Empire Corp.

EMPIRE CORPORATION 623 Empire Corporation and Retail Clerks International Association, Local No. 698, AFL-CIO. Case 8- CA-7800 July 30, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY , AND PENELLO On January 24, 1974, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the Respondent, General Counsel, and Charging Party filed exceptions and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge with the following modifications and additions. 1. We agree with the Administrative Law Judge insofar as he found that the Respondent violated Sec- tion 8(a)(1). However, we find,,contrary to the Ad- ministrative Law Judge, that the Respondent further violated Section 8(a)(1) by the following incidents which the Administrative Law Judge found in fact had occurred:2 (a) Respondent President Andrews' spraying George L. Hennigin, the Charging Party's organizing director, with mace. The Administrative Law Judge credited the testimony showing that Hennigin went to the plant when employee Linda Cosavage was fired and asked Andrews to speak with him. Andrews came out to the plant yard where Hennigin was waiting, and Hennigin asked Andrews to reinstate Cosavage and recognize the Union. Without responding, Andrews began walking back to the plant and, when he neared the door, twice sprayed Hennigin with mace. This assault, which occurred in the presence of employees, forcibly demonstrated to employees the Respondent's intense opposition to the Union.3 ' 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 (1950), enfd. 188 F.2d 362 (C.A. 3,1951). We have carefully examined the record and find no basis for reversing his findings. 2 The General Counsel and the Union contend other 8(a)(l) violations also occurred. We find it unnecessary to consider them as they are merely cumula- tive. 3 Cf Sullivan Surplus Sales, Inc, 152 NLRB 132, 148- 149, and cases there cited. (b) Respondent Vice President Denzinger's unlaw- ful interrogation of employees. Thus, Denzinger asked employee Virginia (Loss) Johnson about the union button she was wearing, asked her about other employees' union activity, and inquired who contact- ed her about the Union and whether they were, sec- ond-shift employees; he asked employee Helen Bohoff why she joined the Union; he asked employee Sheliah Aldredge where her union button was; and he asked employee Russell Gorham about his union but- ton. He questioned Joanne Goreman about atten- dance at a union meeting, and on July 19 he interrogated Leslie Flory 4 as to whether she was for the Union and whether anyone had contacted her on its behalf, and asked her again on July 25 whether she was for the Union. Before the strike, Denzinger asked Helen Sigler what she hoped to accomplish by sup- porting the Union- On July 26, Denzinger told Thel- ma Atkins that he knew Cosavage and Hammon started the Union and asked her whether she knew that; he asked her opinion of the Union and whether she had been contacted about the Union, and insisted that she respond as to why she was for the Union. (c) Foreman Don Ruegg's unlawful interrogation in separate incidents, on and after July 24, when he asked employees Marlene M. Martin, Amy Boyd, and Debby Owens what they thought of the Union. Ruegg further interfered with employees' Section 7 rights when, on July 25, he asked employee Melanie Tindell where he (Ruegg) could pay his union dues, and she replied that she did not appreciate his humor. He then said that she would be harmed by the Union. Ruegg also said to Shirley Fannin, "You have one of those union buttons, and I don't even want to talk to you." (d) President Andrews' interrogation of 'Joanne Goreman, on July 20, as to whether she knew that "They were trying to get a union in the shop," and telling her he felt she was "behind it," and, on July 24, asking whether she had been contacted in any way. (e) In addition, on July 26, Denzinger accorded Kirkbride disparate treatment when he refused to re- move her from one job assignment, which adversely affected her health to one which did not, although he had permitted such changes in the past. (f) Denzinger's threatening loss of privileges and imposition of more restrictive rules. Thus, at the July 21 meeting, Denzinger told employees that if the Union came in they could not drink pop or wear shorts and would be required to wear safety shoes which were uncomfortable and expensive; that he would eliminate ' smoking, telephone, vending ma- ' We note that in referring to her the Administrative Law Judge inadver- tently uses masculine pronouns s Member Kennedy agrees with the Administrative Law Judge that this last remark may be unpleasant, but that it is not violative of the Act 212 NLRB No. 81 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chine, and ash tray privileges ; and that slow employ- ees would be fired. He also threatened to impose quo- tas and "that the plant might be closed ," and said that a lot of things would be taken away. Denzinger also warned Leslie Flory that some of the privileges would be taken away if the Union came in , and he told employee Anderson, who was smoking, that "if you want the Union , you can't do that." (g) Engaged in unlawful surveillance of the union meeting of the second- and third-shift employees on July 25. Thus, employee Marlene M. Martin followed Denzinger all the way from work to the union hall. She saw Denzinger pull up to the curb and park across from the hall when the employees were meeting on that date . Also, he was observed by employee Kirk- bride sitting in his car outside the union hall during that time . The next day, July 26, employee Martin told Denzinger that he had helped her locate the union hall as she had followed him all the way there from work. Denzinger left without responding but returned in a few moments and stated that he knew who his friends were and who weren't and he wanted to stab them in the back and the Union wouldn't be any good. He also told her he saw employees coming out of the union hall the day before and knew how many were there . The same day Foreman James Jones told employee Sheliah Aldredge, a first-shift employee, that Denzinger found out about the sec- ond- and third-shift employees' union meeting. Den- zinger, as General Counsel's witness, admitted he saw three employees, Janice Kirkbride, Leslie Flory, and Virginia (Loss) Johnson, going into the hall around 2 p.m. on July 25. On these facts, it appears clear to us that Denzinger had engaged in surveillance of the July 25 meeting and admitted that he had done so. Thus, he was followed by an employee to the union hall where he parked and was observed sitting in his car across the street . The next day he admitted that he knew how many were there and admitted in the in- stant proceeding that he saw the three employees en- ter the union hall where the meeting was being held. (h) Denzinger solicited employees Janice Kirk- bride and Linda Cosavage to engage in surveillance when on July 20 he asked Kirkbride to "let him know" if she "heard anything" or knew of any union activity, and, in a separate incident , he asked Cosavage to inform him of anyone who sought to join the Union. 2. We agree with the Administrative Law Judge that on July 26 there were 68 employees in the unit found appropriate and the Union had obtained 35 signed valid cards from the employees in the unit, and that on July 27 Hennigin made a lawful demand on Respondent (President Andrews) for recognition of the Union. The Administrative Law Judge nonethe- less concluded that a bargaining order was unwar- ranted as a fair election could be had "because nearly all the card signers were in the court room during the trial as witnesses for the General Counsel and, judg- ing from their friendly relation with and representa- tion by the Union, I believe that Respondent's unfair labor practices will not influence their voting at an election conducted by the Board." We find merit in General Counsel 's and Charging Party's exception to the failure to grant a bargaining order . Not only was Respondent's prestrike activity more serious and widespread than described by the Administrative Law Judge, but its entire course of conduct was so flagrant and coercive in nature as to require that a bargaining order be issued . Thus, the Respondent violated Sec- tion 8(a)(1) and (3) by unlawfully interrogating em- ployees, assaulting a union representative who was requesting recognition , engaging in surveillance and giving the impression of engaging in surveillance, soli- citing employees to engage in surveillance , promising wage increases and other economic benefits, threaten- ing to discharge employees and discharging an em- ployee for engaging in union or other protected activity, discriminatorily denying an employee a transfer from one job to another , threatening employ- ees with reprisals or loss of privileges , threatening to discharge an employee's husband to discourage her union or other protected activity, and unlawfully dis- charging 25 employees who were engaged in an unfair labor practice strike . The Administrative Law Judge found, and we agree , that the Union had a majority in an appropriate unit when it made the demand for recognition which the Respondent denied . Respon- dent, rather than bargain with the Union , engaged in a series of unfair labor practices to undermine the Union's majority status. These violations were not in any sense minimal but are such as to strike at the very heart of the employees ' Section 7 rights and the Union's representative capacity with widespread and persistent effects. We find that the coercive effects of the Respondent's unlawful acts cannot be eliminated by the traditional remedies , and were of a nature as to make a fair election doubtful , if not impossible.' Under these circumstances , the purposes of the Act can best be effectuated by reliance on the employees' desires for union representation as expressed by their signed authorization cards rather than on the results of an election conducted in an employer -contaminat- ed atmosphere . Accordingly, we find a bargaining or- der should issue to remedy the violations of Section 8(a)(1) and (3). 3. We agree with the Administrative Law Judge that the Respondent violated Section 8(a)(1) when it terminated employees for engaging in an unfair labor 6 N L R B v. Gissel Packing Co, Inc, 395 U S 575 (1969) EMPIRE CORPORATION 625 practice strike, but we find it violated Section 8(a)(3) also, and that the strikers are entitled to reinstatement upon their unconditional written offer to return, which they made on August 17. We further agree that, if Respondent fails to reinstate them upon such appli- cation, it shall make them whole in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716, (1963), for any loss of earnings suffered beginning August 22, 1973. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Empire Corporation, Akron, Ohio, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: ,(a) Discouraging membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Discharging or threatening to discharge em- ployees in order to discourage their participating in a lawful strike. (c) Coercively interrogating employees regarding their and other employees' union membership, de- sires, and activities. (d) Threatening employees that they would be de- prived of benefits or more restrictive rules would be adopted if the Union got in. (e) Engaging in surveillance, creating the impres- sion of engaging in surveillance, or soliciting employ- ees to engage in surveillance of the union activities of its employees or the activities of Retail Clerks Interna- tional Association, Local No. 698, AFL-CIO. (f) Denying prounion employees the right to have a break or lunch together or to talk to each other during their breaks. (g) Disparately prohibiting union activities on working time while permitting sales of commercial products and similar activities and solicitations dur- ing such periods. (h) Promising benefits, including increased wages, to employees if they did not join the Union or if they returned to work during the strike. (i) Threatening to close the shop if the Union got in. (j) Threatening to discharge striking employees or discriminate against them and their relatives em- ployed by Respondent unless said strikers returned to work during the strike. (k) Discriminating against employees engaged in union or concerted activity by refusing to reassign them from a job affecting their health to one which will not. (1) Committing a physical assault on any represen- tative of the Retail Clerks International Association, Local No. 698, AFL-CIO, or any representative of any other union. (m) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise or enjoy- ment of rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of said Act. 2. Take the following action designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain collec- tively with the Union as the exclusive bargaining rep- resentative of all employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if any understanding is reached, embody such understanding in a signed agreement: All production and maintenance employees em- ployed by us at our Akron, Ohio, facility, includ- ing mold shop employees, but excluding designers, office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) Offer immediate and full reinstatement to Lin- da Cosavage and each of the 25 employees whose names appear in the Appendix attached hereto to his or her former position or, if such no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges enjoyed by each, and make each whole for any loss of pay he or she may have suffered by reason of Respondent's discrimination against him or her, with interest at the rate of 6 percent, as provided in the section above 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 amount of backpay due under the terms of this Order. (d) Post at its premises at Akron, Ohio, copies of the attached notice marked "Appendix." 7 Copies of r In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment Continued 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice, on forms provided by the Regional Direc- tor for Region 8, after being duly signed by an author- ized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 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, upon request, recognize and bargain collectively with the Retail Clerks International Association, Local No. 698, AFL-CIO (hereafter Local 698), as the exclusive representative of all our employees in the bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an un- derstanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our Akron, Ohio, facility, including mold shop employees, but excluding designers, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL offer Linda Cosavage full reinstate- ment and pay her for the earnings lost as a result of her discharge on July 26, 1973, plus 6-percent interest. WE WILL offer the following employees full re- instatement, and pay them for earnings lost as a result of our refusal to reinstate them on August 22, 1973, plus 6-percent interest. Debby Owens Linda E. Martin Amy Boyd Janice Sprowls Cathy Yanke Sheliah R. Aldredge Helen Sigler Sue Lane Janice Kirkbride Kathy Geibel Rebecca Anderson Mary Crouch Russel L. Gorham Shirley Fannin Helena Gorham Jean Oliver Leslie Flory Melanie Tindell Marlene M. Schafer Thelma Atkins Glen Chaney Patricia Jones Helen Bohoff Connie Hammon Virginia (Loss) Johnson WE WILL NOT discourage membership in Local 698, or any other labor organization, by discharg- ing employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT discharge or threaten to discharge employees in order to discourage their participat- ing in a lawful strike. WE WILL NOT coercively interrogate employees regarding their and other employees' union mem- bership, desires, and activities. WE WILL NOT threaten to deprive employees of benefits or to impose more restrictive rules if said Local 698 becomes their representative. WE WILL NOT engage in surveillance, create the impression of engaging in surveillance, or solicit employees to engage in surveillance of the union activities of our employees or the activities of Local 698. WE WILL NOT forbid prounion employees from enjoying a break or lunch together or talk to each other during their breaks. WE WILL NOT promise benefits to employees to persuade them not to join said Local 698 or to return to work during a lawful strike. WE WILL NOT threaten to close our Akron plant if Local 698 represents our employees. WE WILL NOT threaten to discharge striking em- ployees or discriminate against them and their relatives employed by us unless said strikers re- turned to work during a lawful strike. WE WILL NOT discriminate against employees engaged in union or concerted activity by refus- ing to reassign them from a job affecting their health to one which will not. WE WILL NOT commit physical assault on any representative of Local 698 or any representative of any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise or enjoyment of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by an agreement requinng membership in a labor organization as a condition of employ- ment as authorized by Section 8(a)(3) and (f) of said Act. EMPIRE CORPORATION 627 WE WILL NOT disparately prohibit union activi- ties on working time' while permitting sales of commercial products and similar activities and solicitations during such periods. All our employees are free to become, remain, or refuse to become or remain, members of said Local 698, or any other labor organization. The case presents the issues of whether Respondent: 1. Lawfully refused to recognize and bargain with the Union as the representative of employees in a specified unit: 2. Discharged employee Linda Cosavage for engaging in union or other protected activity, or both: 3. Had a strike by its employees since about July 27, 1973, and, if so, whether it is an unfair labor practice strike: 4. (a) Discharged 25 employees named in paragraph 13 of the complaint, (b) said employees had engaged in union EMPIRE CORPORATION or other protected activities, and (c) if said employees were (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its, provisions may be directed to the Board's Office, Suite 1695, Anthony J. Celebreeze Federal Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case instituted pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act (29 U.S.C. 160(b)). It was commenced by a complaint issued on September 19, 1973, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Acting Regional Director of Region 8 (Cleve- land, Ohio), naming Empire Corporation as the Respon- dent. Said complaint is based on a charge and an amended charge filed respectively on July 30 and August 29, 1973, by Retail Clerks International Association, Local No. 698, AFL-CIO, herein called the Union or Local 698. In substance the complaint alleges that Respondent vio- lated Section 8(a)(1), (3), and (5) and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some of the allegations of the complaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, at Akron, Ohio, on October 29, 30, and 31, and November 1, 1973. All parties were represented at and participated in the trial, and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argument. Respondent's motion to dismiss, made when the General Counsel rested and re- newed when the case closed, was denied. Respondent ar- gued orally. Briefs have been received from Respondent and the General Counsel. discharged, it was for engaging in such activities: 5. Coercively interrogated employees concerning the Union: 6. Threatened employees with loss of economic benefits and retaliatory measures, and actually carried out some of said threats, to discourage their membership or interest in the Union: 7. Promised increased wages and other economic bene- fits if the Union was defeated: 8. Created the impression of unlawful surveillance of union activity, and also engaged in such surveillance: 9. Solicited employees to engage in surveillance of union activities: 10. Assaulted a union representative who was demand- ing that Respondent recognize the Union: 11. Threatened to discharge employees in order to dis- courage union and other protected activity: 12. Threatened to close its plant in order to discourage employees from engaging in union and other protected ac- tivities: 13. Discriminatorily denied an employee a transfer from one job to another for health reasons in order to discourage her from engaging in union or other protected activities: 14. Threatened employees with reprisals or loss of certain privileges or both, m order to discourage their union or other protected activities: 15. Threatened to discharge an employee's husband in order to discourage union or other protected activity by said employee: 16. Promised to rehire certain terminated employees if the Union's organizational effort failed. Upon the entire record in this case, including the stipula- tions of the parties and my observation of the witnesses, I make the following: FINDINGS OF FACT I AS TO JURISDICTION Respondent, an Ohio corporation, is engaged at Akron, Ohio, in manufacturing, selling, and distributing molded plastic products. Annually it ships products valued in excess of $50,000 directly from its Akron facility to points located outside the State of Ohio. I find that Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. II THE LABOR ORGANIZATION INVOLVED Local No. 698 is now, and at all times material herein has been, a labor organization within the contemplation of Sec- 628 tion 2(5) of the Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence 1. George L. Hennigin's evidence Hennigin is the organizing director for Local 698. About mid-July 1973, he initiated a campaign to organize Respondent's employees. Shortly before midnight of July 26 he received a call that Linda Cosavage, one of the employ- ees aiding him in said organizing drive, had been dis- charged. This caused him to go to the plant of Respondent, where he arrived about midnight. When he spoke to Linda in the parking lot she told him that she had been fired for throwing water upon someone, but she denied doing so. Soon he asked Mrs. Bittinger or Mrs. Chrisman, both organizing representatives in the campaign who at the time were on the parking lot, how many employees had signed cards for the Union. The answer was 35 in a unit of 68. Immediately thereafter he asked someone to request Presi- dent Andrews of Respondent to come to the lot. Andrews complied. After requesting Andrews to reinstate Linda, Hennigin demanded recognition of the Union. At this point Andrews walked towards the plant's door and Hennigin again demanded recognition. Thereupon Andrews twice sprayed Hennigin's face with liquid mace. This caused Hen- nigin to kick Andrews in the stomach "and sent' him [An- drews] through the doors," and then Hennigin kicked the door. Immediately thereafter Hennigin asked the employees (some from the second shift who hadjust finished work and some on the third shift arriving for work), about 10 or 12 in all, "if they wanted to commence their strike." This was because "we had discussed earlier in Union meetings if anyone was discharged because of Union activities or if the unfair labor practices got so bad, we should start" a strike. All replied that they wanted to strike. Consequently Henni- gin had one of the organizers go to the union hall to obtain picket signs. In less than a minute the sheriffs appeared on the scene. After the sheriffs arrived Respondent's vice president, Denzinger, asked Hennigin what was going on. The latter replied, "We are commencing an unfair labor practice strike", that the Union was demanding recognition as it represented the employees; and that Denzinger could look at the union cards on the question of the Union's majority. But Denzinger refused and stated that he wanted an elec- tion. Denzinger also stated that two other employers "had successfully beaten the Union" and that he would "use the same tactics" to prevent Empire from becoming unionized. 2. Other testimony regarding Hennigin a. Mrs. Helen Bittinger, an organizer for Local 698, as- sisted in organizing Respondent's employees, beginning about July 17, 1973. With Mrs. Chrisman she succeeded in having 34 employees sign cards for the Union. (See G.C. Exh. 6-39.) Organizer Chrisman also obtained one card alone. (See G. C. Exh. 40.) All cards had been signed before Hennigin made his demand for recognition to President Andrews shortly after midnight on July 27. Mrs. Bittinger heard Hennigin demand such recognition. b. Mrs. Katherine Chrisman, also an organizer for the Union, arrived outside Respondent's plant about 11:30 p.m., July 26, 1973, only to learn from Mrs. Bittinger that Linda Cosavage had been discharged by Respondent. She overheard the conversation between Union Organizer Hen- nigin and President Andrews, including Hennigin's demand that Respondent recognize Local 698. She also overheard part of Hennigin's conversation with Vice President Den- zinger, including the request that Linda be reinstated and that Respondent recognize the Union. In addition she ob- served "a mist coming through the doorway." And she ob- tained the signature of at least one employee to a union card. (See G.C. Exh. 40.) c. About 9:30 or 10 p.m. on July 26, 1973, Collier Atkins received a call from his wife, the latter an employee of respondent, because she "was afraid there was going to be trouble." So he went to the plant's yard, which he reached about 11:20 p.m. Not long thereafter he heard Hennigin ask President Andrews "to take the girl back." Atkins also saw Andrews twice spray Hennigin with mace and Hennigin then kick Andrews in the stomach. Afterwards Andrews showed Atkins and a deputy sheriff a can and informed them he had sprayed Hennigin with it. 3. The discharge of Linda Cosavage Linda was employed by Respondent as an assembly line press operator on its second shift; i.e., from 4 p.m. to mid- night . About 3:45 p.m. on July 20, 1973, she attended a meeting of employees conducted by Vice President Den- zinger in Respondent's lunchroom Denzinger addressed them, first mentioning that "I hear you people are trying to start a union." Then he commented that "we didn't need a union here," and that a union "put Polsky's out of busi- ness." Continuing, he advised them to see him or President Andrews, and not the Union, if they had any problems, and that if the Union got in there would be no more smoking, no more use of the telephone, and ash trays would be taken away. Denzinger spoke to Linda on July 20 in the presence of employee Connie Hamman. He asked them what they were trying to do "by starting the Union." When Linda denied this, Denzinger stated that "the other girls" had communi- cated to him that Linda "had passed a piece of paper around . . . with names and addresses" and had afterwards presented it to the union representative. Linda replied that she had "a piece of paper passed around by Mrs. Amedeo, .. . an employee," for Fuller Brush. Then Denzinger assert- ed that if Linda knew of "anyone trying to join the Union" she "should let him know." On July 23 Denzinger asked Linda how the Union "things were going," but she answered that she had "not heard anything." Later that day Denzinger told her that he had spoken to President Andrews and they had decided that she "should bring that piece of paper in to clear" herself from being accused of giving "that piece of paper to the union representatives ." (According to Linda she had asked Mrs. Amedeo to take the names and addresses on paper of EMPIRE CORPORATION "people in ordering anything from Fuller Brush," but in fact its "true nature" was to obtain "the names and addresses of Union people to see of they wanted to join the Union." Continuing, Denzinger on said July 23 "accused" Linda "all the time" of "starting the Union." On' July 26 President Andrews spoke to Linda, Connie Harriman, and Mrs. Amedeo, and asked "what was going on with this Union?" He also stated that he knew that Linda and Connie "started this Union and activities." Then he forbade Connie and Linda from "carrying on any types of activities like that [on company time] . . . any longer .. . or you will be fired." Linda had a work break at 10 p.m. on July 26. She used to take this break with Connie but they were forbidden to take it together beginning July 25 or 26 by foreman James Jones. About 10:45 p.m. foreman James Jones told her she had thrown water on Lucille Lamm during said break. But Linda denied this and referred to Lucille as a "damn liar." Jones then spoke to President Andrews who was nearby and returned to Linda. Thereupon he told Linda, "I have to fire you . . . I know that [you didn't do it]. I am sorry." There- upon Linda asked Andrews why he fired her. He replied that she had "harrassed" employee Lucille Lamm by throw- ing water on Lucille. Immediately following her discharge Linda telephoned Union Organizer Hennigan, who soon arrived at the plant's parking lot. She overheard Hennigm demand that Andrews recognize the Union, saw spray come through the door, and observed Hennigin kick Andrews. Linda also testified that employees were permitted to take up collections for various purposes during working hours. 4. Connie Hamman's testimony Connie was employed on Respondent's second shift as an assembler and press operator. She attended the meeting on July 20, 1973, addressed by Denzinger in the lunchroom. She corrobated Linda as to what Denzinger said. During this meeting Mrs. Amedeo said that no one on the second shift had heard anything about the Union until "Linda Johnson come in the previous night . . . and broadcast it .. ... According to Connie, Denzinger also told those at said meeting, "If there is anybody in here who knows any- thing about the Union, I wish you would talk freely to Bob Andrews or myself. Nobody would be punished. Just tell me the story." Later on July 20 Denzinger spoke to Connie and Linda asking them "what are you trying to do? . . . you ... come back and try to start a union and that is what I call getting a man down and stabbing him in the back. . . . In the beginning I thought you and Linda were the ones who started all this. Now I know it was Rose Amedeo." Continu- ing, he asked them to notify him "whenever the union repre- sentative comes to your house. . . . If you ever find any information let me know." On July 26 foreman James Jones informed Connie that he had orders from Denzinger to instruct her and Linda not to have breaks or lunch together or to work together. Short- ly afterwards President Andrews spoke to a group com- posed of Connie, Linda, and Rose Amedeo. First he asked them, "What is going on about this Union?" Then he stated he "wanted a piece of paper ... supposed to be for Fuller 629 Brush" because "we have proof . . . that that piece of paper was seen by a union representative." Then he accused Linda and Connie of harrassing Rose Amedeo but, according to Connie, Rose "confessed it was a lie" and that Connie had not harrassed her. He closed by saying, "If I hear that either one of you girls talking on breaks or company time I will fire you on the spot " Connie also testified that employees were allowed to soli- cit for other than union purposes during working time, and that this included obtaining orders for Avon products. Connie and all the employees mentioned in paragraph 13 of the complaint received the following written notice (see G.C. Exh. 4): 7/27 4:40 p.m. EST Please report for work Monday July 30th 1973 on your regular shift or your employment is terminated. Management Empire Corp. Connie did go on strike early on July 27 because Linda was fired and "all of this . . . that I seen . . . was unfair .. . [including] the way Bob Andrews would not recognize the Union and the way he sprayed mace in George Hennigin's face." 5. The testimony of Janice Sprowls Sprowls was employed by Respondent as a press operator on the second shift. She attended the meeting of employees addressed by Denzinger on July 20, 1973. She heard him say, among other things, that if the Union came in they would lose the privilege of smoking and using the tele- phone; the Union would "make" employees wear safety shoes and glasses; that the Union would take 10 percent of their wages; "you never could tell what would happen" to a raise in pay due in November; "and that the doors might be closed if a union got in." Janice observed Denzinger driving by outside the union hall on July 25 while a meeting was being held there. I find this is not an unlawful surveillance. Then on July 26 she was present in the lunchroom during the 10 p.m. break and, although she noticed both Linda Cosavage and Lucille Lamm there, at no time did Linda throw water on Lucille. Then shortly after midnight Janice went on strike with other employees because Linda's discharge was an "unfair labor practice" and because "the strike was to get the Union recognized." 6. Other testimony regarding alleged Section 8(a)(1) violations a. Melanie Tindell was a machine operator, on Respondent's second shift. She corroborated the evidence set forth above as to what Denzinger said at the July 20 meeting called by management for the employees. She also attended a union meeting on July 25, 1973. And shortly after midnight on July 27 the employees, including her, went on strike "because of Linda's firing and harassment towards the Union and threatening to take our benefits." A vote was 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken to strike after discussion "with the organizers and .. . among ourselves." On July 25 foreman Don Ruegg, a supervisor within the meaning of Section 2(11) of the Act, asked her where he could pay his union dues and, when she replied that she did not appreciate his humor, he remarked, "you will just get screwed by the Union." I find no unlawful statements by Ruegg here. On the same day she observed Respondent's Vice President Denzinger driving in the vicinity of the union hall after a union meeting. In my opinion this is not surveil- lance, and I so find. b. Marlene M. Martin was employed as a relief girl on the third shift; i.e., from midnight to 8 a.m. At a union meeting on July 25, 1973, the "possibilities of strike" were discussed by organizer Hennigin. Among other things he mentioned that "he wanted to go out on strike" if "we were harrassed or if anybody was fired because of Union activi- ties or if any privileges were taken away . . . because of Union activities." Just previously she followed Denzinger's car "all the way down to the union hall" where Denzinger stopped "right across from the union hall." I find no unlaw- ful surveillance by Denzinder's said action. In the morning of the next day Denzinger pointed to a union button Martin was wearing and called her a stinker. A few minutes later he told her the Union "would not be any good in here because it was a small company and they would ruin it." Martin also attended the employees' meeting of July 21 called by Denzinger at which he stated that if the Union got in the employees would lose the privileges of being allowed to smoke on the job, drink pop, and wear shorts; and insisted they would be required to wear safety shoes, that there was no need for a union, and that Polsky's, which had a union, was "doing poorly as compared to O'Neil's." These are department stores in Akron. In addi- tion he asked how many of those present had signed union cards and added that employees had received raises in the past and would probably get raises in the future. Foreman Don Ruegg on July 26 asked her what she thought of the Union. Upon receiving her reply he com- mented that he "didn't like the idea of the Union." This is not forbidden by Section 8(a)(1) of the Act. The next day she joined the strike after Hennigin explained to a group of employees that they should strike because Linda had been wrongfully fired and "because of the harrassment on the meeting Jake [Denzinger] had held." c. Joanne Gorman, a relief girl on the first shift, in sub- stance gave the ensuing testimony. Respondent's President Andrews on July 20, 1973, telephoned her at her home and asked if she knew "they were trying to get a union in the shop." Continuing he said that he felt she was "behind it" because she "had been involved in it before." He again telephoned her on July 24, told her that "things were going further," and inquired whether she "had been contacted in any way" as he knew that "people had been contacted." On July 26 Joanne received permission to leave early on a personal matter. As she was going out Denzinger asked her if she was on the way to a union meeting. She responded that her departure was caused by a death in the family. Later on she joined the strike. I find this is not unlawful interrogation. d. Another witness, Amy Boyd, a press operator on the third shift, testified substantially as follows. A day or two before July 27, 1973, foreman Don Ruegg asked her what she thought of the Union. This is not unlawful, and I so find. She also attended the meeting on July 21, 1973, which Vice President Denzinger addressed, and confirmed prior testi- mony recited above by other witnesses, as to what he said. It need not be restated here In addition, Denzinger said he would not fire anyone although he could fire Amy because she was the slowest operator he had. Continuing he asserted that the employees would eventually be receiving "up to $3 on wages." Finally, he said he would close down the shop if the Union got in. In the early morning of July 27 some employees, one of whom was Boyd, decided to "go out on strike for unfair labor practices," the main ones being "their firing Linda and then their harrassing [the employees] .. whether you had union buttons and things like that." e. Elaine Lane, a press operator on the first shift, attend- ed a meeting held by management for employees on July 20, 1973, addressed by Denzinger. First he asked them if they had heard about the Union. Then he stated that the second and third shifts had informed him that the first shift "start- ed" the Union. He also wanted to know who had signed cards for it, assuring them that no one who so told him would be fired. Then he said he could not understand why they wanted a union because if a union came in he "might have to close down the place," and privileges, like smoking on the job, would be taken away. She joined the strike, described heretofore, on July 27 because Linda's discharge was an unfair labor practice. I. Virginia Loss was a press operator on the second shift. She joined the strike, mentioned above, at midnight on July 26, 1973, because Linda had been fired "and all the harrass- ment a lot of people" had experienced. During the week of July 20, 1973, Vice President Denzinger, asked her about the union button she was wearing. Later the same day he asked her who had contacted her about the Union. She replied it was two women who had visited her at her home. Then he remarked there were "a lot of bad things about a union." g. Glen Chaney was a hopper boy on the second shift. On July 26, 1973, when he asked Vice President Denzinger for a raise , Denzinger asked him if he had joined the Union. Upon receiving a negative reply Denzinger commented, "Don't join the Union. They won't bring nothing in here. Don't join . . . and I will get you a raise." h. Helen Bohoff, a press operator on the second shift, joined-the strike, adverted to above, at midnight on July 27, 1973. She did so "mostly" because Linda was discharged and also "the way we was treated in the place, labor dis- putes." She also attended the second shift meeting held by management on July 20 and corroborated what others testi- fied was said there. It need not be reiterated here. On July 26 Denzinger asked her why she was joining the Union. This is a protected inquiry under Section 8(c) of the Act Later that day foreman James Jones, a supervisor un- der Section 2(I 1) of the Act, told her he overheard President Andrews say "they were going to get rid of some of the relatives in the shop." I find that this is too indefinite to run afoul of Section 8(a)(1) of the Act. i. Janice Kirkbride was a press operator on the second shift. On July 20, 1973, Vice President Denzinger asked her EMPIRE CORPORATION 631 whether she had heard of the Union and whether she had joined it. When she answered in the negative he requested her to "let him know" if she "heard anything" or knew of any union activity. Then he complained to her that he would not understand why the employees wanted a union because he granted them a "lot of privileges, like using the telephone and everything." He concluded by saying "he wasn't going to have a union there [even] if he had to close the shop down," and that he would so close it before he would let the Union in. Denzinger again spoke to her on July 26 while she was wearing a union button. This time he refused to take her off a press, although he had done so in the past, when she requested this because the silicone on the press affected her health adversely. Rather, he told her she had to present her request to her foreman. Thereupon she threatened to quit. I find nothing unlawful in Denzinger's said refusal. At a union meeting she attended on July 25 those present were informed that if employees were "harrassed or .. . fired for unjust causes . . . like union activity" they "would have to" strike. The next day Denzinger asked her why she was wearing a union pin in view of her statement to him that she knew nothing about the Union and was not for it. In this conversation he told her he saw employees coming out of the union hall the day before and that he knew how many were there. Shortly after midnight of July 27 she joined the strike heretofore mentioned to protest Linda's being fired and because Denzinger "had been questioning us . . . with respect to the Union." j. Another second shift employee, press operator Thelma Atkins, in substance gave the following testimony. On July 26, 1973, Denzinger told her that Linda and Connie had started the Union and asked her, "Do you know that Linda and Connie started the Union?" Then he asked for Thelma's opinion of the Union and sought to ascertain who contacted Thelma about the Union. When she replied she was for it, he insisted that she say why. Finally, he referred "to the Union as being nothing but communists." I find nothing coercive in this conversation. Hence I find it is not unlawful. k. Rebecca Anderson is a press operator on the first shift. On July 20, 1973, she went to a meeting of employees called by management. In addition to repeating what other wit- nesses had declared Denzinger said thereat, Rebecca also testified that he asserted that "if the Umon got in there would be a production quota." No such quota was in effect at the time. While smoking on the job sometime in mid-July, Denzmger directed her to extinguish her cigarette and add- ed, "If you want a union, you can't do that." She had smoked on the job in the past without being reprimanded therefor. I find nothing unlawful in the statements of Den- zinger. On July 27 she joined the strike mentioned elsewhere herein. When she went to the plant to pick up her paycheck on August 3, Denzinger stated that if she returned to work during the strike she would be paid $10,000 "just to keep some of these employees out." 1. Patricia Jones, a press operator on the first shift, re- ceived a telephone call at home about July 28, 1973, from Respondent's President Andrews, which was for her hus- band. Mr. Jones was not in at that time. Thereupon An- drews told Patricia that she would be fired if she did not return to work by a certain date, and that she would be jeopardizing her husband's job as foreman on the second shift and his career if she stayed out on strike. in. Another second shift employee who testified for the General Counsel is Jean Oliver, a relief girl. On July 25, 1973, Denzinger told employee Rose Amedeo, in the pres- ence of Jean, that "Jean started the Union." When Jean asked him where he obtained this information he replied, "The second shift." The next day Denzinger asked Jean why she "wanted to do this to him" as he had been good to her. Later, on July 26, President Andrews asked Jean why she had signed "the Union card" and wanted to know "how she would vote." n. Sheliah Aldredge, a press operator on the first shift, was told by foreman James Jones, a supervisor as defined by Section 2(11) of the Act, on July 25, 1973, that Denzinger "found out about the second and third shift meeting." The next day Denzinger asked her "where her button was." I find the foregoing statements not unlawful. Sheliah on July 27 joined the strike heretofore referred to. o. While Helen Sigler was talking to Debbie Owens in the Respondent's lunchroom on July 26, 1973, foreman Don Ruegg asked Debbie what Debbie thought of the Union. About a week previous to this Denzinger said to Sigler, "You too [are wearing a union button]? What do you want to accomplish?" Neither interrogation is unlawful, and I so find. p. Foreman Don Ruegg on July 25, 1973, said to employ- ee Shirley Fannin, a press operator on the second shift, "You have one of those union buttons, and I don't even want to talk to you." Although unpleasant, this conduct does not contravene the Act. q. Linda Martin, a press operator on the third shift, at- tended a meeting about July 21, 1973, at which Denzinger said that if the Umon got into the shop he would have to close down the plant if the Union forced him to, pay more money than he could afford. On July 27 she joined the strike heretofore mentioned. During the strike she went into the plant to obtain her fan. While there she encountered Den- zinger, who apprized her he would (hire her and a few others back if they would go off the picket line, "but there were certain others he wouldn't ever hire back even if the Union got in." r. Russel Gorham was a hopper boy on the first shift who joined the strike on July 27. While Gorham was at the scene of the picketing President Andrews told the group there that he "wanted fired . . . everybody out on the picket line." On July 26 Denzinger asked Gorham where Gorham's union button was. This question is not unlawful. s. Leslie Flory, a press operator on the second shift, was asked on July 19, 1973, by Denzmger if he was for the Union and if anyone had contacted him on its behalf. Upon Leslie's replying that he was for the Union, Denzinger warned him that some of the privileges would be taken away, but did not say why this would occur. Again on July 25 Denzinger asked him if he was for the Union. t. Union Organizer Hennigin testified that shortly after midnight on July 27, 1973, following his demand for recog- nition of the Union, he met with the employees'who were present outside the plant and explained to them they had a 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to strike over "the unfair labor practices that the Com- pany had committed, threats that had been made, the inter- rogation of employees, and the discharge of Linda Cosavage." Thereupon the group responded, "Yes, we want a strike," and they did strike. Their right to strike and the circumstances warranting such action had previously been outlined to them by him at a union meeting on July 25. u. Jacob Denzinger, as the General Counsel's witness, admitted that he asked some employees if they knew what dues were, and some other employees if they were for the Union because he wanted to know who was for and who was against the Union. Since this is not coercive, I find it is protected by Section 8(c) of the Act. He also admitted he saw three employees, naming them, go into the union hall around 2 p.m. on July 25, 1973. This is not unlawful surevil- lance, and I so find. v. President Robert Andrews also was called as a witness by the General Counsel. He admitted that in his affidavit given to the N.L.R.B. he swore that Hennigin on July 26 or 27, 1973, told him that he, Hennigin, represented a majority "of these people" and, "therefore, is the bargaining agent." But Andrews testified that he did not know whether Henni- gin represented a majority or not. B. Respondent's Defense One of those signing a union card is Erma Johnson. (See G.C. Exh. 33.) She filled it out herself. Although Union Representatives Bittinger and Chrisman came to her home to solicit Erma to sign a card, Erma insisted she did not want a union. When Erma, during the conversation, asked when there would be a union meeting, and indicated a desire to go to it, she was informed she could attend the meeting if she signed a card. Consequently she signed the card to be able "to be at that meeting," notwithstanding that she said, "I am not for the Union." The next day Bittinger called Erma a "traitor" because Erma, according to Bitting- er, had "changed her position." On cross-examination, Erma denied that she read the card except where she wrote in spaces. Another employee, Rose Amedeo, signed a union card at the request of her husband who asked her to do so "just to get them [the union representatives who would soon arrive at their home] off our back." Employee Beverly Underwood also signed a union card at the request of union representatives Bittinger and Chris- man. (See G.C. Exh. 39.) She "probably went over it and read it myself." But she testified that she did so "to have a Union meeting; I wasn't voting for the Union or nothing." Later she changed her mind about signing but did not re- quest that the Union return it to her. Tressie Sharp signed a union card (G.C. Exh. 36) at her home at the request of Union Representative Bittinger, who induced her to sign, although Tressie "wanted no part of no union," by stating, "The only thing it is to show that you work here, and we will have a meeting and then we will all work, and if we get a percentage, we will have a Union. You can vote the way you do in an election . Everyone can vote the way he wants to." Although she did not read the entire card, Tressie did write in the spaces herself. Donald Ruegg, a supervisor as defined by Section 2(11) of the Act, denied that he "threatened or promised anything to anybody" to discourage interest in the Union. He also witnessed on July 26, 1973, the "altercation" between Presi- dent Andrews and Hennigin Among other things Andrews ordered Hennigin "to get off the property." Soon Ruegg walked inside, but immediately thereafter the door opened and Andrews "was flying backwards and landed in some skids " In addition, Ruegg admitted that he told an employ- ee he would not speak to her as long as she wore a union button, and that he "asked some of the employees if they were for the Union or not and why." Lucille Lamm, according to Respondent, had water thrown on her by Linda Cosavage. Lucille's account of that incident follows. At 10 p.m. on July 26, 1973, just as her break period commenced, Lucille received a message to telephone her daughter. As Lucille was so telephoning by using a wall phone in the lunchroom Linda "came from the shop and then poured water on me." After completing the call Lucille returned to her job as her break had "practical- ly" finished. Soon an employee, Gladys, asked Lucille "if I was hurt or if everything was all right." Lucille replied, "Yes, but Linda poured water on me." Thereupon Gladys said , "I am going to relieve you, and you go call Bob [An- drews] about this incident." So Lucille narrated to Andrews what had just transpired and added that Linda had stared at her all day to induce her to sign a union card. She added, "I don't want to work under these circumstances." Directing Lucille to return to work Andrews promised to "take care of it." A short time later Andrews had Lucille "relate to foreman Jim Jones exactly what had happened," and she did On cross-examination Lucille testified that she did not see Linda throwing water on her, but assumed it was Linda The testimony of Robert Andrews, Respondent' s presi- dent, may be encapsulated as follows. On July 27, 1973, he observed "a very unruly mob [on the picket line.] They were riding horses ..., blocking trucks and cars, attempting to block all employees from entering or leaving." Further, he denied that he ever threatened "anybody during this cam- paign out there." And he denies he ever called Mrs. Jones, the wife of Supervisor James Jones, on the telephone. He also denied the statements attributed to him by the General Counsel's witnesses . But employees Linda Johnson, Gladys Haren, Lucille Lamm, and Brenda Ammons spoke to him about being "harassed ... and the pressure . . . being put on them to sign up for the Union." In early July 1973, Andrews discerned "that production dropped, and there was a lot of nonsense going on . . . [i.e.] Everytime I walked through the shop, I saw a group of two or three talking. . . . They were conducting their Union campaign." Further, Andrews testified that he warned em- ployees, including Linda Cosavage and Connie Harriman in the presence of Rose Amedeo, not to conduct union activi- ties or solicit membership on company time. Shortly after 10 p.m. on July 26, 1973, Lucille Lamm telephoned him at his home that Linda Cosavage had thrown water on Lamm and that "under no circumstances was she [Lamm] going to work under those conditions . . . Linda had been harassing her [Lamm]." Directing Lamm to return to work Andrews assured her he would look into it immediately. He arrived at the shop 10 minutes later and EMPIRE CORPORATION 633 obtained Lamm's account of the incident. He also "saw the water on the floor." Then he asked foreman Jim Jones to talk to Linda about it. Jim Jones did so and reported that Linda "denied it," but that he "couldn't discharge her or anything because the entire shift would walk out." There- upon Andrews discussed this situation with Vice President Denzinger. Following this Andrews instructed foreman Jones to discharge Linda, and Jones did so. Andrew's version of the altercation with Hennigin may be epitomized as follows. One of the employees called him outside to the parking lot claiming "some Union people wanted to see" him. When Andrews arrived there Hennigin identified himself to Andrews and, according to Andrews, Hennigin "tried to demand recognition for a union" while "too many people there . . . an angry mob . . . were shout- mg at" Andrews. "So I [Andrews] just completely ignored him and put my fingers in my ears and walked away .. . to enter the building. All the time Hennigin was shouting .... `Come here, come here."' As Andrews "grabbed the door" Hennigin kicked him in the stomach. Thereupon An- drews reached in his pocket, pulled out a "pencil tear gas cartridge, and pushed it in" Hennigm's face. "It was a liquid spray." Then Andrews called the sheriff. When Hennigin kicked him Andrews held on to the door knob, and this only fell "half way" into the building. Don- ald Ruegg, who was present at the time, observed the wran- gle. Soon Hennigin tried to kick Andrews again, but succeeded in kicking only the half open door behind which Andrews had taken shelter. Then Andrews again "squirted" the contents of another pencil tear gas cartridge in Hennigin's face. Andrews additionally denied that he committed the con- duct ascribed to him in paragraphs 26, 33, and 49 of the complaint. But he does admit he asked employee Rose Am- edeo about a list of names she obtained during working hours which was turned over to the Union. Rose replied that she was tricked by Connie and Linda into getting such names as they informed her said list was to be used for Fuller Brush sales work. Connie and Linda, according to Rose, gave the list to the Union. On cross-examination Andrews asserted that he de- termined that Linda Cosavage threw water on Lucille Lamm because Lucille so told him, that he personally saw water on the floor, and Lucille also told him over the phone and also when she later saw him she had been harassed by Linda. However, in his affidavit to the Board Andrews did not mention that Lucille had alluded over the telephone that she had been harassed by Linda. He also testified on cross that he believed Linda "was part of the Union campaign .... As far as I know, Linda Cosavage and Connie Ham- man were organizers for the Union"; and that he actually observed Linda hand a union card to employee Fran West- over. Finally, on cross Andrews testified that "there were some people in the lunch room" when the waterthrowing incident occurred, that foreman Jones spoke to them, and that "no one of them saw or heard anything at all. . . . no one knew anything about" said incident. Respondent's Vice President Jakob Denzinger, who had previously been called as a witness by the General Counsel, also testified for Respondent. His testimony in this latter capacity may be abridged as follows. He denied that he committed the acts ascribed to him in paragraphs 14-16, 18-22, 28-32, 34-35, 37-41, 44 45, 47-48, and 51-53 of the complaint. In addition, Denzinger denied that he discrimi- nated against any employee of the Company, or threatened, or promised anything to, any employee during the Union's campaign. And he denied that the accusations made against him by General Counsel's witness Glen Chaney was true. C. Concluding Findings and Discussion 1. As to the discharge of Linda Cosavage Upon an appraisal of the entire record I am convinced, and find, that Linda was discharged for union activity and that the reason assigned for such discharge, i.e., throwing water on Lamm, is a pretext to disguise the true reason. This ultimate finding is based upon the entire record and the following subsidiary findings which I hereby find as facts. a. Respondent displayed union animus. This in itself is inadequate to justify a finding that Respondent violated the Act, because Section 8(c) of the Act guarantees to an em- ployer freedom to be unalterably opposed to unions and to express such a sentiment to his employees. N.L.R.B. v. Con- solidated Diesel Eelctric Co., 469 F.2d 1016 (C.A. 4, 1972); N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4, 1962). And engaging in union activity is not a guarantee against being discharged for cause. P. G. Berland Paint City, Inc., 199 NLRB 927. Nevertheless an employer's dislike of unions communicated to his employees is a factor which may be evaluated, along with other pertinent evidence, in arriving at the actual cause of an employee's discharge. Maphis Chapman Corporation v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4, 1966). b. Linda was active on behalf of the Union and Respon- dent had knowledge thereof. "Obviously the discharge of a leading union advocate is a most effective method of under- mining a union organizational effort." N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965). In this connection I am aware that employers rarely divulge discriminatory motives when discharging protagonists of a union; but "such purpose may be shown by circumstantial evidence." Corrie Corporation v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4, 1967). "Nowadays it is usually a case of more subtlety.. . . " N.L.R.B. v. Neuhoff Brothers Packers, Inc., 375 F.2d 372, 374 (C.A. 5, 1967). Thus it is common for an employer to seize upon an employee's supposed misconduct without directing an impartial investigation thereof in order to justify a termination prompted by antiunion consider- ations. I find that the foregoing comments of the courts are applicable to Linda's discharge. c. In my opinion the evidence is speculative that Linda threw water on Lamm, since Lamm surmised it was Linda, notwithstanding other persons were in the room at the time. Further, I find that no impartial investigation of the inci- dent was made, as Andrews took Lamm's word that water was thrown upon Lamm and the investigation perfunctorily sought to ascertain why Linda threw such water. The investi- gation was not concerned with who threw the water. Failure to conduct a fair and impartial inquiry into an employee's supposed dereliction is evidence of_a discriminatory intent; and, when it is in the light of Respondent's hostility to the 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union on whose behalf the employee was active, is laden with significance. N.L.R B. v. Murray-Ohio Manufacturing Company, 358 F.2d 948, 950 (C.A. 6, 1966); Norfolk Tallow Co, Inc., 154 NLRB 1052, 1059 (1965). d. Linda was discharged during the height of the Union's campaign. While I recognize that this, without more, does not prove that no cause existed for the discharge (Cf. Miller Electric v. N.L.R B., 265 F.2d 225, 226-227 (C.A. 7), never- theless I find that this may be considered in determining the true motive for Linda's being terminated. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L R.B v. Montgomery Ward & Co Inc, 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829. e. Assuming valid grounds existed to dismiss Linda, it does not follow that she was lawfully discharged. This de- rives from the rule that the mere occurrence of valid reasons to discharge an employee is no defense to a charge that such termination was motivated in part upon a desire to discour- age union activity when such charge is supported by the evidence. N L.R.B. v. Murray-Ohio Manufacturing Compa- ny, supra, 950; N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964); Santa Rita Mining Company v. N.L R.B, 84 LRRM 2300 (C.A. 10, 1973). I find that Linda's alleged misfeasance "was seized upon by Respon- dent to serve a discriminatory purpose." N.L R B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6, 1964). I. Finally, in order to find Linda's discharge to have been discriminatorily motivated it is not necessary that her union activity be the sole element responsible for her being termi- nated. It is enough to establish that her discharge contra- vened the Act if her union activity was a motivating or substantial ground for her discharge notwithstanding that a valid ground may have arisen for invoking disciplinary mea- sures. N L.R.B. v. Murray-Ohio Manufacturing Company, supra, 1950; N.L.R.B v. Lexington Chair Company, 361 F.2d 283, 295 (C.A. 4, 1966). 1 expressly find that Linda's union activity played a substantial or motivating, but not neces- sarily the only, part leading to her discharge. In my opinion G. W Davis Corporation, 202 NLRB 204, does not require a different result. On this aspect of the case I credit Linda that foreman Jones told her, when he fired her that he "knew she did not do it," and that he was sorry to fire her as he "had to" after talking to president Andrews. 2. The demand for recognition The answer admits, and I find,, that the following em- ployees at Respondent's Akron, Ohio, facility, constitute a unit appropriate for the purposes of collective bargaining within the purview of Section 9(b) of the Act: All production and maintenance employees, including mold shop employees, but excluding designers, office clerical employees and professional employees, guards, and supervisors as defined in the Act. I also find that on July 26, 1973, there were 68 employees in the unit (see G.C. Exh. 2), that on that date the Union had obtained 35 signed authorization cards from employees in that unit (see G.C. Exh. 6-40), and that Hennigin on July 27, 1973, made a lawful demand upon Andrews for recogni- tion of the Union. Although Respondent has attacked some of the foregoing cards as invalid on the ground that they were improperly obtained, I find, crediting General Counsel' s witnesses Bit- tinger and Chrisman, and not crediting Respondent's evi- dence inconsistent therewith, that those who signed said few cards were not induced to do so by improper solicitations. It follows that I find all 35 cards are valid, and that they amount to a majority of those composing the unit aforesaid. The question remains as to whether Respondent is enti- tled to an election or whether, pursuant to N.L.R.B v. Gissel Packing Co., Inc., 395 U.S. 757, 610 (1969), et seq., the other unfair labor practices found elsewhere herein render the holding of a fair election unlikely. In my opinion a fair election can be had so that Respondent should not be obliged to recognize the Union solely on the basis of author- ization cards. This is because nearly all the card signers were in the court room during the trial as witnesses for the Gener- al Counsel and, judging from their friendly relation with and representation by the Union, I believe that Respondent's unfair labor practices will not influence their voting at an election conducted by the Board. Perhaps I should mention that I am not impressed by the Union's presenting its demands for recognition at midnight, although I do not base any findings on this fact. In my opinion an employer should receive a union's demands dur- ing the day and not at midnight. Nevertheless, I find that the Union's demand was valid and may not be questioned because of the inconvenient hour at which it was presented to Respondent's President Andrews. 3. As to other alleged 8(a)(1) violations Several incidents on this branch of the case were present- ed as part of the General Counsel's case. They are briefly discussed below. In making findings thereon I have credited the General Counsel's witnesses and have not credited Respondent's evidence not consonant therewith. a. President Andrews sprayed Hennigin with mace. I find this does not contravene the Act. b. Denzinger told Hennigin that two other employers had beaten the Union and he would use the same tactics to prevent Respondent from becoming unionized. This, I find, does not violate the Act. c. On July 20, 1973, Denzinger spoke to the assembled employees. I find that on this occasion all his remarks, except one, are protected by Section 8(c) of the Act. That one consists of a statement to said assembled employees that if the Union got in there would be no more smoking or use of the telephone, and ash trays would be taken away. This rises to the stature of a threat of reprisals prohibited by Section 8(a)(1) of the Act. d. Crediting Linda Cosavage, and not Denzinger, I find that on July 20, 1973, he asked Linda in the presence of Connie Hamman what they were trying to do by starting the Union, and that he had been informed she circulated a piece of paper containing names and addresses. Then he asked Linda to inform him of anyone who sought to join the Union. On July 23 he accused Linda of starting the Union. I find these statements contravene Section 8(a)(1) of the Act as they contain the properties of coercive interrogation. EMPIRE CORPORATION 635 e. On July 26 President Andrews told three employees, two' -of whom were Linda and Connie Hamman, that he knew that Linda and Connie started the Union and asked all three what was going on with the Union. This question is coercive and the statement creates the impression of un- lawful surveillance, both acts being prohibited by Section 8(a)(1) of the Act. He also threatened to fire them for engag- ing in union activities during company working time. This also violates said section of the Act because, as Respondent permitted nonunion activities to be conducted on company time, it was discriminatory not to extend this privilege to an employee's union activity during the same period. f. On July 26 Foreman Jones informed Connie Hamman not to have a break or lunch together with Linda. I find this is discriminatory retaliation for their union activity. On the same day President Andrews threatened to fire Connie and Linda if they talked on breaks or company time. Since other activity than unionism was allowed on company time, it was unlawful to deny this benefit to those aiding the Union. And of course it is illegal to prevent employees from talking during their nonworking breaks. g. All the employees mentioned in paragraph 13 of the complaint received a notice the language of which is recited in General Counsel's Exhibit 4. I find this constitutes a discharge of them, as none of them returned to work on the date requested. Since such employees were engaged in an unfair labor practices strike at the time, I further find that their discharge was unlawful under the provisions of Section 8(a)(1) of the Act. h. President Andrews on July 20, 1973, asked employee Joanne Gorman if she knew that "they were trying to get a union in the shop," and told her he felt she was "behind it." On July 24 he asked her if she had been contacted in anyway. His testimony contradicting this is not credited. I find his said questions and statement are coercive and there- fore contravene Section 8(a)(1) of the Act. i. Vice President Denzinger told employee Glen Chaney that Chaney would receive a raise in pay if Chaney did not join the Union. I find that this expression contains a prom- ise of benefit which contravenes Section 8(a)(1) of the Act. j. On July 20, 1973, Vice President Denzinger spoke to employee Janice Kirkbride as set forth above. I find his interrogation of her transcends permissible limits enumerat- ed in Section 8(c) of the Act, and, consequently, contra- venes Section 8(a)(1) of the Act. Further, I find that his statement to her that he would close the shop before he would let the Union in, constitutes a threat of reprisal pro- scribed by said Section 8(a)(1). On July 26, 1973, Denzinger asked Janice why she was wearing a union button; and he also told her he saw employ- ees coming out of the union hall and that he knew how many had gone there. The question is not unlawful; but the statement gives the impression of surveillance forbidden by Section 8(a)(1) of the Act, and I so find. k. On August 3, 1973, Denzinger told striking employee Rebecca Anderson that if she returned to work during the strike she would be paid $10,000. I find this is a promise of benefit which infringes Section 8(a)(1) of the Act. 1. On or about July 28, 1973, President Andrews in- formed striking employee Patricia Jones that, if she did not return to work by a certain date, she not only would be fired but would also be jeopardizing her husband's job as fore- man at the plant. The denial of said expressions by Andrews is not credited. I find that this statement contains a threat of reprisals not countenanced by Section 8(a)(1) of the Act. m. On July 25, 1973, Vice President Denzinger interro- gated employee Jean Oliver in a manner as set forth else- where herein. I find this is coercive and, therefore, contravenes Section 8(a)(1) of the Act. n. During the strike Vice President Denzinger told strik- ing employee Linda Martin he would hire her and a few others, but not certain others, if they would leave the picket line. I find this is a promise of benefit which is forbidden by Section 8(a)(1) of the Act. o. On July 27, 1973, President Andrews, told a group of strikers, one of whom was Russell Gorham, that he wanted everyone on the picket line fired. I do not credit the test of Andrews inconsistent with said finding. And I find that this utterance amounts to a threat of reprisal contrary to the provisions of Section 8(a)(1) of the Act. p. At the trial I ruled that the notice sent to the strikers constituted a discharge. This is warranted by N.L.R.B. v. Hilton Mobil Homes, 387 F.2d7 (C.A. 8, 1967). 4. The strike of July 28, 1973 Upon the evidence which I credit I find that certain of Respondent's employees struck on July 27, 1973, and that said strike was engaged in because Respondent (a) dis- charged Linda Cosavage and (b) refused to recognize Local No. 698. As found above, Linda's discharge constituted an unfair labor practice, so that said strike was an unfair labor practice strike. Patently strikers may not be terminated for participating in a protected strike; and, consequently, they are entitled to be reinstated when so discharged. Such reinstatement must be granted when the strike ends or, if a request to return to work is made during the strike, when such request is re- ceived by the employer. Hilton Mobil Homes, 155 NLRB 873, 875 (1965); 387 F.2d 7 (C.A. 8, 1967). I find that an unconditional written offer to return to work was made on August 17, 1973, by 25 of the iemployees on strike. See General Counsel's Exhibit 5 for said offer and the employ- ees subscribing thereto. Accordingly, I find that Respon- dent should have offered to rehire said employees on August 20, 1973, the next working day following August 17. As found above the Union enjoyed a majority when it demanded recognition but, under the peculiar circum- stances of this case, the Respondent was entitled to an elec- tion before it honored said demand. Nevertheless I find that to the extent that said strike also sought recognition, it was a protected strike, even though the employer may have law- fully insisted on an election. In any event I find that, inas- much as said strike in substantial part protested the discharge of Linda, it was an unfair labor practice strike regardless of whether the aspect of the strike for recognition did or did not partake of the unfair labor practice facet. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to compose unfair labor practice, occurring in 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connection with its operations as described in section 1, 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 obstruct- ing commerce and the free flow of commerce. V THE REMEDY As Respondent has been found to have engaged in cer- tain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and that it perform specific action, designated below , designed to effectuate the policies of the Act. As Respondent has been found to have unlawfully dis- charged Linda Cosavage and the 25 employees whose names are set out in General Counsel 's Exhibit 5 , 1 shall recommend that it be ordered to offer each of them immedi- ate and full reinstatement to his or her former position, or, if such is not available , one which is substantially equivalent thereto, without prejudice to the seniority and other rights and privileges of each . I shall also recommend that each be made whole for any loss of earnings suffered by each. In making whole said Linda Cosavage and the other 25 employees in General Counsel 's Exhibit 5, Respondent shall pay to each a sum of money equal to that which he or she would have earned as wages from the date an unconditional offer to return to work was received by it to the date of reinstatement or a proper offer of reinstatement, as the case may be, less his or her net earnings during such period. However, in making whole Linda Cosavage the backpay period shall commence on the date she was terminated. Such backpay, if any, is to be computed on a quarterly basis in the manner provided in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent per annum calculated according to the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, (1963). 1 shall also recommend that Respondent preserve and make avail- able to the Board of its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay, if any, may be due. Finally, I shall recommend that Respondent post appropriate no- tices. The unfair labor practices found herein go "to the very heart of the Act." N.L.R.B. v Entwhistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Consequently, the Board's Order should be comprehensive enough to prevent further infrac- tion of the Act by Respondent in any manner . Cf. R. & R. Screen Engraving, Inc., 151 NLRB 1579, 1587, (1965). I shall so recommend. Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following: ` CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Sec- tion 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By discriminating in regard to the tenure of employ- ment of Linda Cosavage, thereby discouraging membership in the Union, a labor organization, Respondent has engaged in an unfair labor practice condemned by Section 8(a)(3) and (I) of the Act. 4. By discharging the 25 striking employees whose names are set out in General Counsel's Exhibit 5, and by refusing to rehire them upon their unconditional offer to return to work, Respondent has engaged in unfair labor practices within the purview of Section 8(a)(1) of the Act. 5. The strike which commenced on or about July 27, 1973, was at all times material herein an unfair labor prac- tice strike. 6. All production and maintenance employees of Re- spondent employed at its Akron , Ohio, facility, including mold shop employees, but excluding designers , office cleri- cal employees, professional employees, guards, and supervi- sors 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. 7. Under the circumstances of this case Respondent need not recognize the Union unless and until the latter demon- strates its majority in an election held pursuant to Section 9 of the Act. 8. By engaging in the conduct set forth in this paragraph Respondent has committed unfair labor practices forbidden by Section 8(a)(1) of the Act. (a) Coercively interrogating employees regarding their and other employees' union membership, desires, and activ- ities. (b) Threatening employees that they would be deprived of benefits, such as smoking, using the telephone, and being supplied with ash trays, if the Union got in. (c) Creating the impression of engaging in surveillance of the union's activity and employees' activity on behalf of the Union. (d) Threatening to discharge employees for being in- volved in activity for the Union during working time while countenancing nonunion activity during such time. (e) Denying prounion employees the right to have a break or lunch together or to talk to each other during their breaks. (f) Promising benefits , including increased wages, to em- ployees if they did notjoin the Union or if they returned to work during the strike. (g) Threatening to close the shop if the Union got in. (h) Threatening to discharge striking employees or dis- criminate against them _ and their relatives employed by Re- spondent unless said strikers returned to work during the strike. (i) Threatening to discharge employees 'serving on a law- ful picket line at its plant. 9. The above recounted unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 10. Respondent has not committed any other unfair la- bor practices alleged in the complaint. [Recommended Order omitted from publication.]