Communication Systems Construction, Inc.

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Communication Systems Construction, Inc. and Fran- cis Meyer and Robert A. DeLutio and Communica- tions Workers of America, District 1, AFL-CIO. Cases 29-CA-3212, 29-CA-3401, and 29- RC-2091 March 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 31, 1973, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, and hereby orders that Respondent, Communications Systems Construction, Inc., Huntington Station, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 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 her findings DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon the basis of a charge filed in Case 29-CA-3212 on January 10, 1973,' by Francis Meyer,2 an individual, referred to herein as Meyer, the General Counsel of the National Labor Relations Board, by the Regional Director I All dates herein refer to 1973 unless otherwise indicated. 2 Referred to in the record also as Frank and as Frances Meyer. 3 Objections to the election filed by the CWA were rejected by the for Region 29 (Brooklyn, New York), issued a complaint on March 23 alleging that Communication Systems Construction, Inc., herein called the Respondent, had engaged in certain unfair labor practices, and had thereby violated the National Labor Relations Act, Series 8, as amended. A charge was filed in Case 29-CA-3401 on May 16 by Robert A. DeLutio, an individual, referred to herein as DeLutio. On July 26, the Regional Director issued an order consolidating Cases 29-CA-3212 and 29-CA-3401, and on August 16 issued an order consolidating these cases' and certain issues raised in objections to an election conducted by the Regional Director in Case 29-RC-2091. In that election, conducted pursuant to a stipulation for certification upon consent election, both Communication Workers of America, District 1, AFL-CIO, referred to herein as CWA, and Local Union 25, International Brotherhood of Electrical Workers, AFL-CIO, referred to herein as IBEW, appeared on the ballot. During the hearing herein, the parties entered into a stipulation providing that a new election would be conducted at a time and place to be determined by the Regional Director, that the objections to the election filed by the IBEW were withdrawn, and that the representation case issues were severed from this proceeding.3 The issues considered herein are, therefore, those raised by the consolidated complaint in Cases 29-CA-3212 and 29-CA-3401. In its answers, duly filed to each complaint, the Respondent admits certain factual allegations in the complaints, and incorporates some of its answers to the objections to the election, but denies the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held before the Administrative Law Judge at Brooklyn, New York, on August 20 and 21. All the parties who appeared at the hearing were afforded full opportunity to be heard, to present evidence, and to examine and cross-examine witnesses. At the close of the hearing, the General Counsel and the Respondent presented closing argument. Subse- quent to the hearing, briefs were filed on or about September 27 by the General Counsel and the Respondent which have been fully considered. Upon the entire record in this proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. It maintains its principal office and place of business in the town of Huntington Station, county of Suffolk, New York, and is engaged in the construction and installation of television antennas and cables for cable television companies. During the past year, which period is representative of its annual operations generally, the Respondent, in the course and conduct of its operations, performed services valued in Regional Director as untimely The CWA made no appearance at the instant hearing but is a signatory to the stipulation, which was executed after the close of the hearing. 209 NLRB No. 105 COMMUNICATION SYSTEMS CONSTRUCTION, INC. excess of $300,000, of which services valued in excess of $50,000 were performed in and for various enterprises located in States other than the State of New York. The consolidated complaint alleges, the Respondent in its answers admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I find, as the consolidated complaint alleges and the Respondent in its answers admits, that Local Union 25, International Brotherhood of Electrical Workers, AFL-CI- O, and Communication Workers of America, District 1, AFL-CIO, are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The consolidated complaint alleges that James Nishimu- ra, president of the Respondent, Paul Consigli, a labor relations consultant, and Harold Nichols and Richard Welch, supervisors, are, and at all times material herein have been, agents of the Respondent acting on its behalf within the meaning of Section 2(11) of the Act; that the Respondent, by Consigh, on various dates during October to December 1972, interrogated its employees concerning their membership in, activities on behalf of, and sympa- thies for the IBEW and the CWA, and kept under surveillance the meetings and activities of these organiza- tions and the protected concerted activities of its employ- ees; that the Respondent, by Nichols, on various dates during November 1972, threatened employees with closing the plant, subcontracting out work, and other reprisals if they became members of or gave any assistance and support to said organizations; that the Respondent, by Nishimura, Consigli, Nichols, and Welch, promised and granted to its employees wage increases, overtime pay, promotions, and other employment benefits to induce them to refrain from membership in or from giving any assistance or support to said organizations; that the Respondent during November 1972 discharged, and thereafter failed and refused to reinstate, Donald Cowf, Edward Dooley, Robert DeLutio, Michael Profeta, and Richard Trinka because these employees joined and assisted the IBEW and/or the CWA and engaged in other protected concerted activities; and that the Respondent, by the foregoing acts and conduct, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has discriminated in regard to the hire and tenure and the terms and conditions of employment of its employees in order to discourage membership in labor organizations, and has thereby engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act. The Respondent in its answers admits that Nishimura, 653 Consigli, Nichols, and Welch are agents of the Respon- dent; admits that it has discharged and refused to reinstate Cowf, Dooley, DeLutio, and Trinka; alleges the discharges were for cause; denies the allegations as to Profeta; and denies the commission of the alleged unfair labor practices. The General Counsel's brief states that "due to evidence developed before trial as well as during the course of the proceeding, the General Counsel hereby withdraws Profe- ta's name as an alleged 8(a)(3)." The issues herein are, therefore, whether or not the Respondent engaged in the acts and conduct alleged to constitute interference, restraint, and coercion of its employees, and whether the discharges of Cowf, Dooley, DeLutio, and Trinka were discriminatory or for cause. B. Interference, Restraint, and Coercion 1. Interrogation and surveillance The CWA began organizing the Respondent's employees in early October 1972. The IBEW intervened shortly before the election held on December 1, 1972, with both unions on the ballot. Nishimura notified his counsel, whose office is in Philadelphia, of the CWA campaign, and retained Consigli, a labor relations consultant, whose function, as he testified, is to help defeat union organizational cam- paigns. Consigli held meetings in management offices or the plant conference room with employees, individually or in groups, at which, at times, Nishimura, Nichols, and other management representatives were present. The meetings began with Nishimura having employees called to the office by the supervisors during working hours or as the employees came in from the field after work. There Nishimura admittedly introduced Consigli as a friend who was going to help in regard to the election, asked for the employees' support in the election, and inquired about their reasons for wanting a union. One of the first employees summoned to the office was Keith Pape, a crew chief.4 According to his testimony, Consigli told him Nishimura had said Pape could be trusted, stated that this Company was too small for a union and Nishimura could not afford a union, and asked Pape if he knew any other employee who could be trusted. Pape named Lockwood, also a crew chief, and was sent to summon Lockwood to the office. Pape and Lockwood testified that Consigh made the same introductory remarks to Lockwood as he had to Pape; that he asked both of them to help stop the union drive and they agreed to do so; that he then went down a list of about 20 names of the employees eligible to vote, asked Pape and Lockwood which ones were for or against the CWA, who were undecided, and whose union sentiments they did not know; that Consigli made marks on the list according to the information given him; and that he asked them to talk to the men and to try to overhear their conversations in order to find out which ones, if any, were pro-CWA, to try to persuade them to support the Employer in this contest, and to report to him at later meetings what they learned. Pape and Lockwood also testified that later meetings followed the same pattern, with Consigli going down a list 4 The parties stipulated herein that crew chiefs, who were included in the election voting unit, are not supervisors within the meaning of the Act 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of names and marking the list as Pape and Lockwood reported whatever additional information they had elicited about the union sentiments of the employees . Both Pape and Lockwood testified that at one of their early meetings with Consigli the names they gave as proumon included Cowf, DeLutio, Dooley, Meyer, and Trinka ; and that Consigh checked the attendance and production records of the employees named, and commented, as to some, that he could get rid of them on the basis of attendance and, as to others, on the basis of their work records. Some of those named by Pape and Lockwood were discharged as discussed below. Robert Negri , who was a crew chief, testified that he was told one day to stay after work and was then called into a meeting with Consigli at which Nishimura and Nichols were also present part of the time ; that Consigli said the men "would be able to work in more harmony" and there would be better possibilities of advancement without a union ; and that Consigli asked many questions about the union attitude of every employee named on a list he had, and took notes of what Negri responded even though Negri deliberately made his responses vague. Pape and Lockwood met in the office with Consigli, with Nishimura and other management representatives some- times present, more frequently than other employees, and furnished information about the employees ' union sympa- thies. In addition, they were twice taken to dinner with Consigli, Nishimura, and other management representa- tives at Nishimura's expense. There were also two companywide dinners on November 21 and 30 paid for by Nishimura. Notices placed on the desk and posted at the timeclock announced that these dinners were employee meetings to discuss unions, and directed employees to sign if they were going to attend so the Respondent would know how many would be present. Many of the unit employees attended both dinners . Meyer, who attended both, testified that Consigh sat next to him, asked who some individuals were, and marked a list he had as Meyer identified the individuals in question . Both Consigli and Nishimura made talks at these dinners. Pape and Lockwood indicated they attended about 5 meetings with Consigli. Consign, however , testified he had "Innumerable" meetings, approximately "A dozen," at which both Pape and Lockwood and at times other employees were present. Nishimura indicated in his testimony that there were a number of these meetings at which he was present at least part of the time . Nichols testified about one meeting at which Consign, Pape, and Lockwood were present, which he attended only long enough to be told to rescind the discharge of Meyer. He did not testify about other meetings he attended, and the other management representatives who attended these meetings from time to time were not called as witnesses. Consign and Nishimura maintained in their testimony that Pape and Lockwood volunteered the information they gave. Consign testified at different points that the informa- tion from Pape and Lockwood "was free flowing, without any questions"; that "The information that was so freely flowing from every employee in that office prohibited anybody from asking a question"; and that the only employees who volunteered information were Pape and Lockwood. On the other hand, Nishimura, when asked how his "dealings" with Pape "with respect to the union organizational drive" arose, replied : "Well, as I-we were campaigning, if that's the term, for the support of our men in this union election. Mr. Consigh and I had wanted to speak-and I do believe that we spoke to almost every member of the company, every member of the company voting, that is, that was eligible to vote , to determine what their-we were trying to determine what, if any, reason there was for wanting to have the union represent them ... what, if any the problems are that they would vote for the union or want a union to represent them." He testified further that he and Consigh called on Pape and Lockwood to assist them in this matter because as crew chiefs Pape and Lockwood were "more cognizant of some of the gripes" of the employees, that he was at a number of meetings with Pape and Lockwood , but that "I think I met with virtually all of the employees during this campaign." Pape was at this time on probation for a criminal conviction, as Nishimura knew. One condition of Pape's probation was that he be employed, and he was grateful to Nishimura for giving him employment in these circum- stances. Consigli testified that Nishimura told him, when he began his investigation, that Pape was "totally opposed" to the CWA, but Nishimura, when asked about informa- tion he received during the preelection period as to the union sentiments of employees , stated that Pape and Lockwood "never-to my best recollection, I don't think they ever said they were for or against it. . . ." Consigli also stated that Nishimura told him, in confidence, that Pape would support management in this matter because of his probation situation, whereas Nishimura testified that Pape never indicated to him why he was voluntarily furnishing the information in question. The Respondent argues that Pape 's testimony cannot be credited because he had been found guilty of a criminal act and was on probation , he failed to reveal in the first affidavit he gave to a Board agent matters he described in a second affidavit and in his testimony , and he was resentful of his discharge by the Respondent . Pape admitted the variance in his affidavits . He explained that because he felt grateful to Nishimura for employing him while he was on probation, he was reluctant, at the time of the first affidavit, to say anything damaging to Nishimura ; that he therefore mentioned the Consigli meetings but not what occurred at them ; and that, following what he considered an unjust discharge, he told in his second affidavit and in his testimony what transpired at these meetings. Pape's discharge is not alleged to be violative of the 'Act. Lockwood is still employed by the Respondent. Negri left the Respondent's employ voluntarily on January 1. Meyer was discharged at noon on November 16, 1972, was called back and told his discharge was in error and was paid for the time he missed, and was discharged again on January 2, but is not a complainant herein . Pape, Lockwood, Negri, and Meyer appeared to be candid and credible witnesses; they gave consistent, mutually corroborative descriptions of the events in question; and their testimony in many respects is unrefuted or admitted. On the other hand, the testimony of Consigli and Nishimura contains numerous inconsistencies and inherent improbabilities, as well as COMMUNICATION SYSTEMS CONSTRUCTION, INC. 655 contradictions of themselves and of each other. On the basis of the demeanor of the witnesses, the nature of their testimony, and the evidence in its entirety, I credit the testimony of Pape, Lockwood, Negri, and Meyer, and find, accordingly, that the Respondent had employees sum- moned to the office by supervisors to be questioned by Consigli, in the presence of Nishimura and other manage- ment representatives, about the union sentiments of all the employees eligible to vote in the upcoming election. I find that the Respondent, by such coercive interrogation, interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.5 I find further that the evidence establishes that Consigli enlisted Pape and Lockwood to talk to employees and to try to overhear conversations in order to obtain further information about the employees' union sentiments to report to him, and that the Respondent thereby maintained surveillance over the union and concerted activities of its employees, in further violation of Section 8(a)(1) of the Act .6 2. Promises and grants of benefits Pape and Lockwood testified that Consigli promised they would be rewarded by Nishimura for their assistance in furnishing information about the employees' union sentiments. As their meetings with Consigli were generally held after regular working hours, they were instructed to repunch the timeclock after the meetings in order to be reimbursed for this time. In addition, both Pape and Lockwood received 25-cent an hour wage increases shortly after the meetings began, and Lockwood testified that Consigli also promised another raise after the election as well as "rain-pay" for crew chiefs when bad weather prevented the crews from installing cable. After the election, Pape reminded Consigli that he and Lockwood had been promised a "bonus" for their cooperation. Consigli spoke to Nishimura, and reported back to Pape that they would receive an additional amount in their next paycheck. Both received in their next check pay for 12 hours' overtime they had not worked. As noted above, Negri testified that he was told by Consigli, at their meeting in the office, that there would be greater possibility of advancement without a union. He also testified that Consigli asked him what benefits the crew chiefs and employees were seeking; that, in response to his comments about rain pay and about a 25-cent raise, Consigli said that Negri as a crew chief would get both; and that he had not in fact received any pay for days he did not work, and did not know if he received the 25-cent increase before he left the Respondent's employ on January 1. There is no evidence that any of the crew chiefs in fact received rain pay. Meyer, who was discharged by Nichols on November 16, 5 Amcon International, Inc, 205 NLRB No 157. Walgreen Co, 206 NLRB No 15 6 Elm Hill ,deals of Owensboro, Inc. 205 NLRB No 41; Amcon International, Inc, supra 7 Texaco, Inc N, N L R B, 436 F 2d 520, 524 (C A. 7, 1971), holding that, The purpose of section 8(a)(1) is to protect the employees' right to organize without interference from the employer [Citation ] Conse- quently the promise of benefits such as wage increases is held to be a was called back, was told he had been discharged with others by mistake, and was paid for the 1 day he missed. Meyer attended both of the company dinner meetings. He testified that at the second dinner, held on November 30, Nichols handed out paychecks; that he noticed his was for more money than he had been receiving; that he asked Nichols about it and was told he had been raised from $3.25 to $3.50 an hour; and that he had not requested or heard anything about an increase in pay prior to the receipt of his check at this dinner meeting. As Consigli and Nishimura admitted, they asked employees at the meetings in the office what their gripes were, promised to remedy some of them, and did immediately change certain equipment and procedures as safety measures. Nishimura in fact testified, on cross- examination by the General Counsel, that at the meetings with employees "we explained the forthcoming election and that I wanted their support and that-well, we were campaigning"; that when he and Consigli asked employees what the reasons were for wanting a union, the complaints about certain safety features were "so basic" that they told the employees "we would, I'm sure, take care of it"; and that he directed Chaney , general manager, to take care of these matters, and Chaney personally worked that Satur- day and Sunday to make some of the changes immediately. The Respondent contends in its brief that all raises and benefits granted during this period were in accord with past practice. The record, however, does not support this contention. I find, on the basis of the testimony of Pape, Lockwood, Negri, and Meyer, which I credit, the admis- sions made by the Respondent's witnesses, and the record as a whole, that the Respondent promised and granted wage increases and other employee benefits to induce employees to abandon union membership and interest in violation of Section 8(a)(1) of the Act.7 I find further that the Respondent, by soliciting and remedying employee grievances, conduct "clearly calculated to induce the employees to abandon their interest in the union," further violated Section 8(a)(1) "notwithstanding the fact that the company was legally obligated to take the remedial steps it did take" as to matters involving safety.8 3. Threats Pape testified that, shortly after the CWA organizing activity began, Nichols, the construction superintendent, said he would like to find out who called in the CWA because he would discharge him. Negri testified that in a discussion about unions with Nichols out in the field, Nichols mentioned the possibility that the work would be subcontracted out to private companies if a union got in. Meyer testified that he was at a bar called the Watering Hole with other employees and Nichols shortly before the election, that they were discussing unions, and that Nichols said the Respondent would subcontract the work and close violation of 8(a)(I) of the Act whether or not the employees or the employer initiate the suggestion [Citation ] Section 8(a)(1) reaches "not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect " N L R B v Exchange Parts Co, 375 U.S 405.409 R Texaco, Inc v NLRB, supra 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the shop if it went union. Warren DeKletne, who was a lineman-trainee during the union organizing campaign and, at the time of the hearing, was employed as a crew chief, testified that on a date between the dinner meetings held on November 21 and 30, both of which he attended, he overheard part of a conversation between Nichols and Meyer in Nichols' office during which Nichols stated that if a union got in Nishimura would close the shop. Nichols, called as a witness by the Respondent, testified that he was present at the hearing when Meyer testified. Asked then if he heard Meyer testify that he said Nishimura would close the shop or subcontract the work if a union got in, he replied, "I don't remember anything about it." Asked if he ever made such a statement at the Watering Hole, he replied, "I don't remember," and, again, "I can't remember that I said it." Nichols, who testified that he also heard DeKletne's testimony, was asked if he ever told Meyer "that work would be subcontracted out during the course of that conversation," and replied, "I don't think I said that to him." Asked finally whether he told any employee at any time that, if any union got in, the shop would fold or the work would be subcontracted, Nichols replied, "No." Nishimura testified that he never told Nichols or any other supervisor or employee he would close down or subcontract the work if a union came in. He pointed out that, between counsel and Consigli, he knew "many, many things" that he was or was not "permitted to do during this election campaign," but, he admitted, "I don't really know if that specific question was-if that specific point was brought up" Counsel for the Respondent also asked Nichols if he ever tried to find out who brought the CWA in and said he would fire the one who did. Nichols replied: "If I remember right, I said I would like to find out. But I don't remember saying about firing anybody about it or anything like that." Nichols testified, on cross-examination by the General Counsel, that he made his remark about finding out who brought in the CWA to several people standing around but did not remember who they were. He testified that he also asked Trinka, whose discharge is in issue, about the last of October or in November, who called in the CWA because he heard that a CWA man came in and asked for Trinka, and he also overheard Trinka talking about the CWA around the shop. I find Nichols' evasive and equivocal denials less credible and convincing than the testimony of Pape, Negri, Meyer, and DeKleine, none of whom is an alleged discriminatee, about remarks Nichols made to them or that they heard him make .9 I find, accordingly, that Nichols asked employees who initiated the CWA organizing activity, that he accompanied this admitted inquiry with a threat to discharge whoever did so, and that he told employees the shop would close or the work would be subcontracted out if the union organizing drive succeeded. The Board holds that "threats of probable plant closings are among the most serious and most flagrant interferences 9 Reliance Universal, Inc, 206 NLRB No. 45 10 Automated Business Systems, A Division of Litton Business Systems, Inc, A Subsidiary of Litton Industries, Inc, 205 NLRB No. 35. 11 Elm Hills Meats of Owensboro, Inc., supra, Amcon International, Inc., supra, Walgreen Co., supra. That such conduct by an admitted supervisor with the right of employees to decide for themselves the question of union representation." 10 I find, accordingly, that the Respondent, by Nichols' threats and interrogation, has further violated Section 8(a)(1) of the Act.ti C. The Discharges The General Counsel contends that Cowf, DeLutio, Dooley, and Trinka were discharged during November because they were identified as prounion. The Respondent maintains that they were discharged for cause. Pape and Lockwood testified that these four employees were among those named at one of their early meetings with Consigli; that Consigli obtained the time and production records of employees who were named as prounion, and commented that some could be terminated for their attendance and others for their production; that he made a separate list of these names ; and that these four employees were discharged shortly after their names were given to Consigli.12 Nichols testified that he recommended the discharge of Cowf, Dooley, and Trinka, and that he discharged DeLutio. As to the reasons, Nichols testified that he discharged Cowf because Cowf missed work "quite a bit ... he was getting slack on his part of the job." He also testified that he discharged DeLutio because "he was missing quite a bit of work, so I fired him at the end of the one week." He admitted, however, that DeLutio had been hit by a car and this was the reason for his absences that week. The accident had occurred on the job. Nichols testified that he recommended Dooley's discharge because of "Insubordination to his crew chiefs .... He wouldn't do the work that he was required to do . . . . He wasn't pulling his weight . . . he was always goofing off. He was taking off from the job, too. Say, like, taking the truck off maybe 15, 20 minutes." He testified that Kelly, who was also named, quit because he got a better job. Nichols testified further that he recommended Meyer's discharge prior to the election because Meyer "had a bad attitude towards work. I know on several occasions him and his crew chiefs had an argument." He also testified, however, that he rehired Meyer because he was called into a meeting one night at which Consigli, Pape, and Lockwood had been discussing Meyer; that "they figured that they ought to give him another chance on the part that I would hire him back and I would talk to him. But it was nothing about union." Asked if he pointed out, in the discussion about rehiring Meyer, that Meyer had a bad attitude or the other reasons for his discharge, Nichols replied, "At that time, I do not remember . . . I can't recall." On the other hand, Nishimura testified that Meyer was one of those dis- charged for absenteeism and low production, but rehired because Nichols intervened on behalf of Meyer as an older and more experienced employee. Nichols admitted that he asked Trinka who called in the CWA man, in late October or in November while Trinka was still employed by the Respondent, because he learned and agent is attributable to the Respondent whether or not authorized and whether or not Nishimura himself made such threats, see GAC Properties, Inc, 205 NLRB No 155. 12 None of these four dischargees was called as a witness. COMMUNICATION SYSTEMS CONSTRUCTION, INC. 657 that a CWA man came to the shop and asked for Trinka and he overheard Trinka talk about CWA around the shop. He testified that he recommended Tnnka's dis- charge, and testified further as follows: A. I went out on the job one day right at lunch, right at one o'clock, you know, right after lunch, and I sat there on the job which he (Trinka] was working. I can't recall where the job site was. I sat there for 2 hours waiting for him to come back from lunch. And after 2 hours, maybe 2 hours or so they come back off of lunch. Q. And it was then that you fired Mr. Trinka? A. No. Q. When? A. It was later after that. Q. Did anything else happen after that? A. After that, the crew which he was working with-Dennis Kirby was crew chief then-that I went out on a job and I couldn't find him all day. I went looking for him. I found him that day at Dennis Kirby's house and they were all drinking, so I fired Dennis Kirby that evening. Q. Did you fire Trinka then? A. No, not until a couple of days later. Q. Did something else happen? A. Well, he had kind of like an attitude that, you know. Q. Then you recommended that he be fired? A. Yes, sir. s s s s s Q. Now, you say with Mr. Trinka you eventually fired him because of the attitude, because of his attitude? A. Yes, he had a bad attitude. Q. You didn't fire him after you caught him drinking on the job when he should have been out working, did you? A. Well, he wasn't the crew chief then. The first one who should be responsible is the crew chief. that he did, and that he thought they included Cowf, Dooley, Kelly, and Meyer. He denied that he told Nishimura about this but, after he was shown the affidavit he had given a Board agent, admitted he did report to Nishimura who attended the meetings "because I over- heard it in the shop, you know, that they went," and that the names included Cowf, Dooley, Kelly, and Meyer. Nishimura testified that he was not aware that any of the employees in question were prounion, was "Not really" aware that any of the discharged employees had attended a union meeting, and did not recall that Nichols reported to him about attendance at meetings although he knew Nichols so testified and "I think the affidavit so reflects." He also testified that Nichols made the decision to discharge Cowf, DeLutio, Dooley, and Trinka, that Nichols always consulted him, that he was ultimately responsible for all discharges, and that he made the decision to discharge certain employees after discussion with Pape, Lockwood, Nichols, and Chaney. Asked for specific reasons for the discharges, however, Nishimura testified: "Cowf, the name is familiar, Mr. Malin, but I'm not certain except again when we did review several of the people that we terminated in that period, the reason for the great majority of firings or termination were because of the absenteeism ...." Asked why Dooley was fired, Nishi- mura testified: "Well, I'm sure . . . it was probably because of the absenteeism and, as was testified here before, due to the insubordination of the employee towards his crew chief and to, indeed, his crew." Asked about his use of the word "probably," Nishimura stated that he was "quite certain," and that he was sure he discussed this discharge with Nichols. At this point in his examination, counsel for the Respondent handed Nishimura a document that was described as handwritten notes Nishimura prepared at or about the time Cowf and Dooley were discharged, asked him if the notes refreshed his recollec- tion, and Nishimura said they did. The General Counsel protested that there had been no indication that the witness' memory needed refreshing. After some colloquy, counsel for the Respondent withdrew the document, which the witness admitted, however, he had examined. When questioned thereafter about DeLutio's discharge, Nishimu- ra testified: Q. And you, also, didn't fire Mr. Trinka after you went to a job site where he was supposed to be and he didn't show up for a few hours, did you? A. No, sir. Nichols testified at times that he discharged the employees in question and at others that he recommended their discharge. Finally, when asked whether, with regard to Cowf, DeLutio, and Dooley, he made the decision "to terminate them all on your own," he replied, "Yes, sir." He admitted, however, that his decision to discharge Meyer was revoked pursuant to a discussion with Consigli, Pape, and Lockwood. Nichols was asked, on cross-examiration by the General Counsel, if he knew that DeLutio ever attended union meetings, and replied, "Just on what I heard them saying that they were going." Asked if he knew of other employees who were attending union meetings, he replied A. Mr. DeLutio is not familiar to me except that his work records for absenteeism and lateness resulted in his being terminated. Q. Do you have any specifics with respect to his absenteeism? A. No, I do not. He testified further that company records showed DeLutio worked only 20 hours the week of his discharge, and that was partially the reason for his discharge. That was the week DeLutio was recovering from being struck by a car on the job. As to the reasons for the discharge of Trinka, Nishimura testified: A. Well, in the case of Trinka, Trinka, prior to his becoming crew chief, had a history of drinking on the job. As testified earlier by Nichols, he was at one time 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on a crew of Dennis Kirby, a former employee, who was then crew chief of a crew that Tnnka was working on, and they were found drinking at the crew chief's house, that is, Dennis Kirby's house and brought back to the office. Our then General Manager Jack Chaney reprimanded them and fired or recommended firing of the crew chief only because the crew, we felt at that time, was not responsible for the actions of what the crew chiefs were directing them to do, however, bad. Tnnka was, also, reprimanded on several occasions by his supervisor Harold Nichols and reported to me of his long lunch hours and, also, again because of his not coming to work either on time or missing completely work, a work day. On the instance that he was actually fired, he was fired, as stated by Harold Nichols, because of his not being able to find Trinka at the job site. Nichols, however, testified that he did not discharge Tnnka then but did a couple of days later because Trinka "had kind of like an attitude that, you know." Consigli testified, as to the discharges, that he never in his life met DeLutio nor discussed DeLutio's discharge with Nishimura and Nichols, that he was not sure whether he knew or ever met Dooley, and that he never recom- mended the discharge of DeLutio, Dooley, Cowf, Meyer, Trinka, or anyone else. At another point he testified that he was consulted by Nishimura about discharges only "After the fact"; that Nishimura in these discussions told him, not as to specific individuals but generally, about "Gentlemen who are continuously absent from their job, gentlemen who are either drunk on the job or are drinking on the job, gentlemen who are late continuously on the job"; and that he advised Nishimura, who "wasn't quite sure what he could do" in this situation, that he could dismiss such employees. Regarding his discussions with Pape and Lockwood, Consigli testified that they advised him on occasion that certain employees should be removed, that one such employee was Meyer on the ground he did not do his share of the work after he was rehired, that other employees were discussed in the same context, and that "The only thing I can do is remember some vague discussions now.... there were a number of people-and I think 2 or 3 of them are on that list that _ you [Respondent's counsel] read off to me earlier-as actually the guys who were sitting out on their duff out in the field while other fellows had to be pulling double weight." Consigli testified further, on cross-examination by the General Counsel, that- A. The information that they [Pape and Lock- wood] were volunteering were, number one, what was happening out in the field, who were the guys who were not-who were the guys who were dragging their feet, more or less, that should be discharged, the gentleman who were not on the job who should be discharged, those persons who indicated to them that they were opposed to the CWA, that information came back to me. Q. Did they ever volunteer any information as to who was pro CWA? A. No. I believe at one time I was told that it would probably be a unanimous vote in opposition to the CWA. He testified further that "Nichols' indication to me was that there was no one. really interested in CWA." Consigli also testified that he discussed with Nishimura the complaints of the men about safety devices the same day they were raised, and the situation was remedied that weekend; that the complaints in addition to crew pay were of men not doing the work and going to bars during worktime; and that he said he would take this up with management which would decide what action to take but he would suggest discharge. He identified Meyer as one of those who had been drinking, but could not recall any of the names of those with attendance problems. The Respondent placed in evidence a list of employees, prepared by a bookkeeper at Nishimura's direction, showing dates of employment 13 and "Reason for Leaving" of employees at other operations of the Respondent as well as the one here involved. It lists the following "Reason for Leaving" as to the four employees here involved: Cowf-Terminated-Work unsatisfactory. DeLutro-Terminated-Unwilling to do work he was hired to do. Dooley-Terminated-Work unsatisfactory. Tnnka-Terminated Nishimura admitted these reasons varied somewhat from those he gave in his testimony; explained that this "capsulated form" might indicate additional reasons for discharge; then admitted that he could not explain this variance; and finally suggested that the General Counsel question the employee's supervisor or crew chief about it. No company documents were introduced in evidence showing the attendance or production records of any employees. The Respondent contends that all the discharges were for cause. It contends in addition, as to Trinka's discharge, that it occurred on November 3, 1972, and that Consigli arrived on the scene after that date. Employees testified about being called into meetings with Consigli beginning in "early November," and Pape testified that he thought it was in the first week in November. It is undisputed that Consigli held a good many meetings with Pape and Lockwood present-Consigli thought about 12-prior to the election that was held on December 1, 1972. Moreover, both Pape and Lockwood testified that the prounion employees whose names they gave Consigli included Trinka. Nishimura testified that he learned of the CWA organizing drive in "early October 1972"; 14 he met Consigli on an airplane trip in "Mid-October"; and 13 The list shows Cowf and Dooley terminated on November 16 and DeLutio on November 17, 1972 The consolidated complaint alleges, and the Respondent in its answers admits, that Cowf and Dooley were terminated on or about November 17 and DeLutio on or about November 24 The date shown for Tnnka in both instances is November 3 14 The petition for an election was filed by the CWA on October 17, 1972. COMMUNICATION SYSTEMS CONSTRUCTION, INC. Consigli came to the Respondent's premises "on or about the 9th of October." Respondent's counsel thereupon asked, "You mean, of course, November, don't you?" Nishimura replied, "Excuse me; yes, November." On' cross-examination, the General Counsel asked the date on which Nishimura said Consigli first came to the premises. Nishimura replied, "On October 9th, I believe I. said." Counsel for the Respondent interjected that, "I believe he said November the 9th," and Nishimura then said that it was "November the 9th, excuse me . . . To the best of my recollection, yes." Nishimura, however, gave a different date in his pretrial affidavit; he indicated considerable uncertainty in his testimony about this date; and, while he stated that the date was shown on the bill submitted by Consigli, the bill was not placed in evidence. Consigli testified that his first discussion with Nishimura took place on an airplane trip on October 12, 1972; that he first came to the Respondent's premises on "October the 19th, 1972, or somewhere around October the 9th"; and, when counsel for the Respondent pointed out this inconsistency in dates, stated that it was "November the 9th, excuse me, one month later." Consigli testified that Trinka was "discharged prior to my emergence on the scene, I believe," he was discharged "Somewhere around the beginning of November, the very early part of November," the date of his arrival and the fact that Trinka was discharged before that date would be "clearly" shown by his expense vouchers which were at the Respondent's office, and he possessed and could furnish copies of his expense vouchers. No such documents were placed in evidence. I find, on the basis of the credited testimony of Pape and Lockwood and the record as a whole, that Tnnka was employed at the time Pape and Lockwood identified him to Consigli as one of the prounion employees. Concluding Findings I have found above that the Respondent engaged in unlawful interrogation as to the union sentiments of all the employees in the voting unit; maintained surveillance over the union and concerted activities of its employees; promised and granted benefits to employees to induce abandonment of their union membership and interest; and made threats to close the shop or subcontract operations if the union campaign was successful, and to discharge those responsible for initiating the campaign. I also find, on the basis of the record in its entirety, that the General Counsel established a prima facie case of discriminatory discharge as to Cowf, DeLutio, Dooley, and Tnnka, and that the Respondent has failed to present credible or probative evidence that these discharges were for cause. Pape and Lockwood testified credibly, and I find, that at one of the first in their series of meetings with Consigh, they named, among the employees they reported to be prounion, Cowf, DeLutio, Dooley, and Trinka; that 15 U S. Nameplate Co., d/b/a Midwest Nameplate Co, 205 NLRB No 137 16 Laborers' International Union of North America, AFL-CIO, Local No 83 (Fry, Inc), 205 NLRB No. 77, D H Farms Co, 206 NLRB No. 22. i Coble Dairy Products Cooperative, Inc, 205 NLRB No 29 (discharges of Fowler and Crosby). 18 North Shore Publishing Co, 206 N LRB No 7 19 Elm Hill Meats of Owensboro, Inc, supra 659 Consigli obtained the personnel files of the employees thus identified and commented that they could be discharged on the basis of either their attendance or their production records; and that all four were discharged shortly after their names were given to Consigli. The reasons that the Respondent's witnesses asserted for the discharges are vague, inconsistent, and unconvincing.15 Moreover, the Respondent presented no attendance or production re- cords for any of its employees; 16 no records to show the date when the Consigli program was initiated with reference to the date of Trinka's discharge; no evidence as to its production standards or its policy regarding absenteeism, which the record shows was a frequent occurrence among the Respondent's employees; 17 and no showing that any of the dischargees in question were considered for discharge prior to the Respondent's antiun- ion campaign.18 On the basis of demeanor and the record as a whole, I find incredible the testimony by Consigli, whose admitted function was to defeat the union drive, that he held meeting after meeting with Pape and Lockwood at which they volunteered only the names of employees they thought should be discharged for poor work performance and of employees who were anti-CWA. I likewise find incredible the testimony of Nishimura, who was present at many of the discussions Consigli held with employees about union matters, that he had no knowledge as to which employees were for or against a union.19 Further, I find without merit the Respondent's contentions that these terminations were part of the pattern of constant turnover among its employees, and the fact it did not discharge some of the employees named by Pape and Lockwood as prounion shows that the discharges in issue were not discriminatory.20 It is apparent from the totality of the evidence, and I find, that the Respondent elicited from Pape and Lock- wood the names of the prounion employees; that these names included Cowf, DeLutio, Dooley, and Tnnka; and that the Respondent discharged these four employees because it "was plainly determined to rid itself immediately of the Union element within its work force,"21 to affect the results of the pending election,22 and to penalize those who had initiated, organized, or supported a union among the Respondent's employees.23 Accordingly, I find that the Respondent discharged Trinka on November 3, Cowf and Dooley on November 17, and DeLutio on November 24, 1972, in order to discourage union membership and activity, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, 20 N L R B v W C Nabors Company, 196 F 2d 272, 276 (CA 5), cert denied 344 U S. 865, Elm Hill Meats of Owensboro, Inc, supra, Carbide Tools, Incorporated 205 NLRB No 61 21 Waterways Harbor Investment Co, Inc, 179 NLRB 452. 22 Carbide Tools, Incorporated, supra 23 N L R B. v West Coast Casket Co.. 469 F.2d 871 (C A 9, 1972); Elm Hill Meats of Owensboro, Inc, supra, Carbide Tools, Incorporated supra 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I find it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from in any other manner infringing upon its employees' Section 7 nghts,24 and to take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that nothing contained in the recommended Order shall be construed as requiring the Respondent to revoke any wage increases or other employee benefits previously granted.25 As I have found that the Respondent discnminatonly discharged Trinka on November 3, Cowf and Dooley on November 17, and DeLutio on November 24, 1972,26 the Respondent will be ordered to offer each of these employees reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make each of these employees whole for any loss of pay suffered as a result of the discrimination against him, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Communication Systems Con- struction, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 25, International Brotherhood of Electrical Workers, AFL-CIO, and Communication Work- ers of America, District 1 , AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union mem- bership, activities, and sympathies, and those of other employees ; by maintaining surveillance over the union and concerted activities of its employees ; by promising and granting benefits to induce employees to refrain from union membership or activities ; by threatening employees with reprisals because of their union membership or activities ; and by other conduct interfering with , restrain- ing, and coercing its employees in the exercise of their Section 7 rights, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Trinka on November 3, Cowf and 24 N L R B v Express Publishing Company, 312 U.S 416, 437, N L R B v. Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4) 25 Exchange Parts Co, 375 U S 405 (1964); Scott Gross Company, Inc, 197 NLRB 420, enfd. 477 F 2d 64 (C A. 6, 1973) 28 Any variances in the record as to the dates of discharge may be resolved at the compliance stage of this proceeding, or, if agreement is not reached in this matter, in a backpay proceeding See International Chemical Dooley on November 17, and DeLutio on November 24, 1972, in order to discourage union membership or activities, the Respondent has discriminated against employees in regard to their hire and tenure of employ- ment and their terms and conditions of employment, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (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. 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: ORDER27 The Respondent, Communication Systems Construction, Inc., Huntington Station, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union member- ship, activities, and sympathies, and those of other employees; maintaining surveillance over the union and concerted activities of its employees; promising and granting benefits to induce employees to refrain from union membership or activities; threatening employees with reprisals because of their union membership or activities; or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except that nothing contained herein shall be construed as requiring the Respondent to revoke any wage increases or other employee benefits previously granted. (b) Discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or their terms or conditions of employment in order to discourage union membership or activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Cowf, DeLutio, Dooley, and Trinka immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Cowf, DeLutio, Dooley, and Tnnka whole for any loss of pay each of them may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its operation at Huntington Station, New Workers Union, AFL-CIO-CLC, 200 NLRB No. 55 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. COMMUNICATION SYSTEMS CONSTRUCTION, INC. York, copies of the attached notice marked "Appendix A."28 Copies of the notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the consolidated complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 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 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 interrogate employees about their union membership, activities, and sympathies, and those of other employees; maintain surveillance over the union and concerted activities of employees; promise and grant benefits to induce employees to refrain from union membership or activities; threaten employees with reprisals because of their union membership or activities; or in any other manner interfere with, restrain, or coerce employees in the 661 exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except that nothing contained herein shall be construed as requiring us to revoke any wage increases or other employee benefits previously granted. WE WILL NOT discharge or otherwise discriminate against employees in regard to their hire or tenure of employment or their terms or conditions of employ- ment in order to discourage membership in or activities on behalf of Local Union 25, International Brother- hood of Electrical Workers, AFL-CIO, or Communica- tion Workers of America, District 1, AFL-CIO, or any other labor organization. WE WILL offer Donald Cowf, Edward Dooley, Robert DeLutio, and Richard Trinka immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make whole the employees listed above for any loss of pay each of them may have suffered as a result of the discrimination against him. Dated By COMMUNICATION SYSTEMS CONSTRUCTION, INC. (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street-Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3535.