Hadley Adhesive & Chemical Co.

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hadley Adhesive & Chemical Company and Oil, Chemical and Atomic Workers International Un- ion, AFL-CIO. Case 9-CA-6876 April 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 20, 1972, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Administrative 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, findings and conclusions of the Administrative Law Judge and to adopt his recommended Order. Unlike our dissenting colleague, we see no inherent conflict in the several credibility resolutions made by the Administrative Law Judge. With respect to the alleged unlawful discharges of employees Graves and Bradshaw, the credited evidence is as follows. In early December 1971, employees Graves and Brad- shaw initiated conversations with fellow employees concerning the feasibility of union representation. These conversations all took place in the plant during employee break periods. When the employees indicated an interest in union representation, em- ployee Graves contacted Joe Roberts, president of the Local Union, and arranged to have Roberts meet with the employees at Graves' home on the evening of December 13, 1971. The meeting was held as scheduled and 17 of the 21 unit employees were in attendance. During the meeting, Roberts, the union representative, told the assembled employees that if any questions arose, they were to contact Graves or Bradshaw who would act as the Union's internal organizers. On the following morning, Graves was approxi- mately 15 to 30 minutes late for work. Upon his arrival at the plant, Graves sought out Plant Manager Vinson and apologized for being late. At this juncture, Vinson told Graves that he was fired for missing too much work and for no other reason. During this same discussion, Vinson told Graves that he and Bradshaw were the "leaders of the pack" and that Graves was trying to push Bradshaw out of first place. Vinson further stated that when Bradshaw arrived he would also let him go. Bradshaw had earlier received permission to report later than his usual time because he was experiencing difficulties with his automobile. While Bradshaw was still at his home, Graves dropped by and told Bradshaw that he had been fired and that Vinson planned to fire Bradshaw when he reported for work. Graves also told Bradshaw that Vinson had accused the two of them of being "leaders of the pack." When Bradshaw arrived at the plant, he went immediately to Plant Manager Vinson's office. Vinson began the conversation by asking Bradshaw what his problem was. When Bradshaw indicated that he had no problem, Vinson said he guessed Bradshaw knew he was going to be released. Bradshaw then asked the reason he was being released and Vinson replied that Bradshaw had missed too much work. Bradshaw took issue with this statement, but Vinson said he was releasing Brad- shaw in any event and that "it's not on account of last night." Vinson refused to explain what he meant by the latter remark. Obviously, the abrupt mid-week. discharge of both union committeemen on the day following the first formal organizational meeting must be deemed highly suspect. However, there is no need to speculate concerning Respondent's motive because the statements made by Plant Manager Vinson during the discharge conversations convincingly establish the true reason for the discharge. From Vinson's statement to Graves that he and Bradshaw were the "leaders of the pack" and Vinson's subsequent statement to Bradshaw that he was not being discharged - "on account of last night," the Administrative Law Judge inferred that Respondent had knowledge of the union activities of Graves and Bradshaw and that Respondent discharged them for this reason. Indeed, it would seem to us that no other inference would be possible. Yet, our dissenting colleague argues that the inference that Respondent had knowledge of the union activities of Graves and Bradshaw at the , time of their discharge is not properly drawn because it is in direct conflict with other credited testimony; specifically, the testimony of employee Kennedy. We see no such conflict. Employee Kennedy testified concerning an incident which occurred approximately 2 weeks after the discharges. According to Kennedy's credited testi- mony Plant Manager Vinson called employee Ken- nedy into his office and asked if Kennedy knew anything of the 'Union and if he had heard talk of a union. Kennedy denied having any such knowledge. Vinson then called Elmer Liliker, the shipping clerk, into the office and in Kennedy's presence, Vinson asked Liliker if he had heard anything of a union. J 202 NLRB No. 138 HADLEY ADHESIVE & CHEMICAL CO. 947 Liliker responded that he had not, but he implicated Kennedy by indicating that Kennedy had been at a recent union meeting. Kennedy then confessed that the employees had held a meeting a few days earlier and told Vinson where it had been held. Vinson then asked Kennedy to identify the employees that would be in favor of the Union and those who would be against. Kennedy did as requested and specifically mentioned Bradshaw, Graves, and Pulley as being in favor of the Union. From employee Kennedy's testimony, our dissent- ing colleague concludes that Respondent must not have been previously aware of the employee organi- zational activities; else, he would not have been making such inquiries of employee Kennedy. Such is not necessarily, or even likely, the case, however. Plant Manager Vinson's conversation with employee Kennedy indicates that the goal was more to intimidate than to interrogate and to find out the extent of the Union's strength among the employees. In any event, this interrogation was not inconsistent with Respondent's having knowledge 'of union activity some 2 weeks earlier as found by the Administrative Law Judge. Of course, we also agree with the Administrative Law Judge that the reasons offered by Respondent to justify the discharges of Graves and Bradshaw were pretextual. In this connection, we would note that these defenses seem to fall of their own weight. Thus, at the time of their respective discharges, both Graves and Bradshaw were given only one reason for their discharges; namely, that they missed too much work. Even when Bradshaw challenged the reason given, Plant Manager Vinson stood by his statement. The Respondent's reliance upon absenteeism as the reason for the discharges has a certain surface plausibility when the record of employee Graves is considered. However, it is impossible to see how absenteeism could serve as a justification for the discharge of employee Bradshaw, especially when Bradshaw had one of the best attendance records in the plant and had never before been warned about being absent or tardy. It is no doubt for this reason that Respondent shifted its defense and now claims that Bradshaw was discharged for insubordination during his conversation with Plant Manager Vinson. The simple answer to this argument is that the record evidence shows that Plant Manager Vinson had made the decision to discharge Bradshaw even before Bradshaw's arrival at the plant that day. Therefore, obviously, any insubordination which occurred during their subsequent conversation could not have had a bearing on the decision to discharge Bradshaw. Finally, we are unable to fathom how our dissent- ing colleague can excuse the solicitation and adjust- ment of grievances and granting . of additional employee benefits on the ground that Respondent's plant is a new operation. If such a concept were carried to its logical conclusion, all new operations could be insulated from a union's organizational effort. Such is not the law as we understand it. Respondent's solicitation of employee Pulley as to his complaints and his suggestions for improving working conditions and its conduct in acting upon these complaints by granting new employee privi- leges and increasing, the contributions to the employ- ees' health plan, all during the course of an organizational campaign, clearly constitutes conduct which is violative of Section 8(a)(1) of the Act.' Also, although the plant had been in operation only a few months before the advent of the union activity, it is interesting to note that Respondent's concern for its employees and their working conditions did not evidence itself until after the union meeting of December 13 and the discharges of employees Graves and Bradshaw. As previously indicated, we believe the Administra- tive Law Judge carefully considered the evidence before him and for that reason, we have adopted his findings, conclusions, and recommendations. 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, Hadley Adhesive & Chemical Company, Fulton, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting in part: While I agree with my colleagues that by interro- gating its employees concerning their union member- ship and sympathies Respondent violated Section 8(a)(1) of the Act, I dissent from their findings that, by terminating employees Graves and Bradshaw, Respondent violated Section 8(a)(3) and (1) of the Act and that by unilaterally granting benefits to its employees the Respondent violated Section 8(a)(I). My colleagues accept the Administrative Law Judge's inference that the Respondent had knowl- edge of union activity at the time of the discharges and his apparent conclusion that absenteeism was merely a pretextual reason for the discharges. However, while the inference of knowledge is based on the testimony of Graves and Bradshaw, who were Associated Mills, Inc., 190 NLRB No. 8. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited generally by the Judge, other credited testimony is in direct conflict with such an inference. In this regard, employee Kennedy, who also was credited by the Judge, testified that approximately 2 weeks after the discharges Plant Manager Vinson asked him if he knew anything about a union. Kennedy's testimony and affidavit were confused as to whether Vinson had received the Union's letter demanding recognition at the time of this discussion; his affidavit stated that the letter preceded the questioning, but his testimony was that he did not remember when Vinson received the letter in relation to the discussion. Vinson testified definitely that he had received the letter and had then called in Kennedy to find out about the Union's demand. In any event, the Judge credited Kennedy's account of the questioning and found that Kennedy told Vinson about the 'December 13 union meeting held at Graves' home and that, upon further questioning by Vinson, Kennedy identified the employees who had attended and specifically mentioned Bradshaw and Graves as being in favor of the Union. The only reasonable inference which can be drawn from Kennedy's testimony is that Vinson knew nothing of any union activity. prior to receipt of the Union's January 28 demand letter-or at least not until this conversation which took place 2 weeks after Graves and Bradshaw had been discharged. This credited testimony, therefore, directly contradicts the infer- ence drawn from other testimony credited by the Judge that the Respondent knew of union activity prior to the discharges. As for the discharges themselves, I am unable to ascertain the basis for the Judge's apparent finding that absenteeism was merely a pretextual reason for discharging Graves. Between October 11 and his discharge on December, 14, Graves was absent from work on 5 days, of which only three absences were excused. Following the second unexcused absence, in late November, Vinson told him that future absen- teeism, without excuse, would result in discharge. On the morning of December 14, however, Graves was late for work and had only an apology to offer. Furthermore, the nature of Respondent's plant, in which there is a small workforce of 24 employees and where each employee is necessary to mix the custom orders of adhesives on schedule, makes absenteeism and tardiness particularly crippling problems. In fact, Respondent had already discharged two em- ployees for absenteeism in the short time it had been in operation. Moreover, the importance of attend- ance was further evidenced and was brought to the attention of Graves, who had the worst attendance record in the entire plant, by the warning given him following his second unexcused absence. Thus, Graves' absences-five in his first 2 months at work-and his tardiness, whether excused or not, were a hindrance to Respondent's successfully mixing the custom orders on schedule and are, in my opinion, clearly a justifiable basis for his discharge. As to Bradshaw, Respondent does not argue that absenteeism was the basis for his discharge; rather, the reason given by Respondent was Bradshaw's insubordination when he found out about Graves' discharge. Vinson testified that Bradshaw at that time came to his office and angrily demanded to know :why Graves had been fired. When Vinson asked the reason for his concern, Bradshaw spoke loudly and answered, "Well, you work your ass off around here and you don't get any appreciation for it." Continuing to make angry remarks after Vinson attempted to calm him, Bradshaw was warned by Vinson that if he did not stop his manner of speaking he would be disciplined. When Bradshaw replied that he was not cursing Vinson and that he was looking for another job anyway, Vinson discharged him. While the Judge credited Bradshaw generally, and therefore his version of the discharge discussion, the testimony of employees Kennedy and Pulley,. wit- nesses on behalf of the General Counsel, was also credited by the Judge. They corroborated Vinson's testimony by testifying that shortly after the dis- charges Vinson had expressed to them his dislike for firing Bradshaw but had said that he had had to discharge him because Bradshaw wanted to "jump all over" him for Graves' discharge, a situation he could not ignore as plant manager. Moreover, on the Friday following the discharges, Vinson called the Mayor, a nearby judge, and several other contacts in an attempt to locate another job for Bradshaw, whom he considered to be a very good worker. Such an effort by Vinson was surely an unlikely step in behalf of a man allegedly terminated for union activities, particularly in a small community. More- over, Vinson made no effort to find another job for Graves, whom he considered to be a poor and unreliable worker. In my opinion, in light of the inconsistencies among several versions of testimony credited by the Judge, the evidence fails to support a finding of knowledge by Respondent of union activity prior to the discharges of Graves and Bradshaw. Neither will such evidence, because of these inconsistencies, support a finding that absenteeism was a pretextual reason for the discharges. Rather, the evidence requires a finding that Graves' absenteeism and tardiness were a justifiable basis for his discharge, and credited testimony supports a finding that Bradshaw's insubordination was the reason for his dismissal. Furthermore, I do not agree with the Judge's finding, adopted by my colleagues, that, after Vinson . HADLEY ADHESIVE & CHEMICAL CO. 949 solicited employee Pulley's comments or complaints about his job or suggestions for improving working conditions, the Respondent violated Section 8(a)(1) by agreeing to help limit the work required of Pulley, unilaterally granting a 10-minute break in the afternoon, and increasing its contribution to the employees' health plan. The Respondent's plant is a new one, having opened in September 1971, just a few months before these benefits were granted in December and January, and Respondent was still attempting to iron out problems as they arose. In light of the fact that it was the established practice in Respondent's other plants to periodically canvass employees for suggested improvements in working conditions, it was only natural for Respondent, in an effort to correct unsatisfactory conditions at its new plant, to solicit suggestions from its employees. Moreover, it is my view that the timing of the benefits-the reduction of employee Pulley's work and the break being granted shortly after Vinson's discussion with Pulley in December and therefore before the Respondent received the Union's January 28 letter demanding recognition, and the additional health benefits being granted on March 9, about a month and a half after the Union's letter, the Union failing to contact the Respondent again during that month and a half makes the finding of an 8(a)(1) violation herein unjustified. I would, therefore, reverse the Judge's findings that Respondent violated Section 8(a)(3) and (1) by discharging employees Graves and Bradshaw and that Respondent violated Section 8(a)(1) by granting benefits to its employees. DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge: This case was tried in Hickman, Kentucky, on July 6, 1972. The charge was filed by Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, on March 10, and the complaint was issued on April 26. Briefly stated, the complaint alleges that the Respondent discharged employees Danny Graves and Terry Bradshaw on December 14, 1971, because of their membership in, sympathies for and/or activities on behalf of the Union, and in order to discourage membership in the Union. In addition, the complaint alleged that the "Respondent violated Section 8(a)(1) of the Act by interrogating employees regarding their own union activities, as well as the activities of other employees, promised benefits if employees ceased their support for and activity on behalf of the Union, solicited employees concerning their griev- ances and complaints and adjusted them in an effort to discourage union activities, and unilaterally granted benefits to employees , including a 10-minute afternoon break and an increase in Respondent 's contribution to the employees' health insurance plan. In its answer,_ the Respondent denied the commission of any unfair labor practices. At the conclusion of the testimony of Graves, counsel for the Respondent requested permission to examine all statements given by that witness to representatives of the Board. Counsel for the General Counsel stated that no affidavits had been taken from Graves. However, the record shows that counsel for the General Counsel had interviewed Graves on Thursday, June 29, and had made notes thereof and that,- on July 6, he met with Graves and reviewed his-testimony . I examined the notes in camera and then stated that it was my view that by reason of Section 102.118 of the Board's Rules and Regulations, and a memorandum by Chief Trial Examiner Bokat under date of July 11, 1968, the notes taken by counsel for the General Counsel were not, as provided in subsection (d) thereof, a "substantially verbatim recital" and further that "it would require the written consent of the General Counsel, since the document in question and the person who prepared the document are subject to the General Counsel's supervision and control." I therefore ruled that the notes taken by counsel for the General Counsel were not producible. Under date of July 18, counsel for the Respondent requested that the statement taken by counsel for the General Counsel be submitted under seal for the "purposes of review should any reviewing authority deem it necessary to examine the said notes ." This has been done . Following the close of the hearing , and pursuant to prior arrange- ment, the alleged union authorization cards of Bradshaw, Graves, Boyd Roger Pulley, and James Kennedy, all dated December 13, 1971, were sent to me for inclusion in the record as my exhibits. I mailed them to counsel for the Respondent who, under date of July 31, objected to their inclusion in the record. Under date of August 3, counsel for the General Counsel responded to counsel's objections. These two documents are hereby made part of the record as my exhibits 1(a) and 1(b). The four union application cards are hereby received into evidence as my exhibits 2(a), 2(b), 2(c), and 2(d). Upon the entire record in the case, including my observation of the witnesses as they testified and consider- ation of the briefs filed by counsel for the Respondent and counsel for the General Counsel on July 31, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a Missouri corporation , opened its plant at Fulton, Kentucky, in September 1971; this is the only facility involved in this proceeding. The principal product produced is industrial adhesives , and' production began in late September or early October as the several areas of the plant were completed. The total complement of employees rose from 2 in late September to some 20 in late October, and eventually the full complement of 24 employees was reached. The products are manufactured by the "batch" process to customer orders. I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of. the Act. I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Danny Graves, a young man who worked in the mixing department from October II to December 14, 1971, was instrumental in arranging a meeting with Joe Roberts, president of the Local Union at the Carborundum Company in Hickman. The incident that prompted this activity on his part was that the Respondent fired a maintenance man who had been assigned to perform a production job which he refused to do. The employees discussed this action by Respondent, which they felt to be unjust, and Graves and his fellow employee, Terry Bradshaw, agreed. to talk to the other employees to see how they felt about affiliating with a union. They did discuss the matter with their fellow workers, Graves speaking to seven or eight of the employees, and Bradshaw contacting five or six employees. These discussions occurred during break periods and took place during the first part of December. Receiving a favorable response from fellow employees, Graves arranged a meeting with Roberts for December 13, at his home. He advised three or four employees of the meeting and asked them to spread the word. The meeting was in fact held on December 13 and was attended by approximately 17 out of the 21 employees then employed. Roberts explained the Union to them and all present signed union authorization cards. Roberts advised the assembled employees that if any of them had any future questions they were to contact Graves or Bradshaw, who, in substance, would act as the Union's internal organizers. The following morning, December 14, Graves was late for work approximately 15 to 30 minutes. When he went to speak with Billy Vinson, the plant manager , Graves apologized for being late, and Vinson responded that he was going to have to let Graves go. According to Graves, Vinson stated, "Before we get into anything, I ain't firing you for no other reason but just besides you missed too much" work. During a discussion of Graves' work record, Vinson told Graves that he and Bradshaw were the "leaders of the pack" and that Graves was trying to push Bradshaw out of first place. Vinson further stated that when Bradshaw arrived he would let him go. After being terminated, Graves left the plant at approxi- mately 8:15 to advise Bradshaw of what had happened. Bradshaw had not come to work because his automobile would not start due to a faulty starter. However, he had advised Don Quick, the plant superintendent, at about 6:45 in the morning that he would be late because of the starter problem. Quick, so Bradshaw testified, advised that that would be all right and that he would inform the plant manager. Graves drove to Bradshaw's home and informed the latter that he had been fired and that Vinson intended to fire Bradshaw when the latter came in. Graves told Bradshaw that Vinson • had accused the two of them of being "leaders of the pack." When Bradshaw arrived at the plant, he went into Plant Manager Vinson's office. Vinson closed the door and asked Bradshaw what his problem was. Bradshaw an- swered that he did not have one, and Vinson told him that he guessed he knew that he was going to be released. Bradshaw asked what the reason was and Vinson replied that Bradshaw had missed too much work. Bradshaw took issue with this and then Vinson said that he was releasing Bradshaw in any event and that "it's not on account of last night" but would not explain what he meant by that statement. The next Friday Graves and Bradshaw went to the plant for their final checks. Vinson inquired of Bradshaw whether he had found a job yet and Bradshaw replied in the negative. Vinson then called the mayor of Fulton, Kentucky, and inquired if the mayor had a city job open for which Bradshaw might qualify. Because there were no city jobs open Vinson then called Judge Buck Benize and asked if there were any jobs available. He also called a number of places in an effort to find a suitable job for Bradshaw. Bradshaw had in fact missed a total of 1 1/2 days of work before being discharged. One day was due to illness and the half day was caused by his taking his wife and baby to a doctor for treatment. A week or so after the discharge of Bradshaw and Graves, employee Kennedy was called into Vinson's office. Vinson asked whether Kennedy knew anything of the Union and if he had heard talk of a union. Initially, Kennedy denied having any knowledge. While the conversation was proceeding, Vin- son called in Elmer Liliker, the shipping clerk. Vinson asked Liliker if he had heard anything of a union. Liliker stated that he had not, but he implicated Kennedy by stating, "Well, Mike, you can tell about it, you were there at the meeting." Kennedy then told . Vinson that the employees had held a meeting a few days earlier and where it had been held. Vinson asked who was in attendance and Kennedy gave him a list of the names of those at the meeting. Vinson then asked Kennedy to identify the employees that would be in favor of the Union and those who would be against. Kennedy did so and specifically mentioned Bradshaw, Graves, and Pulley as being in favor of the Union. Kennedy also told Vinson the names of all who had attended the union meeting the evening of December 13. Vinson asked who was starting the union matter and Kennedy replied that Bradshaw and Graves were the main supporters and had started talk of the Union and tried to get employees organized. During the meeting,, which lasted approximately 2 hours, Vinson sent Kennedy home to obtain a blank union authorization card as he wanted to know the name of the Union. Kennedy did go home to obtain the card. He was paid for the entire time that he spent speaking to Vinson, as well as the time that he spent in going to his home. About a week or 10 days after the discharge of Graves and Bradshaw, Pulley, the receiving clerk, was called into Vinson's office. Vinson asked him if he had any comments or complaints about his job and if he had any suggestions how conditions could be improved. Pulley stated his job was strenuous since, in addition to his primary job, he also assisted the shipping clerk and daily drove a delivery truck to Union City, Tennessee. Vinson agreed that Pulley's job HADLEY ADHESIVE & CHEMICAL CO. 951 was strenuous and that he wanted him to act primarily as receiving clerk and, if he had some time left, he could help the, shipping clerk and that if Pulley did not have time to drive the truck Vinson would get someone else to drive it. Vinson also asked whether Pulley had heard any complaints from other employees regarding eliminating smoking in the shipping room. Pulley answered that other employees were complaining and that the only other places they could smoke were in the lunchroom during breaks and in the restrooms. Pulley suggested that employees be given a 10-minute break in the afternoon. About a week or 10 days after this discussion between Vinson and Pulley, the employees began receiving a 10- minute break in the afternoon. The Respondent also increased its contribution to the employees' health plan in response to complaints and suggestions. During the latter part of January 1972, Pulley was again called into Vinson's office and so were other employees, one at a time. Vinson's secretary, Sue Duke, was present. Vinson read a letter which he said he had received from the Union. Pulley's recollection was that the letter stated that the Union was petitioning for an election. Vinson asked if Pulley had any' questions and Pulley replied that, if he thought a union would be beneficial to him he would vote for it, but that if he thought it would not be beneficial he would not vote for it. Vinson's secretary was writing down everything that Pulley said and he testified that in consequence he did not say very much. B. The Termination of Graves and Bradshaw The Testimony Graves was hired on Saturday, October 8, and told to report on Monday, October 11. On his first day of work, Graves testified he overslept as the alarm did not go off "or something" and therefore. was 30 minutes late. According to Graves, he was told on Saturday that he would be hired on Monday if an individual Vinson had previously hired did not show up. Graves testified that about 7:30 on Monday morning Vinson called him and asked him how quickly he could get to the plant. He arrived a little after 8; starting time is 7:30. According to Graves, Vinson stated that he and Bradshaw were "the leaders of the pack" and that Bradshaw was the principal leader and that Graves was "trying to push him out of first place." Vinson testified that Graves stated he had overslept and denied that employment of Graves was conditional. On November 1, Graves was absent the entire day and did not present an excuse. Vinson pulled his timecard and told Graves, the following day, that Graves or someone in his behalf would have to telephone in and give the reason for being absent. Graves was again absent on November 9; however, apparently this absence was not assessed as a penalty against him. On November 22, Graves was excused by Vinson in order that he might enlist in the National Guard. Graves, however, was also absent the following day without permission and he did not call in to explain why he would be absent. Vinson questioned him on November 24 and Graves stated that 2 days were required for him to enlist in the National Guard. Vinson told him that future absenteeism, without excuse, would result in discharge. According to Graves, the 2 days he missed in late November were one account of illness and he brought in a doctor's excuse and also telephoned. The last day he missed, December 9, was due to the fact that his grandfather was ill and in the Mayfield Hospital and he went there to see him because it was desired that the family be present. He did call in before starting time. Graves testified that he consulted a physician on the first day of his illness, which he said involved an earache. He testified that on the first day the doctor gave him some medicine and the second day Graves went in to obtain a doctor's excuse. He testified he gave the excuse to Manager Vinson, who returned it to him. However, Graves, while testifying, refused to sign an authorization permitting counsel for the Respondent to inspect his medical records. Counsel for the Respondent called as a witness Dr. Russell Rudd; who brought his daybook with him which lists his office calls and the medicine given patients, if that amounts to "anything." According to Dr. Rudd's daybook, it shows that Graves came to his office only on November 23, and he charged him $3 for the office call. Concerning Bradshaw's termination, Plant Manager Vinson testified that, shortly after Graves had been discharged, Bradshaw came to Vinson's office and in a loud and angry voice demanded to know why Graves had been discharged. Vinson, so he testified, asked, "How does this concern you?" Bradshaw answered, "Well, you work your ass off around here and you don't get any apprecia- tion for it." Vinson added that he told Bradshaw to calm down but that Bradshaw continued making angry remarks, whereupon Vinson twice warned him that if he did not stop his manner of speaking he would have to discipline him. Bradshaw, according to Vinson, replied, "Well, I'm not cursing you" and added that he intended to quit in any event. Vinson then told Bradshaw he' was discharged. Employees Kennedy and Pulley testified that Bradshaw had told them that he (Bradshaw) stated that he thought he had been discharged because he had been at the union meeting on December 13. According to Kennedy, Vinson stated that he disliked firing Bradshaw and that Bradshaw had said that he wanted to "jump all over" Vinson for firing Graves. When Bradshaw came to the plant at the end of the week to obtain his final paycheck, Vinson explained that it had already been mailed and he testified that Bradshaw apologized for losing his temper and asked for his job back. Vinson said `that he could not give it to him. However, Vinson telephoned a number of other places in an attempt to assist Bradshaw in obtaining a job because he regarded Bradshaw as a good worker. Vinson testified that he did not know of the union meeting on December 13 or any other union activity on the part Bradshaw and Graves. It is his testimony that the first knowledge he had of any union interest was on January 28 when the Respondent received a recognitional demand from Hugh Owen, the Union's International representa- tive. It was after receiving this letter that Vinson called in Kennedy to question him about union talk, as related above. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. CONCLUSIONS In his brief, counsel for the Respondent asserts there were procedural errors in the handling of this proceeding. First, he argues that it was a breach of procedure when the Regional Office failed to secure an affidavit from Graves while he was on active duty at Fort Polk, Louisiana, for something in excess of 4 months. Counsel for the General Counsel interviewed Graves shortly before the hearing. The Respondent's counsel further argues that because Graves, Bradshaw, Owen, and Roberts, about the middle of January, discussed their testimony, they "unquestiona- bly revised their testimony for the sake of conformity," and that, accordingly, their testimony is "inherently unreliable as it is tainted and lacks corroboration from any independ- ent source." Counsel further argues that any refusal to make available the notes taken by counsel for the General Counsel was "reversible error," since I examined the notes in question and stated that they conformed to the testimony given. He concludes that the notes should be made available, and Graves should be presented for further cross-examination, or his testimony stricken. For reasons previously indicated at the outset of my Decision, I do not agree with these contentions.' - Counsel further contends that the testimony of Graves is further shown to be unreliable because he testified that he had been ill on 2 successive days in late November and was treated by Dr. Rudd on the first day of his illness. He further points out that Graves declined to furnish any documentary evidence to support his claim and he also calls attention to the fact that Dr. Rudd testified that Graves visited him only on November 23. 1 observed Graves. closely while he was testifying and I have studied the evidence with care, and I am unable to agree with the contention of the Respondent's counsel that Graves "is not worthy of credence unless he is corroborated by credible evidence from independent sources." With respect to Bradshaw, counsel asserts that he "exerted his influence upon Kennedy and Pulley to change their testimony to enhance his own cause." There is no basis in the record for this assertion, and I reject it. Counsel points out that Bradshaw's pretrial affidavit shows that Vinson attempted to secure another job for him the same day he was fired, whereas in his testimony he related that this attempt took place 5 days later. He also points out that in his testimony Bradshaw claimed that Vinson terminated him because he had a poor attendance record, although no mention of this appears in his affidavit. Counsel further points out that in his affidavit Bradshaw stated that the union meeting was held on Friday, December 17, and not the day before his discharge. However, International Representative Owen, who attend- ed this meeting, positively testified that the meeting occurred on December 13 and that records which he had turned over to his successor as president, shortly before the hearing, so showed. I find that the meeting took place on December 13. ' In support of his contention that the testimony of Graves and Bradshaw should not be credited, Respondent's counsel points to the testimony of employee Kennedy. While Kennedy's pretrial affidavit' placed his conversation with Vinson some weeks after the discharge and shortly after the Union demanded recognition on January 28, Kennedy testified that he was in error concerning the receipt of the letter and was so advised in a conference by Bradshaw, Graves, and Pulley. On cross-examination, Kennedy testified that he did not recall when Vinson mentioned the receipt of the Union's demand for recogni- tion. According to Kennedy, Vinson stated that the reason he discharged Bradshaw was because of the latter's insubordination, and that he (Vinson) knew nothing about the first union meeting. Upon careful consideration of the record, I come to the conclusion that Graves and Bradshaw are to be believed. Both of them , obviously unsophisticated witnesses, im- pressed me as sincerely endeavoring to tell the truth. I do not believe that they fabricated their testimony in the detail in which it was given. While Kennedy may have been somewhat confused, this is understandable in view of the fact that in substantial part his testimony was based upon what Bradshaw and Graves had told him rather than his own recollection. I reject the suggestion made by counsel for the Respondent in his brief that Kennedy "admitted that his affidavit was so drafted as to falsely create the impression that the discharges were followed-by unlawful interrogation unjustified by any recognitional demand." Upon all the evidence, I conclude and find that Graves and Bradshaw were terminated because of their union activity. In addition, I find that the Respondent unlawfully questioned employees regarding their own union activities as well as the activities of other employees, promised benefits if they ceased their support of and activities on behalf of the Union, solicited employees concerning their grievances and complaints, adjusting them in an effort to discourage union activity, and unilaterally granted employ- ees benefits, including a 10-minute afternoon break and an increase in the Respondent's contribution to the employ- ees' health insurance plan. By these activities, the Respon- dent violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. By interrogating its employees concerning their membership in, activities on behalf of, and sympathies in and for the Union , the Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 2. By granting its employees wage increases and other benefits in an effort to induce them to refrain from becoming or remaining members of the Union or giving it assistance or support, the Respondent interfered with, restrained , and coerced its employees in the exercise of their rights under Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 3. By terminating Danny Graves and Terry Bradshaw I Ra-Rich Mfg. Corp., 121 NLRB 700, and N.L.R.B. v. Seafarers, 374, F.2d 974 (C.A. 9, 1967), cited by counsel , are clearly distinguishable. HADLEY ADHESIVE & CHEMICAL CO. 953 on December 14, 1971, the Respondent violated Section 8(a)(3) and (1) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from any other invasions of the Section 7 rights of its employees, and to take certain affirmative action. Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER2 Respondent, Hadley Adhesive & Chemical Company, Fulton, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any employee about union support or union activities. (b) Offering or granting its employees wage increases or other benefits in order to induce them to refrain from becoming or remaining members of the Union or any other labor organization or giving such organization any assist- ance or support. (c) Discharging or otherwise discriminating against any employee for supporting Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other union, or for engaging in concerted protected activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Danny Graves and Terry Bradshaw immediate and full reinstatement to their former jobs or, if their jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve, and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Fulton, Kentucky, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained 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 the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith.4 2 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. 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 4 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 9, 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 The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging the employees listed below for supporting a union, and by otherwise interfering with our employees' right to join and support a union: WE WILL offer full reinstatement to Danny Graves and Terry Bradshaw with backpay, plus 6-percent interest. WE WILL NOT discharge any of you for supporting Oil, Chemical and Atomic Workers International Union; AFL-CIO, or any other union, or for engaging in concerted activity protected by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT coerce or question you or threaten you concerning union support or activities. WE .WILL NOT unlawfully interfere with your union or protected concerted activities. HADLEY ADHESIVE & CHEMICAL COMPANY (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selective Service Act and the Universal Military Training or covered by any other material. Any questions concern- and Service Act. ing this notice or compliance with its provisions may be This is an official notice and must not be defaced by directed to the Board's Office, Federal Office Building, anyone. Room 2407, 550 Main Street , Cincinnati, Ohio 45202, This notice must remain posted for 60 consecutive days Telephone 513-684-3621. from the date of posting and must not be altered , defaced,