Vega Industries, Inc.

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vega Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America ' (UAW). 'Case 18-CA-3730,-2,-3 November 7, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 28, 1973, Administrative Law Judge Paul L. Harper issued the attached Decision in this proceeding. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions and briefs. 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, as modified herein.2 The Administrative Law Judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by threatening to withhold plantwide wage increases and improvements in fringe benefits be- cause the Union filed unfair labor practice charges. The General Counsel excepts to the Administrative Law Judge's failure to include in his recommended Order a provision prohibiting Respondent from thus violating the Act. We find merit in this exception and will so modify the recommended Order. ORDER Pursuant to Section 10(c) of- the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order, of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Vega Industries, Inc., Mt. Pleasant, Iowa, its officers, agents, successors, and, assigns, shall take the action set forth in the said recommended Order, as modified below. 1. Insert the following as paragraph 1(b) and reletter the present subparagraph (b) as (c): "(b) Threatening to freeze wages because of any lawful action by the Union, including the filing of unfair labor practice charges." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 207 NLRB No. 16 i The Administrative Law Judge found, and we agree, that the interrogation of employees conducted by Respondent's attorney should not be held violative of Sec. 8(a)(1) of the Act In so concluding, we rely solely on the fact that, were we to accept the offer of proof made in this connection, it does not appear that the attorney's questioning exceeded Board standards for legitimate interrogation or was otherwise coercive. 2 The Administrative Law Judge inadvertently referred to an earlier case as numbered 18-CA-3730, which is the number of the present case. The correct citation is I8-CA-3472. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Vega Industries, Inc., violated the National Labor Rela- tions Act, and has ordered us to post this notice and advise you as follows: Section 7 of the Act gives all employees these rights: To engage in self-organization; To form, join, or help unions; To bargain collectively through a repre- sentative of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any or all of these activities. WE WILL NOT do anything that interferes with these rights. WE WILL NOT threaten to freeze, wages because of any lawful action by the Union, including the filing of unfair labor practice charges. WE WILL NOT unlawfully discharge or in any other way discriminate against any employee because of his union interest or activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection, or to refrain from any and all such activity, except to the extent that such rights may be affected by an agreement of employment as authorized in Section 8(a)(3) of the Act, as amended. WE WILL pay to Thomas Holmes and Larry Parker backpay for any loss of pay they may have suffered as a result of our discrimination against them. VEGA INDUSTRIES, INC. 15 WE WILL expunge from our records all past warning notices to Thomas Holmes including specifically those dated January 18, 1972, and February 8, 1972, and we will not in any manner whatsoever give any consideration to such notices with respect to his future employment with our Company. WE WILL offer to Thomas Holmes and Larry Parker immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges previously enjoyed. All our employees are free to become, or free to refrain from becoming, members of any labor organization. VEGA INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) 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, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611. DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge: Upon charges filed by the aforenamed Union on November 20 and 24, 1972, the General Counsel issued a complaint on February 14,, 1973, alleging unlawful interrogation, threats, and the discriminatory discharges of three employees in violation of Section 8(a)(l) and (3) of the Act. On March 4, 1973, General Counsel issued an amendment to complaint alleging Respondent refused to grant wage increases and improvements in fringe benefits because the Union filed the subject unfair labor practice charges. Respondent denies the commission of unfair labor practices. A hearing was held in Mt. Pleasant, Iowa, on April 12, 13, 26, and 27, 1973. Upon the entire record, 'including my observation of the demeanor of the witnesses and upon consideration of the briefs, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is a New York corporation with a plant in Mt. Pleasant, Iowa, where it is engaged in the manufacture of indoor fireplaces. Respondent's interstate purchases and sales respectively exceed $50,000 annually. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Chronology of Pertinent Events Vega is a manufacturing concern and, according to its manager, E. K. Scott, "manufactures a full line of heat circulating, zero clearance fireplaces, with chimneys and all accessories," including also "woodburning fireplaces." At material times to this proceeding, Respondent employed about 320 employees in its factory at Mt. Pleasant, Iowa. Scott has been the chief executive officer of manufacturing since the latter part of 1971. Apparently, during the summer of 1971, the Union (Charging Party herein) made an attempt to organize Vega's employees in Mt. Pleasant. Thomas Holmes, one of the three alleged discriminatees in this case, became interested and active in the Union at this time. In November 1971, one employee was discharged, another suspended, and Holmes in January or February 1972 received two written warnings. The discharge, suspension, and warning notices to Holmes were the subject of a charge filed by the Union and a complaint issued in Case 18-CA-3472. Subsequently an all-party informal settlement agreement was executed and approved on June 27, 1972. The only relevance of the settlement agreement to this proceeding is its provision "We [Respon- dent] will withdraw and rescind the warning notices to Thomas Holmes . . . ." The complaint in that case alleged that the warning notices to Holmes resulted from his union or other protected activities. However, the merits of such allegations form no basis for findings and conclusions in this case. On January 17, 1972, the Union addressed a letter to Respondent notifying Respondent of,the identity of their in-plant organizing committee. Some 10 employees signed this letter as members of such committee. The signatures included that of Thomas Holmes. Significantly, it did not include the signatures of the other two alleged discrimina- tees, Murphy Evans and Larry Parker. As the letter has some relevancy to the discharge of Holmes, It will be discussed more fully below. Sometime in October 1972, Scott called some 12 or 13 employees into one of the plant offices where Respondent's attorney questioned them about certain alleged statements of their union representative at a union meeting. The statements were considered slanderous by Respondent, and the interrogation purportedly was, gather informa- tion and perhaps evidence for state court action if, so indicated by the interviews, This episode formed the basis for one of the issues of this case and will be treated more fully below. On October 13, 1972, the Union filed a representation 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition and, on October 30, 1972, notified Respondent that Holmes would appear at the representation hearing. On November 16, 1972, Holmes was discharged. Murphy Evans and Larry Parker were discharged on November 20, 1972. The election was scheduled to be conducted on Decem- ber 12, 1972. On December 6, 1972, Respondent addressed a letter to all employees informing them, inter alia, that "wage increases and improvements in fringe benefits are frozen by the union's action" (refusing to sign a request to proceed with the election and filing the subject charges). This being one of the subsidiary issues, it is discussed more in detail below. Issues The primary issues concern whether or not Thomas Holmes, Murphy Evans, and Larry Parker were discharged because of their interest and activities on behalf of the Union or for the reasons asserted by Respondent. Subsidiary issues include (a) the complaint allegation that "Scott interrogated employees in his office concerning their attendance at Union meetings and what was said at these meetings"; (b) -"Scott and Sammons threatened employee Thomas Holmes that if he went to the plant or the parking lot with the Union representative, he would get seriously hurt"; and (c) "Scott told employees by letter and at a meeting . . . that it [Respondent] could not grant wage increases and improvements in fringe benefits because the Union filed unfair labor practice charges against Respondent." The Alleged Interrogation by E. K. Scott Sometime in October 1972, some 12 or so employees were called into an executive office at the plant during the workday. There they were- interviewed by Respondent's counsel, John Bacheller, Jr., in the presence of Manager Scott. Only two witnesses were called by General Counsel in support of this complaint allegation and it was obvious from the testimony that Bacheller, not Scott, had done all the interrogating. Respondent's counsel contended it would thus be necessary for him to testify on behalf of his client and for ethical reasons felt obliged to withdraw as counsel- if it became necessary to so testify. At that given point, General Counsel did not move to amend the complaint to substitute the name of Respondent's counsel for that of Scott's, contending Scott was present through- out the interviews and accordingly Respondent was responsible for the alleged unlawful interrogation? Under these circumstances, I permitted General Counsel to make an offer of proof in question and answer form and reserved ruling on Respondent's objection. I have now considered the arguments of counsel, at the hearing and in their briefs, and hereby reject the offer of proof and sustain Respon- dent's objection. However, even if I were to accept the offer of proof I would find the evidence insufficient to sustain the allegation of unlawful interrogation in violation of the Act. 1 Before the hearing recessed on April 13, 1973, counsel for General Counsel announced he would consider such a motion to amend during the recess before the hearing resumed on April 26. Apparently he elected not to Of the two witnesses who testified concerning this episode, one had very little recall on direct examination of the details of the interview. He testified that Respondent's counsel "said he heard I was at a union meeting in town ... " and "was there anything that was said at the meeting that would go against the company or harm them in any way. I said `No, there was not: ... " On cross-examina- tion, the witness recalled that "... I do remember you saying that I don't have to answer this if I don't want. I mean it is up to myself." He further recalled that Respondent's counsel stated, "I will not ask you for and you should not volunteer any information concerning your personal feelings or activities respecting the union." The second witness called by General Counsel also had scanty recall on direct examination., He testified, ". . . the lawyer did all the talking . . ." and stated, "I heard you were at the meeting, and did I hear the union man say anything about the company trying to buy the government man off to keep the union out . . . I said no . . . then Don (Scott) says to go back, it was my lunch hour.' On cross- examination, the witness was asked many questions about whether or not he was apprised of his rights, the voluntary nature of the interview, the reason for the interview, and other such questions clearly indicating Respondent had taken meticulous care to follow the Blue Flash2 safeguards while interrogating its employees concerning reported conduct of a union representative which, if true, might have constituted slander against the employer. It may be understandable that rather unsophisticated witnesses re- tained from such an interview only their impression they were asked generally about their attendance and what was said at a union meeting, but such impressions as recalled in their testimony are not necessarily convincing proof that only such general and limited remarks were made or that they were in fact made in the mariner described. Their admissions on cross-examination convinces me that Res- pondent did not overstep the bounds of Section 8(a)(1) of the Act. I have considered General Counsel's argument in his brief that this interrogation took place before the subject charges were filed and therefore the rationale for permitting Respondent's attorney to question employees, namely to prepare for trial, is of doubtful applicability. Further, I have considered the argument of counsel for the Charging Party that, even if the Employer gave the Blue Flash caution, such precautionary procedure applies only to Board actions. It is also true that the purpose of the interrogation, as it was in Blue Flash, was not to ascertain whether the Union represented a majority of the employees so that Respondent would know whether or not it was obligated to bargain with the Union. Nevertheless, I believe the arguments noted above are too restrictive and that the primary question in any event is whether or not such interrogation constituted unlawful interference or coercion. Under the circumstances described by the testimony of record, I would conclude that the conduct of Respondent here in question falls short of interference or coercion. As I have rejected the offer of proof, there is no evidence of record to support the allegations contained in do so, as no motion to amend was made at the resumed hearing. a Blue Flash Express, Inc., 109 NLRB 591. VEGA INDUSTRIES, INC. 17 paragraph 7(a) of the complaint and, accordingly, I recommend dismissal of this portion of the complaint. The Alleged Threat of Bodily Harm to Holmes The complaint contains the allegation that "on or about November 16, 1972 [date of Holmes' discharge] Scott and Sammons threatened employee Thomas Holmes that if he went to the plant or the parking lot with the Union representative, he would get seriously hurt." Scott, Sam- mons, and Holmes were the only persons present during the termination interview. Holmes testified that on November 16, 1972, he was summoned to the office of Plant Manager Scott by his immediate supervisor, Gerald Sammons, who accompa- nied him to the office. After being told he was being terminated from his employment and the reason therefor, Holmes testified that Scott said to him: All right ... since you are no longer with the company, I would like to give you advice, and if you repeat it I will deny it.... if you are caught in the parking lot or anywhere in the plant you will be hurt. To this strongly worded alleged threat of bodily harm, Holmes testified that he replied, "When do you want me to punch out?" Scott, according to Holmes, looked at his watch and Gerald Sammons and said, "It is almost quitting time now. Do it at your convenience." Scott denied making the alleged threatening remark attributed to him by Holmes. There is thus a sharp credibility issue as to whether or not the threat was actually made. Supervisor Sammons corroborated Scott's testimony in this regard. Scott impressed me while testifying as being a mild-mannered genteel person and he appeared to be making every effort to relate what was said in the termination conversation to the best of his recollection. A threat of physical violence is completely incongruous with his personality in my opinion. Although I have elsewhere discredited portions of his testimony relating to this same conversation, I credit Scott's denial that he made the threatening remark attributed to him by Holmes. My best judgment is that if any remark of a similar nature to that alleged was made it was either misunder- stood or misinterpreted by Holmes, or was not made at all. Moreover, it seems to me inherently improbable that, following such an overt threat of bodily harm, Holmes would merely have replied, "When do you want me to punch out?" The burden of proof is upon the General Counsel. I find that the allegation Respondent violated the Act by making a threat of bodily harm to Holmes if he returned to the plant or parking lot has not been sustained. Accordingly, I recommend this allegation of the complaint be dismissed. Scott's Alleged Threat of Reprisals Because the Union Filed Subject Charges An amendment to the complaint was filed March 14, 1973, alleging that on or about December 6, 1972, Respondent, by E. K. Scott, told employees by letter and at a meeting with employees in the plant that it could not grant wage increases and improvements in fringe benefits because the Union filed unfair labor practice charges against Respondent. In support of this allegation, employee Jerry, Fulk testified that at this meeting Scott said, "that since the Union filed charges against the Company that there would be no more plant raises until all this was settled and that could last anywhere from 2 months to 2 years." Employee Charles John Baucek on cross-examination testified as follows: Q. It was within the context the Union had filed charges and now we are not going to have an election, is that what he was saying to you in that speech on December 6? A. I wouldn't say that was all he had to get across. Q. Didn't he say he couldn't give a general plant raise as long as the election issue was pending and wasn't disposed of? A. Yes. Q. Did he say absolutely this thing is going on for 2 years, the Company will not accept the outcome of any hearing, or did he he say it could go on as long as 2 years? A. No, he, was fairly definite. He said in all likelihood either side would litigate and it would most likely be 2 years before there would be any general plant raises. In order to conclude what was probably said at the December 6 meeting, it is helpful to review some of the language contained in the December 6 letter to all employees. The letter in pertinent part reads as follows: Since scheduling the election the Union has filed several unfair labor practice charges against Vega. Unfair labor practice charges are simply onesided allegations. These allegations must be investigated by the N.L.R.B. with both sides giving evidence. Based on the conclusion of the N.L.R.B. the charges are either dismissed or there is a trial, all of which is time consuming. When and if there is an election conducted is dependent on many things, including the action of the Union and the NLRB. The election could be conduct- ed 2 months from now or 2 years from now. Unfortunately, wage increases and improvements infringe benefits are frozen by the Union's action. No changes can be made until this whole matter is resolved. [Emphasis supplied.] Respondent would draw a fine line between freezing of employee benefits because of the Union's action in delaying election procedures and the Union's action in filing unfair labor practices. Scott in his testimony concerning the speech to employees testified that he told the employees ". . . it was on counsel's advice that when an election is pending no changes may be made in wages or other benefits without endangering the filing of an unfair 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practice charge." Scott specifically denied that he told the employees the Company would not grant wage increases and improvements for fringe benefits because the Union filed unfair labor practice charges against the Company. This denial however must be weighed against the language contained in the Respondent's letter of December 6, as well as the testimony contained in the record regarding Scott's speech to the employees. It is clear to me that the message conveyed to its employees not only referred to the Union's refusal to sign the request to proceed with the election but also referred to the fact that the Union had indeed filed unfair labor practice charges against Respondent. That no real distinction existed, even in Scott's mind, is buttressed by Scott's testimony in response to a question by his own counsel. "I made the statement that the Company could not grant any increases because they could not grant them in the pendency of an election, and the election was being held up because of the unfair labor practice charge. " (Emphasis supplied.) During the pendency of a question concerning represen- tation the employer's position regarding economic action is no doubt made more difficult than at other times. In deciding on an appropriate course of action, he acts at his peril if he makes the wrong choice. Where, as here, he is of the view, or has reason to believe (since the Union did not file with the Regional Director a request to proceed with the election) that the Union does not represent a majority of Respondent's employees in an appropriate bargaining unit, to bargain with the Union over the matter of plantwide raises may result in Respondent being held to have violated Section 8(a)(2) of the Act. To institute the raises without discussing such action with the Union places Respondent in jeopardy of a possible filing of violation of Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964). However, the fact that Respondent is in a tenuous position because of the pendency of a question concerning representation among its employees affords no justification for wrong choices which may overstep the bounds proscribed by the Act. The Respondent's legal duty during the period in question was to so conduct itself in a manner as it would if the Union was not involved with its employees. In Champion Pneumatic Machinery Co., 152 NLRB 300, the Board held that on the circumstances of that case the granting of benefits during the pendency of a question concerning representation (objections to the election were pending) was not for the purpose of affecting the pending representation proceeding. As in the subject case, the Board recognized that an election might be pending for several years during the processing through appelate litigation of an unfair labor practice case which must be resolved before the election is conducted. The Board also recognized that developing economic factors during such period might render wage adjustments advisable and necessary, and that the law does not require a holding that any such adjustment made while an election is pending is automatically an unfair labor practice. It must be also noted that Respondent continued to make periodic merit increases to its employees during this same period of time it announced the plantwide wage freeze. Insofar as its relationship with the Union is concerned, it is difficult to see the distinction between the two kinds of benefits, and no satisfactory explanation of this distinction is made in the record. Under all the circumstances, I find that Respondent's announcement to its employees of a plantwide freeze, verbally and in writing, was not due to a good-faith concern that it might violate the Act but, rather, due to a desire to impress upon its employees that it was the "union's action" (the admittedly lawful refusal to sign a request to proceed with the scheduled election and filing the subject unfair labor practice charge) that forced Respondent to announce such a wage freeze. The message to the employees was clear that the employer would have continued the granting of plantwide wage increases and other benefits except for the fact that a union was in the picture. It is well established that such conduct violates Section 8(a)(1) of the Act. See The Gates Rubber Company, 182 NLRB 95; Dorn's Transportation Company, Inc., 168 NLRB 457. The Discharge of Holmes Holmes was first employed by Vega in January 1971. He was discharged November 16, 1972. During the summer of 1971, he became active in the Union's campaign to organize Vega's employees and continued his interest in the Union until his discharge. Sometime in January 1972, Holmes signed a letter dated January 17, 1972, along with nine other employees addressed jointly to the Regional Director of the Board's office in Minneapolis and the Respondent. The letter was typed on a union letterhead and mailed in an envelope showing the Union's address. The contents of the letter informed the addressees that the signatory employees were members of the Union and also leaders of the Union's in-plant organizing committee. Respondent made much ado about this letter at the hearing concerning its receipt and its contention that it was not opened by any agent of Respondent; therefore-ran the argument-it was unaware of the contents of the letter and the identity of the in-plant employee committee prior to its receipt in evidence at the hearing. Plant Manager Scott testified that upon receiving the letter he immediately phoned Respondent's counsel for instructions as to its disposition. Upon such instructions, Scott contacted Local Attorney Elgar and requested an appointment at the latter's office in Mt. Pleasant. Scott then took the letter, still unsealed, and drove over to Elgar's office. He was accompanied in this mission by Production Manager Arnold. Elgar, according to the testimony of both Scott and Elgar, got into the back seat of Scott's car, was handed the envelope, and upon Scott's instructions got out of the car and, away from the presence of Scott and Arnold, opened the letter. He then ap- proached Scott and told him that the letter was from the Union "bearing signatures," but he did not reveal the names of those persons whose signatures appeared on the letter. Upon further instructions from Scott, he then took the letter to his private law office and placed it in the office safe, where it remained until the hearing. As there were no other witnesses to this episode, the testimony of Scott and Elgar stands uncontradicted. I have no reason to discredit either Scott or Elgar and find the events occurred as VEGA INDUSTRIES, INC. described in their testimony. Obviously, General Counsel introduced the letter to attempt to show Respondent had knowledge of Holmes' interest and activities in the union organizing campaign; but I find, based on the credited testimony of Scott and Elgar, that the evidence contained in this record does not establish that Respondent learned of Holmes' union interest and activity through this letter. This finding, however, does not entirely dispose of the letter episode, nor of Respondent's knowledge of Holmes' interest and activity in the Union. It seems to me that such bizarre manipulations engaged in by Respondent upon receipt of a rather routine letter from the Union clearly reveals its innermost antipathy for the Union and the concomitant organizational activities of its employees. Certainly it cannot be said that Respondent handled the letter in question in a routine business fashion. The question must be asked, and answered-why then did Respondent engage in such weird manipulations upon receiving the letter? It is clear to me that Respondent did not intend to treat with the Union in a routine business- like manner. Respondent's aversive reaction upon receipt of the Union's letter compels the conclusion it not only was opposed to the organization of its employees but intended to take measures to avoid dealing with the Union as representative of its employees. As to Respondent's knowledge of Holmes' union interest and activity, I have little difficulty in finding that Respondent was fully aware of this fact long before Holmes was discharged. I also believe and find that Holmes' renewed activity shortly before the scheduled representation election, rather than the several asserted reasons contended by Respondent, precipitated his dis- charge. Holmes' activity in attempting to organize the employees of Respondent is well demonstrated by credible testimony in the record. He was involved in the Union's campaign as early as the summer of 1971, serving as cochairman of the in-plant employee committee and later as chairman. His activities included handbilling, talking to other employees about the Union, getting union authorization cards signed, and attending and conducting meetings. Much of this activity was performed rather openly. Sometime in January and February 1972, Holmes received written warning notices which were placed in his personnel file. About the same time, the then chairman of the in-plant employee committee was discharged and another employee suspend- ed. As a result, the Union filed charges and the Board's Minneapolis office issued a complaint against Respondent. This complaint (Case 18-CA-3730) alleged, inter alia that "On or about January 18, 1972, and again on or about February 8, 1972, Respondent issued written warning notices to employee Holmes," and contained the usual conclusionary paragraphs that Respondent engaged in such acts and conduct because of the union membership and activities of Holmes. The case was settled informally just prior to the opening of the hearing. The settlement agreement contained the provisions insofar as it pertained to Holmes, "We [Respondent] will withdraw and rescind the warning notices to Thomas Holmes ..... Notice to employees containing this provision was posted on Res- 19 pondent's bulletin board for the required 60-day posting period. There is no question but that Respondent's plant manager, Scott, knew about and participated in these proceedings; he testified that the terms of the settlement were explained to him by Respondent's attorney Bacheller and that he agreed to these terms. While the settlement agreement admits no unlawful conduct by Respondent (although it did not contain a nonadmission clause), I am convinced nevertheless that, if Scott was not previously aware of Holmes' union interest, he was well aware of it at the time the settlement agreement was executed. Moreover, there is other evidence that Respondent, through certain other supervisors, was aware of Holmes' activities. For example, Lloyd Fowler, departmental supervisor, and Holmes' immediate supervisor before his transfer to the insulation department, admitted that he knew as early as the fall of 1971 that the U.A.W. was trying to organize the plant and that he had seen Holmes distribute union leaflets in the parking lot. Moreover, Holmes testified that, when he got a second warning notice in February 1972 (for talking to other employees during working time) and he protested this action to Fowler with the argument that it was not unusual for employees to speak to other employees at their machines, Fowler replied, "I am not singling you out because of the union, but I am writing you up and giving you a warning." As this testimony is undenied in the record, I find that it occurred as described by Holmes. Holmes also testified that sometime in the fall of 1971, he had a conversation with Fowler concerning the union campaign at that time. According to Holmes' testimony Fowler said to him, "Well, in an organizing drive like this someone always gets hurt, I hope it is not one of the people in my department." Fowler in his testimony recalled the conversation but testified that Holmes had said if the union campaign was a success they would probably have to strike in order to get a contract, whereupon Fowler replied, "Yes, this is the trouble with those things . . somebody always gets hurt, and I hope it is not m} people." The slight variations in their respective testimony is of little significance. Even assuming Fowler's version to be the more accurate, it nevertheless reveals Holmes interest in the Union and Respondent's knowledge of tha fact. Holmes testified about a conversation with then Production Superintendent Warren V. Joyce in Octobe 1972,3 in which he expressed unhappiness over his transfe to the insulation department and suggested his union activities might have had something to do with it and tha "If I have to stay in insulation I would just as well qui ..." to which Joyce replied, "Did you ever stop to thin] that [they] might be accomplishing their goal if you quit? Joyce denied this last remark but admitted in a vagu, manner that the conversation contained some mention o Holmes' union activity. He testified as follows: "He ma• have implied it or said something about his activity, but can't really remember anything specifically said." Joyc was even more vague and evasive on cross-examination. credit Holmes' version of this conversation over that o Joyce. Both Fowler and Joyce are admitted supervisors. I is well settled that the knowledge of a supervisor is impute to the employer. See Protective Coatings, Inc., 170 NLRI 3 Joyce had become assistant plant manager at the time of the hearing. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 647. I find that Respondent was fully aware of Holmes' interest and activities in the Union prior to his discharge. As noted above, Holmes was discharged on November 16, 1972. He began his employment with Vega on January 11, 1971, in the fabrication department. Until January 1972, he had received no written warnings concerning his work performance and as a matter of fact received periodic merit raises until his discharge. His last merit increase came in September 1972. In January 1972, he had been interviewed by management officials for a possible role in supervision. During the same month, Holmes signed the in- plant committee letter discussed above. In January and February 1972, he received his first warning notices. On the basis of unfair labor practice charges filed by the Union, a complaint was issued alleging that the warning notices given Holmes were discriminatorily motivated because of his union activities. As a result of an informal settlement agreement, the warning notices were rescinded. The first notice resulted from a mistake Holmes had made in running certain parts in fabrication. He testified, "There was rights and lefts, and I run them all one way." The second notice pertained to Holmes' talking to other employees at their machines.4 Sometime in the summer of 1972, he was transfered from the fabrication department under Lloyd Fowler to the insulation department under Gerald Sammons. Holmes was selected along with four or five other employees, the basis of selection allegedly being low production. However, Holmes at this point had never been warned about low production and there is evidence that his production was not as low as some others in the department. All except Holmes eventually returned to their old jobs. It was not alleged in the complaint that the transfer or the refusal to return Holmes to his old job was discriminatory. It was not until October 3, 1972, that Holmes received another warning notice along with several other employees for "quitting work early." On October 13, 1972, he received a warning for "horseplay." No other disciplinary warnings were given to Holmes between this date and the date of his discharge on November 16, 1972. As a result of the Union's campaign, it filed a representa- tion petition in Case 18-RC-9292 on October 13, 1972. Thereafter, the parties signed a stipulation for consent election scheduled December 12, 1972, but the subject charges blocked the election as the Union decided not to sign a request to proceed with the election. Holmes testified that, on November 16, 1972, his immediate supervisor, Sammons, accompanied him to the office of Plant Manager Scott. When they entered the office, Scott, according to Holmes, said, "No sense beating around the bush, I will get to the point. You heard about Bud Joyce leaving us . . . we feel we no longer need you either. You have been involved in horseplay, you have a low rate, and we don't like your company attitude. And at a future date if we feel it necessary I am sure we can dig up more." To this Holmes remarked, "You knew before you called me in here I would be getting in contact with the National Labor Relations Board." Scott then said, accord- ing to Holmes, "I kind of figured that, but others have tried it . . . Glen Heady tried it and you don't see him around here, do you? . . . I am going to do anything I can to keep the union out." Holmes testified that Scott then made the threatening remark discussed elsewhere in this report. I have already stated my reasons for finding that Scott did not make the threatening remark. However, although Scott denied making the comment about doing anything he could to keep the Union out, I credit Holmes' testimony in this respect over Scott's denial. There was nothing about the demeanor of either witness on which to base this finding, but it is reached after consideration of all the testimony in the record relating to Respondent's reactions and attitudes toward the Union, especially Scott 's handling of the Union's January 17 letter as well as his letter and speech to all employees on December 6 all of which reflect hostility towards the Union. Although union hostility on the part of an employer is not in and of itself an unfair labor practice, such animus is a significant factor to be considered in evaluating the reason for an employee's discharge. N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5, 1962). Holmes' immediate supervisor, Sammons, testified on direct examination regarding the reasons for Holmes' discharge. At one point, he testified it was he who made the decision, at another, that during the exit interview in which Scott, Sammons, and Holmes were present "At that time we decided to terminate him." Sammons states as his reason for the termination action against Holmes that he . . noticed that Tom, a lot of times, was not at his station . . . also, he kept telling the people, more or less bossing the other people around . . ." and that other employees reported to him "that Tom made the statement to them to slow down and not to break their back for the company." Sammons testified that after he heard these reports from other employees he went to the personnel office, got Holmes' record, "went to Don Scott's office, and we reviewed his record . At that time, we decided to terminate him." Admittedly, no warning notices had been given to Holmes because of the "reasons" for his discharge. Although Sammons testified the "reasons" for Holmes' discharge was being away from his work station , bossing other employees, and telling other employees to slow down, he testified that, at the exit interview, "We told Tom we were getting rid of him because of his low productivity, and we reviewed his record with him and brought up the other things that were in his file that the other foremen had written up on him ...: . (Presumably including the notices which had been "rescinded" by the terms of the settlement agreement hereinbefore.) An effort was made at the hearing to show some connection between low productivity and being away from his work station. I assume there is a connection, but it has no effect in correcting the obvious inconsistencies in Sammon 's testi- mony and its contradictions to that of Scott . With respect to Holmes being away from his work station , Sammons testified his only action regarding this conduct was "I 4 There was no showing Holmes had more or less warning notices than notices for the purported purpose of refuting certain testimony of Holmes to other employees. The rule of thumb was one verbal and three written the effect he had been unduly singled out in being given warning notices for notices before discharge, but it was observed in the breach more than in conduct other employees had engaged in but received no warning notices. practice. Besides, Respondent introduced volumuous records of such VEGA INDUSTRIES, INC. 21 talked to him briefly on this one day." Respondent introduced no evidence to establish the allegation that Holmes ' bossed other employees. It became clear at the hearing that Holmes merely told, as he was supposed to do, the material handlers where to place material near his machine when he was in the fabrication department. Likewise, there is no probative evidence to establish the allegation that Holmes told other employees to slow down. To the contrary, there is uncontradicted evidence that he did not engage in such conduct. It is thus clear to me, and I find, that the reasons asserted by Sammons for the discharge of Holmes are pure pretext. Compared to Sammons' testimony regarding Holmes' discharge, Scott testified regarding the exit interview with Holmes as follows: "I said to him [Holmes] that because of his continual attitude of complaint, because he was absent from his work station, because he had received reprimands in the past, we considered him not salvageable as an employee and we were therefore terminating him." Significantly, Scott admitted that the two written warnings to Holmes in January and February 1972, which were "rescinded" by the terms of the settlement agreement in Case 18-CA-3730, were considered in making the decision to terminate him on November 16, 1972. In this connec- tion, he testified, "I may have agreed to rescind them. I didn't agree to forget them." Scott testified, at variance with the testimony of Sammons, that when he, Scott, asked Sammons his reasons for wanting to discharge Holmes, Sammons replied that "Holmes was absent from his work station, that he was. chronically complaining about, as I recall, where the material handler was placing the cartons, he continually complained about working in that depart- ment and wished to return to 502, and I believe he used the term just had a bad attitude: " Still at more variance with the testimony or record concerning Holmes' discharge, already distorted by mutually inconsistent and contradic- tory testimony of Respondent's witnesses, is the notation on Respondent's records entitled "Factory Termination" which shows Holmes was "discharged because of low production-horseplay-breaking company rules." In considering all the record evidence concerning the' discharge of Holmes, especially the inconsistent and contradictory testimony of Respondent's witnesses, the variation in the stated grounds for his discharge, and the timing of his discharge, I find that Respondent's asserted reasons for his discharge are pretextual.5 I further conclude and find that Respondent had knowledge of Holmes' rather extensive interest and activity in the Union, was opposed to the organizational efforts of its employees, and in order to discourage such activities discharged Holmes in violation of Section 8(a)(3) and (I) of the Act. Murphy Evans Evans was first employed in the fabrication department on the night shift in May 1972. She was arsferred to the welding department about the first part of November 1972 5 N.LKB. v C. W. Radcliffe and W W. M dke, copartners d/bla Homedale Tractor & Equipment Company, 211 F.2d 309, 314, 315 (CA. 9, 1954). under Department Foreman Kauffman. After a total of about 5 months' employment with Respondent, she was terminated November 20, 1972. For reasons set forth below, I find that Evans was discharged for reasons other than her interest and activity in the Union. In the first place, her union activities were minimal. Secondly, there is no probative evidence in this record to establish that any supervisory or management official knew about such activities prior to her discharge. According to her own testimony, "... it took me from May to September to find someone on the union that wasn't afraid to tell me where to get a card to sign." She testified Holmes gave her a card to sign and additional cards to get signed by other employees. She succeeded in getting eight or nine cards signed, but there is no evidence that this activity became known to management. The same is true with respect to distributing union leaflets "in the restrooms and on machines during lunch." About 2 weeks prior to her discharge, Evans was transferred to the welding department. I find much of her testimony concerning the facts leading to her discharge to be self-serving and unreliable. Also, her demeanor while testifying revealed an emotional involvement with respect to her employment relationship with Respondent. Her testimony regarding the transfer was slanted toward the idea that she had been unduly persuaded by certain management representatives, particularly Personnel Direc- tor Hussey. She testified that Hussey came to her machine one day and "asked me if I never read the bid sheet any more." It is clear, however, from her own testimony that she had previously inquired about other potential job openings. Thus, she testified, "When I hired on I asked him about those higher-paying jobs ...." Her testimony that "He [Hussey] glorified it, 'told me what the job was, how they needed perfectionists in that job" that "I'd get nine hours a day and a raise soon and he needed me there ... " impresses me as being largely self-serving. In any event, Evans acknowledged that she requested the transfer and was transferred to welding under Supervisor Kauffman on November 6, 1972. From November 6 to November 20, 1972, when she was terminated, Evans testified to one episode after another of problems on the job. She admitted numerous mistakes but attributed these to lack of training, harassment by other employees, and being pushed ahead too fast on the job. I find no merit to such contention. The record reveals that Respondent made every reasonable effort to train Evans and gave her every opportunity to perform and advance in accordance with her own rather stringent demands. As to harassment, she claimed that someone turned up the heat on her welding machine as a prank and that she constantly complained about this and about other horseplay in the plant. There is no evidence in the record, however, that any particular employees engaged in such harassment or that horseplay affected adversely the quality of her work performance in any manner. In regard to her performance as a welder, Evans testified on cross-examination as follows: Q. You're saying as a welder you did between 160 and 200 percent? 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Percent of R E (rate expected). Q. I believe you also complained during the period of work as a welder you did not receive adequate training? A. Any at all. Q. In fact, you say in your affidavit when you went to work somebody spent 30 minutes teaching you to weld? A. Thirty seconds that should have been. When asked if her testimony was that with 30 seconds of training she immediately achieved 160 to 200 percent of the rate expected of a welder, Evans testified, "Well, there were a lot of extra breaks taken by welders I took none of those." Counsel for General Counsel made efforts to rehabilitate some of this testimony, but I find it to be self- serving and unreliable. A few days before her discharge, Evans was called into Personnel Director Hussey's office by her immediate supervisor, Kauffman. Evans testified that Kauffman called this meeting because Evans "had been causing some unhappiness" and was "complaining about not getting any training." The "unhappiness" apparently related to some alleged name-calling on the part of Evans. She testified she was accused of referring to the two other women welders as "bitches" but denied doing so. Sometime during the meeting, the other two women welders were. called to Hussey's office in the presence of Evans. They were asked by Hussey or Kauffman. to reveal the name of the informer on Evans, but both refused. Kauffman, according to Evans, told them they would not be required to do so. Up to this point, the testimony of Evans, Kauffman, and Hussey is substantially the same. Kauffman testified that he told the' two women welders, if they wouldn't reveal the name of the informers, "there wasn't anything we could do to find out if it was true or not." Hussey testified regarding this conversation that he "advised that sincethey would not give me the name of the person who did make this allegation, I would have to disallow it as hearsay-" After the two women welders left Hussey's office, Evans persisted in her claim to Kauffman and Hussey that she was not getting enough training on the welding job. As a result, Hussey advised her, "We are going to start your training program over at the beginning, to give you the benefit of ^ the doubt." The next day another episode occurred. Evans` appeared in Hussey's office, obviously emotionally upset, and exclaimed, ". . . the people out there are saying that the girls forced you to put me back in training and take me off the line." Hussey disclaimed this as being untrue and gave Evans the rest of the day off to "go home and relax and come in and see Jim tomorrow and we'll start again." Instead of reporting back the next day as instructed, Evans phoned Hussey and, requested a transfer back to the fabrication department. Hussey told her there were no current vacancies in the fabrication department but' to take the next day off, "... relax and come in Monday back to welding to start her training." 6 Evans reported to work again on Monday, November 20, 1972. Kauffman, testified he decided in view of the problems encountered the week before to put Evans in "an area where there weren't so many people." The job, according to Kauffman's testimony, was a basic and simple operation. Although no apparent problems oc- curred on this day, Kauffman nevertheless concluded that he "couldn't isolate one person completely from the rest of the group" and decided to terminate Evans. When Kauffman told Evans of his decision, she remarked, "Do you know you have just terminated the last of the union organizers." Kauffman denied having prior knowledge of her union interest or activity. Counsel for General Counsel relies heavily, and almost exclusively, on the so-called employee meeting of Novem- ber 15, 1972, at lunchtime in the plant which Evans attended along with 10 to 12 other employees to establish that Respondent knew about her union activities and for this reason terminated her employment. The record is clear, however, that many such groups of employees regularly gathered at various areas of the plant to talk and eat during the lunchbreak. There was nothing conspicuous about the meeting in question. There was no showing that any supervisor passed nearby to overhear any conversation or even to observe the meeting or otherwise to have any reason to believe the employees were in fact discussing the Union. Based on all the above considerations, I find that Evans engaged in only minimal activities on behalf of the Union and such activities were not known , by the Respondent prior to her discharge. I further find that her discharge was occasioned by justifiable reasons asserted by Respondent and was unrelated to her union interest or activity. As the evidence is insufficient to support the complaint allega- tions of unlawful discrimination against Evans , I recom- mend this portion of the complaint be dismissed. The Discharge of Larry Parker Larry Parker was first employed by Vega in May 1967 and, except for a period of about, 3 months after he first started working for the Company, was employed in the department known as the "stone room" until his discharge on November 20, 1972. One other break in Parker's tenure in the stone room occurred in October 1972, when he voluntarily accepted a transfer on the night shift under the supervision of Ronald Derby in the fabrication depart- ment. As early as June 1972, Parker became interested and active in the Union. During the month of dune, he signed a card and thereafter passed out pamphlets during the noon recess, and, according to his testimony, attended all union meetings held until his discharge . On one occasion when he was pamphleteering in the plant, he noticed the presence of Foreman Ron Derby. Parker, places this event sometime in October 1972. I credit Parker's uncontradicted testimony in this respect. During this period of approximately 5 months, Parker testified that he talked to a number of people in the plant, he estimated a total of 25, and was successful in obtaining the signatures on about 10 union cards. Respondent contends its reasons for discharging Parker s Through some mixup, Respondent didn't pay for the time off granted Evans. I assume this has now been corrected. VEGA INDUSTRIES, INC. 23 are threefold: personal hygiene, absenteeism, and poor work performance. Parker's supervisor, Lloyd Fowler, testified as follows: A. We had three problem areas. One was absentee- ism, which he had an average of 9.2, the plant average is 5.2. We had him running a mixer in the stone room, which we have a mix made up by our engineering people of which we had trouble with him following this procedure. : a t s Q. What was the other reason? A. The other reason was a personal hygiene problem of which we had many complaints about. Although the record is replete with evidence that numerous employees received many verbal and written warning notices for various and sundry infractions of Respondent's plant rules, the record reveals no evidence that Parker received any such notice at any time during his 5 to 6 years' tenure of employment with the Respondent. Admittedly he received no written notices or was otherwise disciplined for any of the asserted "reasons" for his discharge. I find all three "reasons" advanced by Respon- dent for Parker's discharge to be pure pretext. The real reason and motivation must be sought elsewhere. The "reasons" are discussed as follows: Absenteeism Fowler testified Parker ". . . had an (absenteeism rate) average of 9.2 against the plant average of 5.2." Yet on Respondent's merit rating score sheet, a form maintained on each employee, Parker is shown as having 54 excused hours and . zero nonexcused hours. Fowler on cross- examination was asked the question: Q. Would the 54.0 excused hours noted on General Counsel's Exhibit G. C. 10-D be counted in the 9.2 average? A. Yes. Fowler"'s further testimony makes it clear that an excused absence is an absence for good reason and that absentee- ism was one of the reasons for Parker's termination. Under these facts, I find that "absenteeism" as a reason for Parker's discharge was pure pretext. Parker's Alleged Poor Work Performance According to Fowler's testimony, he had trouble with Parker following the proper procedures in mixing the right proportion of cement and other ingredients in the concrete portion of the fireplaces. Again, Parker received no written notices for this alleged deficiency. Parker testified he was never spoken to by Fowler about not following correct mixing procedures. Parker had performed this work over a period of! several years, had received no written reprimands for this or any other alleged deficiency, and therefore I credit Parker's testimony over that of Fowler in this respect. Moreover, an examination of Respondent's own records regarding Parker's work performance belies any valid concern Respondent is alleged to have had relating to Parker's ability to perform his assigned tasks. The merit rating records on Parker introduced at the hearing reveal an above-average score on quality, quantity, and accuracy. Further ratings show him as being "dependable," "above average job knowledge," "above average worker," "better than average attendance," "good team worker," etc. He is shown as having "average attitude." In sum, there is no credible evidence in this record to establish the validity of Respondent's contentions that Parker failed to perform his assigned tasks, after a satisfactory record of more than 5 years on the job, in a satisfactory manner. I find that Respondent's contention of "poor work performance" as one of the reasons for the discharge of Parker to be entirely pretextual. The Alleged Personal Hygiene Problem The record is clear that the area in the stone room where Parker worked was dirty and dusty. It is thus not surprising that a hard worker, as Parker proved to be, perspired and no doubt cement dust clung to his skin and work clothing. The surprising thing is that after 5 years or more of employment with Respondent such a condition should suddenly become so offensive on the eve of the then pending union election that Parker's immediate supervisor decided to discharge him. (The election was then scheduled for December 12, 1972, by a stipulated consent agreement of the parties.) Once again it is noted that Parker admittedly received no written warning notices covering the alleged personal hygiene problem. Admittedly the complaints about Par- ker's alleged uncleanliness came to Fowler from Parker's leadman and another fellow employee. Respondent prod- uced neither the leadman nor fellow employee at the hearing and it is a fair inference, which I draw, that their testimony would not have favored the position of Respon- dent. Moreover, other employees produced by General Counsel testified that Parker's cleanliness was "no worse than anybody else." I find an three reasons asserted by Respondent for Parker's discharge to be completely pretextual in order to conceal Respondent's real motiva- tion. Furthermore, the circumstances relating to the manner in which Parker was discharged are most unusual. Admittedly his supervisor, Lloyd Fowler, informed Parker that because of his absenteeism and personal hygiene he was being sent home. Fowler at one point said it was his decision to fire Parker, at another that "we" (Scott and Fowler) made the decision. In any event, Fowler admitted that the day he sent Parker home he didn't tell Parker he was being fired. Fowler testified, "I didn't exactly tell him he was fired, I told him I was sending him [home] and Mr. Hussey, the personnel manager, would call him later." The next day, not having heard from Fowler or Hussey, Parker phoned Fowler who told him he had forgotten to have Hussey phone him. Twenty to 30 minutes later Hussey phoned Parker. According to Parker's testimony, which I credit, Hussey told him, "We're going to have to terminate you because of [your] bad attitude toward the company." Hussey, for all practical purposes, admits he made substantially such a statement. Hussey testified in this respect, "I called him [Parker] and advised him he had been terminated for insubordination and poor attitude." The discharge of Parker, as in the case of Holmes, was 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accomplished at a time calculated to frustrate union activities, and Respondent's alleged reasons for discharg- ing Parker after more than 5 years of a better-than-average work record are wholly unconvincing. Sun Hardware Co., Inc., 173 NLRB 973, 422 F.2d, 1296 (C.A. 9, 1970). See also N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880 (C.A. 1, 1966). Based on consideration of all the evidence concerning Parker's discharge, including the timing, the pretextual nature of Respondent's asserted reasons for his discharge, and the manner and abruptness of terminating his employment of over 5 years with the Company, I find that Parker was discharged because of his interest and activity in the Union and therefore in violation of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occurring in connection with the operations of Respondent Company as set forth above in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent 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 meaning of Section 2(5) of the Act. 3. By discharging Thomas Holmes and Larry Parker because of their union or concerted activity, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By telling its employees, verbally and in writing, that future plantwide raises were frozen because the Union refused to sign a request to proceed with the representation election and filed unfair labor practice charges, Respon- dent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent, has not discriminated against Murphy Evans in violation of Section 8(a)(3) and (1) of the Act. Nor has Respondent violated the Act in any other manner not found to be a violation herein. THE REMEDY Having found that Respondent has engaged in unfair labor practices- violative of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating and making whole Thomas Holmes and Larry Parker, in order to effectuate the policies of the Act. All backpay 7 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. computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? Respondent, Vega Industries, Inc., Mt. Pleasant, Iowa, its officers, agents, Respondent, Vega Industries, Inc., Mt. Pleasant, Iowa, its officers, agents successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against employees for engaging in union or concerted protected activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer to Thomas Holmes and Larry Parker immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make Thomas Holmes and Larry Parker whole as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimination against them. (b) Expunge from our records all written warning notices to Thomas Holmes, including those dated January 18, 1972, and February 8, 1972, and give no consideration whatever to such notices in future evaluations relating to his employment with Respondent. (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 other records necessary to ascertain the amount, if any, of backpay due under the terms of the recommended Order. (d) Post at its place of business at Mt. Pleasant, Iowa, copies of the attached notice marked "Appendix."s Copies of said notice, to be furnished by the Regional Director for Region 18, after being signed by a duly authorized representative of Respondent, shall be posted by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event 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."