Ohio Valley Graphic Arts, Inc.

OHIO VALLEY GRAPHIC ARTS, INC. Ohio Valley Graphic Arts, Inc. and Ronald D. Maurer. Case 9-CA-10881 January 26, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On September 27, 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, General Counsel and Charg- ing Party filed exceptions and a supporting brief, and Respondent filed a brief in support of the Adminis- trative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, find- ings,l and conclusions of the Administrative Law Judge as modified herein. The Administrative Law Judge found that the Respondent did not violate Section 8(a)(3) when it accelerated the discharge of Ronald Maurer. We disagree. The pertinent facts are fully set forth in the Administrative Law Judge's Decision. Briefly, Ron Maurer was hired by the Respondent as its plant superintendent in September 1975. In March 1976, he was relieved of his supervisory responsibilities and was assigned to quality control and maintenance work. Maurer neglected his quality control duties and consequently was relieved of those duties in August 1976.2 Thereafter, he worked full time on maintenance work. Commencing in the fall, the Respondent searched for someone to replace Maurer and as a result on December 3, 1976, it hired "Red" Mitchell to begin work as of December 13, 1976. On December 4 Maurer picked up authorization cards and union literature from Union Business Agent Carlotta. By 7 a.m. on December 7, 1976, Maurer had obtained signed authorization cards from a majority of the Respondent's employees. At approxi- mately 8 a.m., Maurer placed a union pamphlet on I The Charging Party 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 credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 All dates hereinafter are 1976, unless otherwise indicated. 3 The Administrative Law Judge found that Maurer would have been discharged on either Friday. December 10 or 17. We find that Respondent planned to discharge him on December 10, as the Respondent's president 234 NLRB No. 90 the timeclock and handed pamphlets to the supervi- sors, telling them that he was passing out literature. The Respondent's president, Vince Arcuri, dis- charged Maurer later that day. The Administrative Law Judge concludes that the Respondent would have lawfully terminated Maurer later in December3 but that it accelerated the discharge because of Maurer's actions on December 7. He correctly finds that ordinarily Maurer's con- duct would constitute protected concerted activity. However, he concludes that in the unique circum- stances of this case Maurer's actions of December 7 constituted neither union nor concerted activity. In reaching this conclusion, the Administrative Law Judge relied on the facts that Maurer did not consult with the Union or fellow employees before handing out the literature and that he was solely interested in contriving a situation whereby Respondent could not carry out its decision to discharge him without subjecting itself to an unfair labor practice charge and potential substantial backpay liability. The Administrative Law Judge's reliance on the fact that Maurer did not consult with the union or fellow employees prior to passing out the literature is misplaced. Employees promoting a union are by that action engaged in protected concerted activities, and individual acts in furtherance of that objective do not lose their protection merely because others are not consulted. As to his reliance on the fact that Maurer may have acted for personal reasons, that also does not affect the nature of his conduct. Employees act for a multitude of reasons in seeking union represen- tation, and such actions are protected without regard to the individual's motivation.4 Thus, unlike the Administrative Law Judge, we find nothing here which presents a unique set of circumstances warranting deviation from our usual approach in cases of this nature. Rather this is a classic case of an employee who becomes dissatisfied and therefore urges his fellow employees to seek union representation with the result that the employ- er takes retaliatory action. The only difference from the typical case is that here the Employer's action only had the effect of accelerating an already planned discharge. However, that difference affects only the remedy, not the illegality of the conduct. stated that he planned to replace Maurer prior to December 13, the day Mitchell started work, and would have let him go at the end of the week had he not been discharged on December 7. 4 Further, the Administrative Law Judge's statements with regard to Maurer's motives are mere speculation. Even if Maurer was acting solely out of personal interest, it is just as consistent to say that, in seeking union representation he sought to protect himself from what he perceived as an unjust discharge, as to say he was trying to prevent Respondent from carrying out the decision to discharge him without subjecting itself to an unfair labor practice charge. 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the acceleration of Maurer's discharge was discriminatorily motivated and therefore in violation of Section 8(a)(3) and (1) of the Act. REMEDY Having found that the Respondent violated Sec- tion 8(aX3) and (1) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action designated to effectuate the poli- cies of the Act. Having found that Ronald Maurer's discharge on December 7, 1976, was accelerated because of his union activities but that the Respondent intended to replace him on December 13, 1976, we shall not order that he be offered reinstatement, but only that he be made whole for any loss of earnings he may have suffered as a result of his discharge during the period commencing on December 7, 1976, and ending on December 10, 1976,5 by payment to him of a sum of money which equals that which he would have earned during said period, less net earnings, with backpay to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ohio Valley Graphic Arts, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discharging or otherwise discriminating against employees for supporting or engaging in activities on behalf of Teamsters Local No. 105, or any other labor organization. (b) Interrogating employees concerning their own or other employees' membership in, activities on behalf of, or sympathy for Teamsters Local No. 105, or any other labor organization. (c) Soliciting employees' signatures on antiunion petitions. (d) Threatening employees that they or any of their fellow employees might be laid off if they choose to be represented by a union. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights to organize, to form, to join, or to assist labor organizations, including said Union, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Make Ronald Maurer whole for any loss of pay suffered by reason of the discrimination against him, in accordance with the provisions set forth in the Remedy. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plants in Cincinnati, Ohio, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 Jack W. Sellers, Virginia Sellers Roper, Gladys Sellers, and L H. Penney, Co-partners, d/b/a Coca-Cola Bottling Company of Sacranmento, et al., 146 NLRB 1045, 1057(1964). * See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following. WE WILL NOT discharge or otherwise discrimi- nate against employees for supporting or engag- ing in activities on behalf of Teamsters Local No. 105, or any other labor organization. WE WILL NOT interrogate employees concern- ing their own or other employees' membership in, 494 OHIO VALLEY GRAPHIC ARTS, INC. activities on behalf of, or sympathy for Teamsters Local No. 105, or any other labor organization. WE WILL NOT solicit employees' signatures on antiunion petitions. WE WILL NOT threaten employees that they or any of their fellow employees might be laid off if they choose to be represented by a union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to organize, to form, join, or assist labor organizations, including Teamsters Local No. 105, to bargain collectively through represen- tatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL make Ronald Maurer whole for any loss of pay he sustained as a result of the discrimination against him, with interest, from the date of his unlawful discharge to the date on which he would in any event have been lawfully discharged. OHIO VALLEY GRAPHIC ARTS, INC. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: This case was heard at Cincinnati, Ohio, on May 9, 10, I 11, and 27, 1977. The charge was filed on December 8, 1976, by Ronald D. Maurer, an individual. The complaint, which issued on January 31, 1977, and was amended at the hearing, alleges that Ohio Valley Graphic Arts, Inc. (herein the Company or Respondent), violated Section 8(a)(I) and (3) of the National Labor Relations Act, as amended. The gravamen of the complaint is that the Company allegedly discharged Maurer because of his union sympathies and activities, and by acts of interrogation, threats, and solicitation to disavow union support, further violated Section 8(aX)(). The Com- pany's answer denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs. Upon the entire record in this case and from my observation of the demeanor of the witnesses, and having considered the arguments of counsel and the briefs submit- ted by General Counsel and by Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, an Ohio corporation, is engaged in processing and plating metal at its 3715 Beechmont Court I All dates herein are in 1976 unless otherwise indicated. 2 Arcuri and Ronald Maurer testified as to slightly different versions of and 4503 Wilmer Court, Cincinnati, Ohio, facilities. In the operation of its business, the Company annually ships goods valued in excess of $50,000 from Cincinnati to customers located outside the State of Ohio. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Ice, Storage, Scrap Material and Grain Warehousemen Local Union No. 105, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Work History of Ronald Maurer The Company is a small family-owned and operated firm. Vincent Arcuri is president, his wife, Marianne, runs the office and keeps the records, his son-in-law, Fred Zinnbauer, is vice president, and his other son-in-law, John Shinn, who joined the firm on August 2, 1976,' is general manager and treasurer. The Beechmont Court plant, where the offices are located, is engaged in chrome and nickel plating and iridizing, and the Wilmer Court plant, about one-half mile away, does metal finishing work. There are normally about 10 employees at Beechmont Court and about 3 at Wilmer Court. Vincent Arcuri normally devotes himself to promoting sales. Zinnbauer, who has extensive experience and expertise in plating, normally devotes himself to the technical aspects of the business, and Shinn has functioned as a business manager. There is interchange of employees between the two plants. There is no supervi- sor regularly based at Wilmer Court, rather, Gerald Wolf, a senior employee, functions as leadman. Michael Geary is in charge of shipping and receiving, and normally works at Beechmont Court. In a separate representation proceeding (Case 9-RC-11829) the Board declined to review the Regional Director's determination that Geary was a super- visor within the meaning of the Act. The Company concedes that that determination is binding in the present case. However, the Board left open the question of whether John Hebert was a supervisor. Hebert had worked for the Company as a plater. On November 17, Vincent Arcuri told assembled employees at Beechmont that Hebert was the person that they would answer to and that everything, i.e., work assignments, would come through him.2 Hebert testified in the representation proceeding (the transcript of which was stipulated in evidence in the present case) that thereafter he functioned as a working foreman whose duties were to judge the quality of work performed by the employees, determine from papers which he received what work had to be done each day in the plant, and to perform the work along with the other employees. General Counsel views Hebert's alleged supervisory status as a "crucial" issue in this case. General Counsel's theory of the Maurer this announcement. I credit Hebert, who was probably the most intent listener at this meeting. 495 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, in essence, is that, prior to November 17, Hebert knew that Maurer was the principal figure in a union organizational campaign, that when Hebert became a supervisor, that information was passed onto management, that on the basis of this information Arcuri decided to terminate Maurer, and that he did so on December 7. Arcuri hired Maurer as plant superintendent in Septem- ber 1975. Maurer came to the Company with impressive managerial credentials, at least on paper. He had been president and principal shareholder of one plating firm (Practical Plating), previously general manager of another plating firm, and he had also been engaged in a landscape business. However, Maurer's position with Practical Plat- ing culminated in a lawsuit alleging that he had breached his fiduciary obligations to that firm. Arcuri hired Maurer at a salary of $250 per week which, in accordance with Maurer's employment contract, was soon increased to $300 per week. The latter figure, prorated on an hourly basis, was $2 per hour more than John Hebert received after he was allegedly promoted to supervisor on November 17. (Hebert did not receive any increase in pay as a result of this alleged change in status). Arcuri testified that Maurer was, in fact, hired to supervise the Company's plating department, i.e., the production functions at Beechmont. Arcuri and Mrs. Arcuri testified that Maurer was given a list of duties which included, inter alia, the responsibility of keeping all departments operative both as to quality and profitability. Maurer was evasive and contradictory as to whether he was given such a list. On General Counsel's direct case, he testified that he never saw the list but, on rebuttal, he qualified this answer by saying that he did not recall seeing the list, but that he did not deny seeing it. I credit the Arcuris. Maurer testified that he considered himself to be John Hebert's supervisor, and Hebert testified that he worked under Maurer. In light of their agreement on this point, I do not credit Maurer's assertion that he only supervised the chrome department and had little to do with nickel, because Hebert did that work. Even if true, the difference would have been of little significance, because the chrome department comprised nearly all of the production operations at Beechmont. The nickel depart- ment was, in fact, a one-man department. Thomas Ball, a witness for General Counsel, testified that, when he was hired in December 1975, Zinnbauer or Geary told him that Maurer would be his boss. In view of this evidence, and the greater pay and responsibilities which Maurer had, it is difficult to see how General Counsel can maintain, with any degree of consistency, that Hebert was a supervisor after November 17, 1976, but that Maurer never enjoyed supervisory status. In view of this evidence, I also do not credit Maurer's last minute attempt on rebuttal (after having heard company witnesses described how he was successively demoted) to minimize his initial job by testifying that his title of plant superintendent was one with "really no meaning." Maurer never lived up to Arcuri's hopes or expectations for him. Maurer had two problems which became problems for the Company. One became apparent soon after he began as plant superintendent, and the second became gradually apparent over the long haul. The first problem was that Maurer had an abrasive personality. He consid- ered himself to be superior in knowledge and ability to most of the people with whom he worked, and he lacked patience with the employees under him. Consequently, he was ineffectual in directing them. Maurer denied the testimony of company witnesses that he was unable to deal with employees. However, various aspects of Maurer's testimony inferentially corroborated the company wit- nesses. According to Maurer, he gave General Manager Shinn a long lecture on how to treat a certain employee. He also admitted telling Shinn to "go to hell" when Shinn told him to clean out a truck. He denied that he was abusive to senior employee Herb Holland, but complained that Holland gave him feedback on the things which Maurer built. While most of the incidents described by Maurer took place after his first or second demotion, they are indicative of his personality. Maurer felt that everyone was out of step except him. In March 1976, Maurer was relieved of his managerial or supervisory responsibilities. Arcuri assigned Maurer to the job of quality control, i.e., inspecting the quality of work and assuring that the work met an acceptable standard. Maurer also performed maintenance work. However, until August 1976, Maurer did not have exclusive responsibility in this area. Maintenance work was sometimes performed by other personnel or by an outside contractor. Maurer's work, both in quality control and maintenance, was handicapped by a second problem. Maurer was infatuated by his own mechanical ability. He fancied himself as a "Young Tom Edison." Maurer was perennially devising labor-saving gadgets or devices which were in- tended to improve the quality or quantity of production. However, the Company did not need a young Tom Edison. Rather, it needed a person who would devote his full efforts to perform the job in a consistently competent and efficient manner. Some of Maurer's devices were success- ful, but others were disastrous in terms of wasted time, effort, and money. For example, Maurer redesigned a plating rack, using lead material, in order to prevent a buildup of chrome particles which result in so-called burnt journals. The device was a failure and had to be scrapped. General Counsel witness Tom Ball put the matter as tactfully as possible: "I'd say they held up rather well ... [c]onsidering most of the racks Ron made were from lead, which isn't that durable." Ball conceded that the racks had to be scrapped because not enough lead was used in the construction. Of greater concern to the Company was the fact that Maurer's preoccupation with his gadgets was causing him to neglect his primary responsibility for quality control. Consequently, the Company was con- fronted with an unsatisfactorily high rejection rate from its customers. In August 1976, Arcuri relieved Maurer of his quality control functions, and told Maurer that thenceforth he would be assigned to perform only maintenance work. Arcuri told Maurer, in essence, that this would be his last chance. At various points in his testimony, Maurer denied the testimony of the company witnesses concerning his job changes. Maurer insisted that he was not demoted until November 17, 1976, when Arcuri made his announcement about Hebert's responsibilities. Maurer testified that at that time he was reduced to doing exclusively maintenance 496 OHIO VALLEY GRAPHIC ARTS, INC. work and was deprived of his authority to make mainte- nance decisions. However, in the representation proceed- ing, Maurer testified that he spent 100 percent of his time on maintenance during the last 3 months of his employ- ment, i.e., from about September 7, 1976. Maurer thereby impliedly corroborated the testimony of the company witnesses. Their testimony was also inferentially corrobo- rated by Tom Ball, who candidly testified, with respect to Maurer: "I guess he was just sort of phased out." 3 B. The Search for a Replacement for Maurer, and Maurer's Union Activity After Maurer's demotion to full-time maintenance man, his work did not improve. However, his attitude changed. About the time Maurer was demoted (August 1976), he had an argument with Arcuri about vacation time. Early in his employment, Maurer had taken time off from his job because of the Practical Plating litigation, and Arcuri felt that this should be deducted from his vacation time. Maurer was angry about the matter and felt that Arcuri had lied to him. Maurer aired his complaints to John Hebert, with whom he was friendly at the time. From August 1976 on, Maurer was vocally resentful toward the Company. As indicated, he was abusive toward John Shinn, who had joined the Company in August. Maurer admitted that he considered quitting his job after Shinn was hired. Maurer testified that, about November 1, he told employee Gerald Wolf that he was "surprised that you guys don't have a union in here." Maurer also testified that he told John Hebert that he thought a union would be a good idea. If Maurer made these statements, they were probably among the more innocuous of Maurer's remarks about the Company during this period. Hebert testified that, after Maurer returned from his vacation in August, he told Hebert that he was "going to get a piece of Vince's ass." Maurer testified that he did not make such a statement. I credit Maurer concerning his statements about a union, and I credit Hebert concerning Maurer's crude reference to Arcuri, because all of these statements were consistent with Maurer's attitude and pattern of conduct from August to December 1976. Maurer urged Hebert to take a job with another firm, and assisted him to the extent of having Maurer's mother expeditiously type a resume for Hebert. Maurer also talked to other employees about going into business. However, the evidence does not indicate that Maurer took any action in this direction until after he was discharged. Maurer's phraseology concerning a union, i.e., "you guys," etc., was significant, as Maurer himself conceded. Maurer was management oriented. Notwithstanding his demotions, Maurer considered himself, until November 17, to be a part of management, or at least a salaried person who was outside any prospective bargaining unit. Beyond his casual conversations with other employees in Novem- ber, Maurer engaged in no union activity whatsoever until December 4, the day after the Company hired Willie (Red) Mitchell to replace him. In fact, if any employee had taken the lead in that direction prior to December 4, it was I Ball also testified that, in the spnng of 1976. he heard that Maurer was no longer a supervisor. Gerald Wolf. In November, Wolf contacted Union Busi- ness Agent Joe Carlotta and obtained information about organizing the employees. However, Wolf subsequently told Carlotta that he was no longer interested in a union. I find that Hebert did not tell management of any union activity on the part of Maurer because, to put it simply, there was nothing to tell. Hebert did not even mention Maurer's insulting reference to Arcuri until after Maurer's seemingly strange behavior on December 7. Therefore, it is unlikely that, prior to December 7, he would have attached greater significance to Maurer's passing and seemingly aloof remark about a union. If, prior to December 7, Hebert had wished to inform management of any union activity he would more likely have singled out Wolf, rather than Maurer, as the leader. There are additional circum- stances which tend to indicate that the Company's decision to replace Maurer with Mitchell had nothing to do with union activity or company knowledge of union activity. Mitchell had worked for 21 years with a firm having a long history of union representation. If unions were uppermost in Arcuri's mind, he would presumably have made some effort to ascertain Mitchell's attitude toward unions before hiring him. However, the subject was never discussed at any time before Mitchell reported to work on December 13. Second, management was caught by surprise when, on the morning of December 7, Maurer marched into the plant and handed union literature to every person whom he regarded as a supervisor. Arcuri, who was at a business meeting some 18 to 20 miles away, hurriedly returned to the plant, telling Zinnbauer, who was with him, "we're being unionized, let's get back there right away." If, as General Counsel contends, management already knew that there was a union organizational campaign, that Maurer was heading it, and that for such reason they were planning to terminate him, there would have been no reason for such surprise and haste. Rather, the circumstances indicate that the Company did not know of any organizational cam- paign prior to that time. After Maurer's second demotion, Arcuri's subordinates urged him to discharge Maurer. Arcuri was reluctant to do so, because he wanted to give Maurer another chance in his position as maintenance man. However, Maurer failed to improve and Arcuri authorized a search for a successor. James R. Davis, an official of a supply company, and Frank Fergusen, an official of a placement agency, testified that in September or October, and in November respective- ly, they received calls from the Company asking about a maintenance man. I have no reason to question their credibility. As the Company needed only one maintenance man, and it had no immediate plans for expansion, and there were no alternative positions open to Maurer with the Company, their testimony is corrobative of that of the company officials, that they were actively seeking a replacement for Maurer before November 17. In the meantime, in September, Arcuri, Zinnbauer, and Shinn met Red Mitchell and had an opportunity to observe his work. Mitchell had been working for a firm which went bankrupt, he was looking for another job, and the company representatives met him while purchasing equipment from 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the receiver. Maurer also met Mitchell at this time. Mitchell had extensive experience as a maintenance man in the plating industry, and he had an easygoing personality. The company representatives were impressed, and Arcuri intimated to Mitchell that he might have a job for him. In late November, Arcuri authorized John Shinn to contact Mitchell. On December 2, Shinn reached Mitchell and asked him if he was still interested in the job. Mitchell said he was, and came to the Beechmont plant that afternoon. Shinn showed him around the plant and told him about the job. Mitchell asked what was wrong with the Company's maintenance people, and indicated that he did not want to replace anybody. However, Shinn assured him that the maintenance man would go whether or not Mitchell took the job. Mitchell impressed me as a candid person who bore no ill will toward Maurer. I have found him to be an honest witness. Mitchell told Shinn that he would give a definite answer the next day, but that he first wanted to check with another firm. (Mitchell was not satisfied with the Company's wage offer). The next day (December 3), Mitchell called Shinn, they agreed on a wage rate, and Mitchell accepted the job. Mitchell again came to the Beechmont plant. Mitchell told Shinn that he had to visit his sick mother in Alabama and therefore they agreed that he would begin working on Monday, December 13. Vincent Arcuri testified that he planned to discharge Maurer as soon as Mitchell started, and would have let him go at the end of the week. However, he did not make clear whether he meant the week ending December 10 or the week ending December 17. Mitchell signed a tax withholding certificate, took home a job application form which he completed with his wife's help, and dropped off the form in an unlocked mailbox outside the Beechmont plant on Saturday, December 4. On December 2 and 3, Mitchell had difficulty in getting to the Beechmont plant, which had to be approached by a somewhat devious underpass route. Each time he went to the Wilmer plant to get directions. On December 3, Zinnbauer directed him, and Gerald Wolf saw them. Maurer was also working at Wilmer that week. John Hebert testified that he knew, as of December 3, that Mitchell would replace Maurer and would begin working on December 13. Hebert told employee Joe Back, who was friendly with Maurer and who, together with Maurer, attempted to set up a plating business shortly after Maurer was discharged. Maurer testified that, on Friday evening or Saturday morning (December 3 or 4), he telephoned Union Business Agent Carlotta. He further testified that on Saturday morning he went with Joe Back to see Carlotta, had a long conversation with Carlotta about conducting an organizational campaign, and that Carlotta gave him Teamsters authorization cards and union literature. Maur- er testified that Back told him that the Company had hired Mitchell as a maintenance man, but insisted that he did not learn this until after he was discharged on December 7. However, Maurer admitted that he probably told Gerald Wolf that he (Maurer) told Carlotta that he knew he was going to be fired, and that Carlotta advised him to get union cards signed and to get them in as soon as possible. 4 Ball, Middlebrooks, and Wolf, i.e., all of the card signer witnesses, except Back, testified that Maurer paid or promised to put up the money for the initiation fee. Maurer testified that he knew he would be discharged because of his union activities, but was equivocal about whether he simply meant this, or told this, to Carlotta. The question again presents itself: What activities? According to Gerald Wolf, Maurer said that he was getting the cards signed because he knew he was getting fired and had "nothing to lose," but did not say why he was being fired. Wolf further testified that, prior to Maurer's discharge, Maurer told him that he was going to the Labor Board, to OSHA, to NIOSH, and to the Company's customers. Generally speaking, Maurer was a less than candid witness. He was evasive at various points in his testimony and he tended to gradually slide into the truth or, when confronted by a contradiction in his testimony, to gradually switch to another story. In these circumstances, the absence of Business Agent Carlotta at this hearing assumes consider- able significance. It is almost hornbook procedure that in discriminatory discharge litigation, when the nature, ex- tent, or timing of an organizational campaign is an issue, General Counsel will present the testimony of the union agent involved in the campaign, usually as its leadoff witness. At the close of the hearing, I requested the parties, in their briefs, "to address the question of whether or not any inference should be drawn from the failure of any party to produce testimony or documentary evidence either generally or on any specific subject." General Counsel did not explain or even discuss its failure to produce Carlotta. The inference is warranted that, if Carlotta had been produced as a witness, his testimony would have been unfavorable to Maurer; specifically, that Maurer either gave no reason for his impending discharge, or indicated that the impending discharge was unrelated to any union activities on his part. See Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977). I credit Wolf and find, in light of the foregoing evidence, that, on December 3, Maurer learned from Back that Mitchell had been hired to replace him, and that Maurer knew that he was being replaced for reasons which were unrelated to any union activity on his part. There ensued what might well be described as one of the strangest organizational campaigns on record. Usually, when an employee or employees express interest in a union, the campaign will begin with a meeting to which all interested employees are invited. The Union's representa- tive will talk to the employees about the benefits of unionization and will distribute authorization cards and literature. However, in the present case, Maurer took the entire burden of the campaign upon himself. On Monday, December 6, and on the morning of December 7, Maurer approached each of the Company's employees, asked them to sign union authorization cards, and offered to pay the initiation fee of $25 for at least some of the employees. 4 Maurer offered to pay the fee for Gerald Wolf even though Wolf had the money. Maurer testified that, as of 7 a.m. on December 7, he had obtained signed authorization cards from eight employees, including himself, constituting a majority of the Company's employees. 5 The cards, like Carlotta's testimony, were not presented in evidence, although Maurer testified as to the names of the employees 5 I do not credit the vague and contradictory assertions by Maurer 498 OHIO VALLEY GRAPHIC ARTS, INC. who signed cards, and therefore there was no need to keep the cards confidential. Assuming that Maurer had eight signed cards, the next step, if this was a conventional organizational campaign, would have been to return the cards to Carlotta, who would have checked out the cards and the unit and, if he determined that the Union enjoyed majority status, would have sent a letter to the Company demanding recognition of the Union as bargaining repre- sentative. However, this approach was not suited to Maurer's purpose. Instead, shortly before 8 a.m. on December 7, without consulting with Carlotta or any of his fellow employees, Maurer walked into the Company's premises, placed a union pamphlet on the timeclock, and handed a pamphlet to each person present whom he regarded as a supervisor (Shinn, Geary, and Hebert), telling them that he was passing out literature. C. Maurer's Discharge Following Arcuri's hasty return to the Beechmont plant, he convened a meeting which included Mrs. Arcuri, Shinn, Zinnbauer, Geary, and Hebert. Hebert characterized the meeting as one of "management people." Arcuri asked what was going on and if anyone knew what "caused this sort of thing." Arcuri testified that they talked about morale problems and that, during the discussion, Hebert told Arcun that he ought to know about Maurer's statement (made about 3 months earlier) that he was "going to get a piece of Vince's ass." Arcuri testified that, on the basis of this statement, he decided to discharge Maurer. Arcuri testified that he told Maurer that he was insolent and incompetent. Maurer testified that Arcuri told him that he was incompetent, that he had been tried in several positions and was no longer needed. As indicated, the Company would have lawfully termi- nated Maurer on December 10 or 17. Therefore, even assuming that Arcuri advanced the date of termination for discriminatory reasons, Maurer would not be entitled either to reinstatement or full backpay. Bankers Club, Inc., 218 NLRB 22, 26 (1975). Therefore, also, it is unnecessary to consider the Company's contentions that Maurer en- gaged in conduct which should preclude reinstatement or full backpay. Arcuri's decision to advance the date of Maurer's termination presents a closer question. The circumstances under which Arcuri made his decision suggests that Arcuri was grasping for straws. Arcuri purportedly relied on a statement made some 3 months earlier to a (then at least) rank-and-file employee. As of December 7, Arcuri had no knowledge, beyond Maurer's strange actions which pur- portedly related to union activity, that Maurer was doing anything to carry out his threat. In contrast, Arcuri did not summarily discharge Maurer when he was abusive toward John Shinn. Plainly, Arcuri neither needed nor wanted problems from an employee who would be around for only a few more days. However, legitimate union organizational concerning alleged commitments which he sought or obtained pnor to December 3. General Counsel witnesses Tom Ball and Ed Middlebrooks and company witness Gerald Wolf all indicated that they were first contacted by Maurer on December 6. Ball referred to a conversation about a union in late September or early October, but could not remember whether Wolf or Maurer raised the subject. Back's testimony as to the date activity is protected by the Act regardless of the motiva- tions of the employee who engages in such activity. Nevertheless, when Arcuri made his decision to summarily terminate Maurer, the only activity of which he was aware was that which took place when Maurer came into the plant on December 7. While there is evidence (to be discussed, infra), that management questioned employees about their attitude toward a union, such interrogation took place after Maurer was discharged. I find that Arcuri accelerated Maurer's discharge be- cause of Maurer's actions on December 7. However, I find that the Company did not thereby act unlawfully because, in the unique circumstances of this case, Maurer's actions, as distinguished from his solicitation of union cards, constituted neither union nor concerted activity. Maurer did not consult with Carlotta or any of Maurer's fellow employees before going into the plant and handing out union literature to management personnel. His action had nothing to do with advancing an organizational campaign. Joe Back testified that he was surprised to see Maurer engage in this action. Had Maurer been engaged in activity which, as he contended, was designed to frustrate a possible discriminatory discharge by depriving the Em- ployer of a defense that it was unaware of the employees' union activity, he would thereby have been engaged in activity covered by the Act. However, Maurer knew perfectly well that his impending termination had nothing to do with union activity. Maurer was solely interested in contriving a situation whereby Arcuri could not carry out his lawful decision to replace Maurer without subjecting the Company to an unfair labor practice charge and potential substantial backpay liability. Maurer's actions were more akin to blackmail than to union or concerted activity. I do not believe that it would effectuate the purposes of the Act to reward such actions by ignoring the context in which they took place and classifying them as union or concerted activity simply because Maurer used union pamphlets as the instrument of his personal objec- tives. Therefore, I am recommending that the allegations of the complaint with respect to Maurer be dismissed. D. Additional Alleged Violations of Section 8(a)(1) of the Act General Counsel contends that, following Maurer's discharge, the Company violated Section 8(aX)() by interro- gation and threats. The acts of alleged interrogation are substantially undisputed, as are some of the statements constituting the alleged threats. Company witness Gerald Wolf testified that at or about 4 p.m. on December 7, at Wilmer Court, Arcuri separately asked himself and em- ployee Greg Larison if they knew about the Union. Larison said he did not want to talk about it. Wolf initially said he did not know anything about it, but then told Arcuri that Maurer had been passing out cards. Wolf was noncommit- tal about his own views. Arcuri admitted questioning the or dates of Maurer's union activity was so confused and contradictory, and inconsistent with that of Maurer, as to be unworthy of credence. However, even Back admitted that he did not sign a union card until December 6, at Maurer's request. 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Ed Middlebrooks testified that, on the day Maurer was discharged, he was summoned to John Shinn who, in the presence of John Hebert, asked him if he had signed a card and what he thought about the Union. Middlebrooks gave an equivocal answer. Middlebrooks testified that Shinn told him that, if the Union got in, they would go by classifications and that, since the Company no longer used an iridizer (Middlebrooks' ostensible job assignment, although he was also doing metal polishing), "you know where that would leave you at." Tom Ball testified that, on December 8, Shinn summoned him to his office, told Ball that he heard he was pushing the Union, and questioned him about why he and the other employees wanted a union. Joe Back testified that, on December 9, Shinn asked him if he had heard about the Union, and whether he was for it. Back told him he was leaning toward the Union. According to Back, Shinn said that they did not need a union, that profits had dropped, and, if a union came in and profits dropped further, the Company would have to close, that if a union came in the chances of promotion would be less because the employees would be on a schedule, and that Ed Middlebrooks would probably be laid off because his job was being phased out and he had been hired as an anodizer. Back also testified that, on December 8, the previous day, John Hebert asked him if he were for the Union and made statements similar to those of Shinn about Middlebrooks and about promotions and raises. John Shinn testified that, after December 7, he asked all of the employees at Beechmont, including Back, about their opinion of the Union. Shinn testified that he did not say anything to Back about closing the plant or about loss of profits. However, Shinn admitted that he told Back that he understood unions to be classified, that an employee in the iridizing department was being phased out, and that it was possible that under union rules the employee might be laid off. Shinn further testified that he talked along the same line to the other employees. I find that the Company violated Section 8(a)(1) of the Act, through Arcuri and Shinn, by interrogating employees concerning their union attitude and activities and those of their fellow employees. The Company had no legitimate reason for such interrogation, and the employees were not given any assurance against reprisal. The employees were questioned by high company officials, in some instances in the Company's offices, in an atmosphere of unnatural formality. In some instances, the interrogation was accom- panied by unlawful statements. Specifically, the Company, by John Shinn, violated Section 8(a)(l) by telling Ed Middlebrooks, and other employees, that he might be laid off if a union came in. Shinn gave no objective basis for this prediction other than to tie it to the fact of unioniza- tion. Indeed, Shinn admitted that he had only a limited knowledge of such matters. Shinn's dire prediction, unsup- ported by objective fact, was tantamount to an unlawful threat of layoff. Sportspal, Inc., 214 NLRB 917 (1974). However, I do not credit Back's testimony that Shinn threatened plant closure. Back was a less than reliable witness. As between Back and Shinn, I am inclined to credit Shinn. Since any finding with respect to John Hebert's conduct would be cumulative, I find it unneces- sary to determine whether Hebert was a supervisor or otherwise acted on behalf of the Company. On December 13, the Company prepared identical form statements for individual signatures by each employee. The forms stated, in pertinent part, that "I do not feel that a union is necessary in this shop and wish to file my expression against the Union." Arcuri told the employees that they could express their feelings by coming into the office and signing the petitions. Most signed. I find that the Company violated Section 8(a)(l) by soliciting its employ- ees to sign these "loyalty oaths." The Company's conduct was inherently coercive and constituted a form of interro- gation in that employees were being asked to disclose their attitude toward the Union. It is settled that such conduct is violative of Section 8(a)(1). Sewell, Inc., 207 NLRB 325, 332 (1973). CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The Company did not violate the Act by terminating Ronald Maurer. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(aX)(l) of the Act, I shall recommend that it be required to cease and desist therefrom and to post the usual notices. [Recommended Order omitted from publication.] 500