Production Plating Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Production Plating Company and Metal Polishers, Buffers, Platers and Allied Workers International Union, AFL-CIO. Case 9-CA-10728 October 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 14, 1977, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith, to modify the remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree, that a bargaining Order is warranted to remedy the Respondent's extensive and pervasive unfair labor practices that are violative of Section 8(a)(l) and (3). However, the Administrative Law Judge also found, based on the allegations of the complaint, that the representation petition filed by Respondent on August 28, 1976, was, "in effect, a I Respondent contends that it was denied "full opportunity to appear, to examine and cross-examine witnesses and to argue orally at the hearing" and attributes this denial to the "bias and prejudice" of the Administrative Law Judge. After a careful examination of the entire record, we are satisfied that these allegations are without merit. In our opinion, there is nothing in the record to suggest that the Administrative Law Judge's conduct of the hearing or the inferences he drew were based on bias or prejudice or that he had prejudged the case. Iron Workers Local No. 10 (R & T Steel Constructors, Inc.), 194 NLRB 971 (1972); The Cavern Supply Company, Inc., 187 NLRB 160(1970). However. Respondent correctly contends that the Administrative Law Judge erred in refusing to permit it to proffer certain evidence regarding the alleged criminal record of Rance Grimes, In our opinion, the Administrative Law Judge was properly concerned with the possible problems ensuing if the proffer of evidence was made in open court; however, he could have permitted Respondent to "make a full record" by submitting a written proffer or orally proferring the evidence at the bench. Nevertheless, the ruling of the Administrative Law Judge clearly does not exhibit bias or prejudice. In accordance with its contentions above, Respondent filed a motion to either admit certain evidence or to remand the proceeding for a new hearing-evidence consisting, inter alia, of rejected exhibits, evidence inadvertently not offered at the hearing, and a summary of the criminal record of Grimes allegedly demonstrating the criminal proclivity of Grimes as an employee organizer whose threats to fellow employees tainted the campaign. We find the proffered evidence is unpersuasive for such a purpose under the circumstances herein. Moreover, were we to construe Respondent's purpose in introducing such evidence as an attack on Grimes' 233 NLRB No. 25 demand by the Union for recognition and bargaining by the Respondent in an appropriate unit." The Board has long held that the mere filing of a representation petition does not constitute a request for recognition or bargaining such as to make an employer's failure to bargain, without more, a violation of Section 8(a)(5).3 As the Union made no demand as such on Respondent for recognition and/or bargaining, we find that the evidence fails to establish that Respondent violated Section 8(a)(5) of the Act. However, the absence of a specific 8(a)(5) violation does not affect the propriety of the bargaining Order herein required to remedy Respon- dent's extensive unfair labor practices that have made unlikely the holding of a fair election. The Administrative Law Judge found that, as of August 12, 1976, the Union possessed at least II cards in a unit of 21 employees.4 Although he included the card of Kathryn Smedley, it is unclear whether she signed her card on August 12 or 20. However, as Smedley signed her card by August 20, at the latest, clearly the Union possessed an I -card majority at the time Respondent began its unlawful course of conduct. Respondent's unfair labor prac- tice activities started sometime in the following month, possibly with the posting (exact date un- known) of the notice forbidding any solicitation on company premises or specifically with Mosher's unlawful interrogation prior to the union meeting of September 20, 1976. Accordingly, we find that Respondent's bargaining obligation commenced as of September 20, 1976.5 credibility, it would not persuade us to reject the credibility determinations of 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record as a whole and find no basis for reversing his credibility findings. In that connection we note also that Grimes' testimony in this case is largely corroborated. Accordingly, we shall deny the motion to remand for a new hearing, accept into evidence Respondent's summary of the criminal record of Rance Grimes, and reject all other evidence covered by the motion as properly excluded or not material or relevant. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 L B. Foster Cornany, 168 NLRB 83, 87, fn. 28 (1967), enfd. 418 F.2d I (C.A. 9, 1969): Eagle Material Handling of New Jersey, 224 NLRB 1529 (1976). 4 The Administrative Law Judge would have counted the card of Eula Florence, raising the total of authorization cards to 12; however, we shall not include Florence's card as it appears that Florence took reasonable steps to revoke her card the day after she signed. I See Trading Port, Inc., 219 NLRB 298 (1975). For the reasons cited in his separate opinions in Beasley Energy, Inc., d/b/a Peaker Run Coal Co., Ohio Div. No. 1, 228 NLRB 93 (1977), and Hambre Hombre Enterprises, Inc., d/b/a Panchito's, 228 NLRB 136 (1977), Chairman Fanning would make the bargaining order prospective as there is no evidence that the Union demanded and Respondent refused bargaining even though, as of August 20, such a demand could have been made. 116 PRODUCTION PLATING CO. AMENDED CONCLUSIONS OF LAW The Administrative Law Judge's Conclusions of Law are hereby modified by substituting "August 20, 1976" for "August 12, 1976," in Conclusion of Law 4, deleting Conclusion of Law 5, renumbering the remaining conclusions accordingly, and adding the following Conclusion of Law 7: "7. The complaint shall be, and it hereby is, dismissed insofar as it alleges a refusal to meet and bargain with the majority representative of its employees in an appropriate unit in violation of Section 8(a)(5)." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Production Plating Company, Lexington, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph l(a) and reletter the subse- quent paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT try to discourage membership in the Metal Polishers Union by discharging our employees or by, in any other manner, discrimi- nating against them. WE WILL NOT question employees about the location of union meetings. WE WILL NOT create an impression that we are spying on the union activities of our employees by telling them we know who signed union authori- zation cards or by threatening to make employees work overtime and miss a union meeting. WE WILL NOT threaten to discharge employees for supporting the Union. WE WILL NOT promulgate and enforce discrimi- natory no-solicitation rules. WE WILL NOT in the same or any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Pauline Bruin, Howard Cham- bers, and Jeffrey Robinson full and immediate reinstatement to their former jobs and reimburse them for the pay they lost by our discharging them. WE WILL recognize and, upon request, bargain collectively with Metal Polishers, Buffers, Platers and Allied Workers International Union, AFL- CIO, as the exclusive collective-bargaining repre- sentative of our employees in the following appropriate unit: All production and maintenance employees at our Lexington, Kentucky, location, in- cluding truckdrivers; but excluding all office clerical employees, professional employees, guards and all other employees and supervi- sors as defined in the Act. PRODUCTION PLATING COMPANY DECISION STATEMENT OF THE CASE JoHN M. DYER, Administrative Law Judge: Metal Polishers, Buffers, Platers and Allied Workers Internation- al Union, AFL-CIO, herein called the Union, Metal Polishers Union, or Charging Party, filed a charge on October 19, 1976,1 against Production Plating Company, herein called the Company or Respondent, alleging that Respondent had violated Section 8(aX I), (3), and (5) of the National Labor Relations Act, as amended. The complaint was issued by the Regional Director for Region 9 on November 23, alleging that Respondent had refused to bargain with the Union, had engaged in interrogation, created impressions of surveillance, made threats of discharge and stated it had discharged an employee for union activities, and had laid off two employees, Howard Chambers and Jeffrey Robinson, and thereafter discharged them, and discharged Pauline Bruin, all in violation of the Act. Respondent's timely answer admitted the jurisdictional and commerce allegations, the status of the Union, and the supervisory authority of part owner W. L. Renaker and Superintendent Donald Mosher but denied that it had violated the Act in any manner. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing in this matter held on March I and 2, 1977, in Lexington, Kentucky. General Counsel and Respondent have filed briefs which have been fully considered. I have concluded that Respondent violated the complaint allega- tions of Section 8(a)(I), (3), and (5) of the Act with the exception of the layoff and two 8(aX1I) allegations. These I Unless stated otherwise, all events herein occurred during the latter half of 1976 and the first month of 1977. 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions are based on my assessment of all the evidence, including oral and documentary testimony, and an assessment of the credibility of the witnesses based both on demeanor and testimonial contradictions. On the entire record in this case, including the exhibits and the testimony, and on my evaluation of the reliability of the witnesses based on the evidence and their demeanor, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Production Plating Company is a Kentucky corporation engaged in the business of electroplating metal products at its plants in Lexington and Cynthiana, Kentucky. During the past year, Respondent sold and shipped to points directly outside Kentucky from its Kentucky plants goods and materials valued in excess of $50,000. Only the Lexington plant is involved in this proceeding. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts The Company is substantially owned by W. L. Renaker who is also the president of the Company. Gene D. Hill is the vice president and general manager and is the person who is technically informed on the processes of the plant. Hill's brother was the shop foreman at Respondent until late August when he was succeeded by Donnie Mosher who thereafter was in charge of the plant under Hill and Renaker. Hill and Renaker divided their time between the two plants, with no set arrangement as to when they would be at either one. The Company operates principally on a one-shift basis. Janitor Rance Grimes arrives at the plant sometime around 2 or 3 a.m. and cleans up the offices and the plant and starts coffee for the employees. The first shift starts at 7 a.m. A half hour earlier than that, Pauline Bruin, who at the time of the hearing was 60 years old, would report and place hangers for the parts to be electroplated on the lines that go through the plant. There are three electroplating lines. Jeffrey Robinson, who is 18 years old, had worked for the plant approximately 2 months before he contacted the Union through his girl friend's father. He thereafter was in touch with Union Vice President Emanuel "Fuzz" Wil- burn, and union meetings were set up. The first meetings were held in early August and, by August 12, 12 employees had signed union authorization cards. Howard Chambers signed a card on August 8; Dave Madden, George Rioux, and Jeff Robinson signed on August 9; Robert Abney and Dorcus Blakey signed on August 10; Pauline Bruin and her sister, Eula Florence, signed on August 11; Joy Broughton, Charles Colley, Troy Reffitt, and Kathryn Smedley signed authorization cards on August 12. In the following month, Wayne D. Smot (or Smoot and hereafter Smoot) and Rance Grimes signed authorization cards on September 20. As of August 12, excluding W. L. Renaker, Jr., the son of W. L. Renaker, owner of the Company, there were 21 employees at Respondent's Lexington plant in the produc- tion and maintenance unit which included truckdrivers but excluded all office clerical employees, professional employ- ees, guards, supervisors and all other employees. The parties stipulated both to the exclusion of W. L. Renaker, Jr., and to the appropriateness of this unit for the purposes of collective bargaining. The authorization cards were identified and there was no contention that they were improperly signed or signed under false pretenses. One employee, Eula Florence, later testified that, on the day after she signed her authorization card, she told one employee at the Company that she really did not want to sign the authorization card and that the card should be destroyed. However, she did nothing further than make this remark to an employee. Even excluding her card, which I believe should be included, the Union as of August 12 had a majority of the employees. Thereafter, on August 28, the Union filed with the Board's Regional Office a petition for an election which was given the designation Case 9-RC- 158. There was no contention that the petition was not served on Respondent. The complaint alleges that the demand for recognition was made through the filing of this petition and its service on Respondent. The charge in this matter was filed thereafter and served to block any further processing of the petition. According to the undisputed testimony of George Rioux and Dorcus Blakey, in September the Company posted a notice on the bulletin board signed by Mr. Renaker which forbade any solicitation on the premises of the Company. Neither the wording nor the fact of this posting was disputed by Respondent and, in fact, Respondent offered no evidence whatsoever in regard to this notice. There being no explanation of this notice and, on its face, it being an improper no-solicitation rule, I find that Respondent, by posting and promulgating this notice in and after September, violated Section 8(a)(1) of the Act. Respondent's defense to most of this case consisted mainly of offering testimony concerning the atmosphere in the plant and unspecified and unattributed threats which I found to be no defense to the allegations charged and were ruled immaterial and irrelevant. B. The Discharge of Pauline Bruin On Friday, September 24, Rance Grimes in a conversa- tion with Don Mosher was told by Mosher that the Company was going to fire all who signed the union cards and that 19 employees signed the cards and only himself, Helen, and Don Partridge had not done so. Grimes said Mosher was wrong because he had not signed a card. Grimes said they argued about it and he asked Mosher if his brother-in-law, Troy Reffitt, had signed a card and Mosher replied that he had. Grimes again said he had not signed a union card and had been strictly for the Company since he worked for it. Shortly after this conversation, Grimes went into the break room where Pauline Bruin and Eula Florence were 118 PRODUCTION PLATING CO. sitting and, after some conversation about Pauline Bruin being afraid to speak to people, Grimes told her she was going to get fired for signing a union card. He said she went to Dorcus Blakey and asked if Blakey had told on her that she had signed a union card. Blakey said she had not. Bruin went out to the line and said to Foreman Mosher, "Lord, have mercy, don't fire me, I need the job. I can't get ajob anywhere. I've looked everywhere." Bruin testified that she had worked for the Company about 4 years, attended a number of the union meetings, and signed a union authorization card on August II. She stated that she had had a conversation with Mosher outside the building in which Mosher said that, if the Union got in the plant, they would go on strike. She tried to correct his idea and told him the procedure in order to get a union into the plant. Mosher told her she was crazy, that, if the people signed union cards, they would get fired and other people would be brought in to work. Bruin testified that, at the September 20 union meeting, one of the plant employees who appeared to be against the Union obstructed the meeting by continually interrupting speakers with questions. During this meeting, Bruin spoke to the employees and said she had tried to give away her half hour extra early job of hanging racks for some 2 years but nobody wanted it. She also commented in that meeting about the acid in the plant and that she had to wash her glasses every 2 hours in order to see what she was doing. On Monday, September 27, while at work, she got sick and nauseated around 7:30 a.m. and had to go home. She tried to find Don Mosher to tell him that she could not work and, not being able to find him, she told Rance Grimes and Joy Broughton that she was going home, asked them to tell Mosher, and left. Grimes testified that on that same morning he saw Mosher talking to Eula Florence and later saw Eula Florence holler something at her sister, Pauline Bruin, and that sometime thereafter Bruin asked him where Mosher was, saying that she was nauseated and ill, could not find Mosher, and was going home. She asked him to inform Mosher. Grimes said that he looked for Mosher and sometime later found him and gave him Bruin's message. Broughton testified that on that morning Florence did say something to Bruin and that sometime later Bruin told her that she had to go home and left and that she later told Mosher that Bruin had to leave. Around 9 a.m., Bruin felt better and called the plant and spoke to Mosher, saying she had been sick to her stomach and left because she could not work, and Mosher told her she would have to talk to Barbara Warburton, the personnel manager, concerning leaving work. Bruin testi- fied she called the office several times and it was not until around 3 o'clock that she was able to reach Warburton. She told Warburton she was better, had stopped being nauseated, and would be back to work in the morning. Warburton told her that Donnie Mosher had pulled her timecard and that she no longer had a job. During her cross-examination, Bruin admitted that on that morning her sister did holler at her and that she called back to her sister to go take a laxative and she would feel better in the morning. She denied that there was any argument between them. She denied telling Barbara Warburton that she had left work because she was mad at her sister and denied telling this to Mosher. She also denied telling Mosher that she would not be back to work until her sister apologized. Respondent called her sister, Eula Florence, as a witness and Florence testified that she had no argument with her sister on that morning. She said that Mosher, at one point, told her that her sister would not come back until she apologized and she said she had not done anything to apologize for and not to worry about it, that her sister would be back on the following day. Her testimony clearly indicates that there was no argument between them. Mosher testified that, on the morning of September 27, he was told by several people that Pauline and Eula had an argument and Pauline had left the plant. Some 2 hours later, Pauline called and said that the two of them had an argument and she was not coming back until her sister apologized. He said he told Pauline that he would talk to her sister about it but did not do so but went instead to the office and spoke to Barbara Warburton. He testified that nothing had been said about Bruin being sick. Warburton stated that Mosher told her Bruin had called in and said that she had left work and would not come back until her sister apologized and that he wanted her to get hold of Renaker and Hill and tell them that Bruin had walked off the job. She got hold of Hill at the Cynthiana plant and repeated Mosher's statement and sometime later Renaker or Hill called back and talked to Mosher and told Mosher to pull Pauline's timecard and Mosher did so. According to Warburton, Bruin called that afternoon, saying she would be back to work in the morning and, if her sister opened her mouth, she would take care of her. Warburton said she told Bruin not to tell her that, but that Mr. Renaker had already had her timecard pulled and it was in the office and that she needed to talk to Renaker and not to her. She stated she told Bruin that Renaker had gone to the Cynthiana office and she could call him there. Vice President Hill testified that all Barbara Warburton knew about the Bruin controversy was that they had told Mosher to pull Bruin's card. Hill's testimony, in effect, contradicts Warburton's claim that the Company wanted to discuss with Bruin why she had left the plant and the inferential claim that Bruin had not been fired. Hill stated that he did not consider that pulling Bruin's card was the same thing as firing Bruin because, he said, they wanted to discuss why she had left. This would not have been communicated to Bruin, according to Hill, because Warburton would not have known it. Renaker, in turn, contradicted Hill by saying he told Warburton to pull Bruin's card or have Mosher do it because he wanted to talk to Bruin before she went back to work to see what her family problem was. He stated that at one point he was told by Warburton that Bruin would call him at the Cynthiana plant but that he never heard from her. Renaker acknowledged that Mr. Wilburn, the Union's vice president, contacted him concerning Bruin's discharge and testified on direct that Wilburn told him Bruin had been sick and he told Wilburn that was not the information he had. He said Wilburn asked if the Company would take Bruin back to work, adding that, if they did so, he would 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not file a complaint. He replied to Wilburn that he still was waiting for a call from Bruin. On cross-examination, Renaker contradicted his direct testimony, saying that, when Wilburn called him, the only thing he told Wilburn to do was to speak to his attorney. That evening, Bruin called Rance Grimes and told him she had been fired. Bruin testified that there had been other occasions when she had left the plant without contacting her supervisor when there was an emergency or sickness and nothing had ever been said or done about it. Mosher admitted that other employees had left the plant when they were ill without informing him and, as long as he got word of it, no disciplinary measures had ever been taken against employ- ees. On the following day, Grimes and Mosher began talking about the Union and Grimes said that if it would get the old lady (Pauline Bruin) back to work, he would talk to everybody in the plant and try to get them to drop the Union. Mosher said that he had not fired Bruin but that she was griping all the time and she and one other individual were not fit for anything. Mosher then said that Bruin would still have a job if she had not gone to the union meeting and complained about hanging the racks and having to come in early. On Wednesday, September 29, Grimes spoke to Mosher very early in the morning and said that Mosher told a guard in his presence that he thought he had gotten rid of the union ringleaders. During his examination, Mosher was asked whether he had ever told an employee that another employee had been discharged because of union activity. Mosher's reply was that at one time Grimes asked him why he had fired Bruin and he said that he did not do so. This testimony is not a denial of either the September 28 or September 29 statements concerning firing people for their union activity. While it is possible that a few words passed between Pauline Bruin and her sister, Eula Florence, on the morning of September 27, both of them deny that there was any argument between them. This is particularly significant where Eula Florence was called by Respondent in regard to an "argument" and denied that there had been any. The testimony of Grimes corroborates Bruin that she was sick that morning, and I credit that she was, and for that reason left the plant. With the added testimony of Grimes concerning Bruin's fear of losing her job, as demonstrated on the previous Friday, I cannot believe that she would have put her job in jeopardy by threatening to remain away from work because of something that occurred between her sister and herself, particularly where there appears to have been no such argument or occurrence as testified to by both Bruin and Florence. The plant discipline appears to be somewhat loose, as demonstrated by Mosher's corroboration of the testimony of others that employees had left the plant without notifying him when they had some problem and they had never been disciplined for doing so. When these facts are coupled with the direct statements of Mosher to Grimes concerning the Company's getting rid of union card signers and union adherents and that the Company had fired people for their union adherence, it is clear that Respon- dent's story is a thin veil to cover its discharge of Bruin for her union activity. I conclude and find that Respondent violated Section 8(a)(3) and (1) of the Act by its discharge of Pauline Bruin. I further find and conclude that Respondent violated Section 8(a)(1) of the Act by Mosher's statements to Grimes concerning the discharge of employees for their union support or adherence. C. Other 8(a)(1) Violations in September and October 1. Jeffrey Robinson testified that, prior to the meeting of September 20, Supervisor Donnie Mosher asked him what time the union meeting was and where it was to be held, and he pretended that he did not know and said he would like to know so that he could go himself. When he testified, Mosher was read a complaint allegation as to whether he had interrogated an employee concerning the location of a union meeting and he said he did not. Asked whether he had heard the testimony of Robinson and if anything like that happened, he answered, "Not that I can remember." This is at best a quasi-denial of Robinson's testimony. Robinson appeared to be a more credible witness than Mosher. A number of things Mosher testified to were flatly contradicted by the testimony of others. Robinson is a young man, unsophisticated, and with a limited education. He appeared to make an earnest effort to recall and give his testimony without embellishment and without regard as to whether the testimony was favorable to him or not. Mosher was not straightforward in his answers. Eliciting denials to complaint allegations rather than to specific testimony does not inspire confidence in such qualified denials. The answer of "not that I can remember" is not, I feel, a proper or adequate denial of the specific testimony that Robinson gave. I credit Robinson's version of the occurrence and accordingly find and conclude that Robinson, through Mosher's questioning of Robinson as to where and when a union meeting was to be held, engaged in unlawful interrogation in violation of Section 8(a)( ) of the Act. 2. Rance Grimes testified, as noted above, that Mosher stated he knew the names of all the employees who had signed union cards. Dorcus Blakey similarly testified that Mosher said in her presence that Gene Hill had a list of everybody that signed union cards and they were going to be fired. Mosher was asked on direct examination, after being read complaint paragraphs 5(a)(i) and (iii), if he knew anything about those things happening and he said no. Mosher was not asked about the testimony of Grimes and Blakey recited above, so that all he denied was the complaint allegations rather than the factual testimony of the individuals. Mosher said that on one occasion he had talked to Rance Grimes and told Grimes he knew who had signed the cards and that Grimes said yes, he did too, because the people had told him. Mosher said that was about all that he said concerning the subject. This answer appears to be at least partial confirmation of Grimes' testimony and, in essence, confirms the testimony of 120 PRODUCTION PLATING CO. Blakey and supports the complaint allegation of creating an impression of surveillance. I conclude and find that Respondent, by the statements and questioning of Donnie Mosher set forth above, violated Section 8(a)(1) of the Act by informing employees that Respondent knew of the identity of employees who had signed union authorization cards, thereby creating an impression that its employees' union activities were under surveillance. 3. Grimes testified that sometime in October he heard Mosher say that he was going to work the employees overtime to keep them from going to a union meeting which was supposed to be held that evening. Joy Brough- ton corroborated this testimony by stating that she heard Mosher say that he was going to make the employees work overtime so that they could not attend a union meeting. Again, on direct examination, Respondent's counsel read complaint paragraph 5(a)(vii) to Mosher and asked if he knew anything about it, and Mosher replied no. Mosher said he asked people to work overtime because a customer called in that afternoon and wanted his parts put on a plane that evening and further said that the Company does not force overtime on employees and therefore he did not make people work overtime to keep them from the union meeting. This answer talks around the complaint allegation and the testimony of Grimes and Broughton and does not answer the specific allegation that Mosher threatened that he would make employees work overtime to miss the union meeting. The question is whether he made such a threat, not whether he tried to enforce it. The answers which Mosher gave to the questions propounded to him did not answer the specific allegation or the testimony. I therefore conclude and find that Respondent, through Donnie Mosher, threatened to make employees work overtime in order to have them miss a union meeting and that this threat interfered or tended to interfere with employees' Section 7 rights and thereby violated Section 8(a)(1) of the Act. 4. Wayne Smoot stated that, about a week before he signed his union authorization card in latter September, Donnie Mosher told him in the breakroom about 7 a.m. that he could get fired if he voted for the Union. On his direct examination, Mosher was asked whether he told an employee, again in the language of the complaint, if he threatened to discharge an employee if the employee supported the Union. He replied he did not say anything to Mr. Smoot about that and had never talked to Smoot about the Union. Smoot was an individual who apparently did not support the Union when it started since he did not sign his authorization card until September 20. Smoot did not appear to have anything to gain by telling an untruth and, although his testimony was a bit hesitant and he was still employed by Respondent, he appeared to make an effort to state just what had occurred. Cross-examination did not shake his testimony. Mosher acknowledged that word of union meetings and who had signed the union cards leaked to him but rather unconvincingly stated that he was not interested in such information and that there had been a number of meetings before the Company told him that a petition had been filed. Actually, most of the meetings took place after the filing of the petition. Mosher sought to deny what he thought were violations of the Act while admitting facts he felt were not violative. Mosher was not a credible witness and the testimony elicited from him did not serve to make him appear credible. In this instance, I credit Smoot and find that Mosher did threaten Smoot as he had threatened others. I therefore conclude and find that Respondent violated Section 8(aXI) of the Act by Mosher's threat that an employee could be fired for voting for the Union. D. The Unlawful Discharges of Robinson and Chambers Robinson and Chambers worked together on a phos- phate plating line. On occasions oil would get into the phosphate tank and the parts which were to be electro- plated would not coat and it was then necessary to stop the line, drain the tank, add new chemicals, and reheat the tank, which would take anywhere from a half day to a day. Chambers had injured his back at the plant several weeks before mid-October, had been in the hospital, and had filed a workmen's compensation claim. A doctor had allowed him to return to the plant with instructions that he was to be given light work. The Company put him on hanging racks but Chambers complained that was harder than his regular job and he was put back on the phosphate line. He was on the line only 1 or 2 days before the line had problems with oil in the tank on October 13. Chambers and Robinson were laid off temporarily on that date. The complaint alleges that the layoffs violated the Act as well as the subsequent discharges. Respondent produced testimony that this was the third plating line to have problems within a few days. General Manager Hill testified that the two other nickel lines were shut down that week. An electric hoist on one line caught fire and burned and the line had to be shut down until they could get a new hoist, and the operator, George Rioux, was transferred to another job. The electrolysis nickel line, where Calley worked, caught fire, the line was closed down, and he was placed on other work. When, thereafter, the phosphate line had to be shut down because of oil in the tank, Respondent did not have any other jobs to which to transfer Robinson and Chambers because they were afraid of Chambers' back injury and they had already put Rioux and Calley on other jobs. According to other testimony, the person for whom Respondent was doing the plating had changed the lubricant used to coat parts and the cleaners Respondent was using on the phosphate line were not removing the oil. It took Respondent a day or two to discover this and make changes in the chemical cleaners to remove the oil and start the phosphate line back up. Mosher and Hill worked on that line, with Mosher doing most of the work on an experimental basis. When they finally got the line back into operation, Robinson was called back to work and by that time Chambers had been discharged. Robinson worked on the line until his dis- charge in January 1977. Respondent offered testimony that after their layoffs Chambers and Robinson complained about the layoffs and 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were given layoff slips. There is no indication that the reasons for the layoff were explained to them and, because they had not previously been laid off when the tank had to be changed, they became suspicious of the reason for the layoff, believing that it was tied to their union activity in light of the remarks Mosher had made in the plant. While there is room for suspicion in these circumstances, the unrebutted facts about the plating lines make sense and I cannot find that the layoffs in these circumstances were discriminatory. On payday, I or 2 days later, Chambers went to the plant to get his pay and walked through the plant carrying a petition which he asked a number of people to sign. He stated he got the petition from the State and it concerned fumes from the plant which he said affected the employees in the plant as well as those who lived in a nearby trailer court. Chambers asked Barbara Warburton to sign the petition but she declined, stating that it did not affect her. Warburtori told Hill and Renaker about this petition. Chambers was asked on cross-examination whether he had made any threats to Mosher on that date and denied doing so or saying that he would meet Mosher outside. He further denied making any threats to a person named Madden, saying that he was not even sure who Madden was. Mosher testified that when Chambers came into the plant that day he acted as though he was mad but added that apparently a lot of people were mad at him. Not identifying it as the same day but indicating it was after Chambers had been laid off, Mosher said that, on one occasion when Chambers was going through the plant, Chambers said something to him, that he would speak to Mosher in the parking lot. Mosher then changed the statement to "I will meet you in the parking lot." After some additional pointed direct questioning, Mosher said that Chambers acted like he was mad. When Mosher left work, he did not see Chambers in the parking lot and did not look for him. Madden was not produced by Respon- dent and accordingly there was no direct testimony about any alleged threat supposedly made by Chambers. Jerry Sellers, Respondent's truckdriver who was opposed to the Union and to some extent disrupted a union meeting with a series of questions, was produced by Respondent and testified, among other things, to some parts being thrown in the plant. Respondent's counsel stated that an individual named Abney was being harassed by parts being thrown at him by Robinson and Chambers around October 20, because they did not know Abney's position regarding the Union. This allegation strains credulity because on that date Robinson was on layoff and Chambers had been discharged and further because Abney had signed a union authorization card on August 10 and, with Robinson and Chambers as the principal union protagonists, they would have known that fact. Sellers testified that he wrote a complaint to the Company because Robinson and Chambers were harassing Abney but he admitted that Abney never said anything to him. Finally, Sellers admitted that what he said he observed could be considered a bit of horseplay. Chambers received the following letter from Respon- dent: October 19, 1976 Dear Mr. Chambers, Because of process failure on the phosphate line causing a reduction in our production capacity and workload, and your refusal to work on the racks, it was necessary to place you on layoff status Wednesday, October 13, 1976. Since that time you have returned to the plant without permission or recall, and it has been brought to our attention that you have, and continue to verbally threaten physical violence against certain employees of the Company. We cannot, and will not tolerate the behavior of anyone who threatens the safety and well being of our employees; consequently, we have no other choice but to terminate your employment with the Company effective immediately. Yours truly, Production Plating Inc. /s/ W. L. Renaker /s/ Gene D. Hill Chambers specifically denied threatening Abney, Mad- den, or anyone else in the plant or engaging in any physical violence against any of the employees or that anything other than cigarette butts had been thrown. Robinson worked steadily and, according to the Compa- ny, did a good job until January. Robinson said he was off sick a few days during January and later, on January 25 and 26, was not at work because his car would not start due to the severe cold weather. He reported back on January 27 and worked a half day before he was discharged. Robinson testified that, while he was off, he attempted to call the Company but was given the telephone number of the Cynthiana plant. When questioned about reading the telephone book to determine the proper number, he stated that he was unable to do so and indicated that he had difficulties with reading and repeated that, when he called information for the number, he was given only the number of the Cynthiana plant. Respondent has an employee's information sheet which gives company policies; number 5 states, "If you are absent for work for a period of two days without reporting to the main office, you must contact the office before you return to work." Robinson testified that he had been absent for periods of 2 days prior to that time and nothing was ever said to him when he returned to work. When he was discharged, he thought he was being laid off because all that Mosher said to him was they were going to have to let him go. As he was leaving, Mosher added that he was being let go because he did not come in for 2 days in a row and did not call in. Mosher stated that Robinson was discharged for taking off 2 days and not calling in. He stated that, when he talked to Robinson on the morning of January 27, Robinson said that he was sick. Mosher said he asked for a doctor's statement and Robinson said he did not go to a doctor and therefore had no statement; that he had tried to call him but could not find the number and did not get the proper 122 PRODUCTION PLATING CO. number from the information operator. Mosher stated that Robinson was let go for absenteeism, which he said was for being off those 2 days without calling in. Hill testified that after Chambers and Robinson had been laid off it came to the Company's attention that Chambers had been creating problems, such as throwing parts at Robert Abney and interfering with his work. He further indicated that Chambers said something to Renak- er and they decided it was desirable to terminate him. In regard to Robinson, Hill stated that he was discharged after he did not report on January 25 and 26 and that he was discharged because of absenteeism and his refusal or inability to call in. In regard to the company rule, Hill stated the company rule is that if anyone is absent 2 days without notifying the Company the employee is liable for discharge and that the Company had used this reason in their unemployment hearings. His statement of the rule is a misstatement. Renaker testified that, after Chambers and Robinson had asked for a layoff slip, Chambers asked if it had any effect on his insurance and he replied that it did not. He said that Chambers said something about taking the slip to his lawyer and afterwards said something about "there will be a matter, I'll have to take care of you." Whether this was meant to be any version of a threat is unclear from Renaker's testimony. Renaker was questioned further about it and said that Chambers had said something about giving the paper to his attorney and that someone would be around to see Renaker about it, to take care. Renaker offered secondhand testimony as to a threat regarding Dave Madden but did not place it in any time sequence and Madden was never called to testify nor was his absence explained. Renaker acknowledged that it had been reported to him and Hill by Warburton that Chambers had a petition in the plant. In regard to Robinson, Renaker stated that he and Hill decided to terminate Robinson. They called the foreman and told him to do so because Robinson had been off 2 days, had a poor record, and had no excuse for the 2 days. Respondent admitted that its work schedule was cut in January because of the severe cold and that Robinson had been a good worker and had a good record until January. Renaker's testimony regarding Robinson makes it apparent that he and Hill were keeping close watch on Robinson since he says he knew that Robinson had missed work on January 25, and on January 26 he and Hill discussed it and called on January 27 to find out whether Robinson was there or not. No reason is given for this close watch. Respondent's reasons for the layoffs on October 13 appear to be valid and, although there might be some suspicion due to the fact that in previous times the line had been restarted within a matter of hours, the reasons given by Respondent for the difference this time make sense and are not contradicted by General Counsel. I therefore conclude that the suspensions were proper and dismiss those allegations of the complaint. I reach the opposite conclusion as to the discharges, however. From his testimony, it appears that Sellers was antagonistic toward the Union and toward Robinson and Chambers. In addition to any union sentiments and actions of Robinson and Chambers (and apparently they did most of the solicitation of employees), it appears that Respondent would have been further angered by Chambers' bringing into the plant a petition concerning the plant's production of fumes and asking plant employees to sign it. The combination of these two things are what I find brought Respondent to the point where it discharged Chambers. The question of any threats by Chambers was not demonstrated by the evidence produced by Respondent. Chambers was never faced by Respondent with any such allegations or asked to explain any of his remarks which, Respondent says, it considered as threats to its employees. Similarly, Respondent's action in discharging Robinson for being out 2 days and then reporting back to work contravenes the language of its own rule. The rule, which is stated as a company policy, does not indicate that employees are subject to disciplinary action but only that they should report if they are absent without notice for a period of 2 days. Robinson did go back to work after this absence in the same manner as he had done on previous occasions and nothing was said to him and he immediately started to work and worked for half a day. This could only be considered by Robinson and other employees as agreeable to Respondent. The rule had been understood by the employees who testified to mean that "if you are absent for 2 days, you must call in on the third day or be back at work on the third day." This is the practice that they followed without any disciplinary action being taken against any of the employees prior to that time. Robinson was only following company practice. I conclude and find that Respondent violated Section 8(a)(1) and (3) of the Act by its discharges of Howard Chambers on October 19, 1976, and of Jeffrey Robinson on January 27, 1977, and that Respondent's asserted reasons for discharge are pretextual. E. The Refisal To Bargain As was demonstrated, supra, the Union had a clear majority of the employees in an appropriate production and maintenance unit on August 12, which majority continued thereafter through the Union's filing its petition and Respondent's receipt of a copy of it. That petition, was, in effect, a demand by the Union for recognition and bargaining by the Respondent in an appropriate unit. Respondent did not reply except that Respondent, by its 8(aXl) and (3) violations set forth above, clearly showed the Union and its employees that it rejected the principle of collective bargaining. Both on the basis of this rejection of the principle and refusal to respond to the Union and the unilateral promulgation and enforcement of an invalid no- solicitation rule, all of which I find constitutes a violation of Section 8(aX5), and on the basis of the severe violations of Section 8 (aXl) and (3), I find it is necessary that an 8(a)(5) bargaining order be issued to remedy the violations in this matter. [II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I1, above, occurring in connection with Respondent's business 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations as set forth above in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent violated Section 8(aX5) and (1) of the Act by refusing to recognize the Union as the employees' collective-bargaining representative and refus- ing to meet and negotiate with the Union and, further, by unilaterally promulgating and implementing an invalid no- solicitation rule, it is recommended that such rule be rescinded and withdrawn and that Respondent cease and desist from refusing to recognize, meet and bargain with the Union as the bargaining representative of its produc- tion and maintenance unit employees in the unit heretofore found appropriate. Having further found that Respondent discriminatorily terminated Pauline Bruin on September 27, 1976, and Howard Chambers on October 19, 1976, and Jeffrey Robinson on January 27, 1977, because of their actual or suspected union sympathies and activities or their concert- ed activities, I recommend that Respondent offer them immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to any seniority or other rights and privileges they may enjoy. Respondent shall make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to them of a sum equal to that which each would have received as wages from the date of their discharges until they are fully reinstated, less any net interim earnings. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I further recommend that Respondent, upon request, make available to the Board payroll and other records to facilitate checking the amounts of backpay and any other rights due Pauline Bruin, Howard Chambers, and Jeffrey Robinson. Respondent also engaged in interrogation of its employ- ees concerning the location of a union meeting; created in its employees' minds an impression that it was surveilling their union activities by informing employees it knew which employees had signed union authorization cards and by threatening to make employees work overtime to prevent their attending a scheduled union meeting; threatened to discharge employees if they supported the Union and informed employees that union supporters had been discharged; and promulgated and enforced a discrim- inatory rule prohibiting solicitation on its premises, and I recommend that Respondent be ordered to cease and desist from violating the Act in the same or in any other manner. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Production Plating Company of Lexington, Ken- tucky, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Respondent in its Lexington, Kentucky, location including truckdrivers, but excluding office cleri- cal employees, professional employees, guards and all other employees and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On and after August 12, 1976, and at all times material since then, the Union has represented a majority of the employees in the appropriate unit and has been the exclusive representative of the unit employees for the purposes of collective bargaining. 5. By refusing, on and after August 28, 1976, to recognize, meet, and bargain with the Union as the exclusive representative of its production and maintenance unit employees, and by unilaterally promulgating and enforcing, in September 1976, a discriminatory rule, Respondent violated Section 8(a)(1) of the Act. 6. By discriminatorily discharging Pauline Bruin on September 27, 1976, Howard Chambers on October 19, 1976, and Jeffrey Robinson on January 27, 1977, and not thereafter reinstating them to their positions because of their actual and suspected union sympathies and activities and concerted activities, Respondent engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 7. Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act by: (a) Interrogating employees concerning the location of a union meeting. (b) Creating an impression of surveillance of employees' union activities by informing employees that it knew which employees had signed union authorization cards and by threatening to make employees work overtime to prevent their attending a scheduled union meeting. (c) Threatening to discharge employees if they supported the Union. (d) Informing employees that it had discharged union supporters. (e) Promulgating and enforcing a discriminatory no- solicitation rule. 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: 124 PRODUCTION PLATING CO. ORDER 2 Respondent, Production Plating Company of Lexington, Kentucky, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively in violation of Section 8(a)(5) and (1) of the Act with Metal Polishers, Buffers, Platers and Allied Workers International Union, AFL-CIO, as the exclusive representative of its employees in its production and maintenance unit. (b) Discharging and refusing to reinstate employees in order to discourage employees from being or becoming union members or supporting the Union or for engaging in concerted activities. (c) Interrogating employees concerning the location of a union meeting. (d) Creating an impression of surveillance of employees' union activities by informing employees that it knew which employees had signed union authorization cards and by threatening to make employees work overtime to prevent their attending a scheduled union meeting. (e) Threatening to discharge employees if they supported the Union. (f) Informing employees that it had discharged union supporters. (g) Promulgating and enforcing a discriminatory no- solicitation rule. (h) In the same or any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist Metal Polishers, Buffers, Platers and Allied Workers International Union, AFL-CIO, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: 2 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 the 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. (a) Upon request, recognize, meet, and bargain with the Union as the exclusive representative of its employees in the above appropriate unit and, if an understanding is reached, embody such in a written signed contract. (b) Offer to Pauline Bruin, Howard Chambers, and Jeffrey Robinson reinstatement in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (c) Make Pauline Bruin, Howard Chambers, and Jeffrey Robinson whole for any loss they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and reports, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and the rights and privileges due Pauline Bruin, Howard Chambers, and Jeffrey Robinson as set forth in the section of this Decision entitled "The Remedy." (e) Post at its Lexington, Kentucky, plant copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that complaint allegations 5(a)(ii) and (v) and 9 be dismissed. 3 In the event that the Board's Order is enforced by a Judgment of a United States Courts 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." 125