International Chemical Workers

INTERNATIONAL CHEMICAL WORKERS 341 International Chemical Workers Union, AFL- CIO-CLC and Office and Professional Em- ployees International Union, Local 17, AFL-CIO. Case 8-CA-6859 November 17, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 12, 1972, Administrative Law Judge I Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her 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 Respondent, International Chemi- cal Workers Union, AFL-CIO-CLC, Akron, Ohio, its officer, agents, and representatives, shall take the action set forth in said recommended Order. , The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge and an amended charge filed respectively on February 8 and on March 6, 1972, by Office and Professional Employees International Union, Local 17, AFL-CIO, referred to herein as the Charging Union, the General Counsel, by the Regional Director for Region 8 (Cleve- land, Ohio), issued a complaint on March 10, 1972. The complaint alleges in substance that International Chemical Workers Union, AFL-CIO-CLC, herein called the Re- spondent or the Respondent Union, made a promise of benefit to an employee if he would refrain from joining the Charging Union; threatened an employee with layoff if he engaged in activity on behalf of the Charging Union; and failed and refused to recall Ryan C. Wise, an employee who had been laid off for lack of work, to fill openings when they occurred, because of his membership in the Charging Union or other protected concerted activity; and thereby violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent admits that after the layoffs it recalled an employee with less seniority, hired a new employee, and did not recall Wise; asserts that, while the immediate reason for the layoff of Wise was lack of work, he was not recalled because his work record had not been satisfactory; and denies the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held before the Trial Examiner at Akron, Ohio, on April 25, 1972. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Subsequent to the hearing, briefs were filed by the General Counsel and by the Respondent which have been duly considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent Union, the employer herein, is now, and has been at all times material herein, a labor organization which has more than 86,000 members in 400 local unions throughout the United States and Canada. The annual dues remitted to its headquarters in Akron, Ohio, from local unions in various States of the United States and in Canada, total in excess of $300,000 a year. The Respondent remits insurance premiums annually totaling in excess of $50,000 directly to insurance compa- nies in States other than Ohio. Its membership consists for the most part of employees in chemical industry plants that either ship or receive products directly across State lines of a value in excess of $50,000 annually. I find, as the complaint alleges and the Respondent in its answer admits, that the Respondent has been, at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE CHARGING UNION I find, as the complaint alleges and the Respondent's answer admits, that Office and Professional Employees International Union, Local 17, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The Respondent owns the Mitchell Building in Akron, which is occupied in part by the Respondent's headquar- ters and in part by various tenants. The Charging Union was the contractual representative of a unit of the Respondent's employees working in this building. Wise was employed as a janitor in this building from June 25, 1971, until his layoff on or about October 30, 1971. There is no contention that the layoff of Wise was discriminatory. The General Counsel contends, however, that Jean Buechler, the maintenance superintendent, who is an admitted supervisor and agent of the Respondent, made a 200 NLRB No. 55 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promise of benefit to Wise if he refrained from joining the Charging Union, threatened him with layoff if he became a member or engaged in activity on behalf of the Charging Union, and on or about January 10, 1972, failed and refused to recall him when work was available because of Wise's membership in or activity on behalf of the Charging Union. The Respondent denies that any unlawful promise of benefit or threat was made, and maintains that, when work became available subsequent to the layoffs, it recalled an employee with less seniority than Wise and hired a new employee, and did not recall Wise, because his work had not been satisfactory. B. The Union Relationships The Charging Union has since about 1954 represented a unit of the Respondent's office clerical and janitorial employees. On November 22, 1971, the International Chemical Workers Representatives Union, an independent union which was the contractual bargaining representative of the Respondent's field staff, filed a petition for an election in the unit represented by the Charging Union, which intervened in the election proceeding. On December 29, the Acting Regional Director for Region 8 directed elections in separate units of office clerical and mainte- nance employees, and the elections were held on February 10, 1972. The ballots were impounded because of charges that were filed, including those herein involved. The results of these elections had not been determined at the time of the instant hearing. The Charging Union had a collective-bargaining agree- ment with the Respondent, effective by its terms until February 16, 1972, which contained a union-security provision requiring employees to join the Charging Union after 30 days of employment. It was customary, however, for new employees of the Respondent to work 60 days of a probationary period, and for the Respondent then to request and be granted a 30-day extension of the effective date of the union-security provision, so that the probation- ary period extended to 90 days. Before the expiration of the 90-day period, the probationary employee was given a physical examination, and at the expiration of the 90 days was required to join the Charging Union. At the time of the hearing herein, Thomas Boyle was president of the Respondent, John Gratz was secretary- treasurer of the Respondent and of the building corpora- tion, and Larry McKelvey was Gratz's assistant.' Gratz was in charge of all personnel of the Mitchell Building, including the janitors. The janitors worked under the immediate supervision of Buechler, who was the superin- tendent of the Mitchell Building and of other property of the Respondent in the area. Buechler, who reports to Gratz or to Gregg Barris, the Respondent's director of properties, hires and discharges maintenance employees subject to postapproval by Gratz. Matters arising under the Charging 1 Neither Boyle nor McKelvey was called as a witness. 2 Mary Boyle is not related to the Respondent's President Boyle. 3 Sommerfield admitted that while she heard of complaints and protests about failure to get premium pay in accordance with the contract, she had no knowledge of any employee in fact failing to get such pay. 4 It was stipulated at the hearing that the following individuals were hired by the Respondent as maintenance employees on the dates indicated: Union's contract were taken up with the Respondent at times by Irene Sommerfield, business representative of the Charging Union, who has been associated with that organization since its inception in about 1954, and by Mary Boyle, secretary to the Respondent's director of collective bargaining, who was a steward in the Charging Union.2 Gratz testified that the Respondent's relations with the Charging Union were "Very good," while Sommerfield and Mary Boyle maintained that this relationship was "Very pleasant until 1971." Both testified about problems that arose in the maintenance department since the move into the Mitchell Building due in part to the fact, as testified by Sommerfield, that the Respondent "did not want to pay premium pay for Saturdays although it was under the existing contract. Holidays-there was a problem on holidays-having people come in and not wanting to pay premium pay. It was just those kinds of things all the time." 3 Sommerfield also testified that on August 17, 1971, she took up with Buechler a letter she had received, signed by employees in the maintenance department, regarding various matters including hours and work on Saturdays, and that Buechler responded that he did not think the men should get extra pay for Saturday, and that "I am not going to have any Union tell me what to do." C. Respondent's Employment of Wise Wise, who was attending college and paying his own expenses, had been employed for about a year in Foley's Restaurant, where he became acquainted with Boyle, president of the Respondent. Wise testified that Boyle was going to try to get him a job at B. F. Goodrich but the personnel manager was out of town, and a job became available in the meantime in the maintenance department of the Mitchell Building. Gratz, who testified that Boyle requested that Wise be hired "because he was a friend of his whom he had met in a restaurant and he was impressed with him," checked with Buechler, who agreed he could use another janitor. Boyle called Wise to his office, where Wise met Gratz and Buechler. Buechler had Wise make out an application, and told him about the job and the employee benefits. He called Wise that evening, a Thursday, and Wise began work as a janitor in the Mitchell Building on Friday evening, June 25, 1971. As two jobs were open at the time , James Sisler was hired as a janitor on June 30.4 Gratz testified that Jesse McCollam, a janitor, had been terminated because he came to work intoxicated on June 23, was sent home by Buechler and told to come back the next day in better condition, and "failed to report for several days; so, we let him go"; that at the urging of the Charging Union's grievance committee to give McCollam another chance, the Respondent reinstated him after both Wise and Sisler had been hired; and that "we decided to operate with the extra man Gary Bartholomew, hired 6-14-71, suspended for week ending 1-15-72 Ryan Wise, hired 6-25-71, laid off 10-30-71 James Sisler, hired 6-30-71, laid off 10-30-71, recalled 1-10-72 Paul Drope, hired 1 -13-72, quit 4-21-72 At the time of the hearing, Gratz testified, there were six maintenance employees, Drope, the seventh, having recently quit. INTERNATIONAL CHEMICAL WORKERS 343 because, as employers, we didn't have any confidence that McCollam would last more than 30 days." In any event, Gratz testified, there was for a time considerable extra work on building alterations for new tenants. It was stipulated that Wise worked a 40-hour week during the entire period of his employment, on a 4:30 p.m. to I a.m. shift Monday through Friday. His duties were to clean tenants' offices. He worked with another janitor, Bartholo- mew, a few weeks, and then was assigned to his own floor, and from time to time was reassigned to different floors. Wise continued as a full-time college student while employed by the Respondent. D. Wise's Work Performance Buechler testified that there were many complaints about Wise's work and that he often spoke to Wise about this, and Gratz testified that Buechler reported to him that Wise was not doing his work properly. Wise admitted that Buechler had mentioned to him that certain areas on his floor had not been adequately dusted, and that he had received an oral reprimand, but he denied that he ever received a written reprimand. The oral reprimand resulted from an incident in which Wise, during his 6 p.m. break, went to a tenant's office and took two pieces of stationery and two envelopes from a secretary's desk, went to another tenant's office and typed letters to two car parts companies, and left the letters on a shelf in his closet where Buechler found them. According to Wise, Buechler called him to the office that night, asked where he got the stationery, and Wise told him. He also testified that Buechler said it was strictly against the rules to take anything from a tenant's office, that he told Buechler he was sorry, it would not happen again, and he did not realize it was so serious a matter, and that Buechler told him, "You could be fired for this ... If anything like this happens again, then you will lose your job." William Pfeiffer, one of the janitors,5 testified that he was told by Buechler about the stationery incident, that he took it upon himself to go to the tenant whose stationery had been taken and offer to reimburse him for it, but that the tenant rejected the offer and said it was not important. Wise and Pfeiffer thought this incident occurred sometime in July 1971. Buechler testified that he did not know why he went to Wise's closet or why he "was up on a ladder or standing up on a sink or I was up high anyway," and saw the envelopes; that he noted that they had a tenant's name crossed out, Wise's name typed in, and were unsealed, so he read the letters which were orders for car parts; and that he went to the tenant's office and asked the secretary if permission had been given to use the envelopes, and then "took the letter and went down through all of the offices to find out what typewriter had been used," and did find it; and that he "took it right up to Mr. Gratz' office to report my findings." Gratz testified that Buechler reported to him about finding the envelopes in Wise's closet. Asked what Buechler reported to him about this incident, Gratz made reference to tenants' reports of pilfering of office supplies, liquor, and other items, and that "there was not much we could do about it. We could not prove anything." Asked again what Buechler reported, Gratz stated that Buechler traced the envelopes in question to one tenant's office, the typewriter used to another tenant's office, and spoke to Wise about the matter. He did not recall Buechler telling him what Wise said. The secretary in the office from which the envelopes were taken testified, as a witness for the Respondent, with regard to complaints she made to Buechler about unsatis- factory cleaning work and about liquor, food, and other items taken from the office. She did not recall when or how often she complained about these matters, but was sure she and many other tenants complained frequently. The record indicates that some of her complaints about the cleaning were made before Wise was employed and some after Wise was laid off. Some complaints she made directly to the janitors, none of whose names she could recall. She testified that on one occasion Buechler showed her an envelope on which her employer's name had been crossed out and asked her to identify it, that she said it was from one of the desks in her office, and that that was her entire conversation with Buechler about it. The Respondent placed in evidence a memorandum from Buechler to Gratz, dated August 16, 1971, headed "RE: Ryan Wise" and "SUBJECT: Probationary Period," and reading as follows: 6 On or about July 15, 1971 Ryan Wise was late for work. He called in and said that he would be late. He was met here in our parking lot by a detective, and through the grapevine I learned that he allegedly was involved in stealing a motorcycle. I do not know the details or particulars about this, but at this time am reporting it as a matter of record. Also, it has come to my attention that in the areas where Ryan has been working, small items have been missing. I am making this report but am not accusing him of anything. I have no proof. The Respondent also placed in evidence a memorandum from Buechler to Wise, which is also dated August 16, with the heading "RE: Cleaning" and "SUBJECT: Complaint," and reading as follows: It has been called to my attention that the cleaning you have been doing hasn't been up to par. I hope that in the future I will have no further complaints concerning the areas in which you work. Both memoranda indicate that copies were sent to Boyle. Buechler apparently did not prepare a memorandum about the envelope incident, and he and Gratz were unable to recall when it occurred. Buechler admitted that it occurred in any event during Wise's probationary period, and he assumed that it was at some time after the "last warning" given Wise, which was the one about the motorcycle incident. As that "warning" and Buechler's memorandum addressed to Wise are both dated August 16, Buechler assumed the envelope incident was at a later date 5 Pfeiffer, who began working for the Respondent on March 2, 1970, was 6 Counsel for the Respondent stated at the hearing that this document accused of drinking and leaving the building for extended periods, and was was being placed in evidence not for the truth of its contents but only to discharged on January 10, 1972. He was working elsewhere at the time of show that such a report was made to Gratz. the instant hearing. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or, he testified, it would also have been brought up on August 16. There is no indication, however, that the memorandum about the motorcycle incident, addressed from Buechler to Gratz, was called to Wise's attention, and Wise denied that he received the written reprimand addressed to him from Buechler. Buechler, asked on cross- examination by the General Counsel if he ever handed this memorandum to Wise, testified as follows: A. My habit was putting it on their time cards-pin- ning it on with a paper clip. Q. You did not hand this to him directly; is that correct? A. I do not recall handing it to him directly. He must have received it, or I would have followed up on it. Q. Do you know for a fact that he received it? A. I couldn't swear to it, no. Mary Boyle, recalled by the General Counsel as a rebuttal witness, testified that it was the practice of the Respondent to submit to her as steward "any written reprimands ever given to any employees," and that she had never before seen the memorandum from Buechler to Wise. Finally, Buechler admitted that he made oral complaints about the work not only to Wise but also to other maintenance employees, and that "most of the employees, from time to time, get such memorandums," some more than one. E. Wise's Employee Status Gratz testified that on about September 5, 1971, after Wise and Sisler had worked about 60 days, he and Buechler decided they would retain Sisler, if there was work available, at the end of his 90-day probationary period. He also testified that they "had more pertinent and important discussions with respect to Ryan Wise .. . Buechler talked to me first because we had this general feeling about what the tenants said and what his problems were with Wise," and that both were concerned as to the effect on Boyle "because he was a friend" of Wise. As Gratz further testified: So, we had to go in and tell Mr. Boyle about what was happening, and it became my feeling that we couldn't put in Ryan Wise on permanently and that we didn't want to deprive him of an opportunity to earn money because we thought he was going to school and would be leaving and the job was running out and that would be it for Wise. The decision was we would keep Wise on as a temporary employee and not be concerned with the probationary period. We would keep him on as a temporary employee, a part-time employee. We felt that, because of our need for the work-from our experience, sometimes we would bring in Manpow- er for several days-we would use him on that basis rather than Manpower and that that, in effect, it was really temporary although we referred to it as part time .. . That was the only way the part time came in with my discussions with Mr. Buechler, and, whether he gave that same kind of information to Wise, I don't know. Gratz also testified that he asked Buechler to explain to Wise the decision to change his status to part time, and that Buechler reported back that Wise agreed. Gratz admitted, however, that no report was made to the Charging Union of this decision to change Wise's status, although the Respondent, in accord with its practice, had requested, and been granted, a 30-day extension for Wise after he completed 60 days of the probationary period. Buechler testified that his discussions with Gratz about Sisler and Wise occurred because both employees were approaching the end of their probationary periods and "I wanted to know if I should give them both a physical"; that he and Gratz decided that Sisler would be given his physical examination and "would go on full time and join the Union"; but that, after discussing the matter with Boyle, it was agreed that Wise would not be put on full time and that Buechler should ask if Wise would agree to those conditions. Buechler testified as to the reasons that "we didn't feel his character was quite up to par and yet it wasn't enough to fire him right out. We didn't have no concrete evidence." Sommerfield testified that at about this time she met Buechler on the elevator and, at his suggestion, they went to the coffeeroom, where they had the following conversa- tion: We were discussing Saturday work . Mr. Buechler didn't want to pay premium pay to the Saturday work, and he said, "I will only be able to use Ryan Wise on Saturdays." I said, "Why," and he said, "Because he won't belong to the Union. He is only part time." I said that I just learned he was working full time. He said, "He is a student and working part time and can't belong to the Union." I questioned him further, and he said, "He will not became a member," and he said, "If he does, I will have to let him go. I do not want him to belong to any union." On the day after this conversation, Sommerfield, who tried unsuccessfully to reach Boyle and Gratz, discussed it on the telephone with McKelvey, assistant to Gratz, who said he would take it up with Boyle and Gratz as soon as he could. Wise completed his 90-day probationary period on September 27. When Wise and Pfeiffer went into Bue- chler's office on that day to punch the timeclock, Pfeiffer noticed on Buechler's desk two appointments for physical examinations, and called Wise's attention to the fact that they were for Bartholomew and for Sisler, and that there was none for Wise who was senior to Sisler . Buechler at about this time entered the office, and Pfeiffer asked him about Wise's physical examination . Wise testified that Buechler replied, "I was about to talk to Ryan about that," and said further, "Well, Ryan, since you are a full-time student and the most likely to quit first, you will still continue to work the 40 hours but be considered a part- time employee . . . If you join the Union, I will have to let INTERNATIONAL CHEMICAL WORKERS 345 you go because I have got too many men now." Pfeiffer testified to the same effect about this conversation. Buechler testified that no one else was present when he spoke to Wise as he never discussed such matters with an employee in the presence of others; that "Pfeiffer probably was in the office ahead of time, yes, but I probably asked him to leave the office" in order to talk to Wise privately; that he was not able to remember whether or not Pfeiffer was there; and, finally, that "I would not dispute his [Pfeiffer's] testimony, no." Buechler also testified that there was no discussion at all at this time about the Charging Union and that he had no discussion with Wise about joining or not joining at any time after that. Buechler continued, however, as follows: A. When I told him we wasn't going to put him on full time, I told him it would not be necessary for him to join the Union. Q. Did you tell him he would not be permitted to join the Union? A. I told him we wasn't going to have him join the Union. Q. What do you mean? A. That we wasn't demanding him to join the Union. TRIAL EXAMINER: What did you actually tell him at the time? THE WITNESS: I told him we would keep him on at part time status if he agreed and that we wasn't going to have him join the Union. We wasn't going to give him a physical and, otherwise, I would have to leave him go at that time. He agreed to stay on as part time. Buechler maintained that Wise agreed to continue working on these terms and that he so reported to Gratz, and Gratz testified that Buechler so reported to him. When pressed on cross-examination, however, as to what Wise said to indicate agreement, the only explanation Buechler gave was that when "he said Wise would be considered a part- time employee, Wise asked why, and that was all he remembered that Wise said. F. Wise's Membership in the Charging Union On September 27, Wise completed his 90-day probation and signed a membership card in the Charging Union. He was accompanied by Pfeiffer. Mary Boyle testified that Wise's membership became effective, and he went on the dues checkoff list, on September 27. Buechler testified that he was informed by one of the janitors, Nitzsche, that Wise had joined the Charging Union, that he was "quite disturbed" because "I thought that would put him on a full-time status, or I didn't know what to think," that he went to see Mary Boyle to confirm "If Ryan joined the Union or not," that he told her "we was only going to have him as a part-time employee," and that he also went to see Gratz and "told him that Ryan joined the Union." On the day after Wise became a member of the Charging Union, he and Buechler were in the coffee shop before Wise began work. Buechler asked Wise to come to his office where, as Wise testified, Buechler said, "I thought you and I had had an understanding that you would stay out of the Union after the 90 days probation," and he replied, "Well, in the contract part time is 30 hours and under, and I can work 40 hours; so, I am entitled to join the Union." Mary Boyle testified that after Wise became a member, Buechler came to her desk and the following conversation took place: Well, Mr. Buechler came up just about as soon as I got to work and was very upset about Ryan joining the Union. He told me he couldn't do it because he was a part-time employee, and I in turn told him he couldn't be considered a part time because he worked 40 hours and, according to our existing contract, the part-time employee worked under 30 hours. I pointed out the two probationary notices and that he had gone the full 90 days that they could discharge him and that the period had passed that he was, according to our contract, included in the Union. I told him, "You just can't point your finger at someone and say he is a part-time employee. We have a contract." Mary Boyle called Sommerfield and told her about this conversation. Sommerfield then telephoned Buechler and told him about Mary Boyle's call. According to Sommer- field, Buechler said, "I told Ryan Wise not to belong to the Union, and I told you to tell him not to join the Union"; she commented, "Why shouldn't he join? He has been here 90 days"; and he responded, "I told you-I told him and you to tell him not to join the Union at all." Sommerfield also testified, on cross-examination by the Respondent, that Buechler never objected to Sisler joining the Union or to any employee joining the Union other than Wise "Because he said he was part time and a student." Gratz testified that Buechler reported to hum that Wise had joined the Charging Union; that Buechler "was concerned about a lot of things with regard to the Union and he had heard it and he came to me and said, `Can Ryan Wise, as a part-time employee, join the Union?' "; and that he assured him Wise could do so. He also testified that he did not consider that Wise was required to join "Because he was temporary." G. The Layoff of Wise and Sisler On October 30, both Wise and Sister were called to the office and handed layoff notices by Buechler. According to wises testimony, Buechler said at this time, "I am sorry this has to happen but we have just got too many men, but, some time if the workload increases by mid December, we will be calling you back." The notices, dated October 29 and signed by Buechler, indicate copies went to T.E. Boyle, John Gratz, and Mary Boyle, and read as follows: Due to lack of work, we find it necessary to cut back on our maintenance personnel, consequently you will be laid off effective Friday, October 29, 1971. Should the work increase at some later date, and you were available, you would be considered for recall. Please turn in your keys, and any other ICWU property that you may have in your possession, to me. You will be paid one week's salary in lieu of notice. I regret that this action is necessary. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gratz testified that on about October 13 or 14, before he left on October 14 for a vacation of about 3 weeks followed by attendance at a conference, he and Buechler decided that the work would warrant reducing the maintenance crew in a week or two, and that the two newest people would be selected. Gratz also testified that the decision had been made that "when the time came to lay them off, we certainly were not going to call Ryan Wise back." He gave as the reasons for this decision "the thing that concerned us the most-that we had this pilfering," and the incident on the parking lot. He also testified, in regard to the pilfering reports, that Wise was not terminated before the end of his probationary period because "we didn't have proof of who it was that was involved in any pilfering and we just didn't see any reason to terminate him when we needed a man." Gratz admitted, on cross-examination, that the only reports as to pilfering, prior to the decision to change Wise's status to part time, were made by Buechler, that he did not know for a time which employee Buechler was referring to or whether more than one was involved, and that he never discussed this matter with Wise nor had any conversation with Wise after the introductory meeting in Boyle's office. Gratz also testified that at one time Buechler reported to him that the night crew was leaving early, that someone was clocking them out at quitting time, that "at one time he reported that they were coming out and he saw Ryan Wise about to leave and, when he saw Buechler, he went back"; and that Buechler issued an "official notice" to all maintenance personnel dated October 27, 1971, stating that "anyone caught leaving before his proper quitting time, or caught clocking out another person, will be discharged immediately." Gratz testified that he did not know of any other action taken in this matter. When Buechler was asked the reason for the layoff of Wise, he answered "For lack of work." He testified further that at the time of the layoff he had no intention to call Wise back if work became available. Although the layoff letter stated otherwise, Buechler explained, in his testimo- ny, that identical letters were written for Sister and Wise; that there was a desire to avoid causing hard feelings in view of Wise's connection with Boyle7 and to avoid damage to Wise's reputation; and that the layoff letters, although signed by Buechler, were written by someone else, possibly Barris or McKelvey. Buechler also testified that'he did not say anything to Wise about recalling him, that "I let the letter speak for itself." Sisler, who was recalled to work, testified, however, as did Wise, that Buechler told both of them they would be recalled if the work increased. H. Failure and Refusal to Recall Wise The Respondent offered to put Sisler back to work in December. He refused as the work offered was on a part- time basis and he preferred to remain on unemployment compensation. Thereafter Sisler was offered his job back and he returned to work on January 10, 1972. Buechler also hired a new man, Drope, for the late shift on January 13, 1972. He had discharged Pfeiffer and McCollam and sought to fill the vacancies by recalling Sisler, hiring Drope, and on occasion during the period in question using personnel from Manpower. In December 1971 the Charging Union protested that Buechler had brought in men from Manpower when two of its members, Wise and Sisler, were still on layoff. At a meeting with Gratz and McKelvey on about December 22, Gratz told the Charging Union's representatives that work had been offered to Sisler, who was willing to come back on a full-time basis, but preferred to remain on unemploy- ment compensation than to return for part-time work. When Mary Boyle pointed out that Wise was senior to, and should be considered ahead of, Sisler, Gratz maintained that the Respondent's reason for not recalling Wise was confidential. The Charging Union's committee urged that some explanation had to be given to the members. As Gratz testified, when pressed for "better reasons than the confidential," he told the committee of the pilfering problem, after warning that the information must be kept confidential as "we had no proof of it," and stated that "we would not call him [Wise] back because, at that time, it had stopped. We felt we would not call him back positively by December." Mary Boyle asked for something in writing to show the membership but this was never furnished. She testified that in this discussion Gratz referred to Wise as a part-time employee, to which she responded that she had previously told Buechler that saying Wise was part-time did not make it so because Wise had worked a 40-hour week. The Charging Union filed a grievance with Boyle dated January 13, 1972, alleging discrimination against Wise in recalling Sisler and using Manpower personnel, and not recalling Wise, when work was available. Boyle replied, in a letter dated January 17, that grievances filed on behalf of Wise, and of Bartholomew, McCollam, and Pfeiffer, would not be considered because of failure to comply with the contract procedures requiring that these grievances be presented in writing to Buechler and then to Gratz before being presented to Boyle. There was no arbitration provision in the Charging Union's contract with the Respondent. Wise, who has never been recalled by the Respondent, since his layoff was employed again at Foley's Restaurant and later at B. F. Goodrich, where he was working at the time of the hearing. Gratz and Buechler both denied several times in their testimony that their actions regarding Wise had anything to do with Wise's membership in the Charging Union. Buechler, who testified that this job was his first experience with union relationships, also testified that he has told the maintenance employees that "I felt they should have a separate union from the girls upstairs and, if they didn't belong to any union at all, I thought the International Chemical Workers would treat them right. . . I felt they would be treated right if they didn't belong to any union at all." , There is no evidence that Boyle, who was kept informed of the actions of Buechler and Gratz regarding Wise, ever suggested any different treatment. INTERNATIONAL CHEMICAL WORKERS 347 Concluding Findings Wise impressed me as a candid and reliable witness, whereas both Gratz and Buechler appeared evasive and unconvincing in the presentation of their testimony. I therefore credit Wise where his testimony is in conflict with that of Gratz and Buechler. I also credit Sisler, whose testimony corroborative of Wise was against his own interest as the less senior employee recalled from layoff ahead of Wise. Further, I found Sommerfield and Mary Boyle, whose testimony was in large part undisputed, forthright and credible witnesses. Accordingly, on the basis of credited testimony, admissions by the Respondent's witnesses, and the record as a whole, I find that Buechler decided he would designate Wise as a part-time employee although Wise worked 40 hours a week and was a full-tune employee according to the contract terms. Buechler also decided, again contrary to the terms of the contract, that this precluded Wise from becoming a member of the Charging Union, which was the contractual representative. Accordingly, as he admittedly told Wise, "we would keep him on at part- time status if he agreed and that we wasn't going to have him join the Union . . . and, otherwise, I would have to leave him go at that time." Buechler also told the Charging Union's representatives that Wise was not to become a member. Wise, despite Buechler's promise to retain him if he did not join the Charging Union and threat to let him go if he did, signed a card and was admitted to membership in the Charging Union. Thereaf- ter Buechler laid off Wise for lack of work and said he would recall Wise if work became available. Buechler, however, failed and refused to recall Wise when work became available. While Wise admitted taking two pieces of stationery and envelopes from one tenant and typing two letters on the typewriter of another tenant, he promised never to engage in such conduct again, and it was treated as of no importance by the tenant whose stationery was taken. There was admittedly no proof that the incidents of pilfering to which Gratz and Buechler repeatedly made reference in their testimony were attributable to Wise, that Wise had any responsibility in the motorcycle incident, or that Wise's work was subjected to more criticism than that of other maintenance employees. Moreover, the record shows that the Respondent, while contending that Wise was not reemployable when it could point specifically only to the stationery incident, retained or rehired employees in spite of absenteeism, intoxication, and other derelictions of duty s Finally, the conduct to which the Respondent alludes in explaining its failure and refusal to recall Wise occurred during his probationary period. He was not terminated, however, until after he became a member of the Charging Union upon completion of his 90-day probation. In doing so, Wise disobeyed Buechier's direc- 8 See N LR.B. v. Melrose Processing Co., 351 F 2d 693 (C A 8), in which the Court commented that the fact that "employees guilty of far more serious offenses had not suffered the same fate . . , tends to indicate discrimination by the employer." 9 See N.L R.B. v. Copps Corp, 458 F.2d 1227 (CA. 7, April 1972), L H. C, Inc., 195 NLRB No. 181; Estee Mold and Die, Inc, 196 NLRB No 164. 10 See N.L R B. v. Mira-Pak, Inc, 354 F 2d 525, 527 (C.A 5), Dobbs tives, which were contrary to the contractual union- security provisions, that Wise was not to become a member of the Charging Union. Accordingly, I conclude and find, on the evidence in its entirety, that the Respondent promised to retain Wise if he refrained from joining the Charging Union; threatened him with -termination if he joined; laid him off with the intention not to recall him if work became available; and, when work became available, recalled an employee with less seniority than Wise and hired a new employee, but failed and refused to recall Wise, because Wise had disregarded the Respondent's promise and threat and became a member of the Charging Union. I am convinced, in all the circumstances of this case, and find, that the reasons asserted by the Respondent for its failure and refusal to recall Wise are unsupported by credible or probative evidence; that to the extent they are based on his status as a student, or on its designation of him as a part- time or temporary employee, they have no merit; 9 and that they are clearly pretextual.10 In conclusion, therefore, I find that the Respondent has discriminated with regard to the terms and conditions of employment of Wise, and thereby, by making a threat and a promise of benefit to him conditioned upon his membership in the Charging Union, has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) and (3) of the Act.11 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,12 and that it take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent failed and refused to recall Ryan C. Wise from layoff in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent be directed to offer Wise immediate recall to his former job or, if it is no longer in existence, to a substantially equivalent position, without prejudice to his Houses, 182 NLRB 675; Estee Mold and Die, Inc., supra. 11 N LR B. v. Texas Bolt Co., 313 F 2d 761 (C.A. 5), N.LR B. v. Melrose Processing Co, supra, Great Atlantic & Pacific Tea Co. v. N.LR.B., 354 F.2d 707 (CA. 5); Harper & Row Publishers, Inc., 196 NLRB No. 50; National Utility Service, Inc., 196 NLRB No. 168; D. H. Farms Co., 197 NLRB No. 47. 12 N LR.B. v. Express Publishing Company, 312 U.S. 416,437; N.LR.B. v Entwistle Mfg. Co., 120 F.2d 532, 536 (CA. 4). 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discriminatory failure or refusal to recall him,13 by payment of a sum of money equal to that which he would normally have earned as wages from the date on which Wise would have been recalled to work absent any discrimination against him 14 to the date on which the Respondent shall offer to recall him, less his net earnings during said period. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, International Chemical Workers Union, AFL-CIO-CLC, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 17, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to recall Ryan C. Wise from layoff when work became available because of his membership in the Charging Union, the Respondent has discriminated in regard to the hire and tenure of its employees, in violation of Section 8(a)(3) and (1) of the Act. 4. By promising to retain Wise if he refrained from joining the Charging Union, and by threatening to terminate him if he joined, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the 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: 15 ORDER The Respondent , International Chemical Workers Un- ion, AFL-CIO-CLC, Akron, Ohio, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing or refusing to recall Ryan C. Wise or any other employee from layoff when work becomes available, or otherwise discriminating against its employees in regard to their hire or tenure of employment, in order to discourage membership in or activity on behalf of Office and Professional Employees International Union, Local 17, AFL-CIO, or any other labor organization. (b) Making promises of benefit or threats of reprisal to its employees in order to induce or coerce them into giving up their membership in or activity on behalf of Office and Professional Employees International Union , Local 17, AFL-CIO. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Ryan C. Wise immediate recall to his former job or, if it is no longer in existence, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Ryan C. Wise, if at present serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Post at its headquarters in Akron, Ohio, and all places where notices to its employees are customarily posted, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by the Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.17 13 Estee Mold and Die, Inc., supra. 14 Sister, who was laid off at the same time as Wise and had less seniority than Wise, was recalled and returned to work on January 10, 1972. The record shows, however, that prior thereto Sister was recalled for part-time work but rejected it, and that the Respondent used some Manpower personnel during this period. I shall, therefore, leave the date on which Wise would have been recalled on a nondiscriminatory basis for determination at the compliance stage of this proceeding or, if agreement is not reached on this matter, in a backpay proceeding. 15 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall , as provided in Sec. 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. 16 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." 17 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read: "Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to recall Ryan C. Wise or any other employee from layoff when work becomes INTERNATIONAL CHEMICAL WORKERS available, or otherwise discriminate against our em- ployees in regard to their hire or tenure of employment, in order to discourage membership in or activity on behalf of Office and Professional Employees Interna- tional Union, Local 17, AFL-CIO. WE WILL NOT make promises of benefit or threats of reprisal to our employees in order to induce or coerce them into giving up their membership in or activity on behalf of Office and Professional Employees Interna- tional Union, Local 17, AFL-CIO, or in any other manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer Ryan C. Wise immediate recall to his former job or, if it is no longer in existence, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and WE WILL pay him for any loss of earnings he may have suffered as a result of our discrimination against him, together with interest thereon at 6 percent per annum. Dated By 349 INTERNATIONAL CHEMICAL WORKERS UNION, AFL-CIO-CLC (Employer) (Representative) (Title) WE WILL NOTIFY Ryan C. Wise, if at present serving in the Armed Forces of the United States, of his 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. 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, 1695 Federal Office Building, 1240 E. Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3725.