Rennie Manufacturing Co., Inc.

RENNIE MANUFACTURING CO. 1117 Rennie Manufacturing Company, Inc. and Interna- tional Ladies Garment Workers Union AFL-CIO. Case 1-CA-8327 April 16, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 30, 1972, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and General Counsel resubmitted his brief to the Administrative Law Judge as his brief in support of the 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 2 of the Administrative Law Judge, and to adopt his recommended Order,3 as herein modified. "tremendous increase" in the existing pension fund in violation of Sec. 8(a)(1) Chairman Miller and Member Penello do not adopt this conclusion The record establishes to their satisfaction that at least I year prior to the advent of union activity, Respondent had notified its employees in writing of the procedure it inaugurated to increase pension and retirement benefits Thereafter, it submitted its plans to the IRS for approval, which approval was granted in February 1972 Respondent's disclosure, at its May I and 2 meetings, of past approval by a government agency of its previously announced plans contained no'promises of benefit not already granted and announced In their view , while an employer may not institute new benefits in order to influence their employees ' free choice, neither need an employer conceal the existence of benefits lawfully decided upon An employer is entitled to inform his employees of the full range of benefits which have been lawfully provided to them, since that is clearly relevant to their decision as to whether they desire to band together in a collective attempt to bargain with their employer for new or improved benefits. Member Fanning agrees with the Administrative Law Judge that Respondent's announcement on May I and 2, 1972, 1 week after the union meeting of April 24 and 4 days after the unlawful discharge of Moritz on April 27, that the IRS had approved a substantial increase in the retirement benefits of employees 2 months earlier was calculated to and had the effect of interfering with the employees' organizational rights In the context of Respondent's promises of benefit and other unfair labor practices , Member Fanning is of the view that the announcement of substantial retirement benefits at this critical time was similarly violative of Sec 8(a)(I). 3 Chairman Miller does not agree that Respondent 's statement that a decision had been made to eliminate the practice of posting the piecework chart was violative of Sec 8(a)(1). Respondent's decision to cease the posting practice antedated the advent of the Union, and resulted from employee complaints occurring over an extended period of time. Conse- quently, the Chairman's position is that, as in the case of the pension benefit announcement, the conception of the benefit was legitimate , and a normal delivery was equally legitimate See his dissent in Tommy's Spanish Foods, 187 NLRB 235, adopted by the Ninth Circuit in N.LR B v. Tommy's Spanish Foods, Inc, 463 F 2d 116 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 as herein modified, and hereby orders that Rennie Manufac- turing Company, Inc., Taunton, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as modified below: 1. Delete paragraph 1(a) of the Administrative Law Judge's recommended Order and substitute therefor the following: "(a) Promising and granting improvements in incentive rates, announcing improvement in working conditions to discourage union organization, and creating the impression among employees that their union meetings and activities are under management surveillance." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings 2 The Administrative Law Judge found that Respondent accelerated an announcement that the Internal Revenue Service had granted approval of a 202 NLRB No. 152 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise or grant improvements in incentive rates, announce improvements in working conditions to discourage union organiza- tion, or create the impression among employees that their union meetings and activities are under management surveillance. WE WILL NOT discharge, or otherwise discrimi- nate against, any employees in order to discour- age membership or support for International Ladies Garment Workers Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in the National Labor Relations Act, which are as follows: To engage in self-organization To form, join, or help unions To bargain as a group through a repre- sentative of their own choosing To act, together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. Since it has been found that we unlawfully fired 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John J. Moniz, WE WILL offer to give him back his job and seniority, and WE WILL pay him for the earnings he lost, plus 6-percent interest. All of our employees are free to become, or remain, or refrain from becoming or remaining, members of any union of their choice. RENNIE MANUFACTURING COMPANY, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Seventh Floor-Bulfinch ^Building, 15 New Chardon St., Boston, Massachusetts 02114, Telephone 617-223-3300. DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: On August 3 and 4, 1972,1 this case was tried before me in Boston, Massachusetts, upon a complaint by the General Counsel,2 alleging that the above-captioned Respondent discharged one employee and engaged in independent acts of coercion, in violation of Section 8(a)(3) and (1) of the Act. Respondent denies the alleged violations. Upon the entire record of the case, with due considera- tion given the briefs filed by General Counsel and Respondent, and from my observation of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Respondent is engaged in the manufacture , sale, and distribution of curtains and related products at its plant in Taunton, Massachusetts. Annually Respondent has a direct inflow and a direct outflow in interstate commerce, in each instance valued in excess of $50 ,000. Respondent admits, and I find, that it is engaged in commerce , and that I All dates are in 1972 unless otherwise noted 2 The charge by the Union was filed and served by registered mail on May 5 , and the complaint thereon was issued on May 30 the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Principal Issues 1. Whether Respondent, on April 27, discriminatonly discharged employee John J. Moniz. 2. Whether Respondent, in speeches to employees on May I and 2, (a) created the impression that the employees' union activities were under Respondent's surveillance ; (b) promised an improvement in the incentive rate system; (c) promised to cease the practice, disfavored by employees, of posting their individual performance under the incentive rate system; (d) accelerated its announcement of an Internal Revenue Service approval of a substantial increase in pension and retirement benefits -all with the purpose of discouraging support of the Union in its newly begun organizing campaign. B. Introductory Facts Moniz was employed from mid-January until his discharge on April 27, as a floorboy in the stitching room. As a part-time employee , he worked from 7 a.m. until noon, 5 days a week.3 His general assignment was to help three assistant foremen , Gerald A. Scully, Paul Camara, and Walter Feigo, who supervised separate and approxi- mately equal sections of the stitching room. The pertinent hierarchy also consisted of-William J. Heath, stitching department foreman ; Kenneth Santos, general manager; and Clifford Seresky, vice president and treasurer. C. Organizational Activity On April 11 , after talking to other employees on the subject, Moniz made the initial approach to the Umon by telephone . A meeting of employees with union officials was arranged. Thereafter , Moniz solicited employees to attend the meeting; about 12 employees told him they would come. On April 24, some 17 to 20 employees met with 4 union agents at the Gondola Club in Taunton. Union authorization cards were signed by all employees present and blank cards were taken for solicitation of other employees. Moniz was designated as the Union's contact at the plant in the handling of union cards. In the following days, Moniz was actively engaged in the solicitation of employees within the plant on working time , during which he obtained 10 to 12 signed cards. Throughout this period, Supervisor Scully was aware that Moniz and other employees were passing union cards , openly and visibly, in his department. Within a few feet of Scully, such activity by Moritz took place on April 27, the day he was discharged. Scully testified he did not reveal such knowl- edge to any other member of management . From the testimony, it plainly appears that Scully was sympathetic to the Union. He had himself signed a union card, and had 3 Moniz also had a job at another employer, a union shop , where he worked from 3 to I I p .m each day RENNIE MANUFACTURING CO. been regularly consulted by Moniz concerning the various steps of his organizational endeavors.4 However, a serious issue is raised as to whether Scully's awareness of the general union activity, and the involvement of Moniz, can be imputed to Respondent. This question will be treated infra. As testified by employee witnesses, during the period from April 24 to 27, employees were similarly engaged in the passing and signing of cards in the departments supervised by Camara and Feigo. D. Subsequent Events 1. Discharge of Moniz On April 27, at 11:30 a.m., Moniz was called to Foreman Heath's office and notified of his discharge. Moniz testified, in substance, to the following conversation: Heath said that he was not satisfied with his work, and that he (Moniz) was spending too much time talking with Supervisor Scully and smoking when he was supposed to be working. When he asked what it was that he had failed to do, Heath "just repeated" the same reasons. He told Heath that he did not have to hand him a line because both of them "knew what this was all about."After Moniz was given his pay, Heath escorted him to the door and said, "I hope you can find another job, because I don't really know what this is all about." Heath testified: He gave Moniz as the reasons for discharge that he was taking too many breaks and was not doing his job. He related that it was one of Moniz' duties to keep a certain alley clear of trucks and merchandise before noon, so that employees could proceed to the timeclock to punch out during the lunch period. He indicated that, at times in the past, this was neglected by Moniz.5 About 11:30 a.m. that day, he observed, from a distance of 150 to 175 feet, that Moniz was talking and smoking together with Supervisor Scully at the latter's work station. He had also seen at this time that trucks were blocking the alley. It was then he decided to fire Moniz. Heath described that "most of the time" when he saw Moniz he would be standing around in Scully's department taking an "unauthorized" breaks On three occasions in the past, he had given Moniz verbal "warnings," viz.: In mid-February, he told Moniz that he had certain duties to perform and he was not doing them. Heath could not remember the specific reason of the warning at that time; it was "probably" because Moniz was not "cleaning the alley out." About 3 weeks later, Heath spoke td' Moniz about taking too many smoking breaks. A few days before Moniz was discharged (on April 27), Moniz came to him, angrily complaining about Assistant Foreman Feigo, and calling Feigo a "f- asshole." He told Moniz that he had to watch his language, that he had to get along with these people, and that he could lose his job if he kept that up. Thereafter, Heath asked Feigo what had occurred,7 and was told that Moniz 4 Scully testified that, "at the time" he agreed it was a good thing to have a union in the shop. 5 According to Mary Souza, the alley has always been cluttered during the 5 years of her employment. 6 One regular break is provided in the morning and one in the afternoon. Heath stated that other breaks are solely in his discretion, and cannot be granted by the assistant foreman . However, if an employee, or an assistant foreman, was caught up in his work, a break was permitted. 1119 refused to carry out Feigo's• orders, had called Feigo abusive names, and had actually pushed Feigo. At the time of these alleged incidents, no disciplinary action was taken against Moniz. Respondent contends that Heath alone made the decision to discharge Moniz on April 27. 2. The speeches On May 1 and 2, all the, employees, in about eight separate groups at different times, were assembled and addressed by Vice President Seresky and General Manager Santos .8 At each meeting, letters in English and Portu- guese, dated May 1 over Santos' signature, were distributed to the employees in attendance .9 Most of the employees in the plant were foreign born and could not understand English. Santos translated Seresky's speeches into Portu- guese and also answered the questions of employees which Seresky invited after his speeches. Seresky stated that he made essentially the same statements to all groups of employees; no prepared text was used.'° Mary Souza, present at the first speech, testified that Seresky told the employees: He knew that the Union was trying to get into the shop; that the Union "wasn't good"; that they could do without it; and that they could talk to him about any problems. It was the employee's free choice whether or not they wanted to sign a card. He knew about the (union) meeting at the Gondola Club, and also referred to a meeting at a girl's house. He knew the employees were dissatisfied with the incentive rate system and he would try to help them so that they would be able to make more money. Some of the employees had complained about the Company's posting charts which showed the percentage rate of each employee under the incentive system. He announced that the decision has been made to get rid of that practice. Some girls had called him and wanted their cards back; those who signed could get their cards back. It was a free country and they could sign or not sign a card, as they wished. Seresky was asked many questions. Mary M. Coute, who was not in the same group as Souza, gave the following account: Seresky said that the Union was trying to get in, and it was telling the employees a lot of lies. He could take them to Fall River to speak to people in the Union; and these people were dissatisfied. He knew what had been going on at the union meeting, and he could name a few employees who were there. The foregoing is essentially uncontradicted or confirmed -except that Seresky denied that he said he knew who was present at the union meeting at the Gondola Club, and that he promised an improvement in the incentive rates. No employees were called as Respondent's witnesses. In the light of the full record, inter alia, Souza and Coute are credited. Santos' letter of May I states the following, in part: Dear Fellow Employee: On last Friday I was told by a friend that some union r Feigo's version was that he sought out Heath. 8 Foreman Heath and the particular assistant foreman were also present at each speech . Only Seresky and Santos testified for Respondent concerning the speeches. 9 Seresky instructed Santos as to the contents of the letter , and legal counsel was consulted. 15 The evidence actually shows variations in statements to different groups. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people were making problems for you. Don't be fooled!! They can't make you sign anything! If they did fool you and you have signed a card, you have the right to get the card back. The union people will tell you anything. They will tell you they will get you more pay. How? Will it pay you higher pay? Of course NOT! Your Company pays you the highest pay possible. If it were possible to pay you more, your company would. The union said that it will increase your Health Insurance. Do you remember that in April, 1971, your Company doubled your insurance benefits? The union said it will increase your Pension and Retirement. Do you know that in February, 1972, the Internal Revenue Service approved a tremendous increase in your Pension and Retirement fund? In fact, we have not even had a chance to announce it yet. E. Concluding Findings 1. Restrain and coercion I find that Vice President Seresky's speeches created the impression among the employees that their union activities were under the surveillance of Respondent. Thus, he knew about their union meeting, where it was held, what transpired, and the names of a few employees who were there. In my opinion,- these statements were clearly calculated to, and did, intimidate the employees as to the security they had in the privacy of the union meetings. Respondent thereby violated Section 8(a)(1). Seresky said he would try to help the girls so that they would be able to make more money under the incentive rate system. One or two weeks after Seresky's speeches, certain-of the incentive rates were in fact improved, which permitted the employees involved to earn more money. The evidence shows that time studies bearing upon the incentive rates were being conducted in certain sections of the plant prior to Seresky's speeches. Respondent contends that there was a continuous process of reviewing incentive rates and that the changes in rates which were made following the Union's organizing campaign were entirely "fortuitous." The thesis that, because the process is continuous, all adjustments in the incentive rates are lawfully motivated is unacceptable. There had been many complaints from the girls that the rates were "too tight," which operated to restrict their earning power. It is undeniable that Respondent could readily control the rates, up or down. The time studies conducted after Seresky's speeches were done in the presence of General Manager Santos. As shown, Seresky made the promise of an improvement in the rates in the context of antiunion speeches. This alone, as I find, was intended and interpreted as an inducement. On the evidence, it cannot The individual slip shows NAME WEEK ENDING PERCENTAGE % equals $ while on Rate FOREMAN'S APPROVAL be held that the improvement in rates shortly thereafter would inevitably have occurred in the normal course of the reviewing process. When these improvements were effect- ed, the employees had reasonable grounds to believe they were the fulfillment of Seresky's promise. Respondent did nothing to disabuse the employees of such a belief, and it can be fairly inferred that Respondent's purposes were served in allowing this understanding to prevail. It is found, therefore, that Respondent violated Section 8(a)(1) as to the promise and the subsequent grant of improved incentive rates. In his speeches, Seresky also announced that he was getting rid of the practice of posting charts, which reported on a weekly basis the individual performance of each employee under the incentive rate system. This practice, also called the "report card," was a continuing source of irritation to the employees, of which Respondent was well aware from the complaints of employees. In the evening of May 1, after Seresky's speeches, all the posted charts (permanently posted in each department) were 'taken down. On May 2, a new procedure was put into effect, with a slip distributed to each employee under the incentive system showing only her individual performance for a preceding weekly period. The girls were "happy" as a result of the change. Santos stated that he had been "fighting" and opposing the posting of these charts since he assumed his position of general manager in July 1971-and then he proceeded to testify that he himself made the decision to eliminate the practice in April 1972. However, Assistant General Manager James McCarty, who handled certain details of the change, testified that "we, had been contemplating it for a couple of weeks before it took place." He later stated the decision was made "probably" in early April. Respondent asserts, in essence, that a firm decision had earlier been made to abandon the charts and that the effectuation of the change following the appear- ance of the Union was entirely coincidental. It developed testimony that it became necessary to design the individual slips to be given the employees, to train employees in performing new mathematical computations, and to punt the slips in the plant printing shop, all of which accounted for the delay." I am unable to reconcile this defense in the total context. Knowing the strong concern of the employ- ees on this subject, it is unlikely that Respondent would not reveal such a decision at the time it was purportedly made. In a prospective vein, Seresky told the employees that the unpopular practice was being stopped; indeed, the charts were removed that evening, and the individual slips were distributed the next day. In any event, I do not accept the testimony that so much time was necessary, or actually taken, to prepare for the new procedure of using individual slips. From the substance of Seresky's speeches and Santos' letter, Respondent's intent is quite plain that it sought to influence these employees to reject the Union-specifically mentioning several conditions of benefit theretofore unknown to the employees. I find Respondent's announce- ment that it was getting rid of the posting of charts involved a cognizable change in working conditions deliberately timed to achieve a coercive result. The alleged violation of Section 8(a)(1) is accordingly upheld. Essentially the same reasoning applies to the announce- RENNIE MANUFACTURING CO. ment that the I.R.S. approved a "tremendous increase" in the employees' pension and retirement fund. Emphasizing Respondent's intended impact on the employees, Santos' letter states: "In fact, we have not even have a chance to announce it yet." The allegation does not pertain to the promise or grant of a benefit, but to the acceleration of such announcement to the employees, which would not have been made at this time but for the fact of the initial and critical stage of the Union's organizational drive. Thus, I cannot find that justification was established by Respondent's elaborate explanation that its request for I.R.S. approval was submitted in early 1971; that it informed the employees by letter in April 1971 that the Company contracted with an insurance underwriter to "substantially increase" the retirement benefits; that it had already received I.R.S. approval for the plan in February 1972; and that it withheld announcement of the approved plan because it had asked the insurance carrier to prepare explanatory booklets for employees, which the carver unduly delayed; and that one employee was accorded the benefit of the new plan on her retirement in April 1972. It may be noted that Respondent found no difficulty in advising the employees, in April 1971, much before the plan was approved, of the procedure it inaugurated to increase the retirement benefits. Within the full year which followed, it took no steps to inform all new employees, and remind old employees, of the status of the pending matter. It could well have apprised all employees of the I.R.S. approval in February 1972, without immediately furnishing booklets, in the same manner that it reported to the employees on the subject in April 1971. In this instance, as with the other announcements concerning conditions of benefit to the employees, Respondent's explanations present a combination of remarkable coincidences which lack the force of probative persuasion. In sum, I am constrained to hold that Respondent violated Section 8(a)(1), as alleged. 2. Discharge of Moniz Extensive argument on both sides has been devoted to the position of Respondent that, when Moniz was discharged (on Thursday, April 27), it had no awareness whatsoever of the union campaign, which had been under way for more than 3 days. Seresky and Santos gave this testimony, in substance: They acquired their first knowl- edge of the Union from a report by Heath on Friday, April 28, that "he heard that" there was "buzzing" or "rumbling" in the factory 12 "and Moniz was let go because of the union activity." 13 Seresky also knew on Friday, from Santos, that cards were being circulated in the plant. However, he decided to deliver his speeches the following Monday as a result of four phone calls he received over the weekend from supposed "employees." These phone calls were made to Seresky at his home in Canton, Massachu- setts, from different girls on Friday night, Saturday afternoon, Sunday afternoon, and Sunday midnight. In 12 " people who had been talking to [Heath], more than what they talked to him previously, that ,there was Union activity in the plant" Testimony of Santos 13 Mary Coute was one of the employees named by Heath as the source of this information Coute, on rebuttal, denied it 1121 each instance, the person calling refused to identify herself, stating when asked, that she was "afraid," or "afraid of her job." Each of them raised questions about getting back their signed union cards; and two of them advised Seresky to tell the girls that they do not have to attend union meetings and that they could get their cards back. His purpose in making the speeches was to tell the employees how they could get their cards back and to apprise them of their rights. Seresky had never received such calls before and normally had little contact with the employees. On Monday, about 9-10 a.m., he asked Santos to prepare a letter to be distributed to the employees, and company counsel was consulted. The letter took 4 hours to compose; the first speech was given about 2:30 p.m. Pressed by General Counsel, Santos averred that the "friend," referred to in the letter, who told him the Union was making problems for the employees-was Foreman Heath. Put succinctly, the manner and the substance of Seresky's explanation concerning the weekend telephone calls impressed me as being highly improbable, concocted, and unbelievable. Seresky's testimony implies that Respondent had a source of informants, voluntary or otherwise. And, as earlier described, his speeches displayed an intimate knowledge of the union meetings, and of some of the participants, and unlawfully created the impression of positive surveillance being conducted by Respondent. In addition, the animus of Respondent is reflected in its swift reaction to the advent of the Union, particularly in the inherent coercion of its beneficial announcements to the employees. Similarly, in Santos letter, specifying certain union demands, Respondent purported to know with some precision what the Union was telling the employees. This knowledge could not reasonably have been derived from the union "rumbling," and strongly suggests a much broader acquaintance with the current organizing efforts of employees. For several days immediately preceding the discharge, there was open and intensive union activity in the plant on working time-with Moniz engaged as a leading advocate. As a further element gathered from the entire record, I regard the testimony of Seresky and Santos as vague, dissembling, and generally unreliable.14 Supervi- sor Scully admittedly had knowledge of the union campaign and of Moniz' principal participation. Normally under the Act the doctrine of respondent superior would apply to impute such knowledge to Respondent.15 Scully gave testimony as Respondent' s witness. In its brief, Respondent argues that Scully was acting "adverse" to its interests and therefore it should not be held responsible for his knowledge. Without accepting the validity of such a contention, I do not consider it necessary to rely on Scully's supervision as a critical element. All of the foregoing, in my opinion, sufficiently supports the infer- ence that Respondent knew or surmised Moniz' union activity at the time of his discharge. I credit the testimony that Moniz devoted a greater 14 Leading questions by Respondent were extensive in direct examina- tions, despite repeated admonitions. 11 E g, Montgomery Ward & Company, Inc, 115 NLRB 645, 647, enfd 242 F 2d 497, 501 (C A 2), Extendicare of Kentucky, Inc, 199 NLRB No 47. U 1122 DECISIONS OF NATIONAL LABOR RELATIONS'BOARD proportion of his time to Scully, to whom he first reported each morning.is Theoretically his work was to be distribut- ed among Scully, Camara, and Feigo, as needed. While taking assignments from one assistant foreman, he was on occasion sought out or paged by one of his other supervisors, and could properly have been fully occupied or away from the range of the call. His duties consisted of a variety of errands and minor functions. Thus, it appears that he served three immediate masters, as well as Foreman Heath-sometimes conflicting with each other on demands for his limited time of 5 hours a day. Scully clearly stated that he had no criticism of Moniz' work or conduct. Feigo testified that he "could never find" Moniz, and that Moniz failed to perform certain duties, e.g., clearing the alley, filling the oil cans, and keeping the thread racks supplied. Moniz testified that he performed these duties when required, and received no complaints from management concerning his work. Camara was not called to testify. Respondent's chief grounds for his discharge, and the precipitating cause, as already shown, was his taking "unauthorized breaks" by talking and smoking with Scully in Scully's department. Moniz certainly could assume he was doing nothing wrong in such conduct while in the company of his supervisor. Affirmatively it is shown there were no rules against talking or smoking per se. I reject Heath's efforts to deny the authority of Scully m this regard.17 I question Heath's testimony that, whenever he saw Moniz, "most of the time" he was engaged in such unauthorized breaks. These ostensible wrongdoings could not have been regarded seriously and were in any event condoned. After Respondent learned of the Union's campaign, it would appear that Moniz' conduct became offensive. In the discharge interview, Heath stated the reasons were that Moniz was spending too much time talking and smoking with Scully when he was supposed to be working. On the evidence of both sides, it was Moniz' duty to clear the alley by noon. Moniz testified he customarily cleared the alley at 11.45 a.m. Here it may be noted that, on Moniz' timecard, he was clocked out at 11:45 a.m. onl April 27-bearing in mind the added ground asserted by Heath that Moniz failed to clear the alley on April 27. Written by Heath, the timecard states-"Fired-not doingjob proper- ly and taking too many breaks (unauthorized) after being warned verbally various times (3)." The Feigo matter is not specified. Filling the oil cans, supplying the thread racks, and the Feigo incident were supplemented in Heath's testimony.18 As to the Feigo matter, I find that it occurred before Moniz became involved with the Union, rather than the week of April 23 as stated by Heath and Feigo. Moniz' denial that he "pushed" Feigo is credited. His testimony is 16 Initially Heath confirmed that Moniz spent more of his time with Scully than with Camara and Feigo combined. Later, on leading questions, he testified that Moniz was supposed to work "equally" for the three assistant foremen Further, it is clear that Moniz in fact reported first to Scully each morning, although Heath testified that Moniz was not so instructed when hired. 17 Purportedly, Scully could not authorize such breaks. And Scully could not tell Moniz to clear the alley, but Feigo could Elsewhere Heath testified that Scully did his job well, and was never disciplined for too many breaks 18 Expressly at the hearing, Respondent also relied on the grounds, unsubstantiated, that Moniz had heated words with other foremen, and that, after being fired on April 27, Moniz' remark to Heath-"I'll be seeing that he went directly to Heath concerning a dispute with Feigo as to the removal of trucks from the alley,19 and Heath expressed no dissatisfaction with his work. Looking at Heath's own account, he mildly counseled Moniz to "watch his language," and "he could lose his job if he kept that up." There was no mention of pushing. Nor is it alleged that such conduct recurred. Neither Heath nor Feigo is credited in their respective versions of this incident.20 Three weeks before he was discharged, Moniz received a wage increase. Initially he was excluded from the general raise which included only those part-time employees working more than 25 hours a week. However, an exception was made in his case after he took the matter up with Heath. The statutory test is one of motive-whether the discharge was actually caused, in whole or in part, for reasons of union membership or activity. In the entire lengthy defense, it is apparent to me that Respondent utilized the hearing to dredge up every possible criticism of Moniz, real or fancied. The Feigo incident, failing to fill the oil cans, not supplying the thread racks, being unavailable when needed, and other generalities, were injected as afterthoughts. The alleged unauthorized breaks in smoking and talking with Supervisor Scully, and the failure to clear the alley before noon, are largely unsup- ported in the evidence as misconduct justifying discharge. Even assuming Respondent's belief that these various misdeeds occurred, I find they were old and recurring matters of no serious concern to management until the advent of the Union. Further considerations comprise, in summary: the fabricated testimony of Respondent's principal witnesses; the sudden development of a concen- trated union campaign; Moniz' leadership designation and activity; Respondent's awareness of the organizing cam- paign; its reaction in the animus shown in Seresky's speeches, Santos' letter, and the coercive pressures exerted on the employees; and the significant timing of Moniz' discharge at the height of the union drive. On the record considered as a whole, I conclude that the variety of reasons asserted by Respondent were raised as pretexts, and that its true motive for discharging Moniz related to his union activity. Accordingly, the violation of Section 8(a)(3) is sustained. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among you"-constituted a threat 19 Moniz claimed that, after he repeatedly cleared the alley that morning, Feigo proceeded to block it again with his materials 20 Feigo gave changing testimony, was prone to exaggeration, was and unpersuasive as a witness His own detailing of the incident with Moniz would indicate a decided weakness or reluctance in exercising his own supervision. Yet the seriousness of the insubordination which he described would, by ordinary standards, suggest an immediate disciplinary reaction If Feigo did speak to Heath at the time of the incident , it is evident that the matter was allowed to pass Furthermore, Feigo testified, incredibly, that when he observed Moniz smoking, at least four times a day, he assumed Moniz was not working and complained to Heath RENNIE MANUFACTURING CO. 1123 the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. THE REMEDY practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend the following: 22 Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Particularly by reason of the discriminatory discharge, which goes "to the very heart of the Act," a broad order appears warranted.21 It has been found that Respondent unlawfully dis- charged John J. Moniz in violation of Section 8(a)(3) of the Act. It will therefore be recommended that Respondent offer this employee immediate and full reinstatement to his formerjob or, if suchjob no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him, by payment to him of a-sum of money equal to that which he would normally have earned, absent the discrimination, from the date of the discrimination to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing and Heating Co., 138 NLRB 716. It will also be recom- mended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1.' Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Be terminating John J. Moniz, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing, and by other acts and conduct interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor 21 N L R B v Express Publishing Co., 312 U S 426, N L R B v Entwistle Mfg Co, 120 F 2d 532 (C.A. 4). 22 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 ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Rennie Manufactur- ing Company, Inc., Taunton, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising, granting, or newly-announcing conditions of benefit to employees to influence their union activities and sentiments; or creating the impression among employ- ees that their union meetings and activities are under management surveillance. (b) Discouraging membership in International Ladies Garment Workers Union of America, AFL-CIO, or in any other labor organization, by discharging employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer John J. Momz immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Administrative Law Judge's Decision. (b) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of the Administrative Law Judge's Decision. (c) Post at its Taunton, Massachusetts, plant, copies of the notice attached hereto, as "Appendix,"23 Copies of said notice on forms provided by the Regional Director for Region 1, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. deemed waived for all purposes. 23 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 "