Panax Corp.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wayne Graphics, Inc., A Wholly Owned Subsidiary of Panax Corporation and Local 9L, Graphic Arts International Union, AFL-CIO. Case 7-CA-9797 November 30, 1973 - DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April- 11, 1973, Administrative Law Judge Sydney S. Asher issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. Relations Board, herein called the General Counsel, on October 18, 1972, issued a complaint alleging that since on or about August 24, 1972, the Respondent has interfered with, restrained, and coerced its employees in certain specified respects; and- that the Respondent discharged Sharon Sobolewski and John Shellhaas, its employees, on or about September 1, 1972, and Sandra Crowder, another employee, on September 2, 1972, and since then has refused to reinstate them, because of their sympathies for, adherence to, and activities on behalf of the Union. It is alleged that this conduct violated Section 8(axl) and (3) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.),-herein called the Act. The Respondent filed an answer denying that it had discharged any of the three named employees, admitting that it had not-reemployed Sobolewski or _Shellhaas, alleging that it had offered reemployment, to Crowder, and denying the commission of any unfair labor practice. Upon due notice, a hearing was held before me on December 8, 1972, at Detroit, Michigan. All parties were represented and participated fully in the hearing. After the close of the hearing, the Respondent filed a brief, which has been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Wayne Graphics, Inc., a wholly owned subsidiary of Panax Corpora- tion, Melvindale, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i 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 are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (CA. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. DECISION SYDNEY S. ASHER, Administrative Law Judge: On September 5, 1972, Local 9L, Graphic Arts International Union, AFL-CIO, herein called the Union,' filed charges against Wayne Graphics, Inc., a wholly owned subsidiary of Panax Corporation, Melvindale, Michigan. Based on these charges, the General Counsel of the National Labor ' The charge purports to be filed by "Lithographers & Photengravers International Umon, AFL-CIO and Local 9L thereof." However, I take administrative notice that, effective September 4, 1972, the day before the charge herein was filed, Lithographers & Photoengravers International Union had merged with International Brotherhood of Bookbinders to become Graphic Arts International Umon, AFL-CIO. I therefore amend the name of the Charging Party contained in the charge to reflect the merger. The term "union" is used herein to refer to Local 9L both before and after the merger. 2 Wayne Graphics, Inc, is, and at all material times has been, a FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the Respondent admits, and it is found that the Respondent is, and at all materials times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards.2 The complaint alleges, the Respondent stipulated at the hearing, and it is found that the Union is, and at all material times has been, a labor organization as defined in the Act. B. The Setting In July 1972 Sandra Crowder, one of the Respondent's employees, contacted Gerald Deneau, vice president of the Union, about organizing the Respondent's employees. The next day Deneau made a telephone call to John Shellhaas, another employee of the Respondent, while Shellhaas was at work in the Respondent's shop. About August 13 John Najduch, president of the Respondent, received a tele- phone call from one of the Respondent's customers. The customer stated that he (the customer) had overheard Shellhaas "talking about receiving a call from a union representative about trying to organize the plant." Najduch summoned Richard J. (Jack) Nicol, the Respondent's vice Michigan corporation and a wholly owned subsidiary of Panax Corpora- tion, a Delaware corporation Wayne Graphics, Inc., maintains its only office and place of business in Melvindale, Michigan. During the calendar year 1971 gross revenue from the combined business operations of Wayne Graphics, Inc., and Panax Corporation, exceeded $500,000. During the same year these two corporations caused materials valued at more than $50,000 to be delivered to their places of business in the State of Michigan directly from sources outside the State. 3 All dates hereafter refer to the year 1972, unless otherwise stated. 207 NLRB No. 103 WAYNE GRAPHICS, INC. 659 president and production manager, and informed him of the telephone call. C. Interference, Restraint, and Coercion 1. The first Nicol-Shellhaas conversation About August 1, after Najduch had told Nicol about the telephone call from a`customer regarding Shellhaas,4 Nicol approached Shellhaas at his place of work. According to Nicol, the following occurred: I asked John if he had received a call from anybody from the union. He told me, yes, he had, but at that point he said, "I told him I was not interested," and he told me, "As a matter of fact, I can't even remember his name," and that was it. Shellhaas' version was more detailed. According to Shellhaas, the conversation went as follows: Q. Would you relate for us please what was said during that conversation? A. He approached me ... and said that someone from the union called me and he said that he's received a phone call from Panax about it and that he knew that I was trying to organize the union. At that time I said, "Yes," you know, "I have received a phone call," and he wanted to know what was happening. I told him nothing much, was happening, and he said at that time that if a union tried to come into the shop that Panax would shut it down, they'd lock the doors, because they disliked unions immense- ly -He also said at that time that Panax wasn't afraid to do this because they had just purchased another shop in the area and- Q. Did he say where? A. I think he said it was in Melvindale. Q. Was anything said about what would happen to the work? A. Well, he said they could just shuffle the work over there and that a lot of people would be out of work. Q. Did he ask you how you felt about the union? A. Yes, he did. Q. What did he say? A. Well, he asked-he mentioned that I told him before just in general discussion that I didn't like unions that much and he wondered why, you know, I was doing this and I told him that I was married and he couldn't really expect me to work for three dollars and twenty-five cents for the rest of my life. Q. What did he say to that, if anything? A. He said that Panax was going to expand the shop and there would be more business coming in and that they'd need supervisors and that my work was such that he'd had his eye on me. Sharon Sobolewski, another employee of the Respondent, who was within hearing distance, testified on cross- examination as follows: I knew that Mr. Nicol had approached John on this because I heard some of the things like, you know, well, there would be a shutdown. Theyjust talked. Mr. Nicol didn't appear mad or anything. He just was inquiring and he said, you know, "They'll shut down the plant."' I heard that. "Why didn't you tell me about it?" I heard that. He asked John, "Why didn't you approach me and tell me what was happening?" On redirect examination she elaborated: Q. -would you tell us please what you did hear? A. ... I heard him say, "Why didn't you come and tell me about it?" Q. " Who said that? A. Mr. Nicol ... And he said they'll probably close down the plant, you know, if it ever came about. They wouldn't let it come about is what he said. They wouldn't let it come about. The complaint alleges, and the answer denies, that on or about August 24 Nicol "created the impression that the union activities of [the Respondent's] employees were being kept under surveillance, coercively interrogated, its employees concerning their own and/or their fellow employees' union activities, sympathies and desires, prom- ised employees .. ,. benefits in order to dissuade [them] from continuing, their union activities and threatened [them] with the closing of [the Respondent's] Melvindale, Michigan. facility should the [Union] be successful in its organizing efforts.",The illegal interrogation is clear, even from Nicol's own testimony. And the allegation regarding creating the impression of surveillance is supported by Shellhaas' version (which I credit as more accurate and complete than that of Nicol) that Nicol stated that the Respondent "had received a call from Panax" and that he (Nicol) knew that Shellhaas "was trying to organize the union."-5 And the allegation of illegal threats is amply proved by Shellhaas' credited testimony that Nicol warned "that if a union tried to come into the shop that Panax would shut it down, they'd shut the doors." This was corroborated by Sobolewski, who testified that she heard Nicol say: "They'll shut down the plant." 6 Finally, I find that in this conversation Nicol, by remarking that "he had his eye" on Shellhaas, impliedly offered benefits to 4 According to Nicol, this was the same day that Najduch told him (Nicol) of the call. According„to Shellhaas and Sobolewski it was 3 weeks or more after Deneaii's telephone call to Shellhaas in July Sobolewski placed it as not later than August 1. 5 Nicol denied that at the time of Shellhaas' separation on September I he (Nicol) knew that Shellhaas had been active in the Union. It is clear, however, that at least he suspected Shellhaas of prounion leanings. 6 Nicol denied stating that Panax would "shut the doors" if the Union came in, or that Panax had purchased another shop and would send the work there. Nicol did not impress me as a candid or forthright witness. His denial is not credited. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shellhaas to induce, Shellhaas to abandon his support of the Union. In all these respects the Respondent on this occasion interfered with the Section 7 rights of its employees in violation of Section 8(a)(l) of the Act. 2. The second Nicol-Shellhaas conversation On August 30 or 31 Shellhaas went to the office and asked Nicol about a, pay raise he was supposed to receive on September 1. Nicol replied that he (Nicol) "would get ahold of Mr. Feder at Keystone and that it would be on [Shellhaas'] first check, the first week in September." Shellhaas described the remainder of the discussion in his credited testimony as follows: Q. Was anything else said? A. We discussed the union again. Q. Would you tell us about that please? A. Well, he said many of the same things that he said in the earlier conversation. Q. Be more specific, please, if you could. A. He said that Panax was putting a lot of heat on him about the union and he was a little bit upset because he was one of the last ones to find out about it, and he just said, you know, that he didn't really know what he was going to do about it and he said that he knew that Panax would just lock the doors up and everyone would be out of work. Q. Did he say where they'd take the work? A. He said that they could move it to their other shops.? The complaint alleges, and the answer denies, that on or about August 31 Nicol "threatened [the Respondent's ] employees with the closing of its Melvindale, Michigan, facility, the transferring of all work performed at the above location to another shop owned and operated by Panax Corporation and other personnel reprisals should the [Union] be successful in its organizational efforts." I find this allegation has been amply supported by the above- quoted testimony of Shelihaas, which I credit. Accordingly, it is concluded that such conduct constituted a separate and additional violation of Section 8(a)(l) of the Act. 3. Alleged conduct of Feder The complaint sets forth illegal conduct alleged to have been engaged in on or around August 31 by Maureen Feder. This allegation must fall for lack of convincing evidence that Maureen Feder was, at that time, an agent of the Respondent, as alleged in the complaint. D. The Separations of Shellhaas and Sobolewski 1. Facts John Shellhaas began working for the Respondent in August 1971 as a messenger at $2 per hour. This was raised to $2.50 per hour in January . In February he was transferred to the camera room. In March he became a keyliner and his pay was increased to $3 per hour . Around June 1 his pay was raised again to $3.25 per hour. As related above, in July while he was at work Shellhaas received a telephone call from Deneau and in August this fact became known to Najduch and Nicol . Also as already described, toward the end of August Nicol stated to Shellhaas that he (Nicol) knew that Shellhaas supported the Union's efforts to organize the shop. Nicol warned that if the Union "tried to come into the shop" the shop would be shut down. Nicol also intimated that if Shellhaas would drop the Union he might be considered for promotion to a supervisory position. On August 31 Deneau met with Crowder and Shellhaas at a bar and these two employees signed union authoriza- tion cards. That evening Deneau had a telephone conversa- tion with Mortimer Feder, president of Keystone Printing Company, another wholly owned subsidiary of Panax Corporation. During this conversation Deneau disclosed to Feder that he (Deneau), on behalf of the Union, was attempting to organize the Respondent's employees. On the following morning Feder telephoned to Najduch, told Najduch of his conversation with Deneau the night before, and asked Najduch who he (Najduch) thought would be interested in the Union . In response Najduch named five or six individual employees , including Shellhaas s Sharon Sobolewski began working for the Respondent in March as a keyliner at wages of $2.25 per hour. In June she received a pay increase to $2.50 per hour . She worked closely with Shelihaas , and suggested to him in late April or early May the possibility of bringing a union into the shop. After that these two employees discussed the matter "off and on." On September I during the lunch hour Shellhaas and Sobolewski met on the company parking lot. Shellhaas had with him a blank union authorization card which he showed to Sobolewski and requested her to sign. While they were talking, Najduch and Nicol drove into the parking lot, parked, got out of the car, glanced at Shellhaas and Sobolewski, and entered the shop . As they were doing so, Shellhaas put the blank card away. By prearrangement, Shellhaas and Sobolewski left the parking lot separately and met in a restaurant, where Sobolewski signed the card. At the close of the workday Shellhaas and Sobolewski were called into Nicol's office, where Najduch was present. Shellhaas described the conference in his testimony as follows: Q. Would you tell us please what was said? A. Mr. Nicol informed us that Mr. Feder just returned from a stock [sic] meeting with Panax and that they had lost several jobs they had been expecting to get later in the year and that they were going to have to cut back in some area in the shop, and he said that after reviewing the workload situation in the plant that the only area he could cut back in was the make-up 7 With regard to this particular conversation, Nicol testified "I did not Respondent, in its answer, denies that any agency relationship existed. As talk to [Shelihaas I about the union situation or Panax at all." I do not credit the record shows in any event that Feder communicated the gist of this denial Deneau's remarks to Najduch, and as the real issue is Najdtich's knowledge 8 The complaint alleges, and the General Counsel and the Union and response, I deem it unnecessary to decide Feder's agency status. maintain, that Feder was acting as an agent of the Respondent. The WAYNE GRAPHICS, INC. 661 area and he said, you know, that we were laid off and he gave us a week's severance pay. Mr. Najduch said that him and Mr. Nicol were both going to have to start carrying more of the load of work. Q. Did he say anything about being recalled? A. No, he didn't. Q. And he gave you a, week's severance pay? A. Yes On direct examination Sobolewski testified along the same general lines: Q. What was said? A. Jack Nicol said that due to-they were at a meeting from Panax and that they would have to cut back employees, I guess, because jobs that were suppose to come in weren't coming in, and that the only place he could lay people off at would be the page make-up area and that him and Mr. Najduch would have to do a lot of the work themselves. Then I said, "You mean we're fired," and he said, "Yes." Q. Did you receive any paychecks or anything? A. Oh, yes. He gave us severance pay and he said that-Mr. Najduch said that he was giving us a week's notice so that we would look for other jobs. Mr. Nicol then gave us our checks and said that we would get our other paycheck in the mail in a week. Najduch's version was as follows: Q. What was said on that occasion? A. On that occasion Jack called them into the office and explained to them why he had to let them go, and I remember Sharon asking the question, "Well, if there's ' work, will you call us back," and Jack said, "Yes." In fact I nodded by head in agreement. Q. Do you recall whether or not'either of you used the word `discharged?' A. Never. Q. What words did you use as to the nature of the action being taken? A. Laid off because of lack of work. Q. There was reference in the General Counsel's evidence and testimony' of some reference to a Panax meeting that you or Nicol were suppose [sic] to have made in this conversation. A. At no time did we ever mention a Panax meeting.. . Although Nicol was a witness for the Respondent, he did not testify regarding this conference. I find that the incident occurred substantially as related by Shellhaas- and Sobolewski, as corroborated in part by Najduch.9 After this Shellhaas and Sobolewski were given a week's severance pay and left. Their regular, paychecks were mailed to them later. On cross-examination she elaborated somewhat: Q. . . . One of them spoke and said that they had to cut back because jobs weren't coming in? A. Yes. Q. And that the place where they thought they had to lay off was in page make-up? Is that right? A. Yes. He said that-Jack Nicol said that the only place he could possibly let anybody go would be in page make-up. Q. Now in your direct examination, you didn't use the words `laid off.' Did one of them? A. Yes. Mr. Nicol did say we were laid off. Q. And then you indicate you said, "Do you mean we're fired?" A. Yes. I said, "Are we fired? Is that what you mean," and he said, "Yes." Q. That was Mr. Najduch? A. No, Mr. Nicol. Q. Do you recall asking whether you would be recalled if work picked up again? A. No, I didn't. Then John and I just walked out. That was all. Q. You didn't ask that question? I'll ask you to think carefully now and try to recall the conversation. A. Yes. Q. You did ask the question if you'd be recalled if work picked up again? A. Yes. Q. What was the answer? A. Mr. Nicol said,, "Well, yeah," like that. s I deem it unnecessary to resolve the conflict between Shellhaas and Sobolewski on the one hand and Najduch on the other regarding whether 2. Positions of the parties The complaint alleges, and the answer denies, that the Respondent "terminated" Shellhaas and Sobolewski "be- cause of their sympathies for, adherence to and activities on behalf of" the Union. The Respondent contends that these employees were merely laid off temporarily. It argues in its brief: these two employees were laid off entirely legitimately in a "belt-tightening" move made by a financially struggling concern. They 'were selected for layoff because they were the least flexible in their abilities, because they had been the subject of complaints from customers, and because they were among the youngest employees in point of service. The Respondent further appears to contend that, at least as to Sobolewski, the Respondent had no knowledge or suspicion that she was engaged in union activities. 3._ The General Counsel's case Let us first determine the nature of these separations. In support of its contention that they were merely temporary layoffs, the Respondent showed that the employees were told that a cut back of employees was necessary because the Respondent "had lost several jobs they had been expecting to get"; the employees were told upon their inquiry that they would be called back should the workload warrant it in the future; and the word "dis- charged" was not used. However, the record shows that there was mention of a Panax meeting. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Sobolewski asked: "You mean we're fired?" the reply was affirmative ; they were given severance pay; and Najduch said he was giving them a week's notice so they could look for other jobs. At best what they were told was equivocal . However, the ultimate test is not necessarily what the Respondent's officials said at the exit interview, especially if such statements were self-serving. The real test is the intention of the Respondent to sever them either temporarily or permanently . The undenied testimony of Denise Lubinski, a witness for the General Counsel, indicates that there was no falling off of work either before or after September 1; new employees were hired for the night shift after ,September 1; employees on the night shift worked overtime after September 1; and that work was farmed out to an outside contractor , the R. T. Organiza- tion. Although the Respondent sought to create the impression that business was falling off, no specific facts or figures were offered. In this connection it must be realized that the Respondent itself was in a peculiarly advantageous position to furnish details, such as financial statements, employment figures, and the names and dates of customers or prospective customers whose orders proved to be nonexistent or smaller than expectations . In the light of Lubinski's testimony, the nebulous and unconvincing testimony of the Respondent's witnesses concerning the alleged decrease in business,10 the fact that the two employees were in effect advised to look for employment elsewhere, and the granting of severance pay,11 I conclude that there existed no legitimate business reason for a layoff on September 1 and that these two employees were actually permanently discharged, regardless of the termi- nology used by the Respondent at the time. The next issue is the Respondent's knowledge or suspicion of union activity engaged in by these employees. The record demonstrates that, since about August 1, the Respondent has known or suspected that Shellhaas was supporting the Union. Indeed, on the very morning of his discharge, his name was mentioned by a management official as a likely union adherent . It is accordingly concluded that at the time of his discharge Shellhaas' prounion sympathies and activities were known to or suspected by the Respondent. In Sobolewski's case a reasonable inference can be drawn from the following facts: ( 1) the small size of the Respondent's shop (approximately 25 nonsupervisory employees) at the time in question; (2) Najduch's son was working for the Respondent that week and Najduch's daughter also worked there from time to tune;12 and (3) as mentioned above Sobolewski was observed at lunchtime on her last day of work talking to Shellhaas, a known or suspected 10 Najduch did testify that in mid-August the Respondent laid off Charles King, an employee. But the record shows, and it is found, that King was discharged for cause, not laid off for lack of work 11 Najduch testified that this was "an indefinite layoff with the idea that if the work did increase [the Respondent] would give them the opportunity to come back." He also testified that the Respondent's policy was to give severance pay to employees temporarily laid off. This testimony was not convincing and is not credited. 12 It is well settled that the employment of a child of a top management official as a nonsupervisory employee within the unit in question gives rise to an inference of company knowledge. See Guyan Valley Hospital, Inc., 198 NLRB No 28, and cases cited in fn. 30 of the Trial Examiner's Decision in that case union proponent. It is therefore found that at the time of Sobolewski's discharge she was suspected by the Respon- dent of being a supporter of the Union. The Respondent's hostility to the Union is also demon- strated on the record. During the first Nicol-Shellhaas conversation on about August 1, described previously, Nicol revealed that the Respondent "disliked unions immensely."' Moreover, the violations of the' employees' Section 7 rights, found above, amply attest to the Respondent's animus toward the Union.13 The picture thus presented is that an official of an antiunion employer receives a telephone call from a colleague about union activity at its shop one morning, sees two employees conferring on the parking lot at noon (one of whom is already suspected of union support), and discharges them both at the end of the workday, under circumstances indicating that it was aware of, or could readily have become aware of, the identity of the Union's adherents. Considering the speed with which the Respon- dent reacted to Feder's above-described telephone call,14 in my opinion, the General Counsel has established a strong prima facie case that the discharges in question were discriminatory. In this connection, I do not consider it a mere coincidence that all three employees who signed union cards were discharged within 2 days after doing so, but no other employees were laid off or discharged in the same period of time. 4. The Respondent's defense The Respondent elicited testimony tending to indicate that, from at least mid-July until the date of the discharges, the Respondent had received numerous complaints from customers concerning the poor work or attitude of Shellhaas and Sobolewski, and had in turn complained, through Najduch and Nicol, to these two employees. It is for this reason, and their- lack of seniority, insists the Respondent, that these individuals were selected for layoff. Shellhaas and Sobolewski denied that they had received any criticism from the Respondent's management. Indeed Sobolewski testified that Nicols had praised her work and a customer had also complimented her. The truth probably lies somewhere in between these two extremes; each side was most likely guilty of exaggeration. However, one factor which may indicate the true state of affairs is the wage increases handed out by the Respondent to both employ- ees in June. Clearly the Respondent was happy with the caliber of their performance up to that point. The record before me does not, in my view,support a finding that the quality of their work product became seriously impaired thereafter. This is not to say that they have been 13 This finding is not meant to be critical of the Respondent, but merely constitutes a statement of fact. The Respondent had, of course, a legal right to resent and to oppose the Union, so long as it took no action proscribed by the Act. N.LR.B, v. TA. McGahey, Sr., T.A. McGahey, Jr, Mrs. Alhe McGahey Jones and Mrs. Wilda Frances McGahey Harrison, d/b/a Columbus Marble Works, 233 F 2d 406, 409 (C.A 5, 1956). But, as the United States Court of Appeals for the Fifth Circuit has said: "antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive." NL.R.B v Dan River Mills, Incorporated, 274 F 2d 381, 384 (C.A 5, 1960). 14 Although the Respondent sought to show that the decision to discharge had been reached earlier, I am convinced and find that it was triggered by this call. WAYNE GRAPHICS, INC. 663 demonstrated to be ideal employees, nor that the Respon- dent was unconcerned with customer complaints. The point is that their deficiencies do not appear to have been considered so serious until the employees became suspect- ed of union involvement.15 As to their low seniority, no seniority list was offered in evidence and there is insufficient proof to warrant any finding in this respect. Finally, the alleged customer complaints were not men- tioned at the exit interview. On balance, while the customer complaints may well have been a factor in the discharges of Shellhaas and Sobolewski, the General Counsel's strong prima facie case has not, in my opinion, been overcome by the Respon- dent's weak defense. The conclusion is warranted that the discharges were discriminatory and violative of Section 8(a)(1) and (3) of the Act. It is so found. E. The Separation of Crowder 1. Facts Sandra Crowder began working for the-Respondent in January 1971 as a part-time keyliner at a payrate of $3 per hour. She left the Respondent's employ in May 1971, but returned early in September 1971 as a full-time employee on the day shift. In June her pay was increased to $3.25 per hour. She worked basically as an ad keyliner and occasionally assisted in page make-up. As recounted above, Crowder was the first employee of the Respondent to contact an agent of the Union. During the last week in August, while at lunch at a restaurant away from the plant, Crowder informed some of her fellow employees that she favored a union. She signed a union card, as previously described, on August 31 at a meeting with Slellhaas and Deneau. ' On -September 1 about 5:30 p.m. on the company parking lot Crowder asked Clara Schlickenmayer to sign a union card; Schlickenmayer refused. Also present at this incident was Sandra Sommerville, a type-setter.16 Within about 15 minutes Sommerville and Schlickenmayer each reported the episode to Nicol, who in turn related it to Najduch. On the next day, September 2, when Crowder reported to work about 9 a.m. she was summoned to Nicol's office. According to Crowder's undenied and credited testimony, the following took place: Q. What was said? A. . . . he [Nicol] told me that he had tried to catch me the night before, but that I had already left. He said that Panax was having a cutback in personnel and they would no longer be needing me. I said, "Who will be doing the jobs I've been doing," because I was coming in Saturday specifically to finish a job I had been working on and he said that, "The guys in the back aren't paying us anything to stay here so they'll do the work," and that was it. 15 The Respondent argues that it suspected Shellhaas' union activities for a full month before he was discharged, due to a customer's telephone call on about August 1 . However, the customer's call cannot be equated with the call on September 1 from Feder. For Feder was the president of another corporation wholly owned by Panax and he and Najduch consulted "on a He also said, "You'll be receiving your severance pay and salary in the mail." He did-not have it made out for me at that time. Q. Was anything said about being recalled? A. No. Crowder then left. About October 20 Nicol sent Crowder a letter which reads in pertinent part: Loma Carlone informed me this morning that she will be quitting Tuesday, October 31, 1972. Since this creates an opening, I would like you to return to assume Loma's responsibilities. I realize you will need training in parts of Lorna's work. If you will report this Thursday, October 26, 1972, we will have a week for Loma to help you before she leaves. That will give us a good -start on the necessary training and instruction. Shortly after that Crowder met with Nicol and Najduch and declined the offer of employment. 2. Contentions of the parties As in the cases of Shellhaas and Sobolewski, the General Counsel maintains that Crowder was discharged, and that the motive was her known prounion activities. He apparently further contends that the job offer later made to her was not to substantially equivalent employment. The Respondent takes the position that Crowder was merely laid off, not discharged. While not denying knowledge of Crowder's support of the Union obtained through Schlick- enmayer and Sommerville, the Respondent urges that the selection ' of Crowder as one of those to be laid off had already been made when it received word that she was soliciting on behalf of the Union. The Respondent in its brief explains: "the decision to lay her off immediately, rather than waiting until the following week, was prompted by the manner in which she conducted herself toward the two employees she solicited, rather than by the solicitation itself." In any event, argues the Respondent, Crowder was offered reinstatement in October, and refused it. 3. The General Counsel's case The record shows that the Respondent, an employer harboring union animus, discriminatorily discharged two suspected union activists at the end of the workday on September 1. Immediately thereafter, on the same evening, the Respondent learned that a third employee had been engaging in union activities and she was separated at the beginning of the next workday. Thus, swiftly after Feder's telephone call on the morning of September 1, the Respondent rid itself of all three of the employees who had signed up with, and supported, the Union. The Respon- dent's attempt to portray its conduct as a mere temporary layoff must fail. The record simply does not show any regular basis"-described as perhaps three to seven times per week-con- cerning the conduct of the Respondent's business 16 1 deem it unnecessary to determine whether at that time Sommerville was a supervisor or a rank-and-file employee. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD financial necessity for a layoff or any shortage of work, or a permanent reduction in the overall number of employees in the Respondent's work complement. Bearing in mind the Respondent's rapid uprooting of the Union's campaign by discharging all known or suspected union supporters before the campaign could gather momentum, it is concluded that the General Counsel has established a strong prima facie case that Crowder was discriminatorily discharged for the same reasons that had motivated the earlier discharges of Shellhaas and Sobolewski. 4. The Respondent's defense The Respondent contends that Crowder was selected for layoff "because of her attendance problems (both absen- teeism and tardiness) and her shortcomings in work performance." With regard to the alleged poor attendance record, the Respondent introduced no documentation at all, despite the fact that time cards must have been available in its own files. As to her alleged poor work, Crowder denied that the quality of her work had ever been criticized and testified that her work had been compliment- ed by Najduch, Nicol, and customers. The fact that she was accorded a pay raise in June is a strong indication that, at least up to that time, her work was deemed by her employer to be satisfactory. Moreover, the alleged attend- ance problems and disappointing work performance were not mentioned at the time of her separation. But this is not all. The Respondent points out that Lorna Carlone, an employee who "did a similar kind of work," had indicated that she might leave the Respondent's employ. On this point Najduch testified as follows: Q. What was your decision as to Sandy [Crowder] at that time? A. That we would let Sandy go. We were suppose [sic] to get a decision the following week from Lorna [Carlone] the following Friday, so we decided in Sandy's case at that time instead of laying off three people that week that we would only lay off two and let Sandy go for another week until we got the decision from Lorna whether she would stay or not. Q. Do I understand if Loma stayed that Sandy would go, but that if Lorna went that Sandy would stay? A. That's right. But two events intervened: one was Feder's telephone call on the morning of September 1 and the other was the two telephone calls concerning Crowder received by Nicol after that workday ended. With regard to the latter, Najduch testified: being bothered and they objected to it. [Emphasis supplied.] On the basis of this admission it is clear, and I find, that the disturbing news that Crowder was involved with the Union was a substantial motivating cause of her discharge. Thus, the discharge was discriminatory and violated Section 8(axl) and (3) of the Act. And this is true even assuming that the Respondent honestly believed that other employees were "bothered" and "objected" to what the Respondent admits were "legal" solicitations. Any annoy- ance caused to other employees when one of their number legally exercises his or her statutory rights is, as the Board has said: "the price which must often be paid in order that the rights guaranteed by Section 7 may be preserved." 17 On the record before me, especially the timing- of Crowder's discharge so soon after the Respondent learned of her union activities, I am satisfied, and find, that the Respondent has failed to offset the General Counsel's prima facie case. It is accordingly concluded that the discharge of Crowder was discriminatory and violative of Section 8(a)(1) and (3) of the Act. 5. The subsequent offer of employment When Crowder was rehired in September 1971 it was agreed that she would work a 5-day week, Monday through Friday. In addition the arrangement called for Crowder to work Saturdays only when needed, otherwise she was to have Saturdays off. From then on, there were occasions when Crowder was called upon, and did, work Saturdays. Carlone, on the other hand, was regularly scheduled to work a 5-day week consisting of Monday, Tuesday, Thursday, Friday,-and Saturday. The job offered to Crowder in October was Carlone's job, not Crowder's former job, because it was made clear to Crowder in October that if she came back to work she would be required to work a regular schedule of Monday, Tuesday, Thursday, Friday and Saturday, just as Carlone had. In my opinion, this would have been a substantial change in schedule. In addition, the letter written to Crowder by Nicol on October 20 indicates that Crowder would need "training and instruction" before taking over Carlone's work. Thus, clearly, different job skills would be needed. For these reasons, it is concluded that the job offer made to Crowder in October was not an offer to reinstate her to her former or a substantially equivalent job. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW Q. Isn't it a fact that on that basis you and Mr. Nicol determined to discharge her the next day? A. Not on that basis alone, sir. In fact that was a small part of it. Q. But it was a part? A. It was a factor because other employees were 17 El Mundo, Inc, 92 NLRB 724, 726. Recently the Board stated: "Under the Act, the manner in which an employee carries on his protected activities is not subject-save for limited exceptions not relevant here-to 1. Wayne Graphics, Inc., a wholly owned subsidiary of Panax Corporation, is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 9L, Graphic Arts International Union, the whim, wish, or authority of his employer." Farah Manufacturing Company, Inc., 202 NLRB 666. WAYNE GRAPHICS, INC. 665 AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging John Shellhaas and Sharon Sobolew- ski on September 1, 1972; and Sandra Crowder on September 2, 1972, and thereafter failing and refusing to reinstate them, thereby discouraging membership in the above-named labor organization, the 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 above-described conduct; by interrogating its employees concerning their union membership, activities, or sympathies in a threatening and coercive manner; by creating the impression that it was engaging in surveillance of its employees' union activities; by threatening reprisals against its employees for selecting the above-named labor organization as their bargaining representative; and by promising benefits to its employees in order to discourage them from supporting the above-named labor organiza- tion; thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The employment offered Sandra Crowder by the Respondent on October 20, 1972, was not her former employment or substantially equivalent employment. 6. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in or is engaging in any unfair labor practices other than as found herein. I THE REMEDY As the unfair labor practices found to have been committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future may reasonably be anticipated from the Respondent's past conduct 18 Therefore, in order to effectuate the policies of the Act, it is necessary that the Respondent be ordered to cease and desist not only from the unfair labor practices found but also from any other invasions of the employees' Section 7 rights. Affirmatively, it will be recommended that the Respon- dent offer John Shellhaas, Sharon Sobolewski, and Sandra Crowder immediate and full reinstatement to their former positions, or if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their rights and privileges previously enjoyed, and make each of them whole for any loss of pay he or she may have suffered by reason of his or her discharge, by paying to him or her the amount he or she would normally have earned from the 18 It is well established that the discriminatory discharge of employees because of their union activity goes to the very heart of the Act. A J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071; and Schultz, Snyder & Steele Lumber Company, 198 NLRB No. 72, In. 2. 19 In the event no exceptions are filed as provided by Sec. 102.46 of the date of discharge to the date of the offer of reinstatement, less net earnings during this period. The backpay provided for herein shall be computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289, including 6 percent interest per year as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and make available to the Board, upon request, all records necessary to compute the amounts of backpay due hereunder, and that it post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER19 Wayne Graphics, Inc., a wholly owned subsidiary of Panax Corporation, Melvindale, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 9L, Graphic Arts International Union, AFL-CIO, or any other labor organization, by discharging any employees or otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their union membership, activities, or sympathies, in a threatening or coercive manner. (c) Creating the impression that it is engaging in, or has engaged in, surveillance of the union activities of its employees. (d) Threatening reprisals against its employees should they select the above-named, or any other, labor organiza- tion as their bargaining representative. (e) Promising benefits to its employees in order to discourage them from supporting the above-named, or any other, labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer John Shellhaas, Sharon Sobolewski, and Sandra Crowder immediate and full reinstatement to their former positions, or if those positions no longer exist to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, with interest at the rate of 6 percent per year. (b) Preserve until compliance with any order for backpay made by the Board and, upon request, make available to the Board or its agents, for examination and copying, all 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 shall be deemed waived for all purposes 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to compute the amounts of backpay due under the terms of this recommended Order. (c) Post at its shop in Melvindale, Michigan, copies of the attached notice marked "Appendix." 20 Copies of such notice, on forms provided by the Regional Director for Region 7, after being signed by an authorized representa- tive of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed, insofar as it alleges that the Respondent violated the Act other than as found herein. 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local 9L, Graphic Arts International Union, AFL-CIO, or any other union, by discharging or otherwise discriminating against our employees with regard to their job tenure or working conditions. WE WILL NOT question our employees about their union membership, activities, or sympathies in a threatening or coercive manner. WE WILL NOT create the impression that we are now spying, or have in the past spied, upon the union activities of our employees. WE WILL NOT threaten reprisals against our employ- ees should they select the above-named, or any other, union as their bargaining representative. WE WILL NOT promise benefits to our employees in order to discourage them from supporting the above- named, or any other, union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join or assist any union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL offer to reinstate John Shellhaas, Sharon Sobolewski, and Sandra Crowder immediately to their former jobs without loss of seniority, and will pay them for any wages they may have lost because we discharged them, with 6 percent interest. Our employees are free to belong or not to belong to any union, except where an agreement requires union member- ship as a condition of employment as authorized by law. Dated By WAYNE GRAPHICS, INC., A WHOLLY OWNED SUBSIDIARY OF PANAX CORPORATION Employer (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Tele- phone 313-226-3200. 1