Plastic Sealers, Inc.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plastic Sealers, Inc. and Miscellaneous Drivers and Helpers, Local Union No. 160, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 14-CA-6833 and 14-RC-6994 November 7, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 15, 1972, Administrative Law Judge Marion C. Ladwig* issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions. 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 attached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended 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 Administrative Law Judge and hereby orders that the Respondent, Plastic Sealers, Inc., St. Louis, Missouri, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. * The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 1 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 Unlike the Administrative Law Judge, we perceive no cogent reason for referring Manager Sarakas' testimony to the Department of Justice Rather, it appears to us that the not unusual kind of conflicting testimony was involved herein requiring credibility resolutions which were made by the Administrative Law Judge DECISION STATEMENT OF THE CASE MARION C. LADwIG, Admimstrative Law Judge: These consolidated cases were tried at St. Louis, Missouri, on July 12 and 13, 1972.1 The charge was filed by the Union on April 28 and the complaint was issued on June 7, with 1All dates are in 1972 an order consolidating the cases and referring the repre- sentation case to the Board. The primary issues-following the belated admission of repeated threats of discharge and plant closure, interrogation, and creating impression of surveillance-are whether the Company, the Respondent, (a) committed other 8(a)(1) violations and (b) discriminato- rily discharged two union supporters in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. In the representation case , the petition was filed on March 20, and a stipulated consent election was conducted on May 4 in a production and maintenance unit . The vote was four for and four against the Union, with one void ballot and three challenged ballots . On June 7, the Regional Director issued his report (to which no exceptions were taken), recommending that the challenge to one ballot be overruled, and that the challenges to the ballots of the two alleged discriminatees in the complaint case be resolved in this consolidated proceeding. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a Michigan corporation, is engaged in the manufacture of plastic sealants and related products at its plant in St. Louis, Missouri, where it annually ships products valued in excess of $50,000 directly to points outside the State . The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Shifting Defense In its June 16 answer, the Company denied all 16 of the 8(a)(1) allegations in the complaint, as well as the allegations that the Company violated Section 8(a)(3) and (1) by discriminatorily discharging employees Donald Courtway and Joseph Hurt, whose votes are determinative of the outcome of the May 4 election. Without any explanation for its shifting position, the Company, at the trial and in its brief, admitted much of the coercive activity engaged in by General Manager Marjorie Sarakas (including repeated threats to discharge employees for engaging in union activity), but strongly defended Sarakas' discharge of the two union supporters , who spoke up in favor of the Union on the day preceding their discharge. Thus the Company admitted, after first denying, certain conduct-the remedy for which would involve only a cease and desist order and notice, but vigorously defended the allegations of discrimination on which the outcome of the election is determinative. 200 NLRB No. 6 PLASTIC SEALERS 23 B. Section 8(a)(1) Allegations 1. Admitted conduct On Sunday, March 19, 2 days after a union meeting, employees LaVerne Daniels and Shirley Ansleman visited the homes of employees Larry Voidanoff and Cynthia Ratican to get them to sign authorization cards. About 7:30 that evening, General Manager Sarakas (the only supervisor in the small St. Louis plant) telephoned Ansleman's home, talked to her daughter, and left the message that "anyone who was connected with the Union would be fired the next day." (Sarakas admitted at the trial that she telephoned the daughter and said she "would discharge any employee who engaged in activities for the Union.") I find that the threat of discharge was coercive and violated Section 8(a)(1) of the Act. That same evening, as credibly testified by employee Daniels, Manager Sarakas telephoned her after she returned home from the organizing. Sarakas "told me that Larry had called her at her home and told her that . . . I was at his house talking about a union." Sarakas asked if Daniels knew anything about it," and upon getting a negative response, said, "Well, I am going to get to the bottom of this and there will be no damn union s-." (Sarakas admitted telephoning Daniels and asking her about union activities.) I find that the interrogation, accompanied by the above-quoted statement and profani- ty, was coercive and violated Section 8(a)(1). Also on the evening of March 19, Manager Sarakas visited the home of employee Hurt (one of the alleged discnminatees) and "asked me if I had known anything about people starting to get a union started, and I told her no. She said that Shirley Ansleman, LaVerne Daniels, and Shirley's husband had gone to . . . Larry's house, trying to get him to sign a card, and that my name had been signed on a card, and she asked me if I had known who had signed my name to a card, and I said I didn't know, and she just said that she was going to get it straightened out, and then she left." (Sarakas admitted visiting Hurt's home and asking him about union activities.) I find that this interrogation, at the employee's home, was coercive and violated Section 8(a)(1). The next morning, March 20, as employee Ansleman reported to work, Manager Sarakas called her into the office, telling her, "I want to talk to you and I want to get to the bottom of this god damn s- before I blow my stack." Sarakas said that someone had called and "told her that we were at Larry's house trying to get him to sign a union authorization card, that we were trying to start a union." Ansleman denied it, whereupon Sarakas said, "Larry has proof that you were there. If you say you weren't he is going to bring these men down." Sarakas also said, "There will be no union." (Sarakas admitted asking Ansleman on March 20 about the union activities when Ansleman came to work.) I find that this repeated interrogation of Ansleman was also coercive and violated Section 8(a)(1). Later-that morning, Manager Sarakas called a meeting in the plant and said to the employees that Howard and Harold (referring to Sales Manager Howard Davidson and Treasurer Harold Davidson, owners of the business, with offices in Grand Rapids, Michigan) "told me that 30 minutes after the Union came in they would slap a padlock on the door and nobody would work." (Sarakas admitted that she at least twice told the employees that the plant would close if they joined the Union.) I find that these threats of plant closure were coercive and violated Section 8(a)(1). About 2 days later, March 22, employee Daniels was changing a die on the line 1 extruder . She went to line 2 to get a scraper and said something to employee Ratican, when Manager Sarakas came from the office and said, "Get your G. D. a- to work and quit all this union talk." Daniels said she was working and was not talking union. Shortly thereafter , Daniels went to the office door, asked Sarakas if Sarakas was accusing her of talking about the Union. Sarakas said yes and ordered her out. Sarakas then "rushed by me and she grabbed my timecard and was going to punch me out. But before she did I asked her if I was fired. She said, `No, you are not now but you are going to be.' " (Sarakas testified that she did tell one of the employees not to talk about the Union on company time, and on one occasion threatened to fire Daniels .) I find that Sarakas' direction to stop the union talk (accompanied by the abusive, untrue accusation) and the threat of discharge were designed to interfere with the employees ' protected union activity-not to prevent disruption of production -and violated Section 8(a)(1) of the Act. Sometime in April, as employee Joseph Hurt credibly testified, Manager Sarakas talked to him in the lab. She talked against a union and asked him why he favored one. He told her because of higher wages and better working conditions. Sarakas "said that if the Union comes in, that they would just put a padlock on the door and move out of the city." Hurt said they would not move anywhere in the state, and Sarakas "said they would just move over into Illinois." (Sarakas discharged Hurt on April 27, as discussed later.) The Company admits the allegation that Sarakas "threatened an employee" that the Company's "plant would close and move , and employees would lose their jobs if the Union were successful in its organizational campaign." Her threats were clearly coercive and violated Section 8(a)(1) of the Act. Employee Daniels (who was reinstated after she left the plant with alleged discnminatees Courtway and Hurt on April 27) credibly testified that, about the third week in April, Manager Sarakas came to her home and talked about the Union. Sarakas said she did not know what was going to happen, but that Daniels should listen to her and watch everything she does, that "there was going to be some changes made," that she and Sales Manager Howard Davidson "had first thought it was I who tried to organize the Union but after they thought about it that they knew it wasn't me, that it was Shirley Ansleman who tried to organize or started the Union." (The Company admits the allegation in the complaint that this "created the impres- sion" that the Company "engaged in surveillance of employees' union activities .") I find that Sarakas' state- ments created the impression that the Company had engaged in surveillance of the union activities, were coercive, and further violated Section 8(a)(1). (I have also considered this undisputed testimony in connection with 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company's motivation for offering Daniels reinstate- ment on April 27, while discharging Courtway and Hurt, as discussed later. 2. Other conduct The Company was on a 4-day week, paying the employees for 10 hours a day, from 6:30 a.m. until noon, and 12:30 until 5 p.m. However, under the supervision of Manager Sarakas, the employees were paid for consider- able nonwork time. After the employees clocked in around 6:30, they were permitted to eat and to dunk coffee, as well as play cards, while awaiting Sarakas' assignments for the day. In addition, Sarakas frequently permitted the employ- ees to extend their morning and afternoon breaks to 30 minutes, and to take longer than 30 minutes for lunch. In good weather, the young men employees were permitted to play ball during the extended lunch periods. During the week of March 20, after Manager Sarakas had called the meeting and told the employees that "30 minutes after the Union came in" the owners of the business said they "would slap a padlock on the door and nobody would work," Sarakas advised the employees that 6:30 was the starting time in the morning, that the morning and afternoon breaks would be limited to 10 minutes, and that the lunch break would be limited to 30 minutes. However, as the time for the May 4 election came nearer, Sarakas again permitted eating and the drinking of coffee after 6:30 a.m., as well as longer morning and afternoon breaks and the playing of ball during lunch breaks which on occasion were extended several minutes. When asked at the trial why she had made the changes during the week of March 20, Manager Sarakas claimed that "it seemed to me that the employees were taking advantage of the fact that I might give them a few minutes extra, and they would take longer than what I would give them." However, I find that her action was a reprisal for the union activity, and was designed to discourage the employees from engaging in that activity. (As a witness, she impressed me as being more concerned with giving a plausible defense than being candid.) I therefore find that these temporary changes, made in the context of other coercive conduct, also violated Section 8(a)(1). About a week later, on March 29 or 30, Sales Manager Howard Davidson (who did not testify) went to the plant and held a meeting in which he solicited the employees' complaints, discussed benefits which the employees pro- posed, and promised to make a note of the requests, go back to his office and talk to his brother, and see what could be done about them. "He said that he can't do anything now because it would be like a bribe against the Union," but promised, "I will be back next week with some new ideas." He asked the employees not to go with the Union, but "to stick with the Company." About a week later, Davidson returned to the plant, again discussed the benefits with the employees, and stated that "after the union matters are taken care of he thought he could give us as much as the law would allow" in additional compensa- tion. I find, as alleged in the complaint, that the Company in the first meeting "solicited employees' complaints and impliedly promised to improve working conditions . . . in order to induce the employees to abandon the Union," and that in the second meeting, "promised wage increases" for the same purpose , in violation of Section 8(a)(1). In making these findings, I note that the Company gave no reason for not calling Howard Davidson as a witness, and did not discuss these additional alleged violations in its brief other than to contend that the General Counsel failed to meet his burden of proof. On April 26, Howard's brother, Harold Davidson, went to the plant and talked to each of the employees against the Umon. There is much disputed testimony about what was said. In view of all the other 8(a)(1) violations, I find it unnecessary to resolve these additional issues of alleged threats and coercion. However, Harold Davidson's own testimony about his separate discussions with employees Courtway and Hurt is considered below in connection with their discharge the following day. Concerning the remaining allegation that the Company discriminatorily withheld employees' bonus checks in May, I find that the evidence does not support that allegation. C. Alleged Discriminatory Discharges 1. Employees speaking up for Union As found above, sometime in April when Manager Marjorie Sarakas asked employee Joseph Hurt why he was in favor of a union and threatened to put a padlock on the door if the Union came in, Hurt gave his reasons for favoring the Union and told her the Company would not move anywhere in the State. Sometime thereafter, Sarakas went to the home of employee LaVerne Daniels, whom Sarakas had accused earlier of not working and talking union on the job. Sarakas told her the Company had changed its mind and had decided that it was not Daniels who started the Union. Sarakas advised her to listen and watch everything Sarakas did, that "there was going to be some changes made." This undisputed testimony indicates that the Company was planning to take personnel actions influenced by the, employees' union activity. Then on Wednesday, April 26 (8 days before the May election), Treasurer Harold Davidson went to the plant, talked to the employees individually in the lab, and argued against the Umon. Only two of the employees, Donald Courtway and Hurt, became "argumentative," according to Davidson. He testified that Courtway "became very arrogant and said, `Well, you can't tell me this.' The Umon will do this for me. You possibly can't talk to me that way, and I said, `I certainly can and I damn well will'.... He said that they couldn't fire him, that the Union would get him more money, the Union would get him . . . job security. The Union would see to it that Marjorie [Sarakas] didn't conduct herself the way she did . . . and I said, `They will not run this plant.' " Concerning his talk with Hurt, Davidson testified, "I went into this business again of job security, explaining what the Union could and could not do for him . . . and Joe began to get a little hot, started to argue with me too about what the Union could and couldn't do ..." Although some of Courtways' and Hurt's testimony appears to be more accurate in the details of what was said, I reply on Davidson's testimony insofar as it demonstrates his displeasure with the two employees for PLASTIC SEALERS 25 speaking up for the Union. Also concerning company motivation, I note that it is undisputed, as credibly testified by employee Daniels, that about 2 weeks after the election when she told Davidson "I thought Joe Hurt and Don Courtway were fired unjustly," Davidson responded, "they got smart with me"-indicating a connection between these conversations and the employees' discharge the following day. In its brief, the Company argues that "the record is devoid of probative evidence that Hurt and Courtway were discharged for reasons other than cause" and that illegal motivation has not been proved. However, the brief fails to mention Davidson's own testimony about the two employ- ees' speaking up for the Union on the day before their discharge (whereas the other employees did not become "argumentative"), or the proximity of the election in which these two prounion employees would be voting, or the undisputed evidence that Davidson later linked their speaking up with their discharge by stating that Courtway and Hurt "got smart with me" (in response to a complaint that they had been "fired unjustly"). I now consider the conflicting evidence about what happened early the next morning after Davidson talked with Courtway and Hurt. 2. Events of April 27 a. General Counsel's evidence According to the testimony of General Counsel witnesses Courtway, Hurt, and Daniels, Manager Sarakas opened the plant that morning, April 21, about 6:30. Then Sarakas and employee Margaret "Peggy" Brown (a company witness) went to Sarakas' office for coffee, and Courtway, Hurt, and Daniels (proumon employees) went to the kitchen for doughnuts and coffee. Although the employees were paid from 6:30, they did not in practice begin work (as conceded by the Company) until Manager Sarakas gave them assignments for the day. Courtway, Hurt, and Daniels would then change into their work clothes, if they had not already done so. (Sarakas had not objected to their changing clothes after having coffee.) Upon going to work, they would first clean or change the die on the extruder, clean up, or make boxes to be packed, before starting production. At this time, near the May 4 election, they were going to work about 6:45 if they were to run slugs, or between 7:05 and 7:20 if they were running beads (which required a batch to be made on the mixer beforehand). On this particular morning, Manager Sarakas did not give them any assignments while they were having coffee and did not notify them whether they would be running slugs that day. Employee Daniels was eating doughnuts and drinking coffee in the kitchen with Courtway and Hurt until about 6:40 or 6:45, when batch mixer Albert Marshall called her over, asking for a doughnut. Within a few minutes, about 6:45 or 6:50, employees Courtway and Hurt finished their doughnuts and went to the locker room to change clothes. After she began talking to Marshall, Daniels noticed Sarakas and Brown leave the office and go toward lines 1 and 2. (Although Courtway, Hurt, and Daniels thought that part-time employee Cynthia Ratican was also in the office drinking coffee-Hurt testifying that he was not sure about Ratican being there-Ratican did not arrive until 6:50 that morning. Employee Ansleman, the remaining lineworker on the day shift, was absent that day.) Shortly after employees Courtway and Hurt began changing clothes, Manager Sarakas shouted for them to come to work. (She apparently had decided that they would run slugs, although she had not told them.) About a minute later, she shouted to them again. Then, in another minute or so, she shouted, "If you don't want to work .. . get your G. D. a- out of here." Courtway and Hurt rushed out of the locker room (Courtway with his shirt open and his shoes untied), and Sarakas said, "You guys don't want to work, get out of here." Courtway said he wanted to work and Sarakas responded, "No, you don't," and ordered them out. In the discussions which followed, she said she would let them know if they were discharged. Courtway and Hurt changed back into their street clothes, Courtway made a telephone call, and they punched out and left. Daniels, who understood that she was also being sent home, left with them. Later in the day, Sarakas advised by telephone that Courtway and Hurt were fired, stating that Treasurer Harold Davidson said they were not to come in any more. However, she advised Daniels that she could return without any loss of pay. b. Company's evidence According to Manager Sarakas, she arrived at the plant with Peggy Brown at 6:15 that morning, sat in the office with Brown drinking coffee until about 6:29, and "exactly at 6:30" went to the production line and shouted to Courtway, Hurt, and Daniels in the kitchen, "Let's go to work." She proceeded to clean the extruder and set up the line until "around 6:55" when she called again, "Let's go to work." Courtway and Hurt were still in the kitchen, and Daniels was talking to batch mixer Marshall. She waited about 3 minutes (until about 6:58) and shouted the third time, "Let's go to work." After waiting another 2 minutes (until about 7 o'clock), she shouted, "Let's go to work or go home." But upon observing Courtway and Hurt still in the kitchen, and Daniels still talking to Marshall-all three of them still in street clothes-"I told them not to bother, just to get their cards and go home. At this time [Courtway and Hurt] got up and headed for the bathroom." About 5 or 10 minutes later (about 7:05 or 7:10), Courtway and Hurt came from the locker room and she sent them and Daniels home, saying she would let them know later if they were discharged. After some discussion, "they just stood around for a while," walked "around the plant," returned to the locker room for their street clothes, and "punched their cards and left." Manager Sarakas also testified that always before, line employees Courtway and Daniels, and also Hurt, except when he was working in the lab, had changed into their work clothes immediately upon clocking in, but on this morning, she saw them clock in at 6:20 and go directly to the kitchen in their street clothes. She also claimed that they never started to work later than 6:45. Thus, according to this account of what happened, Manager Sarakas was aware that Courtway and Hurt were in the kitchen in their street clothes, but said nothing to 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them about changing clothes first . She merely told them, "exactly" at 6:30, "Let's go to work." Then, despite her claim that they never started to work later than 6 :45, she remained silent until about 6 :55 (25 minutes after her first call to work), when she merely repeated, "Let's go to work"-not mentioning their being late or their still being in street clothes. Hearing absolutely no response, she said "Let's go to work" the third time about 6:58. Then about 7 o'clock (a full 30 minutes after her first call , and 15 minutes beyond the latest time she claimed they had ever started to work), Courtway and Hurt were still in their street clothes, still in the kitchen, and still failing to make any response whatever to her first three calls. At that time, she told them, "Let's go to work or go home," but added, "not to bother, just to get their cards and go home ." Only then did Courtway and Hurt make any response. They "got up and headed for the bathroom"-after she had told them to "get their cards and go home." Even on its face, this testimony is implausible. As the evidence developed, it became clear that Manager Sarakas' account was largely fabricated . Sarakas and employee Brown did not arrive at 6:15, and Courtway, Hurt, and Daniels did not arrive at 6:20 . Brown testified that Daniels "was right behind me" when Brown clocked in, and Daniels' timecard shows that Daniels clocked in at 6:30. The timecards also reveal that Courtway clocked in at 6:29 and Hurt at 6:30 (both of them punching out that day at 7:15 a.m.). Company witnesses Peggy Brown and Cynthia Ratican contradicted Manager Sarakas' testimony in significant respects (although both impressed me as being more concerned with supporting her account than reporting candidly what had happened). On the key point of whether Sarakas told Courtway and Hurt "to get their cards and go home" before they went to the locker room , as Sarakas claimed, or whether she was calling Courtway and Hurt to come to work while they were in the locker room, as testified by Courtway, Hurt, and Daniels, the two company witnesses gave testimony disputing Sarakas and supporting the General Counsel witnesses' testimony. Although employee Brown later conceded that she went to work about 6 :30 that mormng and thereafter drank coffee in the office with Manager Sarakas, Brown first testified that she left Sarakas' office and started making boxes about 6 :31, that Sarakas came from the office about 6:33 and started setting up line 2 , and that Sarakas first called out "Let's go" about 6:40. According to this testimony, Sarakas was setting up line 2 for about 7 minutes before calling Courtway and Hurt about 6:40--contrary to Sarakas' testimony that she called them "exactly at 6:30" when she first went to the production line. A few moments later, apparently recalling contrary testimony by Sarakas , Brown changed her testimony and claimed that Sarakas' first call was at 6:30 (as Sarakas had testified), the second call about 6:40, the third call about 6:45, and the fourth one about 6:50. (When thus changing her testimony about the timing of the first call to work, Brown further contradicted Sarakas' story . Whereas Sarakas had testified that she called the employees at 6:30 and the second time about 6 :55, 25 minutes later, Brown was then testifying that there were second, third, and fourth calls between about 6:40 and 6 :50.) Although Brown (who gave much other conflicting testimony) denied knowing when Courtway and Hurt went into the locker room, she indicated that Sarakas called them while they were in the locker room by testifying that Sarakas called "the fifth time" when "Cindy [Ratican] was already there, and they came out . . . of the bathroom at that time" and asked Sarakas if they should "come out naked or something." Company witness Ratican, who arrived at work at 6:50 that morning, corroborated General Counsel witnesses' testimony that Sarakas called to Courtway and Hurt three times after they were in the locker room . She testified that while they were there , she heard Sarakas call out twice, "Let's go to work," and then the next time , "they were coming out of the bathroom about halfway dressed, and she said, `Just don't bother, just go home . . . . You don't want to work.' " (Thus, they were then told to go home, not before they entered the locker room as Sarakas testified.) However, in an apparent attempt to support Sarakas' testimony, Ratican claimed that these three calls were made after 7 o'clock, and that she heard Sarakas call earlier at 6:55 and 6 :58 (the exact times given by Sarakas). But by so testifying, she was claiming that she was present, but did not hear, Sarakas' purported 7 o'clock call, when Sarakas claimed she told Courtway and Hurt to go home before they entered the locker room . Contrary to Sarakas' claim that Brown and Ratican "were running the line" when Courtway and Hurt went to the locker room to change clothes, Brown testified that when they returned from the locker room and were sent home , "I was getting ready to set up my machine" on line 1 . (Emphasis supplied.) She also testified that lines I and 2 usually started at the same time. I also note that Ratican, who claimed that she heard a total of five calls to Courtway and Hurt , testified that when she purportedly heard the first of these five about 6 : 55, she looked and saw Daniels in the kitchen -contrary to the testimony by Sarakas, as well as by Courtway, Hurt, and Daniels, that Daniels had left the kitchen to talk to Marshall. c. Findings of what happened Clearly, Manager Sarakas was giving a fabricated story of what happened on April 27, the morning after employees Courtway and Hurt spoke up in favor of the Umon in their talks with Treasurer Harold Davidson the week before the election . She testified that it was "exactly at 6:30" when she first called them to work, after she had had coffee in her office with employee Brown from about 6:15 to 6 :29. But if she did have coffee with Brown for about 14 minutes, and if Brown's initial testimony was correct-that Sarakas spent about 7 minutes setting up line 2 before Sarakas first called Courtway and Hurt-the lapse of those 21 minutes after 6 :30 (when Brown conceded she clocked in) would place Sarakas' first call about 6:51, approximately the time Courtway , Hurt, and Daniels testified that Sarakas first shouted for Courtway and Hurt in the locker room to come to work . I find that Sarakas' testimony (given twice) that it was "exactly at 6:30" was a fabrication, and I credit the testimony of Courtway, Hurt, PLASTIC SEALERS 27 and Daniels (who impressed me as being honest, forthright witnesses). It is also clear that Sarakas' testimony is false that she waited about 25 minutes between her first and second calls and that after a total of about 30 minutes, during which time she received no response from her four calls, she told them "not to bother, just to get their cards and go home"-before they went to the locker room to change into their work clothes. I also discredit her testimony about the employees never having gone to work after 6 :45, and her claim that the line employees had always changed clothes before having coffee. In its brief, the Company argues that Manager Sarakas "straightforwardly made a number of admissions which were obviously damaging to her Company's case" (refer- ring to certain 8(a)(1) allegations), and submits that she is "entitled to be believed." However, as pointed out above, all the 8(a)(1) allegations were initially denied, and the remedy for her belatedly admitted misconduct involves only a cease and desist order and notice. Far from crediting her, I find that the documentary evidence (the timecards), the contradictory testimony by other company witnesses, and the implausibility of her testimony, as well as the credited testimony by Courtway, Hurt, and Daniels, tend to indicate deliberate and flagrant falsification of her testimony, given in an attempt to prevent a certification of the Union and to frustrate the policies of the Act. I therefore recommend that the Board give consideration to referring her testimony to the Justice Department of the United States. Accordingly, I find that Manager Sarakas did not call for Courtway and Hurt to come to work until after they were already changing clothes in the locker room . Her motiva- tion for discharging them, while offering Daniels reinstate- ment without loss of pay, is discussed later. 3. Purported prior warnings a. The setting Some friction had arisen in the plant following Manager Sarakas' illegal response (threats of discharge, interroga- tion, restriction on breaks, etc., discussed above) when she learned about the union drive. In March, before Manager Sarakas' knowledge of the union activity, lab employee Hurt had notified her that he was going into the Air Force on May 19. She assigned him to training lineworker LaVerne Daniels to do the lab work. However, after Sarakas learned about Daniels' union activity and threatened her with discharge, Sarakas hired another employee and ordered Hurt to train the new employee instead . Hurt refused and complained to Sales Manager Howard Davidson , "I was training LaVerne" and "had her most all the way trained except for a certain part of the test, and then this union thing came up, and Marge knew that LaVerne was in on it, so she wasn't going to let her do the lab part . . . . I didn't think it was right for her to take her off of the lab because of the Union." Davidson told Hurt that he would have to train the new employee or be discharged . Hurt proceeded to train him, and thereafter worked about half of the time downstairs on the line until the discharge. There was also the complaint that Manager Sarakas was not treating employees fairly and equally . Employee Daniels testified that Sarakas was giving favored treatment to employees Peggy Brown and Cynthia Ratican (company witnesses), and to Larry Voidanoff (who, as Sarakas told proumon employees Hurt, Daniels, and Shirley Ansleman, had advised her of their union activity). On March 29 or 30, when Sales Manager Davidson met with the employees and solicited their complaints , Daniels complained to him about a 240-pound man (Voidanoff) being allowed to sit in the office with Sarakas "eating sardines and crackers" whenever the line broke down , whereas Sarakas would tell Daniels, upon seeing her sit down for a cigarette or cup of coffee, "Get off your G . D. a- and make boxes." As already discussed, Brown was having coffee with Sarakas, instead of with the prounion employees, on the morning of the April 27 discharges. In late March, when Manager Sarakas cut the employ- ees' breaks to 10 minutes as a reprisal for the union activity, employee Courtway put the extruder down into low after Sarakas had placed it in second gear , "because the union matters started coming up" and Sarakas "started cutting down the breaks." No disciplinary action was taken on that occasion, or on the one occasion when employee Hurt refused to carry part of a batch by hand when the towmotor broke down, and Sarakas did it herself. With the exception of the one time when employee Hurt was protesting the asserted unfairness (which I need not decide) of prounion employee Daniels being taken from the lab, there is no contention that the Company gave either Courtway or Hurt any warnings of discharge until shortly before their discharge on Thursday, April 27. b. Sarakas' testimony If Manager Sarakas' testimony is to be believed , she gave Courtway and Hurt repeated warnings on the four workdays, Friday, Monday, Tuesday, and Wednesday before that Thursday, April 27, when she claimed that they remained in the kitchen , ignoring her calls, for about 30 minutes. Sarakas testified that it was unusual to work on Friday (because of the 4-day week), but on Friday, April 21, Courtway and Hurt worked the full day on overtime. She testified that early that morning, "I just told [them] they were either going to have to follow instructions and do what I tell them to do, or I would take action against them." (Warning 1. There is no corroboration of this testimony, although Sarakas testified that company wit- nesses Brown and Ratican were present, as well as Daniels and Ansleman.) She claimed that later that day she contacted her attorney , told him about the problems she was having with the two employees , and received the advice that she should tell them "that they would either do what I told them to do or that disciplinary action could be taken against them." Then , "later on that day," she saw them "standing around not doing anything .... Their batch was ready . . . . I went up and asked them why the line weren't going." Neither one said anything . "I told them then that they were going to either follow my instructions, or I would take disciplinary action against them." (Warning 2.) According to her, they simply 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laughed, and stood there a full 3 or 4 minutes, doing nothing, while "I was standing there watching them," before they turned on the machine. I consider such purported defiance, without any response from her, to be implausible. Although she testified that "Miss Brown was present," as well as the other employees, there is no corroboration of this testimony. At the trial, both Courtway and Hurt disputed Sarakas' claim that they were working that Friday. Yet, she gave the detailed testimony about the employees working overtime that full day and about the two specific warnings. When the timecards for Courtway and Hurt were produced and placed in evidence after the close of trial, they revealed that the two employees did not work that Friday. Moreover, Sarakas at one point testified that the first warning was on the following Monday. Sarakas' initial testimony was that, on Monday, April 24, "I had to warn them again" around 7:30. "The batch was ready for them to run. They stood around talking." She went out, asked why the machine was not running, and "they never said anything." She told them, "Now, I'm tired of telling youse. I'm tired of warning youse, and every time the batch is up here, I got to come out here and tell you to start the machines." (Warning 3.) Then she testified, "That was the first warning " (Emphasis supplied.) She claimed that Hurt said, "That ain't my job," and Courtway said, "Wait a minute," neither giving any explanation. She also claimed that they stood there, looking at each other, for 2 minutes before they started up the line. (Employee Brown testified that about 7:15 that Monday morning, Courtway and Hurt "were getting ready to start their machine" when Sarakas came out and told them "they'd either better get the line on or she would have to do something about it." Thereafter Brown added, after having testified that they were "getting ready" to start, "They were standing there and cutting up.") Later on direct examination, Manager Sarakas gave testimony completely at odds with her claim that by early that Monday morning, she had given Courtway and Hurt three warnings in 2 workdays. She testified that during that week of the discharges, she believed that Monday, Courtway, Hurt, and employee LeRoy Mack were playing ball until 12:35 when she called them in. They said, "Just a minute." She said nothing, but waited a few minutes and called again. "Peggy [Brown] looked at me and I looked at Peggy, and then I went back out and called them again" the third time. "I helped Peggy on the line, and they got in about 20 minutes later," about 12:55 after having taken a total of 55 minutes for lunch. Then, ignoring her claim of prior warnings, she testified, "At this point I just didn't say anything because it wouldn't have done any good. " (Empha- sis supplied.) Courtway testified that there had been an occasion when the three of them were playing ball and they were on their last strike when Sarakas called. "About 2 or 3 minutes afterwards we just gave it up and walked in." Employee Brown testified that once when the three employees were playing ball, they did not return to work until about 12:45, after Sarakas had called twice, but this was about 2 weeks before their discharge. It is clear that Sarakas was being less than candid when she claimed that after she had warned them repeatedly, Courtway and Hurt took a 55-minute lunch break, despite her three calls, and that she then said nothing "because it wouldn't have done any good." (I note that earlier, Sarakas testified "there was just the one occasion where I did have to call [Courtway, Hurt, and Mack] three times before they did happen to come in," and this was "say maybe 3 or 4 weeks before" the discharges.) Manager Sarakas next gave clearly fabricated testimony, claiming that an incident, which had occurred weeks earlier, happened about 7:15 on Tuesday, April 25, 2 days before the discharges. She testified that she went out, told Courtway and Hurt to start the line up, and said, "I'm tired coming out and telling you . . . Now, I'm not going to warn you no more. I'm tired of it . . . When the batch is here, start the line up." (Warning 4.) Then she gave the revealing testimony, "I put it in second gear and walked into the office, and . . . about 2 or 3 minutes later . . . I looked out the window, and [the machine] went down in low [gear], and that's when I got the finger" (a vulgar gesture) from Courtway, who later went to her office and said, "We showed you. We put the machine in low." As previously found, this gear-lowering incident occurred in late March, when Courtway put the extruder back in low gear after Sarakas raised it to the second gear, after Sarakas "started cutting down the breaks" following her discovery of the union drive. Citing Courtway's testimony that this occurred about a month before the discharges, the Company argues in its brief that this is a "further example of the conduct displayed by Hurt and Courtway" to deliberately slow down their line. I consider it most likely that if this had occurred 2 days before the discharges, company witness Ratican would have so testified. Instead, she testified that the gear-lowering incident happened "about 2 weeks, possibly a week and a half before the boys were fired," and did not mention the purported finger gesture. I credit Courtway's denial that he made the gesture or told Sarakas, "We showed you," and discredit Brown's testimony about the incident as another fabrication to support Sarakas' testimony. Thus, when testifying that she had repeatedly warned Courtway and Hurt before their April 27 discharge, Sarakas claimed that a March incident happened on April 25, falsely added the details of a vulgar gesture and a defiant "We showed you," and testified that she gave them a final warning on that occasion. Manager Sarakas next testified that on the following day, April 26, she gave them a second final warning, after their talks with Treasurer Harold Davidson. She claimed that "again the batch was over there, and they were just standing around talking" to employees Daniel and Ansle- man. "I went out and told them, `This is the last time I'm going to say anything. It's the last time I'm going to warn youse. You either do what I tell you to do, or this is going to be it. I'll have to let you go . . . . I wasn't going to put up with any more bulls-.' " (Warning 5.) She also gave the implausible testimony that "they laughed . . . like it was really a big joke," and continued to stand there talking for 5 minutes, during which time she "went back into [her] office." Yet, despite these purported five warnings, including two final warnings on April 25 and 26, Manager Sarakas testified that on April 27, she called Courtway and Hurt to PLASTIC SEALERS 29 work a total of four times, over about a 30-minute period, without any response, and finally told them not to bother but to go home-without any mention of prior warnings. I find that this testimony about repeated warnings is an afterthought. I credit the denials by Courtway and Hurt that Manager Sarakas warned them of discharge on any occasion during the week or two before their discharge, and that she gave them any of the warnings on the week of their discharge. I also discredit much of Manager Sarakas' other testimony about purported difficulties with Courtway and Hurt "after the union trouble." I specifically discredit her testimony that "very seldom would they make a box or even clean up around their lines unless you stood there and kept at them," and that "on several occasions I have talked to them about it" and their response was that, "It was either not my job, kiss my a-, or go to hell." When asked how often they would make such a response , she testified, "It would be about 600, 700 times I had this from these boys." When asked if this might be an exaggeration, she testified that it might, "but you take 10 hours of working all day long and having to come out of the office all the time and tell them what to do, and you get a smart answer every time you say something to them." (Company witness Ratican testified that once, in early April, Hurt was told to make boxes , and he made one box and returned to the lab. Company witness Brown testified that Hurt ordinarily made boxes for both production lines, and that at times she heard Courtway say something was not his job, but "I thought he was kidding." Neither Ratican nor Brown corroborated the purported cursing . I credit Courtway's testimony that he never refused to do any work which Sarakas assigned him, never refused to start a machine, and never told her to "kiss my a-," or cursed her.) I also discredit her testimony that she had to call Courtway, Hurt, and Mack two or three times "Almost every day" for a 3-week period to come in after lunch from playing ball. She later testified that she had no problem with Mack coming in except on the one occasion when they took so long, that he was "pretty good at coming in"-despite the fact that the three played ball together and came in together. Company witness Brown testified that she recalled "a couple times" when Sarakas had to call them twice before they came in. Although I have discredited Manager Sarakas' testimony that she repeatedly warned Courtway and Hurt on 4 workdays preceding their discharge, the evidence does show that when Treasurer Harold Davidson talked to them against unionization on April 26 , he cautioned them about certain things . He told Courtway that when Sarakas told him to do something, he had to do it. (Courtway's response was that he knew, "I never disobey.") Davidson mentioned the towmotor incident (in which Hurt , not Courtway, refused to carry the material by hand). Davidson told Hurt that he was a good worker but that he , Courtway, Daniels, and Ansleman (all prounion) were not getting out enough production , that they would have to get to work, and that "if we didn't want to follow Marge's orders and respect her wishes that we should get out." Davidson specifically mentioned coming in from lunch when called and, according to Davidson, the gear-changing incident. He did not mention a word about Sarakas having given them repeated warnings-or any warning-as undoubtedly he would have if she had in fact warned them for insubordina- tion or for flouting her instructions. I also note that even by Manager Sarakas' own testimony, she not only failed to mention the purported earlier warnings to Courtway and Hurt at the time she sent them home on April 27, but she failed to mention them that evening when , according to her testimony , Daniels asked why she had not been fired along with Courtway and Hurt. Sarakas claimed she answered, "LaVerne, I have never had any trouble with you. You have never talked back to me , and you're a good worker . . . . This is the reason that you were not fired." This purported conversa- tion may also be an afterthought . Earlier, before the Company decided that Daniels was not the instigator of the Union, Sarakas had accused her of not working and talking union on the job, and had threatened her with discharge. Also, Treasurer Davidson-obviously relying on what Sarakas had advised him-told employee Hurt on April 26 that Daniels, as well as Hurt, Courtway, and Ansleman, were not getting out enough production. As indicated above, Sarakas when testifying impressed me as being more concerned with giving a plausible defense than being candid. 4. Concluding findings The General Counsel's evidence indicates that by the time Treasurer Harold Davidson went to the plant and talked to the employees individually against the Union on April 26, the Company was planning to take some personnel actions to undercut the Union . The election was scheduled for May 4, and only 8 days remained in its antiunion campaign, which had already included repeated threats of plant closure, threats of discharge, reprisals, and promises of benefits. About a week before Davidson's arrival , Manager Sarakas had given indications of the Company's plans by telling employee LaVerne Daniels in her home that the Company had changed its mind about her being the union instigator, and that she should listen and watch everything Sarakas did because "there was going to be some changes made." Sometime earlier, employee Joseph Hurt had affirmed his support of the Union, despite the Company's antiunion campaign. From the content of what Davidson told the employees in the individual talks , it is clear that Sarakas had reported to him certain things which had happened several weeks earlier when she temporarily cut down on the employees' breaks and took Daniels from the lab (the gear-changing and refusal-to-train incidents), the towmotor-breakdown incident, the employees' failure to return from lunch promptly upon being called (after Sarakas again permitted longer lunch breaks ), and Sarakas' claim that four of the proumon line employees were not getting out enough production. In these individual talks between Davidson and the employees, only Courtway and Hurt became "argumenta- tive" and spoke up for the Union, indicating their continued union support. Both were discharged the next day, and 2 weeks later, when an employee complained about them being discharged unfairly, Davidson explained 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their discharge by stating that they "got smart with me"-thereby linking their discharge to their speaking up. On April 27 (the morning after the talks), as credited evidence shows, Manager Sarakas failed to notify the prounion employees that she planned to start production early running slugs. She waited until Courtway and Hurt were changing clothes and then repeatedly shouted for them to come to work and sent them home when they rushed from the locker room, telling them that they did not want to work. Later that day, after getting the approval of Treasurer Davidson (who undoubtedly had reported to her the day before about their continued union support), Sarakas discharged them. In an effort to defend her actions at the trial, Manager Sarakas gave a fabricated story that she called them four times without response in about a 30-minute period, and then told them not to bother but to go home, before they went to the locker room. Both of the employees who were called by the Company as corroborating witnesses contra- dicted this story. Sarakas also claimed that she had given Courtway and Hurt five warnings-the last two final warnings-during the preceding 4 workdays. But she made no mention of the warnings at the time. She said nothing about them to the employees when she sent them home, nor to employee Daniels, whom she testified she also sent home but later offered full reinstatement, explaining that Daniels had not given her any trouble. Having concluded that the General Counsel has proved facts indicating that the Company was discnmmatonly motivated in discharging the two union supporters, and having discredited Manager Sarakas' clearly fabricated version of what happened on the morning of the discharges as well as her claim that she had given them repeated warnings, I find that her real reason for discharging Courtway and Hurt was to eliminate their prounion votes at the upcoming election. I also find that the real reason she reinstated employee LaVerne Daniels was the belief, after talking to her in her home about a week earlier, that she would forsake the Union and vote against union representation in the election. Accordingly, I find that the Company discnminatonly discharged Courtway and Hurt, in violation of Section 8(a)(3) and (1) of the Act. III. REPRESENTATION PROCEEDING In the May 4 election, the employees voted four for and four against union representation, with three challenged ballots. Having found that employees Donald Courtway and Joseph Hurt were discriminatorily discharged on April 27, I find that they were entitled to vote in the election, and I overrule the Company's challenge to their ballots. There being no exceptions taken to the Regional Director's June 7 Report on Challenged Ballots recom- mending that the Union's challenge to the ballot of employee Florence Bankhead be overruled, I overrule that challenge also. CONCLUSIONS OF LAW 1. By discharging Donald Courtway and Joseph Hurt on April 27 because of their support of the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By threatening to discharge employees and to close and move the plant because of union activities, by coercively interrogating employees, by creating the impres- sion that it engaged in surveillance of employees' union activities, and by taking reprisals against the employees, the Company violated Section 8(a)(1) of the Act. 3. By soliciting employee complaints and promising wage increases and other benefits in order to induce employees to abandon the Union, the Company further violated Section 8(a)(1). 4. The General Counsel has failed to prove that the Company unlawfully withheld employees' bonus checks in May because of the union activities. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged two employees, I find it necessary to order the Respondent to offer them full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date reinstatement is offered. Inasmuch as its unfair labor practices clearly demonstrate the Respondent's determination to frustrate its employees' organizational rights, I am convinced that there exists a substantial danger that the Respondent will in the future commit other violations of the Act. I therefore find it necessary to order the Respondent to cease and desist from infringing in any manner upon the employees' Section 7 rights. Upon the foregoing findings of fact, conclusions of law, the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 2 ORDER Respondent, Plastic Sealers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Miscellaneous Drivers and Helpers, Local Union No. 160, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. 2 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes PLASTIC SEALERS (b) Threatening to discharge any employee for engaging in union activities. (c) Threatening to close or move the plant if the Union comes in. (d) Coercively interrogating any employee about union support or union activities. (e) Creating the impression it engaged in surveillance of its employees' union activities. (f) Changing starting time or limiting morning, lunch, of afternoon breaks in reprisal for its employees engaging in union activities. (g) Soliciting employee complaints or promising benefits to induce employees to abandon a union. (h) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Donald Courtway and Joseph Hurt immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth m the "Remedy" section of this Decision. (b) Notify immediately the above-named individuals, 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in St. Louis, Missouri, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that Case 14-RC-6994 be remanded to the Regional Director to open and count the ballots of Donald Courtway, Joseph Hurt, and Florence Bankhead; to issue a revised talley of ballots; and to issue a certification of representative if Miscellaneous Drivers and Helpers, Local Union No. 160, affiliated with International Brotherhood of Teamsters, Chauffeurs, 31 Warehousemen and Helpers of America, has received a majority of the valid votes cast, or a certification of results of election if it has not. 3 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by discharging two employees for supporting a union, and by otherwise interfering with our employees' rights to join and support a union: WE WILL OFFER full reinstatement to Donald Courtway and Joseph Hurt, with backpay plus 6 percent interest. WE WILL NOT discharge any of you for supporting Teamsters Local 160 or any other union. WE WILL NOT threaten to discharge any of you for engaging in union activities. WE WILL NOT threaten to close or move our plant if the Union comes in. WE WILL NOT coercively question you about union support or union activities. WE WILL NOT imply that we have engaged in surveillance of your union activities. WE WILL NOT limit your breaks or take other reprisals for your supporting the Union. WE WILL NOT promise you any benefits for dropping your support of the Union. WE WILL NOT unlawfully interfere with your union activities. PLASTIC SEALERS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individuals, 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, 210 North 12th Blvd., Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.