Omark-CCI, Inc.

OMARK-CCI, INC. Omark-CCI, Inc. sand Teamsters Union Local No. 551, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Independent. Case 19-CA-6034 January 17. 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBLRS FANNING AND PENELLO On August 1, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 i.o affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order with the modifica- tions set forth below. 1. In excepting to the 8(a)(1) findings character- ized by the Administrative Law Judge as "addition- al" to those specifically alleged in the complaint, Respondent asserts, inter alia, that the Administra- tive Law Judge violated the "ground rules" he established at the outset of the hearing when he denied General Counsel's motion to amend the complaint.' We find no merit in this claim. The record shows that the General Counsel's motion to amend and the Administrative Law Judge's ruling thereon related to alleged acts of supervisors other than those named in the complaint; that all of the violations found involve acts committed by supervi- sors expressly named in the complaint; and that the so-called "additional" violations involve conduct closely related to, if not in actuality falling within, the described unfair labor practices attributed to said supervisors by the complaint's allegations of unlaw- ful interrogation and threats. Moreover, all the violations found ware fully litigated. 2. We also disagree with the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) and (3) of the Act when, in May 1973, it made i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. Absent exceptions, we adopt the Administrative Law Judge's dismissal of that part of the 8(a)(3) allegations of the complaint as was litigated on the theory that Gau was constructively discharged on August 24, 1973. 469 certain changes in Gau's job duties shortly after Gau commenced her open and prominent activity on behalf of the Union. The record shows that because of a suspicion-albeit unproved-that Gau, whose duties theretofore gave her free access to company records, was providing material from such records to the Union for use in the organizational campaign, management assigned to another that part of Gau's job duties which involved the maintenance of personnel records and the handling of management's mail. There was no evidence, and indeed no claim, that the reassignment of these duties had any effect on Gau's pay, that it imposed any more onerous work upon her, or that it in any way restricted either the access to employees which she had previously enjoyed or any opportunities to exercise her legiti- mate organizational rights. Absent such evidence, we do not have the kind of situation which would warrant finding that changes in the job duties of employees identified with a union amount to unlawful restraint or discrimination within the meaning of Section 8(a)(1) and (3) of the Act. 3. We agree with the Administrative Law Judge that Respondent's refusal to rehire Gau on August 24, 1972, was prompted by her union activity and therefore was violative of Section 8(a)(3) and (1) of the Act.2 On that date, after Supervisor Keller told Chief Engineer Hsu that Gau had quit, Hsu called Gau and told her that his secretary was on vacation until after Labor Day. Gau apologized to Hsu for inconveniencing him and told him that she would return to work the next workday, Monday, and would stay until his secretary returned and "then if things weren't any better, then, I was going to give him my two weeks notice .... " Hsu agreed to this agreement, but later that evening called to tell her not to return to work because General Manager Arnold had seen her termination slip and "it was too late to do anything about it." Contrary to our dissenting colleague, the above-credited testimony of Gau does not warrant the finding that Gau's offer to return to work was limited to the 2-week period Hsu's secretary would be on vacation. 4. Except in the respects noted above, we sustain all other of the 8(a)(1) and (3) findings made by the Administrative Law Judge. Although agreeing with his colleagues in all other respects . Chairman Miller would limit the 8(a)(3) findings and the remedy with respect to Respondent's refusal to reemploy Gau to accord with the evidence that Gau's offer to return to her Job, and Hsu's acceptance thereof (subsequently rescinded by him at Plant Manager Arnold's direction) was limited to the 2- week period during which Hsu's secretary would be on vacation. Accordingly, he would terminate any remedial rights that Gau enjoyed by virtue of this unfair labor practice finding as of the time Hsu 's secretary returned to herjob. 208 NLRB No. 52 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMFNDED CONCLUSIONS OF LAW Modify the Conclusions of Law contained in the Decision of the Administrative Law Judge as follows: 1. Substitute the following for paragraph 3 therein : 2. Delete the phrase "or applicants for employ- ment" from the first line of paragraph 4 therein. "3. By refusing to rehire Charlene Gau because of her union activity, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act." 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 Respondent, Omark-CCI, Inc., Lewiston, Idaho, its officers, agents, successors , and assigns, shall take the action set forth in the said recommended Order as so modified. 1. Delete the phrase "or by changing employees' job duties" from paragraph 1(a) of the recommended Order. 2. Substitute the attached notice for the notice attached to the Decision of the Administrative Law Judge. APPENDIX N01ICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELAIIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Omark-CCI, Inc ., violated the National Labor Relations Act, and ordered us to post this notice and to keep our word about what we say in this notice. The law gives you the right: To form , join, or help unions To choose a union to represent you in bargaining with us To act together for collective bargaining or other aid or protection To refuse to participate in any or all of these things. The National Labor Relations Board has ordered us to promise you WE WILL NOT refuse to rehire you or otherwise discriminate against you because you are a member of, or have supported , Teamsters Union Local No. 551 , International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Help- ers of America , Independent, or any other union. WE WILL NOT threaten you with economic reprisals, including discharge, plant closure, or loss of chance of promotion, if you join or support the above-named Union . or any other union. Wi: WILL Nor threaten that if you select the above-named Union , or any other union, to represent you that we will eliminate our existing practice of allowing you to present your griev- ances directly to management. WE WILL NOT create the impression that we are engaging in the surveillance of your union activities. WE WILL. NOT solicit your grievances for the purpose of ascertaining what improvements in working conditions could be granted which would induce you not to seek unionization nor will we imply that such grievances will be remedied nor will we expressly tell you we will remedy your grievances to dissuade you from supporting the above-named Union , or any other union. WE WILL NOT ask you to sign a written statement promising not to support the above- named Union, or any other labor organization. WE WILL NOT interrogate any employee or any applicant for employment about his union sympa- thies or activities or those of other employees. WE WILL NOT subject you to lengthy daily individual meetings because you support the above-named Union, or any other union. WE WILL NOT in any other way interfere with, restrain, or coerce you in exercising the rights guaranteed to you by the National Labor Rela- tions Act. The National Labor Relations Board found we violated the law by refusing to rehire employee Charlene Gau : therefore WE WILL offer to reinstate Charlene Gau to her former job or. if that job no longer exists, to a substantially equivalent position without any loss of seniority or other rights previously enjoyed. WE WILL reimburse Charlene Gau for any loss of earnings suffered as the result of our discrimi- nation with 6-percent interest. OMARK-CCI, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. OMARK-CCI, INC. 471 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, 10th Floor, Republic Building, 1511 Third Avenue Seattle, Washington 98101, Tele- phone 206-442-4532. DECISION STATEMENT OF THE CASE JERROI.D H. SHAPIRO, Administrative Law Judge: The hearing in this case held on June 12 and 13, 1973, is based upon charges filed by the above-named Union on September 5, 1972, and a complaint issued on April 2, 1973, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 19, alleging that Omark-CCI, Inc., herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. The Respondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record,' from my observation of the demeanor of the witnesses, and having considered the postheanng briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF TIIE RESPONDENI Omark-CCI, Inc., the Respondent, an Oregon corpora- tion, operates a plant in Lewiston, Idaho, where it manufactures small arms cartndges, components, and related products. In operating this plant the Respondent annually purchases and causes to be transported and delivered directly from suppliers located outside the State of Idaho goods valued in excess of $50,000. The Respon- dent admits it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Union Local No. 551, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, herein called the Union, is a labor organizatior within the meaning of Section 2(5) of the Act. III. THE SErTING AND QUESTIONS PRESENTED The Union petitioned the Board on May 16, 1972,2 to conduct a representation election among the Respondent's production, maintenance, and shipping employees at the Lewiston, Idaho, plant. An election was conducted on June 15 which the Union lost. The Union filed objections to Respondent's alleged preelection conduct which it later withdrew. The Board on August 8 certified that the Union had lost the election. Respondent is opposed to the unionization of its plant and openly expressed this opposition to its employees in campaigning against the Union's effort to win the June 15 representation election. The employee who initiated the Union's organizational campaign and was the leading union adherent was Charlene Gau. General Counsel alleges that Gau was asked to sign a paper repudiating the Union, threatened with reprisals because of her union activity, questioned about her own and other employees' union sympathies, made the subject of harassment and other disagreeable treatment because of her union activity, and that this unlawful course of conduct engaged in by Respondent was unlawful and caused Gau to quit her employment on August 24. This termination, the General Counsel alleges, constitutes a constructive discharge in violation of Section 8(a)(3). The complaint also alleges that Respondent violated Section 8(a)(3) by refusing to reinstate Gau. Respondent admits Gau quit work on August 24 but denies her termination was caused by its alleged unlawful conduct or that Respondent has unlawfully refused to reinstate Gau. In addition, the General Counsel in this proceeding alleges, in substance, that the Respondent in violation of Section 8(a)(1) of the Act before and after the representa- tion election restrained and coerced employees in the exercise of their right to support the Union by interrogat- ing employees about their own and other employees' union activities and sympathies, by threatening employees with reprisals if they supported the Union, and by soliciting employees' grievances to discourage them from supporting the Union. Respondent denies it engaged in this conduct and affirmatively alleges that the major portion of this alleged misconduct, paragraphs 7 through 9 and 11(a) of the complaint, should be dismissed on the following grounds: (1) The alleged misconduct was not alleged in the unfair labor practice charge filed by the Union; (2) the Board's Regional Director before issuing the complaint in this case did not conduct an investigation, did not in other words give Respondent the opportunity to present its version of certain of the alleged acts of misconduct; and (3) this misconduct was the subject of the Board's investiga- tion of the Union's objections filed in the representation case and withdrawn by the Union. As to the first contention, the Union filed charges alleging that the Respondent discharged nine named employees and constructively discharged Charlene Gau in violation of Section 8(a)(1), (3), and (4). The General Counsel refused to issue a complaint as to the nine discharges but did issue the instant complaint. All of the conduct alleged in both the charge and the complaint relates to the Respondent's alleged antiunion campaign. The Union's charge did not specifically refer to the instances of independent violations of Section 8(a)(1) set out in the complaint. The charge, however, did allege to be unlawful the above and other acts." It is settled that this general language, which is uniformly included in Board charges, is entirely adequate to support complaint allega- 1 The transcript of the record is hereby corrected in accordance with the General Counsel. unopposed motions to correct transcript filed by the Respondent and the 2 Unless otherwise specified, all dates herein refer to 1972. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, and ultimately unfair labor practice findings, that are broader than the specific allegations of the charge, where as in the instant case there is a legally sufficient relationship between the acts specifically alleged in the charge and those discovered through investigation. N. L. R. B. v. Kohler Company, 220 F.2d 3, 6-7 (C.A. 7); N.L.R.B. v. Central Power & Light Company, 425 F.2d 1318, 1320-21 (C.A. 5, 1970). For this reason I reject the Respondent's first affirmative defense. I also reject its second affirmative defense for the reason that neither the Act nor the Board's Rules and Regulations require that the General Counsel in connection with each alleged unfair labor practice secure Respondent's version of the facts before issuing a complaint , nor in this case does there appear to have been an abuse of the discretionary power vested in the General Counsel and/or the Regional Director by the Board to conduct an investigation. With respect to the Respondent's third affirmative defense, I am of the opinion that the Union 's or Regional Director's conduct in connection with the Union's objections in the representation case is not res judicata, nor does it stop the General Counsel from litigating similar matters in this proceeding, especially since no hearing was held on the Union's objections which were withdrawn only after an administrative investigation . See Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R.B. (Sagamore Shirt Company), 365 F.2d 898, 904-905 (C.A.D.C., 1966); Leonard Niederriter Company, Inc., 130 NLRB 113, fn. 2 at 115. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interference, Restraint, and Coercion 1. The conduct attributed to Foreman Lavern Walker Metal Parts Production Foreman Lavern Walker, a statutory supervisor, spoke to machinists Jim Knox and Richard Santos in their work area on or about June 1. Walker asked for the reasons they supported the Union, and asked if there were other proumon employees employed in the machine shop. Knox and Santos replied there were a number of such employees and voiced the grievances which had caused them (Knox and Santos) to support the Union. Walker proposed that the two employ- ees meet with the manufacturing manager Adalbert Krampen and that he, Walker, would arrange such a meeting. The offer was declined, at which point, Walker stated that after the representation'election the Respondent would improve working conditions, that the Respondent realized that things were not right "with the set up" in the machine shop and would see that things got better 3 The foregoing is based on a composite of the testimony of Knox and Santos who impressed me as reliable and honest witnesses Walker recalled one conversation about the Union with three machinists, including Knox and Santos, but testified he had no independent recollection of what was said, that he just remembered talking to the three employees. Walker did not impress me as an honest witness . His bearing and manner of testifying indicated to me that his poor memory was not caused by the passage of time but by a desire to hide the truth declaring that "after the last election [Respondent] had given a raise." 3 I find that Walker's inquiry on about June i directed to employees Knox and Santos about their reasons for supporting the Union was calculated to force them to reveal their attitude toward the Union and as such constituted unlawful interrogation in violation of Section 8(a)(1) of the Act. Also, violative of Section 8(a)(1) was Walker's further questioning of Knox and Santos about the union sympathies of the other employees in the metal shop. In concluding that the above-described conduct constitutes improper interrogation, I have considered the fact that there is no evidence of any valid justification for this conduct, and that it took place in the context of the Respondent's hostility toward the Union and without any assurance against reprisal. I also find that Walker in his conversation with Knox and Santos unlawfully solicited their grievances and promised them benefits. Walker, briefly stated, asked them to express the grievances which had led them to support the Union and upon hearing their grievances promised better working conditions after the representation election. There is no evidence that Respon- dent supervision prior to the Union's organizational campaign had solicited employees' grievances. Based on the foregoing, I find that the solicitation of the employees' grievances by Walker who in effect promised that such grievances would be remedied violated Section 8(a)(I) of the Act. Swift Produce, Inc., 203 NLRB No. 60. The employee who initiated the Union's campaign and its principle supporter was Charlene Gau. Another employ- ee who actively supported the Union was Michael Farris. On or about June 1 outside the metal parts building, Foreman Walker spoke to Gau about the Union. Walker asked Gau whether she was "involved with Michael Farris and the Union" and specifically asked for the reasons Gau supported the Union. Gau explained why she supported the Union whereupon, Walker warned that she had "better watch out because [she ] was being watched" and told Gau that the Respondent's production manager Kenneth Reaves said she had taken some papers from the plant. This accusation angered Gau. She denied it and terminated the conversation. During the course of the conversation Walker asked Gau for the names of other employees who supported the Union. Gau replied that she could not speak for the other employees.4 I find that on or about June 1, Walker unlawfully interrogated Charlene Gau about her union activities and sympathies and about the union activities and sympathies of other employees and that by engaging in this conduct the Respondent violated Section 8(a)(1) of the Act. I further find that by telling Gau she "better watch out because [she] was being watched" the Respondent, through Walker, created the impression in the eyes of Gau that it was keeping her union activity under surveillance, 4 The foregoing is based on the testimony of Gau who in testifying about this conversation impressed me as an honest witness Walker, at first, testified he had a conversation with Gau on the subject of the Union but denied the above remarks attributed to him by Gau Later, however, on cross-examination he testified that the Union was not discussed during this conversation Walker's demeanor as I have previously mentioned was generally that of an incredible witness. I have rejected in its entirety his version of the Gau-Walker conversation OMARK-CCI, INC and that by engaging in this conduct the Respondent likewise violated Section 8(a)(l).5 In the context the warning was given this was the only meaning that Gau could reasonably give to it.6 2. The conduct attributed to Foreman Robert Thompson About I week before the representation election of June 15, Assembly Foreman Robert Thompson, a statutory supervisor, spoke to employee Marjorie Correll about the Union as it related to the Respondent's "open door policy" and to carpenter Max Bums. The "open door policy," a policy well known to the employees, allows an employee to carry his grievances all the way up the Respondent's supervisory hierarchy if he does not receive satisfaction from his immediate supervisor. Max Burns is an independ- ent contractor employed by the Respondent, pursuant to a contract, who performs carpentry work. Thompson during his conversation with employee Correll stated that if Correll and the other employees succeeded in getting the Union into the plant, "that the company would no longer have an open-door policy", and Max Burns "was going to be without a job." Correll asked what Thompson meant by inferring that Correll was one of the employees supporting the Union. Thompson answered, he understood that when Correll had been employed by another employer she had helped to organize for a union so he assumed she was assisting the Union during its current campaign at Respondent's plant. Correll replied that her union senti- ments were secret.? I find that Thompson's statement regarding the "open door policy" was an unambiguous threat that the Respon- dent would eliminate this policy if the employees succeed- ed in getting the Union into the plant. I can not reasonably interpret the clear language used by Thompson as a prediction of what the Union would demand in regard to a contractual grievance procedure. He simply did not say that nor did he use language which could be reasonably so construed. In these circumstances and in the context of the Respondent's union animus and its other unfair labor practices I find on or about June 7 by threatening to do away with the Respondent's existing grievance policy if the Union got into the plant, that the Respondent violated Section 8(a)(1) of the Act. See Jacob Wiesel d/b/a Saticoy Meat Packing Co., 182 NLRB 713, 714-715. I also find that Thompson's statement which implied that employee Correll supported the Union, by its nature was calculated to force Correll to reveal whether in fact she supported the Union, and thereby constituted unlawful interrogation in violation of Section 8(a)(1), as did Thompson's further 5 In so finding, I realize this conduct was not specifically alleged in the complaint It took place, however, in the course of other events which were alleged as unfair labor practices and Is closely related to such alleged unfair labor practices Also, Respondent did not object to its receipt, had full opportunity to cross-examine and fully litigate, and did litigate the issue. Under these circumsts,nces I have ruled upon this conduct even though it is not specifically alleged as an unfair labor practice See, e g, Monroe Feed Store, 112 NLRB 1336, 1337 6 There is no evidence or contention that Gau ever removed from the plant without permission company books, records, or papers nor is there any contention or evidence that Respondent had a basis for believing she had engaged in or would engage in this type of conduct. 7 The foregoing is based on the testimony of Correll. In bearing and 473 statement that he assumed Correll was assisting the Union in its organizational campaign. I note that this interroga- tion was without justification, without any assurances against reprisal and took place in the context of the Company's hostility toward the Union and its other unfair labor practices. I do not, however, believe that Thompson's threat that if the employees succeeded in organizing a Union that Max Burns "was going to be without a job" constitutes a threat within the meaning of Section 8(a)(1). Burns was not an employee of Respondent, he was an independent contractor. In these circumstances, the evi- dence is not sufficient to establish that by making this statement that Thompson was impliedly threatening to discharge Correll or other employees if they supported the Union. In June, shortly after the representation election of June 15. Foreman Thompson spoke to employee JoAnn Hosley about the Union in the presence of Supervisor Louis Peters. The conversation took place in the office shared by Thompson and Peters where Hosley was waiting for a work assignment. Thompson told Hosley that any employ- ee who voted for the Union was "his enemy" and that if the Union succeeded the Respondent would close down the plant or just move the plant to a different location. Hosley said she did not believe the Company would ever close or move the plant. Also, Thompson told Hosley about some bad experiences he had with unions and stated it was not a good idea to have a union.8 Based on the foregoing, I find that in June the Respondent, through Thompson, violated Section 8(a)(1) of the Act by threaten- ing employee Hosley with economic reprisals if she supported the Union. Implicit in Thompson's statement that any employee that voted for the Union was his enemy was a threat of reprisal. Also, I find that the Respondent, in violation of Section 8(a)(1) through Thompson, threat- ened employee Hosley that the Respondent would close its plant if the employees supported the Union. 3. The conduct attributed to Production Manager Kenneth Reaves One of the employees who actively supported the Union was Michael Farris who was employed in the quality assurance department. One day, between May 15 and 19, the Respondent's Production Manager Kenneth Reaves directed Farris to bring control charts to Reaves' office at which time he asked Farris to stay and talk about "what was going on in [the quality assurance] department." Reaves, among other things, asked Farris "what was getting started out there in the quality assurance depart- ment about this Union thing," and voiced the opinion, delivery-demeanor- she impressed me as an honest witness Thompson was not an impressive witness s The foregoing is based on the credible testimony of employee Hosley who was in the employ of Respondent when she testified Hosley's manner of testifying and her demeanor in general leads me to believe she was a reliable and honest witness Thompson admitted he spoke to Hosley about the Union He testified, at first, he had no recollection of what he said but then vaguely remembered one comment. The memory of Peters was no better, he had no recollection at all-not even whether he was ever present when Thompson spoke to Hosley Neither Thompson nor Peters were impressive witnesses Their loss of memory did not appear to stem from the passage of time but I received the impression they were not candid witnesses 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "this is where it is all coming from." Farns replied that Reaves' own department contained a number of union sympathizers. Reaves, in turn, stated that he and his foremen had "taken a survey through their department" and figured that about 40 percent of the employees supported the Union, but that he knew that the support for the Union in Farris' department, the quality assurance department, was even higher. Reaves asked what Farns "thought the Union could do for [Respondent]," pointed out that the employees of a nearby employer had gone union and it had not worked out and they were now in the process of deauthorizing the Union. Reaves asked, "what [the Respondent's employees] were doing getting started with the Union" stating that the employees would have to pay dues and the Union would not do anything for them. During the course of the conversation Reaves told Farns that their talk was confidential, dust between the two of them, and warned Farns that if the management found out Farris was "in on" the Union's organizational attempt, that Farris' "chances for promotion [with Respondent] will be almost nil . . . I thought you had a bright future with this company, but when they find out about this you just stay where you are."9 I find that Respondent violated Section 8(a)(1) of the Act on about May 17 by warning employee Michael Farns that he would not be promoted because of his union activities and sympathies. I further find that during this same conversation Reaves told Farris that certain supervisors had "taken a survey through their department" and believed 40 percent of the employees supported the Union, knew that the support for the Union in Farris' department was even higher and that Reaves knew that Farris was "in on" the Union's organizational campaign. Plainly, these statements were calculated to create the impression that Respondent was keeping the union activity of Farris and other employees under surveillance and as such violated Section 8(a)(1) of the Act. 10 4. The conduct attributed to Personnel Assistant JoAnn Riceci On August 24 Respondent terminated a number of employees, one of whom was Gary Farris. Farris had supported the Union during the preelection campaign. Following his termination, on August 24, pursuant to Respondent's normal procedure Farris received an exit interview from Personnel Assistant JoAnn Riceci, admit- tedly an agent of Respondent. During the course of this interview Farris asked that he be considered for rehire. Farris stressed the fact that he had enjoyed working for Respondent, stated he liked the people in management and desired to remain with the Respondent but believed, he 9 The foregoing is based on the testimony of Michael Farris who testified in a forthright manner and whose demeanor while testifying was impressive Reaves admitted there was a meeting between them in his office but that Farris did most of the talking Reaves had no memory of what he , Reaves, said to Farris, testifying "it was mostly trivial " Reaves was an unimpressive witness and I received the impression his memory was not dimmed by time but by the knowledge that the truth would hurt Respondent I have rejected his testimony wherever it conflicts with Farris' 10 In so finding, I realize this conduct was not specifically alleged in the complaint It took place, however, in the course of other events which were alleged as unfair labor practices and is closely related to such alleged unfair said, that a number of the personnel in management held it against him because he had supported the Union. Riceci, at this point, asked if he was as pleased about the company, his job and management as he stated, then "why had he supported the Union." Farris gave his reasons for supporting the Union which included a belief that the Respondent had unfairly selected for layoff a friend of his. Riceci asked whether Farris felt the Union could get his friend's job back. Farris replied the friend did not want to return to the company.ii The record is clear and I find that at the time of his postdischarge interview when Riceci asked him "why he supported the Union" that Gary Farris was seeking reemployment with the Respondent. I further find that the question by its very nature compelled Farris to indicate whether he had repented or still supported the Union. An extremely awkward position for Farns who knew that the Respondent was adamantly opposed to the Union, yet he wanted to be considered for reemployment by Respondent. Riceci's reason for asking the question-why if Farris liked the company so much had he supported the Union-in my opinion was not justified by the circumstances. Not only does questioning an employment applicant about his union sympathies have the same coercive tendency as other types of employer interrogation about union attitudes or activity but in addition, the delicate situation occupied by an employee seeking employment or reemployment renders such questioning inherently even more coercive. This is especially true where, as here, Farris knew that Respon- dent was hostile toward the Union and Ricecf gave no assurances to Farris that Respondent would not hold it against him if he still supported the Union. Under the circumstances, I find that Respondent's interrogation of Gary Farris on August 24 about his union sympathies was violative of Section 8(a)(l) of the Act. New England Bituminous Terminal Corporation, 200 NLRB No. 7. 5. The conduct attributed to Chief Engineer Y. S. Hsu The two employees most active in their support of the Union were Charlene Gau and Michael Farris both of whom worked in the quality assurance department. The supervisor in charge of this department was the Company's Chief Engineer Y. S. Hsu. The record establishes that the Respondent's management believed that a large number of the employees in Hsu's quality assurance department had supported the Union in the representation election. To determine why the employees in this department felt they needed the Union Hsu, so he testified, in August called employees Gau and Michael Farris into his office. Hsu spoke to Farris once and to Gau on several occasions. The labor practices . Also, Respondent did not object to its receipt, had full opportunity to cross-examine and fully litigate, and did litigate the issue Under these circumstances I have ruled upon this conduct even though it is not specifically alleged as an unfair labor practice See , eg, Monroe Feed Store, 112 NLRB 1336, 1337 It The foregoing is based on the testimony of Ricecf which is corroborated by her written report of the interview , a record kept during the normal course of business As will be noted later, I have discredited Ricecf s testimony on other matters and have credited Gary Farris' On this matter, however, of the two witnesses, Riceci when she testified impressed me as being the more reliable OMARK-CCI, INC. General Counsel claims that during these conversations Hsu made statements and engaged in conduct which violated Section 8(a)(1) of the Act. I will first discuss his conversation with Farris and then the several alleged conversations with Gau. a. Hsu's meeting with Michael Farris On August 31 Hsu called Michael Farris to his office where he spoke with him for about 2 hours. Hsu told Farris that he wanted to talk to him since he had talked to the other employees in the department previously. On the subject of the Union, Hsu asked Farris why he had supported the Union and told him that two other plants operated by the Respondent had gone umon and were in bad financial condition. Hsu asked, "how the other employees in the department felt about the Union, which ones were strongly for [the Union]," and wanted to know the employees' reasons for supporting the Union. Hsu explained to Farris that if he, Hsu, knew the reasons the employees supported the Union then he would talk to them and straighten their grievances out and the employees would not have to go to the Union again. Also, Hsu stated that the plant was controlled by himself along with Plant Controller Mincher, Manufacturing Manager Krampen, and General Manager Arnold and that the last three named individuals assumed that Farris was the leader of the Union's organizational campaign and wanted him fired. Hsu stated he did not believe that Farris was the leader and had defended him and saved his job. Hsu asked Farris, "to keep [his] nose clean for Hsu's sake from now on," and predicted that with a little time everything would be forgotten. Farris denied he was the person who had initially contacted the Union. Hsu, using "an old chinese proverb" told Farris, in substance, it did not matter but what did matter was the fact that management knew he was involved with the Union and believed he was the leader. The foregoing is based on the testimony of Michael Farris who impressed me as an honest witness. He testified in a candid forthright manner. Hsu's testimony in general was vague, ambiguous, and, on a number of points, evasive. Regarding his August 31 conversation with Farris he testified he had no memory of what was said, but generally denied asking Farris whether he supported the Union or which employees supported the Union or the reasons other employees supported the Union. Hsu was in general an unimpressive witness and I have rejected his testimony where it is not corroborated by other credible testimony. I find that on August 31, Hsu unlawfully interrogated Michael Farris in violation of Section 8(a)(1) by asking why he supported the Union. I further find that by indicating that management believed Farris was the Union's leader that Hsu placed Farris in a position of having to reveal the extent of his union sympathies and activities which constitutes unlawful interrogation, and as such violated Section 8(a)(1) of the Act. Likewise, unlawful 12 In so finding, I realize this conduct was not specifically alleged in the complaint. It took place, however, in the course of other events which were alleged as unfair labor practices and is closely related to such alleged unfair labor practices Also, Respondent did not object to its receipt, had full 475 in violation of Section 8(a)(1) was Hsu's interrogation of Farris about the union sympathies of Farris' fellow employees. I further find that Respondent violated Section 8(a)(1) when Hsu told Farris that management wanted to fire him because of his umon sympathies and activities and that his continued employment was conditioned on his keeping his "nose clean" of the Union. Also, unlawful is Hsu's statement that if he knew the grievances which caused the employees to support the Union he would straighten them out so the employees would not have to go to the Union again. The law is settled that such a promise to improve employees' terms and conditions of employ- ment for the purpose of dissuading them to support the Union violates Section 8(a)(1).12 N.LR.B. v. Exchange Parts Company, 375 U.S. 405 (1964). b. Hsu's meetings with Charlene Gau Charlene Gau, the employee who initiated the Union's organizational campaign, it appears was the most active adherent for the Union. The record establishes that Respondent's management knew or suspected Gau's role as the leading union activist, and was concerned over the large number of union sympathizers in Gau's department, the quality assurance department, over which Chief Engineer Hsu was in charge. On August 16, Hsu in the afternoon called Gau into his office where, in the presence of his secretary Carol Schwartz, spoke with Gau, as Hsu testified, to determine what grievances had caused Gau and the other employees in the department to support the Union. Schwartz took notes of what was said. At the start of the meeting Hsu asked Gau to write out in her own hand, "why [she] supported the Union, who was involved and that [she] was sorry, that [she] would not do it again," and asked Gau to sign this statement which I will hereafter call the "Union confession." Hsu also told Gau that he wanted to discuss the reasons why she supported the Union because he believed that if they ironed out the problems that perhaps the Union would not get started again. In this regard, Hsu asked Gau to tell him the different reasons of the other employees for supporting the Union. The reasons which led Gau to support the Union, Hsu told her, would be taken by him to a management meeting so that management could work out the compa- ny's problems. Gau explained the grievances which had caused the employees to support the Union. This meeting lasted about 1-1/2 hours. On Thursday, August 17, Hsu, in his office, asked Gau if she had considered preparing and signing the "Union confession" and Gau said she would not sign such a document. Since the Company worked 4 10-hour days a week, Monday through Thursday, the next workday was Monday, August 21. On this date Hsu, in his office, again asked Gau if over the weekend she had thought about preparing and signing the "Union confession." Gau again refused to sign such a document and told Hsu to stop asking her to do so. Whereupon, Hsu started to talk about Michael Farris, the other employee in the department who opportunity to cross-examine and fully litigate and did litigate the issue Under these circumstances I have ruled upon this conduct even though it is not specifically alleged as an unfair labor practice . See, e.g , Monroe Feed Store, 112 NLRB 1336, 1337. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had actively supported the Union, stating, "they were going to fire Mike Farris because he was involved in the Union, because he had been so involved in the union activities and they didn't feel they owed him anything." The above-described words and conduct attributed to Hsu is based on the testimony of Gau. Gau also testified that during August she had other meetings with Hsu in his office. Hsu admits to dust two meetings with Gau in August, the August 16 meeting and a meeting the following week on either August 21 or 22. His version of these meetings in crucial respects differs from Gau's as does the testimony of Schwartz concerning the meeting of August 16. Based on the entire record, but particularly my observation of the witnesses, I credit Gau and reject the testimony of Hsu and Schwartz with respect to what was said at the meeting of August 16. Likewise, and for the same reasons, I reject the testimony of Hsu regarding the other conversations attributed to him by Gau in August. I credit the testimony of Gau with respect to the number of such conversations, the manner in which the conversations arose, the number of times she met with Hsu, the length of these conversations, and the content of the conversations. Gau impressed me with her sincerity. Her testimony was given with conviction. There was nothing in her version of the meetings or her demeanor to suggest that her version of these events was fabricated. On the other hand, Hsu and Schwartz in demeanor impressed me as being insincere witnesses . Also, Hsu's testimony generally was vague and evasive and on many important matters internally incon- sistent. English, I realize, is not Hsu's native language, but I can not ascribe Hsu's ambiguity and evasiveness to this. I would be naive to ignore the fact that Hsu has used the English language for a number of years, has lived in the United, States continuously since at least 1965, at which time he received his master's degree from Oregon State University. I received the distinct impression Hsu was not trying to tell the truth as he remembered it, rather his demeanor and manner of testifying was that of someone determined to obfuscate the truth. This is a harsh judgment, and I am aware that I may be in error, but my considered judgment based on my observation of the witnesses as well as on the content of their testimony is that Gau tried to tell the truth and Hsu and Schwartz did not. In reaching this conclusion, I have carefully considered the fact that prehearing statements given by Gau differ from her testimony on details such as dates of meetings, and the length of meetings. I do not feel, however, that this seriously affects her overall credibility, but rather am convinced it exhibits no more confusion as to details than is not uncommon in the stories of entirely honest and reliable witnesses. Based on the foregoing, I find that in violation of Section 8(a)(1) of the Act, Respondent on August 16, 17, and 21, through Hsu, unlawfully interrogated Gau by asking her to explain why she supported the Union, to tell what other employees had supported the Union, to disavow her support for the Union, and to promise not to support the 13 The complaint does not allege and the General Counsel does not urge that in the circumstances of this case this was a too-broad limitation on the right of an off-duty employee to enter the plant to solicit for the Union In dispute, however, is whether Hsu asked if Gau knew anything about union cards being passed around I have not resolved this factual dispute. For, Union in the future . I further find that Respondent violated Section 8(a)(I) of the Act on August 21 when Hsu threatened Gau with discharge if she did not withdraw her support from the Union . Hsu's warning that Respondent was going to fire Michael Farris because of his union sympathies given immediately after Gau had refused to sign the "Union confession" could have been construed as nothing but a threat that Gau would suffer the same fate if she did not withdraw her support from the Union. B. Respondent 's Conduct Toward Charlene Gau and the Termination of Gau's Employment 1. Gau's union activities Charlene Gau began work for the Respondent in August 1969 and was employed as a clerical in the quality assurance department. On about May 10 or l1 she visited the Union's office, discussed the possibility of the Union representing the company's employees and after consider- ing the matter began to solicit employees to sign cards which authorized the Union to represent them. Gau, who initiated the Union's organizational campaign, was assisted in distributing the Union cards by three other employees, one of whom was Michael Farris. On Friday, May 12, Gau, employed on the first shift, with Michael Farris entered the plant during the second shift and solicited several employees on this shift to sign Union cards. By Monday, May 15, it was common knowledge among management that the Union was conducting an organiza- tional campaign among the employees and that Gau was leading union adherent actively organizing for the Union. Thus, Ron Keller, a supervisor in the quality assurance department, credibly testified that on May 15 Production Manager Reaves told him that Gau and Mike Farris had passed out union cards on the second shift the previous week and further testified that on the same day-May 15-at a meeting attended by all of the Respondent's supervisors that the second shift supervisor Hendricks notified the Respondent's Production Manager Krampen that Gau and Mike Farris had been passing out union cards on his shift. Also, according to Mike Kelly, the ranking supervisor in the quality assurance department, the head of the department, Hsu, on May 15, told Kelly that Production Manager Krampen had told Hsu that Gau and Mike Farris had been observed on the second shift passing out union cards. On the same day Hsu, in the presence of Kelly, spoke to Gau about being in the plant during the second shift the previous Friday. He instructed her not to come into the plant during her off-duty hours unless she had received permission from her immediate supervisor, Kelly. i3 2. The change of Gau's job duties On or about May 17, almost simultaneous with its knowledge that Gau was behind the Union's effort to organize the plant, Hsu met with the two supervisors of the even if the question were asked , and even if it constitutes unlawful interrogation, the recommended order in this decision already encompasses such unlawful conduct and the disputed interrogation is not relevant to the disposition of other issues in this case OMARK-CCI, INC. quality assurance department, Kelly and Keller. Hsu told them it was difficult for him to believe that two of his employees, Gau and Mike Farris, were involved in the union activity. He told Keller and Kelly to restrict the movements of Gau so she would not go to the Company's main office where records were kept, explaining to them that he and the Company's general manager, Arnold, believed that Gad was removing records from the main office which the Union was duplicating for use in its election campaign. Hsu also told the two supervisors to route any of their typing or reproduction or other work to Carol Schwartz, Hsu's secretary, rather than to Gau.14 At about the same time that Hsu was talking to the two department supervisors about Gau's duties, Hsu's secretary, Schwartz, came to Gau and without explanation took from Gau's possession all of the personnel records of the employees in the quality assurance department which had been previously kept by Gau. Schwartz' explanation to Gau was that she was acting pursuant to Hsu's instruction. One or two days later Hsu directed Gau not to continue to pick up the department's mail stating that he wanted everything routed directly through him and that, "they had other things they wanted [Gaul to do." Gau no longer picked up the mail nor did she continue to maintain the department's personnel records. These duties were trans- ferred to Hsu's secretary, Schwartz. Gau was directed to spend more time helping department supervisors Keller and Kelly. In explaining the change in Gau's duties, the Respondent offered two witnesses, Schwartz and Kelly. They did not controvert Gau's testimony as to the nature of the changes in her duties or the fact that the changes were made immediately after the Respondent learned about Gau's union sympathies and activities. Their testimony was not helpful on the question of the Respondent's motivation for changing Gau's duties. The individual who made such changes. Chief Engineer Hsu, was not questioned on this point by the Respondent. Hsu's failure to testify about the motive for changing Gau's duties leads me to believe that his testimony would have been unfavorable to Respondent. The little testimony given by him on this matter lends support to this inference. On direct examination Hsu testified that Gau once told him someone had falsely accused her of stealing company documents for the Union.ia Hsu denied anyone from management had ever accused Gau of engaging in this conduct. Then, on cross- examination Hsu reluctantly admitted that at a meeting of management it was brought out that Gau was a union adherent at which time the suspicion was voiced by members of management that Gau had stolen or passed some information to the Union. Hsu, so he testified, was instructed at this time to limit Gau's work authority so she would not have access to company records she might give to the Union. There is not, however, one bit of evidence that Gau ever removed any company paper or record from the plant for the use of the Union or passed along any confidential information to the Union or that the Respon- 14 The above remarks made by Hsu to Keller and Kelly are based on the credible and undenied testimony of Keller i' As previously found, Gau in fact on or about June 1 had been told by Foreman Walker that she had better watch out because she was being watched and that Production Manager Reaves had told him Gau had taken 477 dent had any basis for believing that she was either guilty of such conduct or would engage in this type of conduct. Based on the foregoing, and the whole record, I find that Respondent was hostile toward Gau because of her union activities, immediately after it learned of these activities changed her job duties, that such a change was made because of Gau's union activities and because of Respon- dent's union animus, and further find that Respondent had no legitimate business justification for engaging in this conduct. Accordingly, I find that Respondent on or about May 17 violated Section 8(a)(1) and (3) of the Act by changing Gau's job duties because of her union sympathies and activities. Of course, it is no defense for Respondent to urge that the change in duties did not make Gau's job any less desirable. See Associated Mills, Inc., 190 NLRB 113, and cases cited In. 19. 3. Hsu's daily meetings with Gau Gau testified that commencing on August 2 and continuing until she quit work on August 24, Hsu initiated meetings with her almost daily. Hsu denies this and testified he spoke to Gau during this period at length only on August 16, as described previously, and one other time, either August 21 or 22. As previously stated in this Decision, I was impressed by Gau and not impressed by Hsu and have credited Gau's testimony in its entirety regarding her meetings with Hsu during August. In this regard, I also note that Gau's testimony that she frequently was summoned to Hsu's office for lengthy meetings was circumstantially corroborated by the credible and unde- nied testimony of Supervisor Ron Keller and the Farris brothers. Mike Farris testified that almost daily in August he received instructions from Hsu to leave a note for Gau to go to Hsu's office when she arrived at work, that because of the frequency and length of Gau's visits with Hsu she was not able to complete her normal work assignments, and that Gau during this period spent about 10 percent of her time in the quality assurance department whereas normally she spent 95 percent of her time in the department. Gary Farris testified that the Company's safety procedure required that he telephone the quality assurance department each hour, daily. The person responsible for answering the phone was Gau and it was Gau who normally received Farris' hourly calls. During the 2 week period just before her termination, Gau, as Farris testified, answered his phone calls only once or twice during the day and some days would not answer any of the calls. Supervisor Keller testified that although he was not in a position to keep a close watch on the amount of time Gau spent in the department that during her last 2 weeks of employment, he did observe that she was absent from her desk "quite often." is I shall now briefly describe Hsu's meetings with Gau and the pertinent events surrounding these meetings. On August 2 Hsu met with Gau in his office where they talked for about 2 hours. Hsu stated he was getting some papers from the plant 16 The testimony of Carol Schwartz. the secretary of Hsu, that she did not remember or recall Gau in Hsu's office on August 3. 14, 15, or 17, is not credible, she did not impress me as a trustworthy witness 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "pressure" from "higher up" because he had two secretar- ies and he had to do something with one of them. Hsu talked to Gau about furthering her education so she could get a betterjob with the Company, told her he believed she had the ability to be an engineer, and, as Gau testified, said "that my union activities wouldn't have anything to do with it and he was really pulling hard for me, that some people wanted him to fire me and he was doing his best to keep me there." 17 Hsu suggested that Gau take additional training in math. He volunteered to tutor her, and lent her an algebra book.18 On Thursday, August 3, Hsu spoke to Gau in his office for an undisclosed period of time. He asked whether she had looked over the algebra book. Gau stated she believed she could master the subject matter and expressed a desire to take extra training if Hsu was willing to spend the time with her. Hsu asked if Gau thought she was capable of performing Michael Farris' fob, he was a technician in the department. Gau stated that with proper training she would be able to do the job. At this time Respondent's employees including Gau worked a 4-day week, Monday through Thursday. Gau was on vacation from Monday, August 7, through Thursday, August 10, and returned to work Monday, August 14. On Monday, August 14, and Tuesday, August 15, when Gau arnved at work she found notes directing her to go to Hsu's office. Gau went to the office and met with Hsu for about 2 hours each day. Briefly stated, the following took place at these meetings. Hsu asked about Gau's vacation and whether Gau had read any part of the algebra book, and if she thought she could master the math. Hsu stated that he wanted to reorganize the quality assurance department and told Gau about an engineer the Company planned to transfer in from another one of its plants. Hsu talked about the jobs performed by the various employees in the department, questioned Gau about certain jobs and talked with Gau in general about the jobs, among other things, telling her that the company planned, in effect, to eliminate Gary Farris'job. Gau told Hsu she thought Gary Farris was an excellent employee. On Wednesday, August 16, the Respondent's General Manager Arnold at the afternoon coffeebreak called a meeting of the employees at which time he announced that the Union had withdrawn its objection to the representa- tion election conducted by the Board. Following this announcement, as described earlier, Hsu summoned Gau to his office for the purpose of finding out why she and the other employees had supported the Union. Hsu, as I have found earlier, requested that Gau prepare and sign the "Union confession." In addition, Hsu asked Gau to give the reasons that she and the other employees supported the Union, explaining that he wanted to discuss these reasons because if the company ironed out the problems that perhaps the Union would not get started again. Hsu stated it In the context in which it occurred , I find, this was a none too subtle threat that top management wanted to discharge Gau because of her union sympathies and, as such , violated Section 8(a)(I) of the Act . Plainly, the threat of discharge was not connected with the fact that Hsu had two "so called" secretaries, one of whom was surplus For, Hsu at all times material employed two "so called" secretaries, Schwartz, his personal secretary, and Gau Schwartz was hired in April to replace another lady who had been that he would relay Gau' s remarks to a management meeting so management could work out the problems. Gau told Hsu about the grievances which had caused the employees to support the Union. The conversation lasted about 1-1 /2 hours. On Thursday, Augtist 17, the last workday of the week, Hsu initiated a conversation with Gau in his office at which time, as previously found, Hsu again asked her to prepare and sign the "Union confession" and said he did not understand why Michael Farris would support the Union after the company had done so much for him. Gau refused to prepare and sign such a confession and explained to Hsu why, in her opinion, Mike Farris had supported the Union, a subject which they then discussed. This meeting lasted about 2 hours. On Monday, August 21, Hsu summoned Gau into his office at which time he spoke to her for about 4 hours. Hsu, as previously found, again asked her to prepare and sign the "Union confession." When Gau adamantly refused to do this, Hsu warned that the Respondent intended to discharge Michael Farris because of his union activities. Gau defended Farris explaining in detail why she believed he was a good employee who should not be discharged. Hsu, after listening to Gau's comments, stated he would fire Ron Keller rather than Mike Farris. They talked about this. Gau, not desiring to see anyone fired, pointed out that Keller had two children to support and was a hard worker. On Tuesday, August 22, when Gau arrived at work she again found a note on her desk to visit Hsu in his office and except for the lunch break she stayed there the entire day talking with Hsu. They continued their discussion about the possible discharge of employees including Michael Farris and Ron Keller, and they again discussed the jobs of each employee that worked in the department. Hsu stated that he wanted to improve and reorganize the quality assurance department and wanted Gau's help in doing this, and that Gau had "really hurt" him when she became involved with the Union. Hsu stated that he felt the Union had disrupted all of his plans for the depart- ment. Gau credibly testified that because Hsu had told her he wanted her help in reorganizing the department that she felt a responsibility about whether Keller or Michael Farris would be discharged. On Wednesday, August 23, as will be described below, Gau did not go to work and on Thursday, August 24, she notified Hsu that she was terminating her employment. To sum up, during the 8 working days immediately prior to Gau's termination, Hsu virtually each day summoned her to his office and on each occasion spoke to her at length, once keeping her in the office all day. He did this, I find, because Gau was a leading union adherent, the employee who initiated the Union's campaign, and Hsu desired to discourage Gau from continuing to support the Hsu's secretary There is nothing in the record to suggest that there was insufficient work for both Gau and Schwartz nor is there any evidence that any one was pressuring Hsu to discharge either Schwartz or Gau because one of them was surplus. is 1 reject Hsu's testimony that in April or May he gave Gau his algebra book OMARK-CCI, INC. 479 Union and to learn from Gau the reasons Gau and other employees had thrown their support to the Union.19 Wholly apart from the frequency, the length, and Hsu's motive for holding these meetings, at several of the meetings Hsu, as I have previously found, engaged in certain conduct which violated Section 8(a)(1). At more than one meeting he interrogated Gau about her union sympathy and activity and the union sympathy and activity of other employees. During three of the meetings he asked Gau to prepare and sign a statement indicating she disavowed the Union and promising not to support the Union. When Gau adamantly refused to sign such a statement Hsu threatened her with discharge if she continued to support the Union. Also, at another meeting to discourage Gau from continuing to support the Union Hsu informed her that management wanted to discharge her because of her union activities but that he, Hsu, was defending her. To be realistic, it is in this context that the series of meetings between Hsu and Gau must be viewed. When viewed in this context, I am of the opinion that subjecting Gau to approximately 8 lengthy consecutive daily meetings with the boss in the boss' office because Gau was a union adherent who the boss wanted to discourage from supporting the Union was a form of harassment which reasonably tended to restrain and coerce Gau in the exercise of her right to support the Union. Accordingly, by engaging in this conduct the Respondent violated Section 8(a)(1) of the Act. 4. The events surrounding the termination of Charlene Gau On Tuesday, August 22, after Gau's all day meeting with Hsu, she went home upset and talked with her husband, James Gau, until the early hours of August 23. James Gau credibly testified his wife told him, "she was tired of being hauled into the office many times by Hsu . . . she was tired of him asking her to sign a confession. She was just all shook up . . . she couldn't calm down." The next day, August 23, Gau stayed home from work. She phoned the plant to notify them of her absence. Mike Farris who took her call and relayed the message to management credibly 19 Hsu gave an explanation for one meeting with Gau, the August 16 meeting This was called, he testified, because he knew Gau was a union adherent and wanted to determine why Gau and the other employees who were union sympathizers supported the Union I am of the opinion, however, that this along with a desire to discourage Gau, the leading union adherent, from continuing to support the Union was Hsu's primary motive for meeting with Gau daily during the month of August For, Hsu gave no explanation why he conducted a series of daily meetings over a period of several consecutive working days with a clerical employee Unexplained is the failure of Hsu to subject any of the other employees to this unusual treatment Also, the content of the meetings establish that an important purpose of the meetings was to dissuade Gau from supporting the Union by either the use of the carrot (an offer to assist Gau in advancing with the company) or the stick (threatening to discharge Gau if she continued to support the Union ) 20 The credible testimony of Gau's husband, James Gau, corroborates her testimony that she went to the plant on August 24 intending to work I have rejected Ruth Gray's testimony that about 10 a in on August 24 Gau, on her way into the plant, told Gray she was quitting Gray was vague about this alleged conversation and in bearing and demeanor she did not impress me as trustworthy on this matter I also credit the testimony of James Gau corroborated by his wife's testimony, that he did not decide to enroll in Peninsula College until Friday, August 25, after Gau had been told by Hsu that she should not report for testified that Gau told him she was going to be absent from work because she had been in Hsu's office all day long and had been upset about it, had not slept so she was going to stay home to catch up on her rest. On Thursday, August 24, Gau credibly testified that she went to the plant late, about 10 a.m., with the intention of going to work.20 When she arrived in the quality assurance department she found a note on her desk which told her to "go see" Hsu. Gau was about to do this when, as Gau testified, "[Mike Farris] said they had fired Gary Farris and I knew there was nothing that I could do. They had fired Gary." Thinking that Mike was joking, Gau phoned Gary Farris who was working in another area of the plant and in response to her inquiry Farris told her that it was his understanding that he was going to be terminated that day. Gau testified that she reacted to this information as follows: "Gary confirmed it [referring to his termination]. He came down and we talked about it for a while, like, wow, I thought there was nothing I could do now. So I got my NOPA [referring to a personnel form entitled "notice of personnel action" which among other things is used as a termination form] and I filled it out. I looked for Hsu to give it to." Gau was not able to locate Hsu, but while looking for him she met Supervisor Keller on his way to lunch. Gau, who was either crying or getting ready to cry, told Keller she was quitting and testified, "[Keller and 11 talked and I really got upset because he [Keller] had fired Gary Farris." Gau told Keller Hsu wanted her to sign the "Union confession" and that everybody was getting fired. Keller unsuccessfully tried to talk Gau out of quitting until at least she spoke to her immediate supervisor, Kelly, who was not at work that day. Gau left Keller and took her NOPA (termination slip) to Personnel Assistant JoAnn Riceci and left the plant for home.21 It was about noontime. In the meantime after Gau notified him that she had decided to quit, Supervisor Keller went to Hsu's office and told him Gau had quit. Hsu asked "what for?" Keller ignored the question and asked "isn't that what Al Arnold [Respondent's general manager] wanted?" Hsu replied, "yes, if we could get Mike Farris to quit now, we would be work Monday, on which date he mailed the application to the college in this regard I have carefully considered the fact that prior to August 24 Gau had indicated to various people that her husband intended to leave the area to attend college The Gaus, husband and wife, however, each impressed me as honest witnesses on this point 2i Riceci testified that when Gau handed her the quit slip she told her she was quitting because "my husband is going to school and I'm going with him" and at the same time gave Riceci Hsu's math book to return to Hsu I do not believe her on either point When she testified on the subject of Gait's termination Riceci's manner of testifying and her demeanor was not that of an honest witness In addition, this testimony is not corroborated by Hsu and does not ring true Riceci testified she immediately told Hsu that Gau had quit because her husband was going to school Hsu does not corroborate her on this crucial matter Hsu claims he was so upset when he learned Gau had quit that he was not able to remember what Riceci said to him Regarding the return of the math book, Riceci admits that the book was not immediately returned by her to Hsu but she inadvertently left it on her filing cabinet The record shows, and Riceci acknowledges, she had to have been blind to have missed the book I find she was not blind but, that Gau, as she testified, did not return this hook until September 5 when she returned to the plant for her paycheck Also, contrary to the testimony of Riceci that she returned the book to Hsu, Hsu testified that another employee returned the book to him, not Riceci 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rid of Mike Farris." Hsu again asked why Gau had quit and Keller told him that she probably had heard about Gary Farris being terminated.22 After he spoke to Keller about 12:45 p.m., Hsu telephoned Gau at her home. When he spoke to Gau he sounded upset. He asked why she had "done this to him," stated that she had "played right into their hands," because by quitting she had done exactly what "they" wanted her to do. Hsu during the course of the conversation stated that Gary Farris had not been discharged. Hsu asked Gau what he, Hsu, was going to do because his secretary, Schwartz, was on vacation until after Labor Day. Gau apologized for inconveniencing Hsu by quitting and told him, "maybe [you ] shouldn't have told me the things [you ] did. I just couldn't handle it." Gau, however, told Hsu she would return to work the next workday, Monday, August 28, and would stay at least until Carol Schwartz returned and that by that time if things did not get better she would probably give her 2 weeks' notice, train a replacement, and quit. Hsu agreed to this arrangement and asked Gau to call him back so it would look better. Gau hung up, called Hsu back through the plant's switchboard, at which time they reaffirmed what had been agreed upon previously, namely Gau would return to work Monday.23 Gau, at the hearing, testified that "one of the reasons I was going back to work was because . . . he had said that Gary [Farris] was not going to be fired", and further credibly testified that even though she learned later that day that Farris had in fact been discharged that she still intended to return to work on Monday, August 28, explaining, "at least until [Schwartz] got back from vacation. Like, [Hsu] did not have anybody . . . I did feel real bad about leaving there with no one to do his letter writing or anything." Gau, however, did not as agreed return to work. For, that evening Hsu phoned Gau at home. Her husband, James Gau, took the call and handed over the phone to Gau. Hsu told her that "he was very upset" but that she was not to return to work on Monday. Hsu explained that the General Manager Arnold had seen her termination slip and that it was too late to do anything about it. Hsu apologized for the way things had worked out, expressed a desire to be close friends with Gau and advised her, in effect, not to tell anyone that he had previously called Gau and arranged for her to return to work.24 22 The Hsu-Keller conversation described above is based on the credible testimony of Keller who impressed me as an honest witness when he testified on this matter I do not believe Hsu's denial, for as was the case with his testimony in general he did not impress me as being candid when he testified about this conversation 23 The above-described Hsu-Gau telephone conversations are based on the credible testimony of Gau Hsu first testified "i contacted lGau] by telephone," then testified he did not recall initiating the call, then reluctantly admitted he possibly did initiate the phone call Regarding the conversation Hsu first testified he told Gau that when he needed her he would call her, then testified he unequivocally told Gau "to come back to work for two weeks" and then testified he did not ask her to return to work because she had already resigned As previously indicated, Gau impressed me as an honest witness, whereas Hsu impressed me as a dishonest witness 5. Discussion and ultimate conclusions regarding the termination of Gau a. The "constructive" discharge The law is settled that an employer is not guilty of a discriminatory discharge because an employee takes umbrage at its antiunion actions or attitudes. On the other hand, when an employee's resignation is the direct and intended result25 of an employer's unlawful conduct the Board has regularly found that the employer has "con- structively discharged" the employee in violation of Section 8(a)(1) and (3). Generally see, Action Wholesale, Inc. d/b/a A. L. French Co., 145 NLRB 627, 628 and John S. Barnes Corporation, 165 NLRB 483, 484. Guided by the above principles, I am of the opinion that the evidence does not preponderate in favor of a showing that Gau was "constructively discharged." In reaching this conclusion I am motivated by the following factors. The unfair labor practices directed against Gau did not constitute the kind of misconduct calculated to cause Gau to quit. The discriminatory change in herjob duties did not make the job undesirable or working conditions onerous. The other acts of misconduct directed against Gau on their face were designed to either dissuade Gau from continuing to support the Union or to learn from Gau the attitude of the other employees about the Union. These unfair labor practices, in my opinion, were designed merely to thwart the employees', including Gau's, union activities, and were not a tactic designed to drive Gau into an involuntary quit. Nor, apparently did Gau view the situation. Gau did not complain to Hsu, perpetrator of the misconduct, about the various acts of misconduct directed against her. Also, on August 24 after thinking the situation over Gau was prepared to resume work and only reached a decision to quit upon learning that the Respondent had discharged Gary Farns.26 Gau's testimony, which is set out in detail above, demonstrates the significance to Gau of the news of Gary Farris' termination, and in my opinion, constitutes an admission by Gau that but foi Farris' discharge on August 24 she would not have quit her employment. In addition, the record establishes that although Hsu desired to discourage Gau from continuing to support the Union, he desired to retain her as an employee. Thus, when he learned that Gau had quit, Hsu did not welcome the news as would be expected if he had been seeking to cause her to quit, but rather was visibly upset and made a serious effort to get Gau to return to work. The fact that it appears that the Company's general manager, Arnold, welcomed the opportunity to get rid of Gau because of her union I have rejected Hsu's testimony concerning the August 24 phone conversations with Gau wherever it conflicts with Gau's 24 This phone conversation is based on the credible testimony of Gau corroborated by her husband who testified that Hsu did in fact call that night Hsu testified he did not phone Gau that night I do not believe him 29, Of course, "a man is held to intend the foreseeable consequences of his conduct" Radio Officers' Union of Commercial Telegraphers Union, AFL-CIO v NLRB , 347 U S 17 (1954) 26 There is no contention that Gary Farris' termination was not based on legitimate business considerations The Union, in the charge upon which the complaint in this proceeding is based , alleged that his termination was unlawfully motivated The Regional Director dismissed this portion of the charge, and upon appeal was sustained by the General Counsel OMARK-CCI, INC. 481 activities does not, in the circumstances of this case, in my opinion, detract from the conclusion that Hsu did not engage in a course of conduct designed to cause Gau to quit. To sum up, I am of the opinion that the evidence fails to establish that Respondent's intention was to force Gau's resignation or that Gau's continued employment was conditioned upon her abandonment of her union activity or sympathies. Under these circumstances, I cannot say that Respondent "caused" Gau to quit, or that her voluntary quitting was tantamount to a constructive discharge violative of Section 8(a)(3) of the Act. b. The refusal to rehire Gau Even though Gau voluntarily quit on August 24, the question still remains whether Respondent 's refusal to reemploy Gau on the same date was discriminatory. Within 2 hours after she had quit, Gau, in response to Hsu's plea to come back, agreed to return to work the next workday. The only reason given by Hsu to Gau when he later refused to reemploy her was that the Respondent's general manager, Al Arnold, had seen her termination slip. Respondent offered no evidence to explain whether in fact Arnold was the person who overruled Hsu's decision to reemploy Gau, and, if so, what was his reason . The record contains no evidence of a company policy or precedent for refusing to reemploy an employee , like Gau, who quits. In this regard, it is relevant that the person who decided to reemploy Gau, Chief Engineer Hsu, is a high -ranking member of management in complete charge of two departments with four low level supervisors under his immediate direction. On account of his position in the hierarchy of manage- ment, presumably Hsu is familiar with company policy, and his decision to reemploy a person normally is not questioned . This is especially true in the case of an employee like Gau whose services Hsu obviously needed and who was an employee with 4 years of company service who Hsu regarded as a good and intelligent worker. Against this background, the additional factors surround- ing the refusal to reemploy Gau take on added signifi- cance. Gau was known to the Respondent to be one of the most ardent advocates of the Union . Gau was solicited on three separate occasions by Respondent to disavow her support for the Union, and was threatened with discharge by Respondent if she did not do this. Nevertheless, Gau informed Respondent she would not repudiate the Union. On these facts I am satisfied that the record, by a preponderance of the evidence , establishes that Respon- dent's refusal to rehire Gau on August 24, 1972, was prompted by her union activity , and therefore violated Section 8(a)(3) and ( 1) of the Act. See Saxe-Glassman Shoe Corporation, 97 NLRB 332, 333-334, enfd . on this point 201 F.2d 238, 243 (C.A. 1). (Employee Tremblay.) CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and the entire record, I make the following conclusions of Law: 1. Omark-CCI, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Union Local No. 551, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By changing the job duties and refusing to rehire Charlene Gau because of her union activity, the Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interrogating employees or applicants for em- ployment about their union activity and union sympathies or those of other employees ; by threatening employees with economic reprisals including loss of promotion, discharge and plant closure if they support the Union; by threatening an employee that if the employees selected the Union as their bargaining representative they would be deprived of their present right to speak directly with management about their individual grievances ; by solicit- ing grievances or complaints from employees for the purpose of ascertaining what improvements in working conditions could be granted which would induce the employees not to seek unionization and by implying that such grievances would be remedied ; by promising an employee that employees ' grievances would be remedied to dissuade the employees from supporting the Union; by giving employees the impression that their union activity was under surveillance ; by asking an employee to sign a written statement repudiating the Union and promising not to support the Union ; and by subjecting an employee to lengthy daily meetings over a period of several consecutive days with her boss, in his office, because the employee is a union adherent, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent discnminatonly refused to rehire Charlene Gau, I shall recommend that the Respondent offer Charlene Gau immediate and full reinstatement to her former job, or if said job no longer exists, to a substantially equivalent position , without prejudice to Gau's seniority and other rights and privileges and make Gau whole for any loss of earnings suffered by reason of such discrimination , by payment of a sum of money equal to that which normally would have been earned as wages from August 24, 1972, to the date of said offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices committed by the Respon- dent were of a character which go to the very heart of the 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, I shall recommend that it cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. N L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of 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: ORDER 27 Respondent, Omark-CCI, Inc., Lewiston, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Union Local No. 551, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Independent, or in any other labor organization, by refusing to rehire employees or by changing employees' job duties or in any other manner discriminating against employees in regard to hire and tenure of employment or any term or condition of employment. (b) Interrogating employees and applicants for employ- ment as to their union activities and sympathies or those of other employees. (c) Threatening employees with economic reprisals including discharge, plant closure, or loss of promotion if they support the above-named labor organization or any other labor organization. (d) Creating the impression of surveillance of the union activities of its employees. (e) Threatening employees with the loss of their right to talk directly with management about their grievances if they select the Union or any other labor organization as their bargaining representative. (f) Soliciting grievances from employees for the purpose of ascertaining what improvements in working conditions could be granted which would induce the employees not to seek unionization and implying that such grievances would be remedied. (g) Promising employees that their grievances will be remedied to dissuade them from supporting the Union. 27 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 (h) Asking employees to sign a written statement repudiating the above-named labor organization or to promise not to support the above-named labor organiza- tion or any other labor organization. (i) Subjecting employees to lengthy daily individual meetings because the employee is a union adherent. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Charlene Gau immediate and full reinstatement to her former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to seniority or other rights and privileges previously enjoyed, and make her whole for any loss of earnings suffered by reasons of the discrimination against her, in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of reinstatement under the terms of this Order. (c) Post at its place of business in Lewiston, Idaho, copies of the attached notice marked "Appendix." 28 Copies of said notice on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 28 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals . the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "