerning the union campaign and her role in the drive; their request that Boyce not turn in signed authorization cards On Tuesday, August 31, Plant Superintendent Coquelin came to Boyce's work area, showed her an unsigned union authorization card, and asked if she "knew anything about it, and was [she] involved with this union stuff." Boyce said "no." Later that day, Company President Becker asked Boyce if she was still interested in a die casting job. When Boyce said "no"-a die caster had lost his arm that day-Becker asked if she was "involved" in the union activ- ity; Boyce again denied she was.4 The "next day or so" Coquelin requested Boyce to come to his office, where-according to Boyce's uncontradicted, credited testimony-Coquelin told her that he "knew" she was holding authorization cards, and that [she] was involved in the Union"; and Coquelin asked her "to write down the major complaints of the people in order of their impor- tance," which she did. Coquelin thereupon asked Boyce "to hold the cards" and not turn them into the Union. Boyce replied that she could not do that without the card signers' permission. Later, after work, Boyce reported Coquelin's request to the card signers, but "no one cared to have their cards held" back. A "couple of days later," Boyce reported Coquelin's request to Company President Becker and ex- plained "the reason the people wanted the union." Boyce testified credibly that Becker told her that he, too, "Wanted to have the cards held, in fact to throw them in the pot and bum them, to get the union off his back,"5 Later in that day Coquelin told Boyce he "knew who the original seven peo- ple" were that attended the first union meeting and where that meeting was held; and that he "would draw up a con- 3 The above findings are based on credited testimony of Grady and Boyce Based on the credited testimony of Boyce. Although called by General Counsel at the outset of the hearing as a witness under Rule 43(b) of the Federal Rules of civil procedure to testify on the issue of Boyce 's discharge, Coquehn was not called by Respondent to contradict any of the alleged coercive statements attributed to him by Boyce and other employees. While admitting that Respondent had offered her the die caster position "possibly" a month before her discharge , Becker likewise did not deny Boyce's testimo- ny that he questioned her about her union activity at that time 5 When asked on direct examination by his counsel whether he ever sug- gested that authorization cards "be burned," Becker first equivocated (as he often did at the hearing) that "I operated with guidelines at all times that would avoid that kind of comment ." Pressed for a direct answer, he then denied making the remark . According to Becker, "guidelines" in his usage means "Free enterprise and the right to exercise your own judgment as to what is best for you" without "any threats" or "promises" or an "unfair practice as far as a human being is concerned." tract and keep the people from harassment or termination if they would keep their cards from being [turned in] to the International." 3. Becker's September 2 speech; his offer to correct grievances and suggestion to form a company union Company president Becker testified that on September 2 he shut down the plant and "asked all the employees on the various shifts" to assemble in order to hear a "brief' speech. According to Becker, he "simply informed them that [he] was aware of the [Union] activity," told them that he "recognized their right to organize" but "didn't feel we needed a union to iron out any differences or grievances," and said that "from this point on" he and his supervisors would be "available for discussion of their problems," promising to maintain an "open-door policy." Boyce testified credibly that Becker also said that the plant was going through a growth process, explained "why an International Union would be bad for them at this time," and asked the employ- ees "to get their cards back and form a shop union which would be better than an International." When Boyce asked about the procedure for forming a shop union, Becker re- plied that "an attorney would have to draw up papers which would give the people the same rights as an International, except they wouldn't have to pay dues."6 Plant Superintendent Coquelin stopped Boyce as she was returning to work and told her (according to Boyce's cred- ited, uncontradicted testimony) that he "didn't want anybody going to Carl Becker any more for anything," that the employees "had to come to him" thereafter, and that he (Coquelin) "didn't want even a union shop." 4. Coquelin's offer to protect employees from retaliation if they did not turn in their authorization cards Shortly afterward, Coquelin called Boyce to his office and said he "would go ahead and form (sic) a contract if the people would hold their cards." Boyce answered she would have to consult "the people involved." Later that day, at Boyce's work station, Coquelin showed her "a typed paper guaranteeing protection for the people involved against har- assment and termination" for past union activity, signed by Coquelin and notarized by Becker's secretary.? Boyce then 6 According to Becker, it was Boyce that initiated the discussion about forming "some form of company union," indicating that he had "no interest or knowledge" on that subject and told the employees he would discuss the matter with his attorney before answering the question. However, employee Helen Fogo, testifying as witness for Respondent (she was also called by the General Counsel to testify on other matters), corroborated Boyce's testimony that Becker "suggested if we needed a union, a shop union would be better." I credit Boyce's rather than Becker's version of the September 2 speech. 7 As already noted, Coquehn did not contradict any of the coercive state- ments attributed to him. Becker's secretary, Sharon Ehmke, admitted com- plying with Coquehn's request to type a handwritten document stating that "there would be no reprisal to anyone or any employee that had any activity in the union " However, Ehmke testified that the document was destroyed at Becker's request and was never shown to any employee. While crediting Ehmke's testimony that Becker disapproved the "contract," I do not credit her implicit claim that the document was not seen by Boyce, since Boyce Continued 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to see Becker and asked if she could post a notice on the bulletin board about a meeting "to find out what [the employees] really wanted to do." Although answering Boyce he would let her know by the end of the day, Becker did not do so. Thereafter, a meeting was arranged for the following Sunday (September 6) at the home of Juanita DaRonco. The 15 employees present at that meeting decid- ed to have their authorization cards turned in to the Interna- tional Union. The next day Becker visited Boyce at her machine area and asked "how the meeting turned out." Boyce said no one wanted to have their cards held back.' 5. Becker's September letters to employees opposing unionization, offering to resolve grievances, and requesting card-signers not to turn them into the Union On September 9, Respondent posted an "intra-plant let- ter," informing its employees that, in accordance with previ- ous requests, a "Suggestion Box" was now available for complaints ; and in the letter Becker commented upon vari- ous complaints received . On the same day, Respondent de- livered to all employees a letter on the subject of "Umon Activity," expressing opposition to unionization. Among other things, the letter stated that "we are interested in resolving our problems without calling in a middleman to represent you"; that the Company "strongly" urged em- ployees whose cards had not yet been turned in to the Umon "to request the return" of those cards ; that the law does not require the Company to make concessions to even a certi- fied union ; that the Company "could not and would not agree to anything" that "would place [it] in a position where we could not meet competition" and jeopardize jobs; and that the employees could "speak directly with manage- ment" without a union to "collect a part of [their] earnings." On September 14, Becker distributed another letter on "Union Activity," again outlining the Company's position; pomting to its past benevolent attitude in regard to layoffs, employee discipline, unemployment and workmen's com- pensation matters, and assistance to needy employees; promising no reprisals for Union activity; -and noting that "unions don't just happen to come to our door," promising that the Company is "making every effort" to find out their complaints and "correct them." 6. Coquelin's warning against card solicitation; his interrogation of employee Ralls Employee Barr, a die caster, testified credibly that around the same time (second week of September), Plant Su- perintendent Coquelin, in the presence of other managerial officials (including Vice President Hebel), told him that he "didn't have no axe to grind with me and j ust don't push your luck with union cards." Coquelin went on to discuss other matters, "mainly about production." According to Cynthia Ralls' uncontradicted, credited testimony, Coquelin approached her at her work station in October and asked "how the union meeting went." Ralls replied "I don't know. I didn't go to it." Earlier, in the beginning of the organizational drive in August (after Ralls had asked Coquelin what percentage of cards was needed to establish a union), Coquelin had asked Ralls "who had the cards and how many were out." He had also asked Ralls if Jim Rule, a die caster on the third shift, "had anything to do with it [the Union]."9 7. Becker's questioning of Boyce concerning her union buttons On October 15, Company President Becker telephoned Mrs. Boyce at her home regarding Boyce's request, placed in the suggestion box, for a copy of the company rules. Becker opened the conversation by asking, "Is this Union headquarters?" Becker later explained that he was going to try to improve things for the people." 10 During the lunch break on October 25, Becker and Co- quelin visited employees Boyce and DaRonco while they were at a table in the cafeteria. After examining the two union pins Boyce was wearing Becker cautioned Boyce that she could wear one of the pins bearing the inscription "Committee" with the Union name, but not the (silver) pin which bore only the Union name, characterizing the latter as a "membership button." When Boyce said, "I don't think it says member on it anywhere," Becker insisted that "You can't wear that until such time as the union is voted in." He also asked her where she got the buttons and suggested she check into whether or not she could wear them. Both em- ployees admitted that they did not remove the buttons and continued to wear them throughout the organizational drive. I t 8. Becker's preelection letters and speech; the Union loses the election accurately recalled the substance of the document and Coquelin did not take the stand to deny that he showed it to Boyce. 6 Based on Boyce's credited testimony Although Becker allegedly could not "positively recall" the incident, he conceded that it "could have oc- curred." According to Becker, he had discussed "union activity" with Boyce on "a couple of occasions" and frequently with other employees, but "only when they would approach [him] on a problem " Becker sought to convey the impression that in presenting various employee "problems" (including wages), Boyce (as Becker put it) "was bargaining, I gather, for two positions* One, recognition as spokesman of the people , and the other, a company union." He surmised that Boyce was deliberately withholding signed union cards in her possession (instead of turning them into the Union) until she could obtain one of these objectives. I am unimpressed by Becker's specula- tive evaluation of Boyce's motives. On November 4, the Union filed a petition for an election among Respondent's production and maintenance employ- ees. Shortly before the election, scheduled for December 3, 9 As already noted, Coquelin was not called to deny the conversations attributed to him Ralls testified for Respondent as well as General Counsel. 10 Admitting the substance of Boyce's above-described testimony , Becker attributed his choice of words to a "warped sense of humor." 11 Becker admitted that he and Coquelin approached the two employees after he learned that they wore "some kind of union button." According to Becker, he merely told them "they owed it to themselves and to the Company to get an evaluation as to whether or not this was a fair practice , a proper thing " I credit the mutually corroborative testimony of Boyce and DaRonco. IMPACT DIE CASTING CORP. 271 Respondent wrote its employees two letters and made a speech appealing for the Union's defeat. The basic theme of Becker's December 1 speech (which, unlike the first Septem- ber speech, supra, sec. A 3, was read verbatim), was that the employees needed no union to speak for them; and that, unlike the Company, an "outsider" could not advance their personal interests or provide them with job security. Becker pointed out that "in excess of thirty die casting firms in the Midwest have closed their doors in the past two years ... most of which were unionized"; and emphasized that "em- ployment ... could be interrupted with the advent of a union where there is always the danger of strikes and work stoppages with consequent unemployment. This is not job insurance ... this is built-in job insecurity." Urging a "No" vote, Becker stated, "I repeat as I have stated before, give us the chance to work together to solve our problems togeth- er. You owe it to yourselves, you owe it to your Company, of which you are a part, and which has provided all of us with jobs for a number of years." In his final communication-a letter the day before the December 3 election-Becker sought to rebut some of the Union's claims and reiterated points made in his previous day's speech, including emphasis on benefits they enjoyed "without a union, without union dues" and "the possibility of strikes and work interruptions" if the Union came in. Becker told them that the "Molders' Union had been in- volved in over 25 strikes throughout the country the last two years ... at least 14 ... within the last 6 months." The Union lost the election, 34 to 39. On January 5,1972, the Regional Office issued its certification of the result of the election, with the notation that the Union had with- drawn its objections to the election. 9. Conclusions As Respondent stresses in its brief, an employer is enti- tled to resist unionization of its plant by lawful noncoercive communications to employees. Most of the statements of Respondent to its employees, in letters, as well as speeches, were within permissible bounds of protected free speech. Some of the remarks constituted legitimate responses to Union claims and propaganda. However, General Counsel contends that Respondent's statements, particularly those Respondent characterizes as "informal," include express or implied coercive remarks tending to restrain and interfere with its employees' statutorily-guaranteed rights to self-or- ganization and, hence, fall within the ban of Section 7 and 8(a)(1) of the Act. In determining whether the conduct of statements are violative of Section 8(a)(1), I have evaluated them in the light of the total situation, including the nature of the conduct, Respondent's hostility toward unionization, the high-ranking role of the managerial representative mak- ing the statements, and the reasonably inhibitory effect of such statements or conduct."Z N.L.R.B. v. Fishman and Sons, Inc., 278 F.2d 792, 796 (C.A. 3). The test as to whether certain employer conduct or statements are violative of Sec- tion 8(a)(1) turns not on the motive for the conduct as in a discriminatory discharge case under Section 12 In this connection, it should be noted that one of the two high manage- nat officials to whom employees attributed coercive statements (Plant Super- intendent Coquehn) did not contradict those statements. 8(a)(3)-infra, sec. B), but on its reasonable, effect on the employees. "The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7). In making this determination it is the reasonable " construc- tion [to be given] by the listener" (Hendrix Mfg. Co. v. N.L.R.B., 321 F.2d 100, 104 (C.A. 5)), which is critical. Under all of the circumstances, I find that the following conduct by Plant Superintendent Coquelin interfered with, or tended to interfere with, restrain and coerce employees in the exercise of their rights guaranteed by Section 7 of the Act: (a) His August 31 interrogation of employee Boyce as to whether she "knew anything about [the Union], and was [she] involved with this union stuff." The fact that Boyce untruthfully replied "no" suggests that she interpreted the inquiry as coercive. See N.L.R.B. v. Cameo, Inc., 340 F.2d 803, 804 (C.A. 5). Nor was this and other interrogation described below accompanied by assurances against repris- als and stated business reasons for the inquiries. (b) Coquelin's next day's statement to Boyce that he "knew [Boyce] was holding authorization cards and that [she] was involved in the Union"; and his request that she list the chief employee complaints. Coquelin's statements tended to create the impression that the empl'oyees' union activities were under surveillance. (c) His requests (on the same and subsequent days) that Boyce not turn in signed authorization cards to the Union- requests tantamount to soliciting withdrawals from the Un- ion. (d) Coquelin's promises and statements that he could draw up a "contract" protecting card-signers from retalia- tion and harassment by Respondent if they did not turn in their cards to the Union; and his subsequent draft of such "contract" and display thereof to Boyce. (e) Coquelin's statement to Barr not to "push your luck with union cards," thereby implying threats of reprisals for continued union activity. (f) His August 31 interrogation of employee Ralls con- cerning the identity of employees holding cards and wheth- er a named employee (Jim Rule) "had anything to do" with the Union. (g) His subsequent inquiry of Ralls as to "how the union meeting went," prompting Ralls to deny attending the meeting. I find that the following conduct by Company President Becker interfered, or tended to interfere with, restrain and coerce employees in their right to self-organization guaran- teed by Section 7 of the Act; (a) His August 31 questioning of Boyce if she was "involved" in Union activity. (b) His subsequent statement to Boyce not to turn in Union cards, "to throw them in the pot and burn them," and "to get the Union off his back," (c) His request in his September 2 speech to employees "to get their cards back" from the Union and to "form a shop union which would be better than an International." (d) Becker's request of Boyce as to "how the meeting turned out" in the home of Juanita DaRonco. (e) His statement in the September 9 letter to employ- 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, "strongly" urging employees whose cards have not yet been turned in "to request the return" of those cards. (f) His October 25 questioning of Boyce and DaRonco concerning the union buttons they wore and statement to Boyce that "you can't wear [one of the two buttons] until such time as the Union is voted in." I expressly find the following statements and conduct noncoercive and privileged free speech or legitimate agree- ment: (a) The bulk of Becker's September 2 speech, among other things, urging employees to oppose unionization and promising to maintain an "open door policy" to receive complaints regarding working conditions. (b) The bulk of Becker's September 9 letter, among other things, opposing intervention of "a middleman" or outsider in dealings with management; and stating that if a union were voted in Respondent could not be forced to make concessions nor agree to anything that might jeopardize its own economic position or its employees' jobs. (c) Becker's September 14 letter pointing to Respondent's past benevolent attitude and existing benefits. (d) His November 23 letter commenting on the upcom- ing Board election and appealing for a "no" vote. (e) His December 1 speech, repeating and amplifying on previous reasons for voting against the Union in the Board election, including his reference to the dangers of work inter- ruption and strikes in the event the Union came in. (f) His similar, but briefer, remarks in his December 2 letter to the employees. B. The Discharge of Mildred Boyce 1. Boyce's employment and union activities the drive. Indeed, when Becker called her at home (3 weeks before her discharge), he admittedly opened his conversa- tion with, "Is this Union headquarters?" From the very outset of the drive, Coquelin had marked her as collector and custodian of the union cards, seeking to prevail upon her not to turn in the cards to the International in return for a "contract" guaranteeing the card-signers security against company retaliation and harassment. Also at the outset of the drive, it was to Boyce that Coquelin turned to ascertain the employees' complaints leading to the union movement. And Boyce was the chief target of both Becker and Coque- lin not only as regards to soliciting withdrawals from the Union, but also as to coercive interrogation on the identity of unionists, attendance at meetings, wearing of union but- tons, and giving the impression of surveillance over union activities. 2. Company President Becker's instructions to supervisors "to get rid of" Boyce because of her union activities The credited testimony of General Foreman Gibson shows that even as early as the last week of August, Becker at a managementmeetingcharacterized,Boyce as a"trouble- maker and union organizer," whom the Company had to "get rid of"; Coquelin "agreed" with Becker. Echoing this theme, a "couple of weeks later" (in September) Coquelin commented to Gibson, as he saw Boyce passing by, "You got to get rid of that fat ass. She is a troublemaker and an organizer, a union organizer." Gibson testified credibly and without contradiction that Coquelin had instructed him to watch certain unionists, including Mrs. Boyce, during breaks and lunch periods to "keep them from getting to- gether and signing union cards and organizing.""' Boyce was hired as a trim press operator in August 1968 at $1.60 an hour. A few months later she was transferred to the booster cup machine at $1.80 an hour. When terminated on November 8, 1971, she was a mill and lathe operator at $2.30 an hour, "the highest paid woman" in the production machining department, working under Plant Superintend- ent Coquelin. As previously noted (sec. A 2), - about 2 months prior to her separation (after advent of the Union), Company President Becker offered to make her a die caster (a job she had asked for), but Boyce's desire for the job had waned when one of the male operators lost his arm at it.13 The record establishes that Mrs. Boyce was the instigator and sparkplug of the organizational drive. It was she who contacted Union Representative Grady and arranged for him to meet the first group of employees. She signed her union card at the first (August 28) organizational meeting, distributed cards and literature, and encouraged employees to join the Union-inviting many to her home for that purpose. It was also Boyce who held on to and passed the signed cards on to Union Representative Grady. She at- tended all but one of the seven union meetings. That Respondent was aware of her active and leading union role is beyond dispute. Plant Superintendent Coque- lin and President Becker looked upon her as the kingpin of 13 According to Becker, Boyce was offered the position around a month before her discharge. 3. The November 8 discharge At about 2:30 p.m. on November 8, Mrs. Boyce was called into Plant Superintendent Coquelin's office. There, in the presence of Company Vice President Hebel, Coquelin told her that she was being discharged "for falsifying an insurance claim." As detailed below (sec. B 4 a), Boyce had filed a claim for medical benefits on behalf of her injured 3-year-old son. When Boyce asked Coquelin what he meant by "falsifying" a claim, Hebel told her (as he testified at the hearing) that "there was a question as to whether or not any other application or claim had been made and she had 14 Coquehn was unexplamedly not called to rebut Gibson 's testimony. Although Becker was rather vague as to whether Boyce was discussed at management meetings , at one point he conceded that "I can't deny that we didn't discuss Mildred from time to time because she was making demands. She was looking for recognition, and she was creating problems internally" and therefore was a natural subject of conversation . In answer to a leading question on direct examination, Becker denied saying that Boyce had to be fired because she was a union organizer. I have already noted my reservations concerning Becker's reliability as a witness (supra, fns. 5, 6, and 8). On the other hand, Gibson-no longer employed by Respondent at the time of the hearing and (unlike Becker) without personal interest in the outcome of this proceeding-impressed me as an honest and credible witness. Neither the record nor Gibson's testimonial demeanor supports Respondent 's posthear- mg characterization of Gibson as "a disgruntled former supervisor who was involuntarily terminated by Respondent." The undisputed evidence shows that although Gibson's job on the day shift was eliminated (for reasons undisclosed in the record), he was offered another job (the foreman 's position on the midnight shift) which he chose not to take, instead leaving voluntarily. IMPACT DIE CASTING CORP. 273 stated no," although her husband "had made a claim" for the same injury. When Boyce asked, "Do I get some sort of paper to show I was terminated," Coquelin said "no" and told her to get her personal belongings and get out at once. Although Coquelin testified that he had no opportunity to get into other reasons for discharge because Boyce began to cry and left the room, Hebei testified that Coquelin "spec- ified" only "one reason" and, as far as he knew, "attempt- ed" to give no "other reasons" for her discharge; and, additionally, that he himself gave no other reason either. On the same day (November 8), in a memorandum of the discharge interview for the company records , Coquelin specified no ground for discharge other than "falsification of an insurance form" ; nor did Becker in his prehearing affidavit dated November 30, wherein he likewise stated that after consultation with counsel "we terminated Mildred Boyce's employment for falsifying an insurance claim."ts 4. The asserted reasons for Boyce's discharge advanced by Respondent at the hearing Although, as indicated, the only reason given Boyce in the November 8 discharge interview was her alleged falsifi- cation of an insurance claim, at the hearing Respondent added various other grounds in alleged justification of the discharge. According to Company President Becker, the three "prime" reasons were "[]leaving the work station, which involved her poor performance in production ... the insurance claim, and . . -. soliciting union membership on company time." He later further added "her general atti- tude towards her work , towards supervisors , the harassment of fellow employees, by practicing slander and gossip" and "abuse of some people's personal property." According to Plant Superintendent Coquelin "harassment , falsifying an insurance claim, and wasting time on company property [were]the three main ones," then adding that her drop in production was a contributing factor. Becker testified that he had consulted with Coquelin and Vice President Hebei (in charge of manufacturing) 3 or 4 days before he finally decided to discharge Boyce on November 8. According to Hebei, he himself did not "recommend" discharge, but "agreed to it." Before actually taking the discharge action, Becker, as he testified, decided to consult with counsel "be- cause of the obvious reasons involving her activities in the union." According to Becker, "Counsel advised me under the circumstances we were taking a considerable risk in being accused of terminating Mildred for union activity," but he nevertheless directed Coquelin and Hebei to termi- nate her. While Becker testified that he told Coquelin "to explain to Mildred the reasons why she was being terminat- ed," Coquelin denied that he did , explaining, "He didn't have to, I knew that." We now proceed to the various reasons advanced for the discharge-first to the insurance "falsification" claim. '5 Coquelm's November 8 memorandum corroborates Boyce's testimony that after Hebel explained "the reason" for her discharge (i.e., "falsification" of an insurance claim) she asked for, but was denied, a "termination slip" showing the reason. a. The alleged falsified insurance claim Respondent's employees are covered by a group health- accident policy issued by Provident Life and Accident In- surance Company under which Respondent contributes for employee coverage and the employees for dependents' cov- erage. On July 21, Boyce executed a form for hospital and related medical costs in relation to an injury (second-degree bums to both hands) suffered by her 3-year-old boy. Boyce listed the name and place of work of her "husband" (Robert E. Boyce), but in answer to the question whether "any of the expenses for which claim is being made [was] covered" by any other group insurance (Question No. 9), she marked the box "No." At the time her "husband" was also enrolled in another group insurance program through his own employ- er (Model Industries) which also provided such benefits for dependents ; on July 29 (8 days after Mrs. Boyce signed her application) he likewise filed a claim with his employer's insurance company ("Zurich") covering the injury to the boy. Zurich received the "husband's" claim on August 2 and paid it on August 4. Although the total claim amounted to $406.20, only $369.20 was allowed by Zurich under the "basic plan"; the remaining $ 10, representing "supplemen- tal major medical" expenses, was disallowed because the $100 deductible had not yet been "satisfied ." Mrs. Boyce testified credibly that it was not until early August that she became aware that Robert, who is her "common-law hus- band," had filed the claim for benefits and had been paid thereon. The record establishes that the relationship be- tween Mildred and Robert Boyce was a tenuous one, with Robert periodically leaving her-a fact known to Respon- dent, including Company President Becker, who testified he knew Robert's "tendency to go out on a bender now and then and leave Millie holding the bag"; and he recalled occasions when the Company "put up the money" to avoid a "shut off" of Mrs. Boyce's household utilities . Mildred first learned that her husband collected the insurance mon- ey from Zurich when Respondent's office girl (Sherry Ovitt) brought Mrs. Boyce's July 21 claim form in early August to make a correction and Mildred seized the occasion to in- quire why "the bill hadn't been paid yet." When told that her husband "had already collected," Boyce asked whether Respondent's insurance company (Provident) would pay any unpaid balance. Ovitt said "they wouldn't pay anything." There is no reason to beleive that Mrs. Boyce had ever received a copy of the group policy covering her or that she was aware of any "excess" exclusionary provi- sion therein. According to her credited testimony , Mrs. Boyce then tried to get her husband to pay the hospital and doctor bills, but he refused to do so. Meanwhile she continued "to in- quire" about the payment of the claim by Provident, until she finally consulted an attorney on October 7 "to see what [her] legal rights were." After telling her husband that the attorney had advised her that he was liable for the hospital and doctor bills if he claimed the child "as his," then and then only the husband "went ahead and paid the bill." Company President Becker testified that the Company was first "alert[ed]" about the "dual" benefits claim when Mrs. Boyce herself gave Plant Superintendent Coquelin her attorney's October 7 letter in order to show that she had to 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absent herself from work in order to consult her attorney regarding her insurance claim. Coquelin himself noted on the letter that Mrs. Boyce had requested permission to take time off because her husband had deserted her, taking with him the "insurance check which was to be used to pay" the injured child's bills. Becker immediately notified Provident of the possibility of duplicate claims which, upon investiga- tion, learned of Zurich's previous payment to Mr. Boyce. In the meantime, Provident had issued and forwarded to Re- spondent two checks ($366.20 payable to the hospital and $32 to Mrs. Boyce) on Mrs. Boyce's claim which it asked to be returned. Becker returned the checks after insisting that Provident put its request in writing which Provident did, taking the position in its November 2 letter to Becker that Zurich, as the "primary" carrier (i.e., insurer of the "fa- ther"), was primarily responsible for payment of the claim. However, a Zurich representative, Kussman, testifying at the hearing as an insurance expert, swore that as the "sec- ondary" carrier it was Provident's obligation to pay Mrs. Boyce the $10 withheld by the "primary" carrier (Zurich), since Mrs. Boyce was entitled to 100-percent recovery of expenses in view of the alleged duplicate coverage and "co- ordination of benefits" provisions in both Zurich and Provi- dent policies. He further testified that where, as in this case, the wife's claim disclosed that her husband was employed elsewhere, it was the responsibility of the secondary carrier [Provident], not the primary carrier [Zurich], to check on the existence of duplicate coverage. He indicated that before Zurich paid the claim to Mr. Boyce, Provident was notified of that claim and information as to coordination of benefits was exchanged. b. "Harassment" and "verbal abuse" of other employees On September 3, Respondent received written notes from two employees complaining that they had heard (from other girls in the plant) that Mrs. Boyce had referred to them as "queers" and "female companions." One of these testi- fied that this had also happened a year and a half ago and that she "figured twice was enough." The other employee's recollection was that this had started "about six months ago"; however, she brought out that Boyce herself had cau- tioned her about other girls circulating this kind of rumor. Although the first employee testified that she quit on the same day she wrote the note (September 3) because of the accusation, she admitted being on the lookout for another job, closer than the 30 miles from her home to Respondent, as long ago as 2 years before this, explaining that driving 60 miles a day "was kind of expensive." Several days after quitting Respondent, she did in fact obtain the job about which she had inquired 2 years earlier, the new job being only a mile from her home and at higher pay (i.e., at $3.97 as opposed to $2.20 an hour). A third employee testified that she went to see Compa- ny President Becker around September 9 to complain about Boyce's "continual harassment" of her by calling her "filthy, rotten things." According to this employee, Boyce also made personal remarks about an alleged marital rela- tionship. The same employee testified, however, that this "harassment" dated back to when Boyce first came to the plant (August 1968) and that it actually abated during the union organizational drive (August 1971) when Boyce "didn't say anything much" to her. Moreover, she admitted that she had heard "vile" language of the type attributed to Boyce used by others, as well, "many times" in the plant; and that another girl (identified by name) who had worked in the plant before the advent of the Union, had also called her "names" and accused her of extramarital relationships. When asked at the hearing why she had waited or happened to complain to Becker on September 9,1971-only after the Union campaign started-her reply was that since Boyce "said she was being discriminated against" on account of the Union, "so I figured I was being discriminated against by [Boyce]." Later, she admitted that an anonymous phone call to her husband accusing her of alleged sexual indiscre- tions also prompted the visit to Becker, but conceded that she could not attribute the telephone call to Boyce. On September24, Becker signed an "Employee Warning Notice" directed to Boyce, indicating that Becker had al- ready warned her verbally for violating company rule 9 16 on September 9 and that "[f]urther harassment of fellow employees will be acted upon by the Company." 17 c. Alleged solicitation of employees during working time Employee Stoudt, a laborer, testified that Mrs. Boyce twice asked him to sign a card (or join the Union) in Sep- tember. According to Stoudt, the first time (September 22) he was standing by his machine smoking and "waiting" for buckles to be washed; the second time (September 23), he was again washing buckles and waiting for the machine to finish its cycle. Both Stoudt and Boyce worked side by side, only 1 foot apart. On September 23, Stoudt handed a note to Plant Superintendent Coquelin briefly mentioning these incidents and stating that he did not want "to be bothered" by Boyce. He admitted, however, that Boyce had never actually offered him a card, that he did not know her break 16 "Making a false or malicious statement about or against another em- ploTee, supervisor and/or Company." i After close of the hearing, Respondent filed a motion to introduce into the record or to take "judicial notice" of a December 27, 1971, decision by the Equal Employment Opportunity Commission (based on its District Director's findings of fact) "for the sole and limited purpose of demon- strating that other of its employees have been disciplined for asserted viola- tions" of company rule 9 . In the case in question three female employees claimed that Respondent "acted discriminatorily because of their sex in that a male employee was similarly accused but not discharged" for sending an anonymous obscene letter to a fellow employee. The Commission upheld Respondent's contention that the three employees were discharged for "al- most daily" harassment and verbal abuse of a fellow female employee at her work station, restrooms, and during breaks; that the subject matter of such abuse "was an alleged extramarital relationship between the female employ- ee" and a plant supervisor, and that the abusive treatment interfered with the work of their target It accordingly held that the terminations fell within the normal "management prerogative" area and that the sex of the dischar- gees "was not a motivating factor." Respondent's motion to introduce the December 27, 1971 Commission's decision and the District Director's "findings of fact," to which no opposition was filed, is hereby granted, all documents (the motion, Commission's deci- sion, and District Director's findings) being marked as Resp. Ex 14. While these documents are relevant in that they tend to show that Respondent had disciplined employees for violation of company rule 9, they are not conclu- sive on the issue whether any alleged violation of rule 9 was a motivating factor in the discharge of Boyce. IMPACT DIE CASTING CORP. times, and that he did sign a union card about a week later when another male employee handed him one. Mrs. Boyce admitted only asking Stoudt whether he was "still interested in signing a card," claiming that Stoudt already had gotten one from another solicitor. She testified credibly that she was on her "break" time when she put the question to Stoudt-and, as Stoudt himself indicated, that he was not actually working at the time. On October 26, Respondent issued a warning notice to Boyce (signed by Coquelin and Foreman Gibson) stating that "it had been called to our attention that you have been engaging in Union solicitation in the plant during working time. Specifically, that you have approached [employee] Herrera on Friday, October 22 at approximately 3:35 p.m." Boyce was admonished that further solicitation "during your working time or time when solicited employees are at work ... will lead to appropriate disciplinary action ... including possible suspension or discharge." Boyce denied the incident, asserting that she "never" approached Herrera during or off-duty hours, that she could not even communi- cate with him because he spoke only Spanish, andthat she knew as a fact that Herrera already had been signed up by another card solicitor (Bill Chaney). Herrera was not pro- duced to contradict or dispute Boyce's testimony. I credit her version of the incident. d. Other alleged derelictions As noted supra (sec. B 4), in addition to the above alleged misconduct, Becker and Coquelin claimed that cer- tain other behavior contributed to Boyce's discharge. Thus, Coquelin testified that "wasting time" and "loitering" on company property were one of the "main" reasons for her discharge. In its brief, Respondent cites only one employee who purportedly "observed Mildred Boyce in the wash- room almost every time she went in and she was subjected to vile language by Mrs. Boyce on occasions." The reference is to the testimony of an employee already discussed supra (sec. B 4 b). On October 12 Coquelin issued a warning notice to Boyce based on this conduct, admonishing that "further violation of the rule will result in further discipli- nary action or possibly discharge." Both Becker and Coquelin at first attempted to portray Boyce as a "poor" producer, Coquelin stressing that her production "dropped terrifically" since 5 or 6 months be- fore her discharge because she "was spending" too much time in the washroom away from her machine. However, when pressed further on the subject, Coquelin admitted that her production remained "average" and, after being shown his prehearing affidavit, that it was indeed "good." Finally (as shown supra, sec. B 4), Becker testified that her "attitude towards her work, towards supervision" and "abuse" of property also entered into the decision to dis- charge Boyce. However, the record is devoid of evidence supporting this allegation and Respondent in its brief refers to none. 5. Conclusions This case presents the usual issue in discharge cases; namely, the employer's motive in dismissing and refusing to reinstate an employee. As is in typical cases of this nature, 275 the General Counsel relies heavily on the Employer's union animus and on the union role of the dischargee; on the other hand, the Employer urges that it had justifiable cause for terminating the employment. However, as we have been repeatedly told, while an employee's being "an ardent sup- porter and protagonist of the Union does not insulate [him] against discharge for justifiable cause ... the existence of valid grounds for discharge is no defense ... when discrim- inatory motive is a factor in the employer's decision." Swee- ney & Co. v. N.L.R.B., 437 F.2d 1127, 1133 (C.A. 5). "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." N.L.R.B. v. Sym- ons Mfg. Co., 328 F.2d 835, 837 (C.A. 7). "[A]ll that need be shown [by General Counsel] is that the employee would not have been fired but for the anti-union animus of the em- ployer." N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5). Viewing the record as a whole I am persuaded that Respondent would not have terminated Mrs. Boyce on November 8 but for the fact that she was the prime mover, if not the very embodiment, of the union drive which Respondent admittedly opposed with all the vigor at its command. In any event, it is clear that Boyce "was discharged at least in part because of Union activity." N.L. R.B. v. Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7). It is unnecessary to repeat at length the evidence dem- onstrating Respondent's strong hostility to self-organization (supra, sec. A). While Respondent, as it had the right, made legitimate appeals to turn down the Union, credited evi- dence (much of it undisputed) demonstrates that it also resorted to unlawful and coercive measures to wean its em- ployees away from "outside" union affiliation. To this end, it interrogated employees concerning their union sympa- thies and attendance at meetings, solicited withdrawals from the Union, promised union employees protection against reprisals if they did not turn in union cards, warned at least one union solicitor not to "push your luck with union cards," and suggested formation of a "shop union" in place of an "outside" union. The record also establishes (supra, sec. B 1) that Boyce was the instigator and sparkplug of the organizational drive, that Respondent was fully aware of her leading role, and that it dealt with her in recognition of that role in seeking to prevail upon the em- ployees to abandon the Union. Boyce also was the chief target of Company President Becker's and Plant Superin- tendent Coquelin's coercive conduct. Finally, there is the uncontradicted credited evidence (supra, sec. B 2), that Co- quelin told one of the foremen (Gibson) that Respondent must "get rid of Boyce because she was "a troublemaker and ... union organizer"; and that she and other Unionists must be kept apart even during breaks and lunch periods to discourage union solicitaion and organizing. This, then is one of those cases where [d]irect evidence of a purpose to discriminate is rarely obtained." Corrie Corporation of Charleston v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). As we have seen, the reasons President Becker and Plant Superintendent advanced for Boyce's discharge at the outset of the hearing (sec. B 4) were many and varied. These included alleged "falsification" of an insurance claim, har- assment and verbal abuse of other employees, solicitation of 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees during working time, "wasting time" and "loiter- ing" on company property, "poor" production, undesirable "attitude" towards work and supervision, and "abuse" of property. To be sure, these grounds (or any of them) could well have immunized the discharge, if the true motivating factor therefor, since an "employer may terminate an em- ployee for no reason or for any reason other than union or other protected activity." Amalgamated Meat Cutters Etc., Local No. 364 (Point St. George Fisheries, Inc.) v. N.L.R.B., 435 F.2d 668, 671 (C.A. 9). See also Spotlight Company, Inc., 192 NLRB No. 70 (TXD). However, I have difficulty in believing that Boyce's union role was not a significant and controlling determinant in Respondent's decision to dis- charge her. To begin with, Respondent communicated only one reason at the time of the discharge-namely her alleged falsification insurance claim-a factor casting suspicion on the bona fides of the many additional reasons given for the first time at the hearing. Cf. N.L.R.B. v. Sawyer Downtown Motors, Inc., 213 F.2d 514, 516 (C.A. 7); N.L.R.B. v. Smith Victory Corp., 190 F.2d 56, 57 (C.A. 2).18 Moreover, reasons advanced at the hearing were conflicting (Becker relying on some reasons such-as union solicitation on company time which Boyce's immediate supervisor Coquelin did not men- tion), varied in emphasis, and in some cases were totally unsupported or false (e.g., claimed poor production, unde- sirable work attitude, and "abuse" of property). "The Company's vacillation and the multiplicity of its alleged reasons for firing [Boyce] render its claims of nondiscrimi- nation the less convincing." N.L.R.B. v. Schill Steel Prod- ucts, Inc., 340 F.2d 568, 573 (C.A. 5). So do the inadequacy and falsity of its assigned reasons. See N.L.R.B. v. Dant, 207 F.2d 165, 167 (C.A. 9); N.L.R.B. v. I.E.B.W., Local Union 340 (Walsh Construction Co.), 301 F.2d 824, 827 (C.A. 9). Thus, as to production, Coquelin admitted, as he stated in his prehearing affidavit, that Boyce's production re- mained "good" at the time of discharge. As to union solic- itation during working time, Respondent did not produce Herrera to contradict Boyce's testimony that she never ap- proached him during duty hours; and the alleged solicita- tion of Stoudt, even if it occurred as described by Stoudt (but denied by Boyce) amounted to nothing more than a request to sign a card while Stoudt was "waiting" and doing nothing at his work station and (as Boyce testified) while she was on her break time. As to "harassment" and "verbal abuse" of employees, the "filthy, rotten" remarks attributed to Boyce, even according to the employee's own testimony, were not of recent vintage and the name-calling (not un- common in the plant) dated back to the period prior to advent of the Union. While two other employees com- plained that Boyce had referred to them as "queers" and "female companions," this was derived from pure alleged hearsay from others with no direct evidence linking Boyce to the claimed remarks; moreover, according to the affected girls' own testimony, the statements in question were made once before the union drive, with apparently no issue raised. 18 An "employer is in an unfortunate position in attempting to justify to the Board its [conduct] for a reason that apparently did not occur to it prior to the time of the hearing." Cf. Polish National Alliance v. N L KB, 136 F.2d 175, 181 (C.A. 7), affd. 322 U.S. 643. Finally, as to Boyce's "fraudulent" insurance claim, it is true that Boyce untruthfully indicated on the claim form that no other group insurance applied to her family; but, contrary to Respondent, under the circumstances shown, I find that by doing so she did not attempt deliberate "decep- tion" upon Respondent or its insurance carrier (Provident) in order to obtain a second or double payment for injury suffered by her son. To begin with, Mrs. Boyce disclosed on the face of the form that her "husband" was employed (by a named employer) and, as the record indicates, even a superficial check would have revealed that the husband was also enrolled in some group insurance program which might or might not have "also" covered the claim. Nor did Mrs. Boyce know that her common-law husband had also filed a claim for the benefits (admittedly after she did). It was not until early August, when Respondent's office girl mentioned that the husband already collected on the claim that she learned of the other claim. Not only was Respondent's of- fice already aware of the "husband's" claim, but so was its carrier (Provident) which did nothing to coordinate the ben- efit payment between itself at the "husband's" carrier (Zu- rich). Boyce neither retained nor received any actual payment herself. While neither did anything to stop further processing of Mrs. Boyce's claim, Boyce attempted to pre- vail upon the "Husband" to pay the outstanding hospital and medical bills, which he refused to do. She thereupon consulted an attorney-a fact which she herself made known to Plant Superintendent Coquelin. According to Company President Becker, it was only at this stage that he personally learned of the existence of "two" claims (al- though his office girl had known of this back in early Au- gust) and he immediately alerted his insurance Company-which, as indicated, was already apprised of this. It is evident that Boyce only wanted the medical bills paid once, without concern as to which insurer paid them. The fact is that, confronted with her attorney's instructions, Mr. Boyce did pay the bills, that Mrs. Boyce did not secure double payment, and that she apparently was (and is) still entitled (but has not received) a small ($10) payment from Respondent's insurance company (Provident) over and above the payment received by her husband from his insur- ance company (Zurich). If Mrs. Boyce had intended to de- fraud Respondent or its insurance company why would she have disclosed (on the claim form) the fact that her husband was employed, that she had been trying to get him to pay the bills, and that she went to the extent of consulting a lawyer to force him to pay them? Mrs. Boyce's basic pur- pose was clearly to make sure that the hospital and medical bills were satisfied whether it be through her husband's or her own insurance coverage. The fact that Provident did nothing to coordinate the benefit payment between itself and Zurich suggests that Provident itself may have been remiss in its processing of Mrs. Boyce's claim. For all of the foregoing reasons and the entire record, I find that Respondent's claimed reasons for discharging Mrs. Boyce were pretexts to cloak the true ground for the discharge, namely, her leading and outsopken union advo- cacy. I conclude that General Counsel met the burden of establishing that the discharge was, in substantial and con- trolling part, motivated by union animus, in violation of Section 8(a)(3) and (1) of the Act. IMPACT DIE CASTING CORP. CONCLUSIONS OF LAW 1. By coercively questioning employees concerning their union sympathies and activities, by soliciting withdrawals from the Union, by telling an employee not to wear a union button, by impliedly threatening another one with reprisals if he continued union activity, by creating the impression that the employees' union activities were under surveillance, and by suggesting that its employees form a "shop union," Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1), of the Act. 2. By discharging Mildred Boyce on November 8, 1971, and thereafter failing or refusing to reinstate her, in order to discourage union activities, Respondent has discriminat- ed in regard to hire and tenure of employment, in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of section 2(6) and (7) of the Act. 4. It has not been established that Respondent has viola- ted Section 8(a)(1) by other acts or conduct alleged in the complaint. THE REMEDY The recommended Order will contain the conventional remedial provisions in cases involving findings or interfer- ence, restraint, and coercion, and discriminatory dis- charges, in violation of Section 8(a)(1) and (3) of the Act. These will require Respondent to cease and desist from the unfair labor practices found, and to offer reinstatement with backpay to the employee discriminated against. In accord- ance with usual requirements, reinstatement shall be to the discriminatee's former job, or if that job no longer,exists, to a substantially equivalent position, without prejudice to her seniority or other rights or privileges. The discriminatee shall be made whole for any loss of earnings she may have suffered by reason of the discrimination against her by pay- ment to her of a sum of money equal to that which she normally would have earned from the date of discharge (November 8, 1971) to the date of a valid offer of rein- statement, less net earnings during such period, to be com- puted in the manner prescribed in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Asfoundsupra (sec. B 4 c), based on a report that Boyce on October 22 solicited an employee (Herrera) during work- ing time, Respondent on October 26 issued her a warning notice admonishing her that further solicitaion "during working time ... will lead to appropriate disciplinary action ... including possible suspension or discharge." Since, as further found, it has not been established that Boyce solic- ited Herrera during working time, the recommended Order will, as General Counsel requests, also provide that Respon- dent remove and expunge this warning notice from its rec- ords. In view of the nature of the unfair labor practices Re- spondent has engaged in, I shall recommend that it be re- quired to cease and desist from infringing in any manner upon rights guaranteed employees by Section 7 of the Act. 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:19 ORDER 277 Respondent, Impact Die Casting Corporation, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees concerning their union sympathies and activities; soliciting them to abandon or withdraw from a union of their choice; telling employees not to wear union buttons; directly or impliedly threatening them with reprisals for engaging in union activities; creating the impression that their union activities are under surveil- lance; suggesting that they form a shop union as opposed to affiliating with an existing union; or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership and activites in Local 369, International Molders' and Allied Workers of North America, AFL-CIO, by discriminating in regard to hire and tenure of employment of Respondent's employees or by discriminating in any other manner in regard to any term or condition of their employment, in order to discourage membership or activities therein. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Mildred Boyce immediate and full rein- statement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered as a result of her discharge, in the manner set forth in The Remedy section herein. (b) Remove and expunge from its records the written warning notice issued to Mildred Boyce on October 26, 1971. (c) Notify the above-named employee, if presently serving in the Armed Forces of the United States, of her 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. (d) 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 the amount of backpay due under the terms of this Order. (e) Post at its plant in Sandwich, Illinois, copies of the attached notice marked "Appendix." 20 Copies of said no- tice, on forms provided by the Officer-in-Charge for Subre- 19 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, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gion 38, after being duly signed by Respondent's represent- atives, shall be posted by it immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (f) Notify said Officer-in-Charge, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .21 IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Officer-in-Charge, in wnt- mg, within 10 days from the date of this Order, what steps 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 before a Trial Examiner of the National Labor Relations Board, at which all sides had the chance to give evidence, it has been decided that we, Impact Die Casting Corporation, violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as an employee, these rights: To engage in self organization To form, join, or help unions To bargain collectively through a representative of your own choosing To act together with other employees to bargain col- lectively or for other mutual aid or protection; and, If you wish, not to do any of these things. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights fisted above. WE WILL NOT coercively question you concerning your union sympathies and activities; nor solicit you to abandon or withdraw from a union of your choice; nor improperly request you to remove union buttons; nor directly or indirectly threaten you with reprisal for en- gaging in union activities; nor create the impression that your union activities are under surveillance; nor suggest that you form a shop union as opposed to affil- iating with an outside union. WE WILL NOT discourage membership in, or activi- ties on behalf of, Local 369, Internation Molders' and Allied Workers of North America, AFL-CIO, by dis- criminating against you in regard to your jobs. WE WILL OFFER Mildred Boyce immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, with full seniority and all other rights and privileges, since she was found to have been discharged for supporting the Union's organizational campaign. WE WILL make up all pay Mildred Boyce lost, plus interest. WE WILL remove and expunge from our records the warning notice issued to Mildred Boyce by us on Octo- ber 26, 1971. WE WILL notify Mildred Boyce if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Mili- tary Training and Service Act, as amended, after dis- charge from the Armed Forces. Dated By IMPACT DIE CASTING CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9283.