Terminal Equipment Inc.

TERMINAL EQUIPMENT INC. Terminal Equipment Inc. and Eugene McCracken. Case 8-CA-8831 July 18, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On May 9, 1975, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Terminal Equipment Inc., Bedford, Ohio, 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 Eugene Clarence McCracken, Jr., im- mediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimi- nation against him, in the manner set forth in the section of this Decision entitled `The Remedy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportu- nity to present their evidence, it has been decided that we violated the law and we have been ordered to 261 post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT threaten our employees that we will close our plant if they choose to be repre- sented by International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 507, or any other union, or fail to tell us which employees are union leaders. WE WILL NOT discharge or otherwise discrimi- nate against any employee in order to discour- age membership in the Teamsters or any other union. WE WILL NOT ask our employees about their and other employees' union activities in a man- ner constituting interference, restraint, or coer- cion. WE WILL offer to reinstate employee Eugene Clarence McCracken, Jr., to his former job or, if that job no longer exists, to a substantially equivalent position, and make him whole, with interest, for loss of pay resulting from his termi- nation. The National Labor Relations Act gives em- ployees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from any such activities. Our employees are free to exercise any or all of these rights, including the right to join or assist the Teamsters or any other union. Our employees are also free to refrain from any or all such activities, except to the extent that union membership may be required by a collective-bargaining agreement as a condition of continued employment, as permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of these rights. TERMINAL EQUIPMENT INC. DECISION STATEMENT OF THE CASE Nancy M. Sherman, Administrative Law Judge: This proceeding was heard at Cleveland, Ohio, on March 25, 1975, pursuant to a charge filed on December 23, 1974, and a complaint issued on February 5, 1975. The questions pre- sented are whether Respondent Terminal Equipment Inc. 219 NLRB No. 49 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) violated Section 8(a)(1) of the National Labor Relations Act, as amended (the Act), by alleged interrogation, threats, and conveying the impression of surveillance; and (b) violated Section 8(a)(1) and (3) by terminating employ- ee Eugene Clarence McCracken, Jr., allegedly because of his union and concerted activities, on November 5, 1974. At the outset of the hearing, Respondent moved to dis- miss the complaint on the ground that on December 23, 1974, the date when the instant charge was filed , the Re- gional Director approved McCracken's withdrawal of an earlier charge containing essentially the same allegations as the charge in the instant case . I adhere to my hearing deni- al of that motion, which is renewed in Respondent's brief. McCloskey and Company, Inc., 116 NLRB 1123, 1124 (1956), enfd. 255 F .2d 68 (C.A. 3, 1957). Upon the entire record, including my observation of the witnesses, and after due consideration of the brief filed by Respondent, I make the following: FINDINGS OF FACT 1. THE NATURE OF RESPONDENT'S BUSINESS Respondent is an Ohio corporation which designs and manufactures material-handling machinery in Bedford, Ohio, from which location it annually ships such machin- ery valued in excess of $50,000 directly to points outside Ohio. I find that, as Respondent admits, Respondent is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effec- tuate the policies of the Act. II. THE TEAMSTERS STATUS AS A LABOR ORGANIZATION International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 507, herein called Local 507 or the Teamsters, is an organization affili- ated with the International Brotherhood of Teamsters. Lo- cal 507 represents about 10,000 employees and as of the date of the hearing was a party to collective-bargaining agreements with 706 employers. Employees are permitted to participate in Local 507, which deals with employers regarding employees' grievances, wages, hours, working conditions, and vacations. I find that Local 507 is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background McCracken filed a job application with Respondent on September 18, 1974 .1 In the blank following the language "Job(s) applied for," McCracken inserted the word "Elec- trical." On September 21, he was interviewed by Ernest Pugh, Respondent's vice president of operations. On Mc- Cracken's application and during his job interview, he made certain representations which were untrue and others which (perhaps unintentionally) were somewhat mislead- 1 All dates hereafter are 1974 unless otherwise stated. ing. Thus, he told Pugh that he had left his previous job, with a firm that did roof gutterwork, because his truck was stolen, although in fact he left because, after seeing a fellow employee fall off a ladder and hit his head, McCracken decided the work was too dangerous. Further, he told Pugh that he had left another prior employer to go into business for himself, although in fact that employer had discharged him for tardiness. In addition, McCracken told Pugh that he was attending Cuyahoga Community College to further his education in electrical engineering, although in fact he did not enroll in that school until the fall quarter of 1974 and began by taking electives in English and history. Pugh credibly testified that McCracken's representations about his furthering his education played a part in Pugh's deci- sion to hire him. In approving him for employment, Pugh inserted the words "ELEC./MECH. Assy." after the word "Occu- pation." Pugh told McCracken that he was being hired for electrical work, but "You won't be afraid to pick up a wrench and tighten a few nuts and bolts?" McCracken re- plied that he would not be afraid to do that. B. McCracken's Union Activity Sometime prior to November, McCracken spoke to 20 or 25 of Respondent's 39 employees about a Union, and they were "very enthused." Respondent does not have a posted rule about solicitations in the plant on company time, and some of McCracken's organizing activity occurred during working hours. After unsuccessfully trying to get in touch with the UAW, he telephoned the Teamsters and talked to Business Agent Everett A. Oxyer. On Saturday, November 2, McCracken came down to the Teamsters office and signed an authorization card. Oxyer gave McCracken about 10 blank authorization cards and some union litera- ture, told him to get the cards filled out and return them to the Teamsters, and said that the Teamsters would then ask the Board for an election. On Monday, November 4, McCracken spoke about the Union to about three other employees before work, and two more during working hours that morning. He arranged to meet these five employees in a nearby restaurant park- ing lot during the 11:30 to 12 lunchbreak, when he gave them the union pamphlets and obtained their signatures on authorization cards. McCracken worked until 5:30 p.m. that day, a total of 10 hours, and then went home. Compa- ny Vice President Pugh testified that at the end of October he "asked around" among some employees (including Samuel Wilson and Martin Ozniwich) "what kind of trou- ble we had in the plant," and that in consequence of this asking around, Pugh "eventually" found out from employ- ee Russell Workman, "probably" on Saturday, November 2, that McCracken was trying to start a union. Company President Richard Simpson testified that "by the company policy" he hired both union and nonunion people, that Respondent did not inquire about whether they were union or nonunion, and "I'm sure we have Union members currently working for us. We have no way of knowing how many or what groups." Pugh testified that at no point in questioning applicants for employment did he inquire about the applicant's union affiliation or lack thereof, and thut Respondent had "no policy" requiring TERMINAL EQUIPMENT INC. 263 him to do that. Simpson testified that 5 or 6 years prior to the events involved here, he "may have" told Respondent's other officers (although not Respondent's employees) that he would close the plant if a Union got in. Simpson's pre- hearing affidavit states, "When things aren't going well and someone says we ought to have a Union here, it's not easy to take . . . I've probably made the statement about clos- ing the plant if a Union gets in about once a year." C. Alleged Interference, Restraint, and Coercion; McCracken's Termination McCracken talked to employee Ozniwich about the Union on about six occasions. About 6 p.m. on November 3, Company Vice President Pugh walked up to Ozniwich at his job station and asked whether he knew anything about a Union. Ozniwich replied that he did. Pugh asked who was organizing it. Ozniwich would not tell him. Pugh then said that Company President Simpson "was anti-union and he would close the plant down before he would let a Union in." Pugh then again asked Ozniwich who was organizing the Union. Ozniwich still would not tell him. Pugh said that "by telling him, the shop would be able to stay open." Ozniwich did not reply, and Pugh walked away. Thereafter, as employee Wilson was leaving the building, he encountered Pugh. Pugh asked whether he knew any- thing about the Union. Wilson replied that he did not, al- though McCracken had mentioned the Union to Wilson about 3 weeks earlier. Pugh then returned to Ozniwich and again asked who was starting the Union. Ozniwich still would not say. Pugh then asked whether it was McCrack- en. Ozniwich replied that he was not going to say. Pugh again asked who was starting the Union, and Ozniwich still would not say. Pugh said that he had talked to employees Wilson and Workman about a Union. About 7 p.m. that same evening, Ozniwich telephoned McCracken and re- ported Ozniwich's second conversation with Pugh. At 8 a.m. the following morning, about an hour after beginning work and in the middle of a pay period, Mc- Cracken was summoned to Pugh's office. McCracken testi- fied that Pugh told him "there was going to be a cutback in employment, they weren't receiving parts, and [McCrack- en] was one of the persons that was going to be laid off" McCracken further testified that Pugh did not say anything about McCracken's qualifications. Pugh testified for Re- spondent, but was not asked about this conversation. I credit McCracken's account. Twice in the next week, Pugh asked Ozniwich to tell him who had organized the Union, and both times Ozniwich refused. Also, 2 or 3 days after McCracken's termination, Pugh told Ozniwich that McCracken's brother-in-law "was a big wheel with the Teamsters and that he might be being paid to organize and after a short time, leave." Pugh add- ed that McCracken had left his last job after only a short time.' My findings as to the Ozniwich-Pugh and Wilson-Pugh conversations are based on the employees' testimony. Ozniwich's testimony gains some corroboration from Simpson's admission that the statements about Simpson's closure intentions, which Ozniwich attributed to Pugh, did accurately reflect Simpson's prior statements to other offi- cials. Moreover, Ozniwich's and Wilson's testimony about Pugh's interrogation gains some support from Pugh's previ- ously summarized testimony about his "asking around" among employees who included Ozniwich, Wilson, and Workman. Further, Pugh did not deny threatening that, if the Union came in the plant would close, although he did testify that he had never discussed unions with Simpson. Moreover, the testimony of Ozmwich, Wilson, and Mc- Cracken in this connection is to some extent mutually cor- roborative. In addition, I was impressed by the demeanor of Ozniwich (who was still working for Respondent, and who never signed a union card), and found Pugh's demean- or unpersuasive. Accordingly, notwithstanding the consid- erations summarized supra (fns. 2 and 3) and notwithstand- ing the membership of Pugh (a mature man) in a union when he was out of high school, I credit the testimony of Ozniwich and Wilson summarized above, and discredit Pugh's testimony that he did not ask questions about union activities, never told anyone in the plant that McCracken was a paid union organizer, or that a relative of McCrack- en had a position of authority with a union, and never discussed unions with Simpson-testimony which Simpson did not corroborate. At the time of McCracken's termination, a majority of Respondent's employees were working 10 hours a day, at time-and-a-half for all hours worked exceeding 40 a week. This schedule continued for 3 or 4 weeks after his termina- tion. At the time of McCracken's termination, he was re- ceiving $4 an hour. Within 3 weeks after McCracken's ter- mination, Respondent hired two employees, described in its records as "Mach Build," at $4.50 and $5 an hour, both of whom were still in Respondent's employ at the time of the hearing. Following McCracken's termination, Respon- dent hired at least I1 employees in addition to the "Mach Build," including, inter alia, 1 "M & H Assy" at $4.50 an hour, I in the "Hyd/Mech" department at $4.60, 1 in the "Assby" department at $4.50, and 3 in unspecified classifi- cations at $4.50 and $5. All but 1 (a "Painter") of these 13 employees were still in Respondent's employ at the time of the hearing. There is no evidence that any of the employees hired during this period had ever worked for Respondent before. Pugh testified that when adding to its work force Respondent "at times" gets in touch with laid-off employ- ees and invites them to return. Respondent has never of- fered to reinstate McCracken. Between McCracken's termination and the March 1975 hearing, Respondent laid off 10 to 16 employees. Respon- dent had 12 to 15 mechanical assembly employees in Octo- ber 1974 (just before McCracken's termination) and about the same number at the time of the hearing. 2 Union Business Agent Oxyer testified that he did not know of any blood relations of McCracken's who were in the Union . Nor did McCracken testi- fy that he had any such relatives. Oxyer further testified that McCracken was not paid by the Teamsters. 3 McCracken's job application states that his most recent job had lasted 6 months. D. Respondent's Explanations for Terminating McCracken Simpson and Pugh testified that Respondent decided to effect a layoff for economic reasons, and that it was Pugh 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who decided to include McCracken in that layoff. Simpson testified that he "instructed a general layoff . . . that two or three individuals must be let go" for "Lack of work. The other reason was that I was informed by Purchasing that we could subcontract some of the work that we were doing at a better price" to R. W. Panels (emphasis supplied). Further, Respondent's counsel averred in his opening statement that Respondent had transferred McCracken from electrical assembly work to another job (an alleged event dated by Pugh as occurring in the latter part of Octo- ber) because the work had been contracted out, and that McCracken's allegedly poor workmanship had caused Re- spondent to have higher production costs in performing the work itself. However, Company Vice President Robert Jackson testified that the work farmed out to R. W. Panels consisted of the construction of electrical control panels, that control panels related to anything like the farmed-out control panels had not been built in Respondent's plant for at least 2 years, and that Respondent had merely been con- templating performance of the farmed-out work in its own shop. Simpson testified that this layoff was "coming up around the end of October," and that Pugh was to decide whom to lay off. However, Pugh's prehearing affidavit, executed in early February 1975, states that the work was contracted out to R. W. Panels in December (a month after Mc- Cracken's termination). Further, Pugh testified that Jack- son informed him of the farming-out decision on Novem- ber 1, and Simpson that this decision was made "in November"-both alleged decision dates being subsequent to the October layoff date which (according to Simpson's testimony) was the date those selected by Pugh were to be laid off.4 Also, both Jackson's testimony and Respondent's exhibits show that Respondent had requested a quotation on the work prior to August 30 (about a month before Pugh hired McCracken); whereas Pugh testified that Jack- son did not start to try to farm out the work until October 1974 (after McCracken was hired), and stated in his pre- hearing affidavit that prices for the farmed-out work were quoted in November (McCracken was terminated on No- vember 5). Further, although Jackson testified that he ad- vised Simpson and Pugh that Respondent would have to cut back on its electrical assembly department, and that McCracken was the only electrical assembly employee cut back, Pugh testified that McCracken had been transferred from electrical to mechanical assembly work in the latter part of October, and that the decision to farm out the work had caused Pugh to lay off three employees-McCracken and mechanical assemblers Joseph Truskolski and Martin Matonis. Pugh further testified that he selected McCracken for inclusion in the layoff because McCarcken was a junior employee, because of his tardiness record , because Pugh had received a report from Respondent's manager of ac- counting, Betty Jane Fisher, that McCracken was "always" 4 Jackson testified that he ordered a layoff in the electrical assembly de- partment "right around the first of November." Respondent's brief asserts, "Mr. Jackson's orders to lay-off were received by Mr. Pugh on November 2, 1974, the same day on which Mr. Pugh became aware of Eugene Mc- Cracken's union organizational activities within the plant." on the telephone or out talking to people in the shop rather than at his job post, and because McCracken was not a capable worker. In connection with Pugh's testimony regarding Mc- Cracken's tardiness, Respondent offered into evidence Mc- Cracken's timecards for the entire period of his employ- ment. These timecards show that he worked for Respondent a total of 31 days. He punched in late in the morning on six occasions ,5 and on one occasion (Septem- ber 26) punched in 4 minutes late following the half-hour lunchbreak. There is no evidence about how this record compares with the records of employees who were re- tained. Pugh testified that he never specifically warned Mc- Cracken about coming in late. Fisher credibly testified that, on one occasion shortly after McCracken started to work for Respondent on Sep- tember 23, she reported to Pugh that she had seen Mc- Cracken "loitering" on several occasions in the machine shop and in the shop office. She further credibly testified that on various occasions she reported to Pugh that Mc- Cracken and others were tying up the shop telephone 6 Pugh testified that he never specifically warned McCrack- en about being away from his job, never warned him about using the telephone, never told anyone to warn him about being away from his job, and never instructed Mc- Cracken's foreman to warn him personally about using the telephone. In connection with Pugh's testimony that McCracken was not a capable worker, Pugh testified that lead assem- bler Chopko reported to him that McCracken did not have enough background in electrical assembly work. Although Chopko is still working for Respondent, he did not testify, nor was his absence explained. Pugh testified, without cor- roboration, that Chopko's alleged report led Pugh to put McCracken on mechanical assembly work in late October. Jackson testified that McCracken was an electrical assem- bly employee when terminated on November 5. McCrack- en testified that, throughout his employment with Respon- dent, he devoted 10 percent of his time to electrical assembly and 90 percent to mechanical assembly. Pugh further testified that employees Wilson and Work- man told him that McCracken was not qualified to do me- chanical assembly. Wilson testified that he did not think McCracken "really [had] the knowledge in machine elec- trics." Wilson did not testify about McCracken's ability to do mechanical assembly, or that he ever talked to Pugh about McCracken's work.' The record contains invoices for "help-wanted" adver- tisements placed by Respondent on November 21 and 28 and December 5, 12, and 19. The invoices state that the 3 He was 19 minutes late on October 16, 6 minutes late on October 11, 3 minutes late on October 4 and 31 , and I minute late on September 27 and November 2. 6 Pugh testified to a single conversation in late October when Fisher made these reports. On the basis of the witnesses' demeanor, I credit Fisher's version. 7 Counsel for the General Counsel called Wilson as a witness, but did not ask him about McCracken's work. Respondent's counsel tacitly agreed to accept Wilson as his own witness for this purpose . Wilson is still in Respondent's employ. Respondent laid off Workman 2 or 3 months hefore the hearing. I draw no inference from his failure to testify. TERMINAL EQUIPMENT INC. 265 advertisements were for "machine builders ," but Simpson testified that Respondent was advertising for "hydraulic and mechanical assembly," and that this was a different job. Respondent's plant did not have copies of the adver- tisements themselves . Respondent's personnel records state that Respondent hired a "Mach Build" on November 21, another "Mach Build" on November 22, and an "M & H Assy" employee on December 17. Simpson testified that Respondent "tried to use [McCracken] in hydraulic and mechanical work, and he could not do that job efficiently." Simpson did not state whether this assertion was based on his own personal observation, or whether this "hydraulic and mechanical" work was the same as the "mechanical assembly" work referred to in Pugh 's testimony . McCrack- en testified that in Respondent 's shop "everybody is a ma- chine builder, everyone works on hydraulics." Employee Wilson testified that he did electrical work, hydraulic work, and machine assembly. Respondent's personnel records list different employees as "M & H Assy ," "Mach. Build," "Hyd/Mach" department, and "Assby" department. As previously noted , it is undisputed that Pugh told Mc- Cracken he was being laid off because Respondent was not receiving parts . Respondent has advanced no claim to me that McCracken was terminated for this reason , or that it was in fact not receiving parts , and has offered me no ex- planation for its representation to McCracken. Counsel for the General Counsel asked McCracken whether he had ever been told by his foreman or by Pugh or any other supervisor for Respondent that McCracken was not doing a good job. McCracken's testimony, "No, I was never told of anything," stands uncontradicted. Likewise uncontra- dicted is McCracken's testimony that he was never warned about leaving his job to talk with people. Simpson testified that he did not learn until the week before the March 25, 1975, hearing that McCracken had been trying to organize a Union in the plant . Vice Presi- dent Jackson testified that "except for what is in the com- plaint," he had never been aware of McCracken's union activities, that Pugh never told Jackson about any unioniz- ing activity in the plant, and that he was not familiar with McCracken as an individual . However, I do not believe such testimony , in view of the demeanor of both Simpson and Pugh and their testimony that Jackson told them (a few days before the hearing) that he had heard from "one of the employees" that McCracken had been handing out union cards ; Pugh's testimony that "probably" on Satur- day, November 2, he found out that McCracken was trying to start a union ; employee Ozniwich's credited testimony that on the day before McCracken's termination, Pugh asked whether it was McCracken who had started the Union and that a few days after McCracken's termination, Pugh said he suspected McCracken was a paid Teamsters organizer.8 Further, in view of this testimony by Pugh and Ozniwich, I find that, whether or not Pugh was telling the truth when he said he did not "know" until the week before the hearing that McCracken was passing out union cards, Pugh knew before he terminated McCracken that he was 8 See N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962); N.L.R.B. v. Transport Clearings, Inc., 311 F.2d 519, 521 , 523 (C.A. 5, 1962). trying to organize a union, and at the very least suspected that this activity included the distribution of union cards. E. Analysis and Conclusions 1. Alleged interference, restraint, and coercion I find that Respondent violated Section 8(a)(1) of the Act when Company Vice President Pugh told employee Ozniwich that Company President Simpson would close the plant down before he would let a union in; and that if Ozniwich would reveal who was organizing the Union, "the shop would be able to stay open." I further find that Respondent violated Section 8(a)(1) of the Act when Pugh asked employees Ozniwich and Wilson whether they knew anything about the Union, and asked Ozniwich who was organizing the Union. In finding such interrogation to be unlawful, I rely on the fact that Pugh was seeking informa- tion useful for discrimination against union leaders , that he accompanied such interrogation with threats that the plant would be shut down if the Union came in or if Respondent could not learn the identity of the union leaders , that Wil- son gave an untruthful reply and Ozniwich repeatedly re- fused to answer, that such questions served no legitimate purpose, and that Respondent did in fact discharge Mc- Cracken because of his union leadership . In connection with Respondent's contention that such conduct was iso- lated in nature, I note that Pugh asked Ozniwich 10 ques- tions about the Union on 4 different occasions. However, I perceive no basis for the contention of Gen- eral Counsel that Respondent unlawfully gave the impres- sion of surveillance when Pugh told employee Ozniwich that Pugh had talked to two other employees about a union, without further describing the contents of the con- versation or even who initiated it. 2. McCracken's discharge Respondent's opposition to unionization of its plant is established by Company President Simpson's admission that he had periodically told Respondent's other officers that he would close the plant if the Union came in, and by the undenied testimony that Company Vice President Pugh made a like statement to employee Ozniwich the day be- fore McCracken's termination. Further, Company Vice President Pugh admitted finding out-"probably" on No- vember 2, 3 days before McCracken's termination-that McCracken was trying to start a union. Moreover, on the evening before McCracken's termination, Pugh specifically asked employee Ozniwich whether McCracken was-the one who was starting the Union. Pugh terminated McCracken on the following morning, which was the morning after McCracken's noontime solicitation of union cards and the second working day following McCracken's own executiod of such a card. Two or three days later, Pugh remarked that he thought McCracken was a paid organizer for the Teamsters. This strong prima facie case that McCracken was dis- charged for union activity is strengthened by the fact that Respondent's tendered explanations therefor do not with- stand scrutiny. Thus, in this proceeding, Respondent nel- 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ther relies on the reason tendered McCracken at his termi- nation interview, namely, that Respondent was not receiv- ing parts, nor explains why Pugh told him this was the reason. Further, President Simpson testified that the reason for the layoff which included McCracken was that Respon- dent had decided to contract out work "that we were doing," and Respondent's counsel averred that McCracken had actually been performing the work which was con- tracted out; whereas Vice President Jackson testified that the farmed-out work was work of a kind which had not been performed at Respondent's plant for at least 2 years, and that Respondent had merely been contemplating per- formance of the work in its own shop. Moreover, Pugh's, Simpson's, and Jackson's testimony and Pugh's prehearing affidavit are confused about the dates of material events. Thus, Pugh's prehearing affidavit states that the work was not contracted out until December, a month after Mc- Cracken's November 5 termination. Further, Pugh's pre- hearing affidavit states that prices for the farmed-out work were quoted in November, but he testified that Jackson informed him of the farming-out decision on November 1. Corroborating this last statement by Pugh, Jackson testi- fied that "It was right around the first of November" that he advised Simpson and Pugh that Respondent would have to cut back on its electrical assembly department; but Simpson first testified that the layoff was "coming up around the end of October," and then that the farming-out decision was made in November. Further, Pugh (contrary to Jackson) testified that McCracken was not performing electrical assembly when he was laid off. Likewise questionable is Pugh's testimony about why he included McCracken in the layoff. Thus, although Pugh testified that one consideration was McCracken's tardiness record, there is no evidence about how his tardiness record compared with that of others; his record is not so bad, standing alone, as to warrant a conclusion that it must have been relatively poor; and it is undenied that he had never been reproved for his tardiness. Further, although Pugh testified that another consideration was Fisher's re- port that McCracken was "loitering" and was tying up the shop telephone, Pugh admitted that he had never warned McCracken about these matters or instructed McCracken's foreman to warn him; it is undenied that McCracken was never warned; and Fisher testified that she reported to Pugh that others were also tying up the telephone. Finally, Pugh testified that he decided to include Mc- Cracken in the layoff because he was not a capable worker. I discredit Pugh's testimony that he entertained this view. Thus, it is undenied that McCracken was never told he was not doing a good job. Moreover, Pugh's testimony that in late October he transferred McCracken from electrical to mechanical assembly because lead assembler Chopko re- 9 Respondent's exhibits disclose that such quotations were requested be- fore August 30 and shortly before October 4. However, Pugh's representa- tions (although erroneous) as to the date seriously reflect on the veracity of his testimony that McCracken's November 5 termination was motivated by the contracting out. The August 30 date virtually excludes any contention, which Respondent has not advanced, that McCracken's September 23 hir- ing was in anticipation of the in-house performance of the work which was eventually contracted out. The record fails to show the hiring dates of the two mechanical assembly employees laid off with McCracken. ported that McCracken did not have enough background in electrical assembly work not only is wholly uncorrobo- rated,10 but also squarely conflicts with Vice President Jackson's testimony that McCracken was an electrical as- sembly employee when laid off on November 5. Also, al- though Pugh testified that Wilson and another employee had reported to Pugh that McCracken could not do me- chanical assembly work either, Wilson did not testify about McCracken's ability to do such work or that Wilson ever discussed McCracken's capabilities with Pugh.11 For the foregoing reasons, I do not credit Pugh's testi- mony that he believed McCracken to be a poor worker and included him in the layoff partly for that reason. Further, I credit McCracken's testimony, to some extent corroborat- ed by Wilson, that throughout his entire employment with Respondent he devoted 10 percent of his time to electrical assembly and 90 percent to mechanical assembly. While McCracken made some misstatements in his job applica- tion, he admitted them when testifying, whereas Pugh's sworn testimony and affidavit were impeached by Respondent's own records and the testimony of Vice Presi- dent Jackson. In addition, I conclude from McCracken's and Wilson's credible testimony about their own job du- ties, from the job titles and hiring dates on Respondent's personnel records, and from the phrasing of the "help- wanted" invoices, that following McCracken's termination, Respondent advertised for and hired other personnel to do work which McCracken had previously performed. In short, I conclude that the record preponderantly shows that the real reason for McCracken's termination was his union activity and that, therefore, his termination violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Teamsters is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by threatening to close its plant in the event of unionization or if Respondent's employees did not reveal the union leader's identity, and by interrogating employees about union activity in a manner constituting interference, re- straint, and coercion. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by terminating employee Eugene Clarence McCrack- en, Jr., because of his union activity. 5. Such unfair labor practices affect commerce within the meaning of the Act. 6. Respondent has not given employees the impression of surveillance over their union activities, in violation of Section 8(a)(1) of the Act. 10 Although Chopko was still in Respondent's employ at the time of the hearing, he was not called as a witness, nor was his absence explained I infer that his testimony would have been adverse to Respondent Golden Stare Bottling Company, Inc. v. N L R B, 414 U.S 168, 174 (1973); Interna- tional Union, UA W [Gyrodyne Co of America] v N L.R.B., 459 F.2d 1329, 1335-46 (C.A.D.C., 1972). 11 See supra, Ins. 7 and 10 TERMINAL EQUIPMENT INC. 267 THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom. Because Respondent's unfair labor practices included the discrimi- natory discharge of the employee leader in the Teamsters organizing campaign, an unfair labor practice which "goes to the very heart of the Act" (N.L.R.B. v. United Mineral & Chemical Corporation, 391 F.2d 892, 837-838 (C.A. 2, 1968) ), and a threat to close the plant if it were unionized (a threat which Respondent's president has admittedly voiced to its officers on other occasions), Respondent's un- lawful conduct leads me to anticipate that, unless re- strained, it will engage in "continuing and varying efforts to attain the same end in the future" (N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 437-439 (1941) ). Ac- cordingly, I shall recommend that Respondent be required to cease and desist from infringing on employee rights in any other manner. N.L.R.B. v. Southern Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8, 1965). I shall also recommend that Respondent be required to offer reinstatement to Mc- Cracken, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned from the date of his termina- tion to the date of a valid offer of reinstatement less his net earnings during this period, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as described in Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962). In addition, I shall recom- mend that Respondent be required to post appropriate no- tices. Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 12 Respondent Terminal Equipment Inc., Bedford, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the International 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings, conclusions, recommenda- tions, and recommended Order herein shall, as provided in Sec. 102.48 of said Rules and Regulations , be adopted by the Board and become its find- ings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 507, or any other labor organization, by discharging or laying off employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employ- ment. (b) Interrogating employees concerning their and other employees' union membership and activities, in a manner constituting interference, restraint, or coercion. (c) Threatening to close its plant if its employees choose a collective-bargaining representative or fail to disclose the identity of union leaders. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer immediate reinstatement to Eugene Clarence McCracken, Jr., without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful to an analysis of the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in Bedford, Ohio, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's rep- resentatives, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it, 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 notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. The complaint is dismissed to the extent it alleges that Respondent unlawfully gave employees the impression of surveillance. 13 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "