Armcor Industries, Inc.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Armcor Industries, Inc. and Michael A. Rossi and United Electrical, Radio and Machine Workers of America (UE). Cases 6-CA-7532'and 6-CA-7539 April 11, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 9, 1974, Administrative Law Judge Robert Cohn issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Charging Party United Electri- cal, Radio and Machine Workers of America (UE) filed cross-exceptions and a supporting brief, and the Gen- eral Counsel filed exceptions to the Administrative Law Judge's Decision and a supporting brief. 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 Ad- ministrative Law Judge's Decision in light of the excep- tions and briefs and has decided to affirm the rulings,' findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order as modified herein. Although the Administrative Law Judge found that the Company violated Section 8(a)(3) by discharging Michael Rossi on May 30, 1974, he concluded that the discharge of Wayne Burns on that date and for the same,assigned reasons was legitimately motivated and hence not unlawful. In explaining the basis for this conclusion, the Administrative Law Judge noted that Bums, unlike Rossi, was not a prominent union activist and there was no evidence that the Company suspected or knew that Bums had participated in any union activities.' Moreover, the Administrative Law Judge characterized Bums' work record as "dismal" and stated his conviction that Bums would have been dis- charged at the end of his 30-day new-employee proba- tionary period in April save for the forbearance of his supervisor, Joe DeLaquil. The Administrative Law Judge also rejected the General Counsel's contention that the Company terminated Bums in order to give an aura of legitimacy to its discharge of Rossi, the leading union proponent and the real target of the Company's animosity. In this regard, the Administrative Law Judge apparently interpreted Board law as necessitat- I The Respondent excepted to the refusal of the Administrative Law Judge to grant its motion to correct the record with respect to the hiring date of employee Robert Marcoline The Board finds merit in this exception and hereby corrects the record to reflect employee Marcoline's actual date of hue. 2 In fact the record shows that Bums attended the initial union meeting 2 days before his discharge and signed a union authorization card ing a finding that two employees be "so linked together in terms of a fraternal as well as a job relationship as to be considered one." We think the Administrative Law Judge's reasoning with respect to the discharge of Bums is faulty and we find Burns' termination on May 30 violative of Section 8(a)(3) of the Act. In the first place, we note that Bums' job performance was not one of the reasons given by the Company on May 30 for terminating him.3 Rather, the Company maintained that it had to reduce its work force by two employees because of a' lack of available work, and that Burns and Rossi were selected for what the Company termed an "indefinite lay-off' because they were not sufficiently versatile, and because they had the least seniority.' The record reveals, however, that the Company began hiring within 10 days after the discharges, and within 90 days had hired 21 new em- ployees. Moreover, although Burns and Rossi were the two employees primarily assigned to the assembly of double windows, examination of the work records of both employees reveals that, contrary to the contention of the Company, they were assigned and performed a variety of tasks in the plant. Finally, we reject as too restrictive the Administra- tive Law Judge's analysis of the Board's decision in Seaway Broadcasting Company, Inc. d/b/a WMPP, 198 NLRB 496 (1972), and similar cases involving an employer's termination of an employee as part of an effort to camouflage the discriminatory discharge of a known union activist. Although it is often the case that the employees discharged are closely associated, it is not a sine qua non that they be so fraternally linked "as to be considered one." All that is required is a finding that the discharge of the one was undertaken in the attempt to validate or vindicate the discharge of the other. See Phillips Manufacturing Company, 148 NLRB 1420 (1964); Superex Drugs, Inc., 143 NLRB 110 (1963). On the record in the instant case we are satisfied that the Company discharged Burns, who with Rossi was primarily assigned to the assembly of double windows, in order to strengthen its contention that it was moti- vated solely by legitimate business reasons and not by the desire to rid itself of a union proponent. Accord- ingly, we find that the Company violated Section 3 Even had the Company done so, we have serious doubts that such an explanation would withstand scrutiny. Although Burns had received several warnings, the last of these was on April 16; thereafter, he and Foreman DeLaquil reached an understanding that they would "start all over again" with a clean slate, and Bums was retained at the end of his 30-day probation- ary period. Between April 16 and May 30, no new warning slips were entered in Bums' file a The Company later acknowledged that several female employees had less seniority but asserted that Burns and Rossi were the least senior "male" employees, and that female employees were retained because of their al- leged "greater versatility." 217 NLRB No. 59 ARMCOR INDUSTRIES, INC 8(a)(3) by discharging employee Wayne Burns on May 30, 1974. CONCLUSIONS OF LAW 1. Respondent 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. By terminating the employment of Michael A. Rossi and Wayne Burns on May 30, to discourage membership in the Union , the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By coercively interrogating employees concerning their union sympathies and activities ; by threatening employees with economic reprisals, including closing of the business if the employees supported the Union; by creating the impression of surveillance of their union activities; by encouraging union activity among its em- ployees on behalf of a rival labor organization; and by promising employees benefits if they refrained from engaging in union activities , the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain afffirmative action in order to effectuate the policies of the Act. We have found that on or about May 28, and at all times thereafter, a majority of the Respondent's em- ployees in an appropriate unit signed authorization cards designating the Union as their representative for purposes of collective bargaining . Thereafter, the Re- spondent, by its agents and supervisors, engaged in acts and conduct of an extensive and egregious nature, in- cluding discriminatory discharges , all of which was designed to interrupt, thwart, and destroy the em- ployees' support of the Union , and make the holding of a fair election impossible. We therefore find that the circumstances of this case require a bargaining order as the only appropriate remedy for the Respondent's mis- conduct. Having found that the Respondent discriminated against Michael A. Rossi and Wayne Burns in the man- ner set forth above, we shall order that the Respondent offer them immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seni- 359 ority or other rights and privileges , and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. Backpay shall be computed in accordance with the formula pre- scribed by the Board in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The serious and pervasive nature of the unfair labor practices committed, including discriminatory termi- nations, indicate hostility to the purposes of the Act. We shall therefore order that the Respondent cease and desist from in any manner infringing upon the rights guaranteed its employees by Section 7 of the Act. Ent- wistle Manufacturing Company, 23 NLRB 1058 (1940), enfd. as modified 120 F.2d 532 (C.A. 4, 1941). ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that Respondent , Armcor Industries, Inc., Murrysville, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to Michael A. Rossi and Wayne Bums immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they suffered by reason of their dis- criminatory terminations, in the manner set forth in the section entitled `The Remedy."' 2. Insert the following as paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(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." 3. Substitute the attached notice for that of the Ad- ministrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had opportunity to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, and -has ordered us to post this notice and abide by the following: WE WILL NOT unlawfully interrogate employees with respect to their union activities and desires. WE WILL NOT threaten- employees with reprisals if they engage in union activities. WE WILL NOT promise benefits to employees if they refrain from engaging in union activities. WE WILL NOT give the impression to our em- ployees that we are surveilling or spying upon their union activities. WE WILL NOT discourage membership in United Electrical, Radio and Machine Workers of America (UE), or any other labor organization, by discriminating against our employees in regard to hire or tenure of employment or any other term or condition of employment. WE WILL NOT give assistance to or support a rival labor organization of the above-named Union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL offer to Michael'A. Rossi and Wayne Bums immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privi- leges, and WE WILL make them whole for any loss of pay they suffered by reason of their discrimina- tory terminations. WE WILL, upon request, bargain collectively with the above-named Union respecting rates of pay, wages, hours, or other terms and conditions of employment as the exclusive representative of our employees in the following bargaining unit: All production and maintenance employees of the Respondent, employed at its Murrysville, Pennsylvania, plant; excluding all other em- ployees, office clerical employees and guards, professional employees and supervisors as de- fined in the Act. ARMCOR INDUSTRIES, INC DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This con- solidated proceeding, held pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), was heard at Pittsburgh, Pennsylvania, on September 11 and 12, 1974,' pursuant to due notice. The amended con- solidated complaint, issued August 20, by the General Coun- ' All dates hereinafter refer to the calendar year 1974, unless otherwise indicated. sel of the National Labor Relations Board, through the Re- gional Director for Region 6, alleges, in substance, that Armcor Industries, Inc. (herein the Respondent or Com- pany) violated Section 8(a)(1) and (3) of the Act through acts and conduct of its agents and supervisors more fully detailed hereinafter.' By its duly filed answer, the Respondent admitted the jurisdictional allegations of the complaint, and also admitted that certain named personnel were supervisors within the meaning of Section 2(11) of the Act; however, it denied that certain other personnel were supervisors, and generally de- nied the commission of any unfair labor practices. Subsequent to the trial of the case, counsel for the General Counsel and counsel for the Respondent filed helpful, post- hearing briefs, which have been duly considered.' Upon the entire record in the case, including my observa- tion of the demeanor of the witnesses,' I make the follow- ing: FINDINGS AND CONCLUSIONS' I THE ALLEGED UNFAIR LA13OR PRACTICES A. Background and Setting of the Issues The Respondent, a Pennsylvania corporation, with its principal offices located in Murrysville, Pennsylvania, is en- gaged in the nonretail sale and distribution of windows: It appears that it receives the various component parts at its Murrysville plant and there fabricates and assembles the win- 2 The several charges giving rise to the complaint were filed by Michael A Rossi on May 31 (amended July 30) and by United Electrical, Radio and Machine Workers of America (UE) on June 4 (amended July 30) 3 Concomitantly with the filing of its brief, Respondent filed a "Motion to Open and Amend Record " The essence of such motion is that, subse- quent the close of the hearing, counsel for Respondent discovered a "clerical error" on a list of employees (prepared by Respondent prior to the hearing pursuant to a subpoena from the General Counsel) which was introduced in the record as G.C Exh. 2. The significance of the list relates to the date of hire of employees, i.e , a seniority list Through its motion, Respondent would seek to show that the date of hire of one employee (Robert Marco- line) should read earlier than stated on the exhibit since he had worked for the Company previously, and was on an "educational leave of absence" for 4 months prior to the date of hire as shown on the exhibit Counsel for General Counsel filed an opposition to Respondent's motion on the ground that the evidence which Respondent proffered was neither newly discovered nor not available at the time of the hearing, and cited Board precedent in support of his position. In view of such opposition, and since the evidentiary matter sought to be introduced into the record by the Respondent was within the knowledge of Respondent prior to and during the hearing, it cannot be said that, in that sense, such matter was "either newly discovered or previously unavailable " Accordingly I shall deny the motion of Respondent See Bricklayers, etc. Union (Shelby Marble and Tile Company), 191 NLRB 231 (1971); General Mercantile & hardware Com- pany, 191 NLRB 20, fn. 1 (1971); Williams Brothers, 126 NLRB 388, fn 1, and cases cited (1960), see also Rules and Regulations of the National Labor Relations Board , Series 8, as amended, Sec. 102.48 (d)(1) 4 Cf Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161 (1966) 5 There is no issue as to the Board's jurisdiction or the status of the Charging 'Union as a labor organization. The complaint alleges sufficient facts respecting direct inflow and direct outflow of goods into and out of the Commonwealth of Pennsylvania, which are admitted by the answer, upon which I may, and do hereby, find that the Respondent is engaged in com- merce within the meaning of Sec. 2(6) and (7) of the Act, and that United Electrical, Radio and Machine Workers of American (UE), herein the Union or UE, is a labor organization within the meaning of Sec 2 (5) of the Act. ARMCOR INDUSTRIES, INC. dows; it subsequently ships them to customers who are primarily contractors in the building industry. In May, the Respondent employed approximately 23 production and maintenance employees at its plant, which work force in- cluded both persons of male and female gender. At all times pr[or thereto, none of the employees had ever been repre- sented for the purposes of collective bargaining by a labor organization-6 Following a discussion of the need for union representation among some of the employees, employee Michael Rossi, on or about May 23, contacted Ron Baldasseroni, a representa- tive of the Union, and requested information respecting what should be done in the circumstances. Baldasseroni told Rossi to set up a meeting among the interested employees, and Rossi complied. On Tuesday evening, May 28, a meeting was held at a local athletic club at which Baldasseroni attended along with 15 employees of the Company. At the meeting, Baldasser`oni was introduced to the employees by Rossi, and the former explained to the employees the asserted advan- tages of belonging to the Union. Following that, he passed out union authorization cards for the employees' signature, ex- plaining that if the Union had a majority of the employees, it would request recognition from the employer; if the em- ployer refused, the Union would file for an election. Accord- ing to the testimony of Rossi, the employees indicated their support of the Union by raising their hands and by signing authorization cards.' Rossi also secured from Baldasserom a few blank authon- zaltion cards for the purpose of soliciting employees who were unable or unwilling to attend the meeting. Accordingly, on May 29, Rossi solicited, and secured signed authorization cards from four additional employees (making a total of 19). Rossi also testified that on May 29 he approached Gary DeLaquil, the son of the president of the Company, but the latter later handed the card back unsigned telling Rossi that he (DeLaquil) "was mad because he was not informed of the meeting." B. Alleged Interference, Restraint, and Coercion 1. By Jack Fabean On the morning of the following day, May 30, Rossi had a conversation with Jack Fabean, vice president of manufac- turing for the Respondent, outside of the men's restroom. According to Rossi's testimony, Fabean put his arm around Rossi's shoulder and asked whether "he got all the cards back." Rossi responded that he received quite a few-"enough." But Fabean persisted-"how many?" Rossi refused to tell him. Whereupon Fabean observed that all the employees had to do was to come into the office and discuss the matter with management, and they would have been given what they wanted.' I find that the questions and state- 6 The plant had only been in operation since sometime in 1973 1 The signed authorization cards were received in evidence at the hearing, the legend on the card states: I hereby request and accept membership in the above named Union (UE), and authorize it to represent me, and in my behalf to negotiate and conclude all agreements as to hours of labor, wages, and all other conditions of employment. 361 ments of Fabean on this occasion constitute not only coercive interrogation of an employee concerning union activities but also create an impression among employees that their union activities were being kept under surveillance, and the implied promise of benefits to employees in return for foregoing the Union, all' in violation of Section 8(a)(1) of the Act. On the morning of May 28, an employee (whose name does not appear on the record) inquired of employee Richard Po- well whether the latter was going to the home of Mike Rossi that night. Powell replied that he did not know anything was happening that night; whereupon the employee stated that if Powell did not know, to forget it. However, this exchange obviously aroused Powell's curiosity, and at breaktime he asked Rossi what was going on . Rossi then told him about the union meeting that was planned for that evening. , Later in the afternoon that day, Fabean inquired of Powell if the latter had anything important to do that night. Powell replied that he had a date with his girlfriend . Fabean inquired where the meeting was that night, Powell did not respond.' I find that the foregoing inquiry by Fabean re- garding a subject matter which both participants knew to be a union meeting, constituted coercive interrogation in viola- tion of Section 8(a)(1) of the Act. In the late afternoon on May 28, Jack Fabean interrogated another employee, Dennis Wilson, at the latter's work sta- tion, as to the whereabouts of the union meeting that evening. Wilson feigned lack of knowledge of such meeting. Fabean then stated that any employees that wanted a union were crazy, and that if they had any problems they should go to the manager and work them out. I find the foregoing interrogation, based upon the credited testimony of Wilson, to be coercive and therefore violative of Section 8(a)(1) of the Act. On the morning of May 30, employees Rossi, Wilson, Po- well, and a few others were sitting in the lunchroom discuss- ing the Union when Fabean came in. He remarked that he could hear everything they were saying because "the walls are paper thin." I find the foregoing statement, based upon the credited testimony of the named employees, to constitute an impression of surveillance violative of Section 8(a)(1) of the Act. 8 Fabean's recollection of the conversation is somewhat at variance with that of Rossi. According to Fabean, he told Rossi that "your secret is no longer a secret, it is out in the open-you can do your thing " I am inclined to credit Rossi who impressed me as a candid and truthful witness Aside from demeanor considerations, Fabean was, not impressive because, al- though he acknowledged knowledge of the union movement in the plant through a prior conversation with employee Kovacs, Fabean was obviously reluctant to testify as to his knowledge of the extent of such union activities and was unable to explain why he made the asserted statement to Rossi if he was unaware of Rossi's preeminence in the union campaign. 9 The foregoing findings are based upon the credited testimony of Powell. Fabean denied any conversation with Powell or any other employee at the plant between the hours of 9 a.m and 4 p.m on May 28, 29, and 30 This because he was out of the plant inspecting the Company's products being installed in a housing project However, he admitted being in the plant during the early working hours and in late afternoon. I note that the exact time of the foregoing conversation was not elicited in the record, and, in any event, I credit Powell who was impressive as a witness and who, the record shows, was employed by Respondent at the time of the hearing. See Georgia Rug Mill, 131 NLRB 1304, 1035, fn. 2 (1961), enfd. as modified 308 F.2d 89 (C.A. 5, 1962); Astrosystems, Inc., 203 NLRB 49 (1973); Federal Enve- lope Company, 147 NLRB 1030, 1 1 036 (1964). 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In early June-about a week following the union meeting on May 28-Jack Fabean approached employee Patricia Chicka at her work station and stated that he did not know why "`you kids want a union," and then walked away. Fabean did not deny this conversation, and counsel for the General Counsel in his brief, urges that such a statement goes "beyond the permissible limits of the speech protected by Section 8(c) [of the Act]. I disagree. The utterance of Fabean on this occasion was not interrogation and the matter stated cer- tainly did not rise to the status of a threat or intimidation, in my view. Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges a violation of Section 8(a)(1) as to this incident. 2. By Pat DeLaquil Mr. Pat DeLaquil is president of the Company and the record shows that he takes an active participation in its day- to-day operations. About noontime on May 31, union organ- izer Baldasseroni, in company with several of the employees of the Company, approached DeLaquil in the plant and re- ques ted recognition of the Union as the employees' collective- barg aining representative. DeLaquil refused and later told a group of employees that he did not want Baldasseroni on the Company's property again. It had been the Company's practice since April to have a "Pizza Night" one evening a month. On this occasion the Company would provide food and drink for the employees after work, and there the employees would be given the op- portlunity to express their complaints or grievances to the management. A "Pizza Night" was scheduled and held at the Company premises on May 31. At that time, DeLaquil made a short speech in which he advised the employees that he was aware of their attempt to organize a union and that he did not particularly oppose such activities except that he did not like the UE and "would fight it all the way."10 He recited the history of UE, stating that in its early days it had been af- filiated with the Communist Party and that it was no longer affiliated with the AFL-CIO. DeLaquil observed that be- cause the Company's business was intimately associated with the building and construction industry, he would prefer that the employees' union be affiliated with the AFL-CIO." During his speech, DeLaquil referred to a profit-sharing plan which he had been thinking about and preparing. He then stated that it could not be put into effect if the UE was brought in.12 I find the foregoing statements of DeLaquil to constitute threats of retribution and loss of benefits to the employees if they selected the Union as their collective-bargaining repre- sentative. I also find the statement regarding the profit-shar- ing plan to constitute an implied promise of benefit should the employees reject the Union, all in violation of Section 8(a)(1) of the Act.13 10 Credited testimony of Elaine Hohman. 11 Along these same lines, Mike Arbetter, an admitted supervisor, spoke to the employees concerning the strikes and other labor problems which the UE had caused at another company in the vicinity, and that the employees could expect similar consequences if they brought the UE into the com- pany's plant. 12 Credited testimony of Elaine Hohman De]Laquil admitted that he stated that "if the Union came in, this type of thing [the profit-sharing plan] would not be possible " On May 31, in the afternoon, at the work station of Elaine Seiler, a conversation took place between President Pat DeLaquil and Ms. Seiler in which DeLaquil inquired why she wanted a union. She responded "for job security and higher pay." DeLaquil replied that there was "no way [employees] could get higher pay-the doors would have to close first," and he was disappointed "that [employees] didn't go to him first." DeLaquil also mentioned "something about Elaine Hohman, that if they were to fire anybody because of the Union it would be her." He also advised that the em- ployees of the Company had "everything the Season-All [employees] had in their contract plus two additional paid holidays."" I find the interrogation, taking place as it did without justifiable purpose and lack of assurances against recrimination, to be coercive within the meaning of Section 8(a)(1) of the Act.15 I further find his statement concerning possible closure of the plant to be a threat and not a mere prediction of possible economic consequences-that if the employees pursued the exercise of their organizational rights they would be without jobs. At best, such a statement con- notes the futility to the employees of continued exercise of their Section 7 rights, and therefore is violative of Section 8(a)(l) of the Act. Employee Mitch Persin also testified that he had a conver- sation with President DeLaquil on the afternoon of May 31, near his work station. DeLaquil inquired why he wanted the Union. Persin responded that it was not so much the money as it was job security and "better management on the floor." DeLaquil advised that the employees should have seen him first in order to get "things straightened out."16 Again, for the reasons expressed in the case of Elaine Seiler, above, I find the interrogation of DeLaquil on this occasion to be coercive and therefore violative of Section 8(a)(1) of the Act. 3. By Al Biro Employee Debbie Hohman (Carver) testified that on the morning of May 28, Al Biro, Respondent's chief engineer, came to her work station and asked where the meeting was and stated something to the effect that he thought she was on the "Company's side." Carver testified that she did not re- spond. Biro could not recall any conversation with Carver on May 28 but acknowledged that on the afternoon of May 31 he was advised that there was a union meeting to take place after work that day which was scheduled, apparently, about the same time of the Company's Pizza Party.- He asked sev- eral employees whether they were going to the union meeting or the Company's party and voiced the opinion that it was their obligation to come to the Company's party first and have the union meeting afterwards, since the former had been scheduled first: 13 See GraberManufacturing Company, 158 NLRB 244 (1966), enfd. 382 F.2d 990 (C.A 7, 1967) 14 The foregoing findings are based on the credited testimony of Seiler, who was impressive as a witness. DeLaquil testified that he could not "re- call" any conversation with Seiler on the afternoon of May 31. "Season-All" refers to a company with which DeLaquil was previously associated, and which is engaged in substantially the same business as Re- spondent. 15 See N.L.R.B v. Cameo, Inc., 340 F 2d 803 (C.A 5, 1965) 16 The above findings are based upon the credited testimony of Persin. DeLaquil did not recall any conversation with that employee on May 31 ARMCOR INDUSTRIES, INC. I am inclined to credit Biro's version of this conversation since there is no evidence that on the morning of May 28 Carver had engaged in any union activities which would have prompted Biro to make the statement attributed to him. I shall therefore recommend that this allegation of the com- plaint be dismissed. The complaint alleges that the Respondent violated Sec- tion 8(a)(1) of the Act by "encouraging union activity among its employees on behalf of a rival labor organization," through President Pat DeLaquil. The evidence shows that prior to his employment with Respondent, DeLaquil was vice president of the Season-All Company (above referred to) which had a collective-bargaining contract with the Interna- tional Union of Electrical Workers, AFL-CIO (IUE). DeLa- quil acknowledged that during that period he became friendly with Charles Copeland, a representative of the IUE, who presumably serviced the contract at Season-All. The evidence further shows that, when weather permits, employees of the Respondent who wish to do so eat their lunches outside the plant. On May 30, some of the employees including Michael Rossi, Mitch Persin, Dennis Wilson, Rick Powell, and Wayne Burns were eating lunch when a man approached and identified himself as Charles Copeland. The latter went up to Rossi and said "you must be Mike," and further observed that he (Copeland) "was from the IUE and that somebody in the office called [him] and told [him] that you were in need of a union her Rossi responded affirmatively-that the employees were in need of a union but that they already had one that they believed they wanted, and named the UE. Cope- land then explained that in 1947 the two unions used to be one, but that the IUE split from the UE because the latter was "communist affiliated." During the conversation Rossi called Gary DeLaquil, a son of Pat DeLaquil and an employee in the plant, over to the group and asked him what he thought about the situation. Gary DeLaquil replied that he thought that the Union repre- sented by Mr. Copeland was "better." The following evening, at the Pizza Night festivity, Pat DeLaquil acknowledged to the employees that he knew Copeland from being associated with him at Season-All, and that he had seen Copeland on several occasions prior to May 30 wherein Copeland wanted to know whether the Company was ready to be organized; however, DeLaquil denied that he had directed Copeland to come to the company premises the previous day. Viewing the record as a whole, I am convinced, and there- fore find, that the evidence sustains the contentions of the General Counsel on this allegation. Thus the opposition of DeLaquil to the UE is established, as well as his preference for a union affiliated with the AFL-CIO. He was friendly with Copeland for many years and when he learned of the support for UE among the Company's employees, it is rea- sonable to infer that he would call upon Copeland. That Copeland had previous knowledge of the union activities among the employees-and, moreover, the name of the leader thereof-is evidenced by the uncontradicted testimony of Rossi. All of the foregoing, taken with the timing of the incident on the heels of the employees' organizational activi- ties on behalf of the UE, convince me, as above stated, that 17 Testimony of Rossi. Copeland was not called as a witness at the trial. 363 the Respondent instigated the appearance of the IUE on the scene, and therefore interfered with, restrained, and coerced its employees in the selection of a collective-bargaining repre- sentative, all in violation of Section 8(a)(1) of the Act." II. THE ALLEGED DISCRIMINATORY TERMINATION OF MICHAEL ROSSI AND WAYNE BURNS Rossi and Burns were terminated by the Respondent at the end of the work day on Thursday, May 30. The record shows that, at that time, Rossi and Burns were summoned into the office of Plant Manager Kyle. There they were first handed their checks and then told by Kyle that they were being laid off because of lack of work and because they were the least senior male employees there. Kyle also mentioned that they either were unable to-or would not perform other work in the plant such as the operation of machines or the forklift truck (they were performing the work of final assembly of the windows during the period immediately preceding their ter- mination). Neither of the men responded to Kyle, but took their checks and left.19 Respondent's, defense is that the two men were terminated both because of lack of work for them, and, additionally, because of their lack of versatility (or incompetency in the case of Burns) as employees. In support of the first conten- tion, Respondent showed that for a period of several months prior of the termination, the principal production in the plant was devoted to the making of windows for a housing develop- ment constructed by the Beaver County Housing Authority. It was further shown that during the last several weeks prior to the termination, as that job was being completed, some employees were required to perform "make work" jobs for some periods during the work day. Accordingly, on either May 28 or 29, President Pat DeLaquil and Plant Manager Kyle discussed the matter and decided that a layoff of several employees was necessary, and Kyle determined that the lay- off should occur in the assembling unit since, as pointed out above, the Beaver job was coming to an end and the two men (Rossi and Burns) were not sufficiently versatile to perform other jobs. Kyle also testified that based upon his observation from being on the plant floor, he was aware that Burns could not operate the cutting saw and that the two men had a poor attitude or reluctance to take on other jobs. Kyle also pointed to some problems between Burns and his foreman Joe DeLa- quil in which Kyle became involved because Burns had com- plained to him about the treatment Burns was receiving from Joe DeLaquil.20 On the other hand, there is only one file memorandum by Joe DeLaquil as respects Michael Rossi. This is dated April 5, and alludes to Rossi's "bad work habits, lack of versatility, 18 An allegation of the complaint dealing with independent 8(a)(1) activ- ity as respects Mike Arbetter, a company supervisor, on May 31, (Pizza Night) was discussed supra I find such statements, although antithetical to the aspirations of a majority of the employees, did not rise to the stature of the threats in violation of Sec. 8(a)(1) of the Act. 19 Testimony of Rossi and Bums, which is, in essence, corroborated by that of Kyle. 20 Thus the record shows that during the month of April Joe DeLaquil repeatedly warned Burns about poor work habits which resulted in produc- tion losses to the extent that on April 22 he directed a memorandum to Kyle suggesting that some "disposition" be made of Burns. Kyle told DeLaquil to use his own judgment, and, apparently, DeLaquil retained Bums at that time only because he (Burns) had a new baby in his house. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actual refusal to work on other jobs such as saws [and] repeat- edly warned about leaving his work station which resulted in low productivity." However, in his testimony at the trial, Joe DeLaquil (who had great difficulty in responding directly to questions) acknowledged that Rossi never refused to work on the saws or any otherjobs-he merely did not like to perform the other work. I also note that, unlike the memoranda pre- pared by Joe DeLaquil with respect to Wayne Burns, the memorandum for Rossi was not entitled a "verbal warning."" Analysis and Concluding Findings as to Rossi and Bums As previously set forth, the record shows that Rossi was the prime instigator of the union movement at the plant, and that this fact became known to the officers of Respondent prior to the termination. This is reasonably inferable from the statements made to Rossi by Jack Fabean and by the fact that Copeland was directed to Rossi as the employee to contact respecting-the organization of a union.22 The record further shows the great antipathy of the Respondent to the organiza- tional efforts of the employees-particularly on behalf of the UE. The terminations of these two employees, following im- mediately on the heels of the foregoing events, constitutes, in my judgment, a prima facie case of discrimination requiring the Respondent to come forward with competent, credible evidence tending to establish that the employer "was moti- vated by legitimate objectives since proof of motivation, is most accessible to him."23 I am convinced that Respondent met this standard as re- spects Burns. In the first place, there is little or no evidence that Respondent was aware that Burns had participated in any union activities; indeed, his only'participation in this regard was the signing of a union card at the Union meeting on May 28. But even assuming such knowledge , Burns' work record for the short time of his employment was dismal, and I am convinced that he would have been terminated at the end of April had not Joe DeLaquil had pity upon him because of the new addition to his family. I shall therefore recommend that the complaint as to Burns be dismissed.24 21 See Resp. Exhs 2-8. 22 Although Respondent argues that the evidence does not support a finding that the supervisors responsible for the termination had prior knowl- edge of Rossi's union activities, the knowledge of Fabean is imputable to the Respondent See Warren Chateau Hall Inc., 214 NLRB No. 55 (1974), The Bama Company, 145 NLRB 1141, 1152 (1964) In any event, Fabean ad- mitted discussing the Union with Pat DeLaquil after he (Fabean) learned of the union campaign, but prior to Rossi's termination 23 NL.R.B. v Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967), Standard Container Company, 171 NLRB 433 (1971), enfd 428 F 2d 793 (C A 5, 1970); Central Press of California, 210 NLRB 765 (1974). 24 Counsel for the General Counsel, doubtless recognizing the weakness of Bums' case, argues that Respondent terminated him at the same time as Rossi in order to lend an air of legitimacy to the situation That is, General Counsel contends that Respondent recognized its vulnerability if it only terminated the leader of the union movement , therefore, it also laid off an employee not known to be so active so as to becloud the issue. In support of such contention, he cites, the recent case of Seaway Broadcasting Com- pany, Inc., d/b/a WMPP, 198' NLRB 496 (1972) However, that case is distinguishable on its facts since the Board there found that the two em- ployees were so linked together in terms of a fraternal as well as a job relationship as to be considered one. No such evidence of linkage existed in this case; accordingly, I find there is a lack of substantial evidence on the On the other hand, the reasons proffered by the Respond- ent in support of its defense of Rossi's termination25 do not withstand scrutiny. Thus, unlike Burns, the record does not support Respondent's contention that Rossi was an unsatis- factory employee. There had been no derogatory comments concerning his work performance for almost 2 months prior to his termination, and even that memorandum was not denominated as a "warning." Moreover, the record does not disclose that Joe DaLaquil even discussed any such delin- quencies with Rossi. While it may be true that Rossi did not like to work on the saws or drive a truck, Joe DeLaquil admitted that he never refused to perform such work. To the contrary, his production record indicates that from time to time he "loaded material, handled material, loaded and un- loaded trucks, painted carts, etc."26 It is true, as the Respondent argues, that at the exit inter- view neither Rossi nor Burns requested that they be placed on other work. However, they were not given that prerogative by Kyle; rather, they were presented with the layoff as a fait accompli. Under such circumstances, the two men probably considered it a futile gesture to demand or even request other work. In addition, I have considered, as bearing on the issue of discrimination, the timing of the discharge, coming only two days after Rossi had arranged the union meeting in which a majority of the employees had signed union cards, and prior to the end of a payroll period. Such timing, it has been held, is strong evidence of discriminatory motive.27 Moreover, I have considered that Rossi was not in fact the least senior male employee; the record (G.C. Exh. 2) reflects that Robert Marcoline was hired subsequent to Rossi. Finally, I have considered the testimony of James Johnson, a former employee of Respondent, who related, in substance, that several months prior to his termination, Jack Fabean advised him that two of Johnson's friends had been ter- minated because they were "troublemakers" i.e., talking about getting a union in." Although this was denied by Fa- bean and it is possible that Johnson may have harbored some animosity against the Company because it discharged and refused to rehire him, he did not impress me as one who would'fabricate such a story out of the whole cloth. I there- fore credit him. record as a whole to warrant the conclusion that Bums' termination was protected by the Act. 25 At the hearing, Respondent acknowledged that while it originally desig- nated the termination of Rossi and Burns to be "layoffs," it did not, in fact, intend to recall them. In short, Respondent considered the two men to be permanently laid off or discharged President DeLaquil explained that the work force of Respondent was quite young and temperamental and were prone to become quite upset when one or more of their number was "dis- charged"; accordingly, the appellation "layoffs" was utilized However, I do not necessarily take this explanation at full face value since the record discloses that, commencing in July, Respondent commenced hiring new, full-time employees. It perhaps would be difficult to explain the hiring of such employees were the May 30 terminations be considered as mere lay- offs. 26 See Resp Exh. 9(b). 27 See N.L.R.B. v Montgomery Ward and Company, Inc., 242 F.2d 497, 502 (CA 2, 1957), cert denied 355 U S 829 Respondent introduced evidence to show that other employees had been discharged on days other than the end of the payroll period. However, that list (Resp. Exh. 11) did not enumerate the reasons for the discharges Obviously, there are some causes for discharge such as fighting, stealing, insubordination, and the like which require immediate discipline This -is not the situation here ARMCOR INDUSTRIES, INC. Accordingly, for all of the foregoing reasons, I find and conclude that the preponderance of the evidence supports the contention that the termination of Rossi on May 30 was motivated, at least in part,28 because of Respondent's oppo- sition in his campaign to establish the Union, and to discour- age such activity, in violation of Section 8(a)(3) of the Act. 29 Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent 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. By terminating the employment of Michael A. Rossi on May 30, to discourage membership. in the Union, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By coercively interrogating employees concerning their union sympathies and activities; by threatening employees with economic reprisals, including-closing of the business if the employees supported the Union; by creating the impres- sion of surveillance of their union activities; by encouraging union activity among its employees on behalf of a rival labor organization, and by promising employees benefits if they refrained from engaging in union activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. I have found that on or about May 28, and at all times thereafter, a majority of the Respondent's employees in an appropriate unit signed authorization cards designating the Union as their representative for purposes of collective bar- gaining. Thereafter, the Respondent, by its agents and super- visors, engaged in acts and conduct of an extensive and egre- gious nature, including a discriminatory discharge, all of which was designed to interrupt, thwart and destroy the em- ployees' support of the Union, and make the holding of a fair 28 See N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (C.A. 2, 1962), cert denied 373 U.S. 950 (1963); N.L.R.B. v. Hanes Hosiery Division, Hanes Corp., 413 F.2d 457, 458 (C A. 4, 1969). 29 Charles Perrella and Gerald Katz, Co Partners, d/b/a Charles Perrella Ring Company, 213 NLRB No. 1 (1974). Although not cited as a reason to the employees at the exit interview, Respondent, at the trial, proffered some evidence that a reason for their termination was due to their relatively poor production compared with other employees who performed the same job However, as Respondent acknowledges in its brief, the production records of the other employees were not offered into evidence at the hear- ing Accordingly, no comparison may be made, and I have therefore given this contention of Respondent (which appears to be principally an after- thought) little or no weight in my consideration of the issue. 365 election impossible. I therefore find that the circumstances of this case require a bargaining order as the only appropriate remedy for the Respondent's misconduct.30 Having found that the Respondent discriminated against Michael A. Rossi in the manner set forth above, I will recom- mend that the Respondent be ordered to offer him immediate reinstatement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be computed in accordance with the for- mula prescribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The serious and pervasive nature of the unfair labor prac- tices committed, including a discriminatory termination, in- dicate a hostility to the purposes of the Act. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaran- teed to its employees by Section 7 of the Act. Entwistle Manu- facturing Company, 23 NLRB 1058 (1940), enfd. as modified 120 F.2d 532 (C.A. 4, 1941). Upon the basis of the entire record, the findings of fact, and the conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER31 Respondent, Armcor Industries, Inc., Murrysville, Penn- sylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee in regard to his hire or tenure of employment or any term or condition of employment in order to discourage membership in United Electrical, Radio and Machine Work- ers of America (UE), or any other labor organization. (b) Supporting or assisting the organizational activities of any rival labor organization of the above-named union. (c) Coercively interrogating its employees about` their union activities. (d) Threatening employees with reprisal, including closure of the plant, if they become or remain members of the above- named union, or continue to engage in activities in support of the above-named union. (e) Creating the impression of surveillance of the em- ployees' union activities. (f) Promising employees benefits to dissuade them from engaging in union activities. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: 30 Steel-Fab, Inc., 212 NLRB 363 (1974); Charles Perrella Ring Company, supra. 31 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order- herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Make whole Michael A. Rossi, in the manner set forth in the section entitled "The Remedy," for any loss of earnings suffered by reason of the discrimination against him. (b) Upon request, recognize and bargain with United Elec- trical, Radio and- Machine Worker of America (UE), as the exclusive collective-bargaining representative of the em- ployees in a unit of all production and maintenance em- ployees employed at Respondent's Murrysville, Pennsyl- vania, location, excluding all other employees, office clerical employees, and guards, professional employees, and supervi- sors as defined in the Act, respecting rates of pay, wages, hours, or other terms and conditions of employment and, if 32 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." an understanding is reached, embody such understanding in a signed agreement. (c) Post at its premises in Murrysville, Pennsylvania, copies of the attached notice marked "Appendix."32 Copies of said notice, on forms provided by the Regional Director for'Re- gion 6, after being duly signed by Respondent's authorized representatives, shall be posted by it immediately after receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein.