The Rondell Co.

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wendell Charles and Ronald Lovrich, Partners, d/b/a The Rondell Co. and Kenneth C. Keefer. Case 6- CA-8172 January 16, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On October 3, 1975, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief and Respondent filed a brief in opposition to the General Counsel's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the'Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein.3 We find merit in the General Counsel's exception to the Administrative Law Judge's failure to find that the termination or layoff of Kenneth C. Keefer and Robert L. Jordan violated Section 8(a)(3) and (1) of the Act. Thus, as more fully noted in the attached Administrative Law Judge's Decision, Keefer and Jordan and other employees in mid-December 1974 discussed the possibility of union representation of the equipment operators employed by Respondent. Jordan volunteered to contact an official of the Unit- ed Mine Workers of America, herein called the Union. That evening Jordan spoke to Union Presi- dent John DiBiase, who informed Jordan of the nec- essary procedures to follow regarding the unioniza- tion of Respondent's employees. The following ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 The Administrative Law Judge found that the Respondent violated Sec. 8(a)(1) of the Act by including in its bonus or incentive plan the provision that it would terminate if the employees chose a union to represent them. However, he inadvertently failed to mention this violation in his proposed notice . Accordingly, the notice is clarified by stating that the Respondent shall delete the proviso which terminates the incentive plan if employees choose a bargaining representative. 3 In accordance with the General Counsel's request , we have clarified and simplified the language of the notice so that the employees will be fully informed of their rights, how these rights were violated, and by what process they have been upheld Bilyeu Motor Corp, 161 NLRB 982 (1966), and Bob's Market, Inc, 162 NLRB 897 (1967) morning Jordan, while driving Keefer to work, in- formed the latter of his conversation with DiBiase and, on their arrival at the jobsite, advised the other employees of these developments. Due to adverse weather conditions, Respondent did no coal stripping on January 30 and 31, 1975.4 On the latter date, when Jordan and Keefer picked up their paychecks, Wendell Charles, one of Respondent's partners, told them that the Acme job- site was being shut down for a while due to inclement weather conditions and that Keefer and Jordan were being laid off but would be recalled to work when the weather cleared. On the next workday, February 3, all employees except Jordan and Keefer worked. Re- spondent subsequently hired a new employee to op- erate the bulldozer that Keefer had operated, and hired two or three equipment operators. Regarding the Respondent's knowledge of and an- imus toward Keefer's and Jordan's union activity, the Administrative Law Judge found, based on cred- ited testimony, that in mid-February, after a visit to the jobsite which was in operation, Jordan called Re- spondent Charles and asked why he had been laid off. Charles replied it was on account of the Union, and Charles further stated that Jordan was not being recalled because he had contacted the Union. More- over, again based on credited testimony, the Admin- istrative Law Judge found that Charles then asked to speak with Jordan's mother, Mrs. Jean Fletcher, and informed her that Jordan had been laid off "because he had contacted the Union," blamed Keefer for ini- tiating the contact with the Union, and stated that before he would operate under a union he would sell his equipment and retire. The Administrative Law Judge also credited Keefer's testimony that another employee, Dennis Howell, had told him that he, Keefer, and Jordan had been laid off because of union activit es and that he (Howell) had told Re- spondent of the union activities "but they already knew." On these facts, the Administrative Law Judge con- cluded that Respondent was aware of the union ac- tivity engaged in by Keefer and Jordan at the time of the layoff and that the failure to recall Keefer and the delay in recalling Jordan was attributable to their union activity. However, despite the credited testi- mony cited above to the effect that Respondent had laid'off Keefer and Jordan because of the Union, the Administrative Law Judge nonetheless found that the employees' union activity was not a motivating factor in the layoff. We disagree. Although we admit to some confusion concerning the Administrative Law Judge's rationale, with re- spect to the alleged discriminatory layoffs, apparent- ' All dates hereinafter are in 1975. 222 NLRB No. 43 RONDELL CO. 329 ly he based his finding on the fact that at the time of the layoff the weather was inclement and the tonnage produced by Respondent was considerably less than normal both because of the weather and the decline in sales. Assuming arguendo that the decision to lay off personnel was justified by the prevailing econom- ic and weather conditions, Respondent offered no explanation nor did the Administrative Law Judge make any factual findings that would explain or just- ify the selection of Keefer and Jordan for layoff. The evidence further reveals, and the Administra- tive Law Judge found, that on January 29 there were approximately nine equipment operators working at the Acme jobsite. Although Keefer and Jordan were informed on January 31 that the jobsite was being shut down, Respondent Charles testified at the hear- ing that the two discriminatees were the only opera- tors to be laid off and that the jobsite, in fact, was not shut down but continued with the remaining sev- en equipment operators. In regard to the selection of Jordan and Keefer, Respondent in its brief does not contend that these employees were laid off for any reasons other than because of weather and economic conditions. More- over, the record in regard to Jordan is replete with testimony establishing him to be a very competent equipment operator. Similarly, the Administrative Law Judge found that Keefer had operated heavy equipment since 1968 and during his employment with Respondent had never been reprimanded or dis- ciplined. Nonetheless, Respondent admitted that em- ployee Henry, who had been employed as an equip- ment operator for less than 2 months, was not selected for layoff and worked over 42 hours during the first week of February. In addition, J. Overly, who had operated equipment for only 2 years, con- tinued to work. Finally, the Administrative Law Judge found that shortly after the layoffs Respon- dent hired a new equipment operator, James Brady, to operate the same bulldozer that Keefer had been operating prior to his layoff, and also hired two or three additional equipment operators prior to recall- Ing Jordan in mid-April. In these circumstances, given Respondent's knowl- edge of the discriminatees' union activities, its ani- mus toward the Union as shown by the various an- tiunion statements of Respondent which the Administrative Law Judge found violated Section 8(a)(1) and the discriminatory provision in its bonus plan, which violated Section 8(a)(1), the credited tes- timony that Respondent laid off these employees and failed to reinstate them because of their union activi- ties, and the failure of Respondent to offer any evi- dence which would explain why Keefer and Jordan were selected for layoff, we can only conclude that Respondent's "economic" defense is nothing but a pretext for Respondent's true motivation and that but for Keefer's and Jordan's protected union activi- ties they would not have been laid off. Accordingly, we conclude that Respondent further violated Sec- tion 8(a)(3) and (1) of the Act by laying off or termi- nating Keefer and Jordan. We will amend the order and notice to conform with these additional findings. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order this recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Wen- dell Charles and Ronald Lovrich, Partners, d/b/a The Rondell Co., Monongahela, Pennsylvania, its agents, successors, and' assigns, shall take the action set forth in the said recommended Order as so modi- fied: 1. Substitute the following for paragraph 1(a): "(a) Laying off or terminating, failing to or delay- ing the recall of any of its employees, or in any other manner discriminating against its employees because of membership in or activity on behalf of United Mine Workers of America, District 4, or any other labor organization." 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, the National Labor Relations Board has found that we, Wendell Charles and Ronald Lovrich, Partners d/b/a The Rondell Co, violated the National Labor Relations Act, as amended, and has ordered us to post this, notice. The law gives all employees the following rights: To engage in self-organization To form, join, or support unions To bargain as a group through a representa- tive of their own choosing To act together for collective-bargaining purposes or other mutual aid or protection To refrain from any or all such activities. WE WILL NOT do anything to interfere with these rights. More specifically, WE WILL NOT discharge or fail to or delay the recall of any employees if they join, are active in 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of, or support the United Mine Workers of America, District 4, or any other labor orga- nization. WE WILL NOT maintain in effect a bonus or incentive plan which provides that it shall termi- nate in the event eligible employees choose to be represented by a collective-bargaining represen- tative and that, in such event, any moneys in the fund shall revert to us. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Kenneth C. Keefer immediate employment at the same position at which he would have been employed had he not been dis- criminated against, or, if that position no longer exists, to a substantially equivalent position without prejudice to seniority or other rights and privileges. WE WILL make Kenneth C. Keefer whole for any loss of earnings suffered as a result of our unlawful refusal to continue him in our employ, plus 6-percent interest per annum. WE WILL make whole Robert L. Jordan for any loss of earnings, seniority, or other rights and privileges he may have suffered had we not discriminated against him, plus 6-percent inter- est per annum. WENDELL CHARLES AND RONALD LOVRICH, PARTNERS, d/b/a THE RONDELL Co. DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge: This case was heard before me in Pittsburgh, Pennsylvania, on Au- gust 6, 1975, upon the complaint issued by the Regional Director for Region 6 on May 29 based on the charge filed by Kenneth C. Keefer, an individual, on March 17 and amended on May 28 alleging that the Respondent Wendell Charles and Ronald Lovrich, Partners, d/b/a The Rondell Co., unlawfully terminated Keefer and another employee, Robert L. Jordan, on January 31, and in other respects violated Section 8(a)(3) and (1) of the National Labor Re- lations Act, as amended. In its answer dated June 10 the Respondent admitted the jurisdictional allegations of the complaint but denied that it had engaged in any unfair labor practices. It further averred that concerning the insti- tution of an incentive program, alleged in the complaint to have been unlawfully instituted, it established that pro- gram "for the purpose of promoting greater production and efficiency" and, concerning Jordan, alleged that he had been recalled to work and had been in the Respondent's employ in his former or substantially equiva- lent position since approximately April 14. The Respon- dent admitted that it had refused to reinstate Keefer be- cause he was "incompetent and not properly qualified to operate the machinery" and because he "misused, mishan- dled and damaged Respondent's equipment . . . causing Respondents to expend substantial amounts of money for their repair." Furthermore, the Resondent alleged that Keefer "did on many occasions during his employment leave the jobsite to go to nearby taverns and either not return to -work when he should have been working or re- turned to the jobsite in an inebriated condition." The Re- spondent alleged that after Keefer was laid off he threat- ened one of Respondent's mechanics that he would damage machinery of the Respondent "by putting sugar in the gas tanks unless he was not immediately rehired," that he also threatened to inflict physical harm upon anyone who would subsequently operate the equipment he had for- merly operated, and, finally, that he threatened harm to the persons of the Respondents and "called one of them a number of times in the early hours after midnight to com- plain, shout and threaten him while intoxicated." Upon the entire record in the case, and my observation of the demeanor of the witnesses as they testified, and a consideration of the briefs filed with me by counsel for the parties on or about September 10, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent maintains its principal office in Mo- nongahela, Pennsylvania, where it is engaged in the mining and nonretail sale of coal. During the 12-month period pre- ceding issuance of the complaint, the Respondent admit- tedly furnished products and services valued in excess of $50,000 to Galeton Fuels Company and to other enterpris- es located in Pennsylvania, which annually produce and ship goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. Admittedly, the Respondent is an employer engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act and Charles, one of the partners, has at all material times been an agent of the Respondent acting on its behalf and a su- pervisor within the meaning of Section 2(11) of the Act. It is further admitted that United Mine Workers of America, District 4, herein called the Union, has at all material times been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction According to the complaint, it is contended that on or about February 14 Charles, by telephone, informed em- ployees that they had been laid off or terminated because of their activities on behalf of the Union and on or about January 31 had granted the employees an incentive pro- gram to induce them to refrain from becoming or remain- ing members of the Union or giving it any assistance or support. Also, it is alleged that on or about January 31 RONDELL CO. 331 Charles, by letter, threatened employees with loss of " the incentive program if they selected the Union as their col- lective-bargaining representative and on the same date ter- minated Keefer and Jordan because of their protected union activity and at all times refused to reinstate Keefer but did reinstate Jordan on April 14. As stated above, the Respondent denied that it engaged in any unfair labor practices and affirmatively asserted that, with respect to Keefer, he was not rehired because of his incompetence and undesirable habits and that Jordan was in fact rein- stated on April 14. Moreover, the Respondent asserted that the layoffs were occasioned by a decline in business activi- ty. With respect to the incentive plan, Charles testified that the Respondent had made some money in 1974 and, in- deed, had had a very good year and determined that, rath- er than pay taxes, the partners would pass the benefits along to their employees. Accordingly, under date of Janu- ary 31, an explanation of the plan was distributed to em- ployees. The plan provided that the fund "will terminate if the employees are represented by any Union or Collective Bargaining Association and all monies paid into the fund will revert back to the Company." Charles explained that, while the Respondent made some money, it did not "make that much to give these men this money" and, alluding to the Union's pension fund, said it could not "pay the Union what they require you to pay too. We couldn't afford to pay both of those." Charles testified that the Respondent had never been organized and that he was unaware of any activities in behalf of a union. He further related that he had never been contacted by the Union and that he was not aware that any employees were interested in a union. Lovrich, the other partner, also testified that the Respon- dent had never been approached by the Union and that no employee had spoken to him about it. B. The Termination of Keefer and Jordan Keefer was first employed in March 1974 as an equip- ment operator. He testified that he was not a member of any labor organization and that, during the period of his employment, he had never received any warnings, suspen- sions, or disciplinary action. In about the middle of De- cember, according to Keefer, some employees were having coffee in Jordan's automobile and "we got to talking about the Union." Jordan volunteered to get in contact with the Union, stating that he knew whom to contact and that he would thereafter let his fellow employees know what they had to do in order to form a union. According to Keefer, this conversation occurred at their worksite prior to going to work and he named the individuals who were present at the time. The following morning, so Keefer testified, he rode to work with Jordan and the latter told him that he had contacted the president of the Union and that the lat- ter would meet with them. Other employees were advised of these developments. Keefer related that he was laid off for about the first 2 weeks in December due to a strike conducted by the Union in the area. After the strike, he was recalled and continued to work until laid off on January 31. Due to inclement weather, the crew was unable to work on January 30 and 31. Inasmuch as the latter day was payday, Keefer called Charles and made arrangements to pick up his paycheck. Accompanied by Jordan, the employees met Charles and received their checks and were advised that until the weather cleared up they would be in layoff status and would then be called back. With their paychecks the em- ployees received a letter describing a- bonus plan. This was the first Keefer had heard about such a proposal. The last day Keefer worked, January 29, there were approximately nine equipment operators working on the job. Some 5 or 6 days after being laid off, Keefer met employee Donald Henry at a service station, who asked Keefer if he had heard anything about going back to work; Keefer replied he had not, whereupon Henry said that employees-were working at the Acme, Pennsylvania, jobsite. About the middle of February, Keefer and Jordan visited the jobsite and found that employees were working. An employee named James Brady, newly hired, was operating the bull- dozer that Keefer had been operating prior to his layoff. About the end of February, Keefer telephoned Charles and asked him why they had been laid off and Charles re- sponded by saying, "Well, you have torn up machinery." Keefer acknowledged that he damaged a ladder on a high lift sometime during the summer of 1974, for which he was not disciplined in, any way. Keefer testified that neither of the partners nor any supervisor had warned or disciplined him because of alleged mcompentency or lack of qualifica- tions to operate machinery. Keefer denied that during the course of his employment he on any occasion left the job- site to go to a nearby tavern or on any occasion appeared for work in an inebriated condition. However, he did testi- fy that one afternoon following the conclusion of work Charles and Lovrich had brought beer to the job with them and he drank one can of beer. He further denied that he ever told anyone that he would damage Respondent's equipment if he were not rehired, or that he ever threat- ened to harm anyone who would operate the heavy equip- ment that he had formerly operated, or inflict harm upon either Lovrich or Charles, or called either of them a num- ber of times in the hours after midnight to complain or threaten them. Keefer testified that he had been a heavy equipment op- erator since 1968 and, in response to questions from coun- sel for the Respondent, stated that he formerly had been a member of the Operating Engineers union but dropped his membership when he was employed by the Respondent upon advice from a union representative that he could not belong to that union and operate heavy equipment on the Respondent's job, which was nonunion. On cross-examination, Keefer denied that when he vis- ited the jobiste on February 14 he told another employee, Dennis Howell, that he would shoot anyone that operated his equipment. He acknowledged that he did threaten Ho- well in a tavern and stated that he and Howell were having a few beers on the Saturday afternoon after their layoff and, according to Keefer, Howell told him that they were laid off because of union activities. Keefer asked Howell to explain, and Howell replied he had told Charles and Lov- rich of union activities, "but they already knew." There- upon, so Keefer testified, he told Howell that he was not much of a man who would "tell lies about his friend and supposedly be friends." An argument then ensued but was 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD settled, and Keefer and Jordan "drank about one more beer" and left. Keefer stated that he visited the jobsite at approximately 10 in the morning , and that he went to the tavern from the jobsite, and was there from shortly before noon until the incident occurred with Howell at approxi- mately 4 o'clock in the afternoon. Jordan, who had been employed by the Respondent as a heavy equipment operator for 3 years, and had been en- gaged in that activity for approximately 20 years "off and on," testified that he was not a member of a labor organi- zation. According to Jordan, during his approximately 3 years of employment by the Respondent he had never re- ceived any disciplinary warnings. He testified that about the middle of December he and a number of employees were sitting in his car talking about a union. He related that his fellow employees were "getting tired of coming to work and not getting paid for it and going back home and stuff. They wanted a Union." Thereupon Jordan told them that he knew some coal miners and he would find out about a union. Jordan called United Mine Workers, Dis- trict 4, and talked to the president who told him that if he would arrange for the employees to meet at a designated place he would come and explain the, Union to them. Jor- dan corroborated Keefer concerning the events that oc- curred at the time of the layoff, and their visit to the jobsite about mid-February. He also corroborated Keefer con- cerning the meeting with Howell in the tavern, but added that, after Howell stated that he had informed the Respon- dent about the fact that employees were getting in touch with the Union, Keefer "got mad and told him he ain't much of a man for saying something like that with the guys he worked with. That's when he threatened to hit him and knock him on his behind." However, no one struck a blow. Jordan further stated that he telephoned Charles and asked why he had been laid off and that Charles replied it was on account of the Union and that Charles said he "wasn't calling me, back because I called the Union up. He knowed that I was the one that called." According to Jordan, Charles then asked if his mother was home and if so he wished to speak to her. Jordan acknowledged that on the evening he spoke by telephone to Charles he had been "drinking a good bit.", On cross-examination, Jordan testified that he had quit the Respondent "a couple of times" because he wanted more money. He was rehired after his request on each oc- casion was granted. Jordan acknowledged that he came on the job drunk a few times, but was allowed to work and was not spoken to about the matter by any member of supervision.' Jordan admitted that he and Keefer had been drinking for a number of hours, but denied that he was drunk when Howell arrived or that the bartender had to eject him and Keefer. John DiBiase, president of District 4 of the Union, testi- fied that Jordan contacted him regarding the possibility of organizing the Respondent's employees and that he told Jordan what was necessary to accomplish that result. Later Jordan and others came to his office and explained they had been laid off but that they understood the Respondent was operating. DiBiase recommended that they ascertain if any employees less senior - were operating their equipment, then contact management, and if not satisfied contact the Board, inasmuch as the Union could do nothing for them as it had not petitioned for a Board election and the Re- spondent was not a signatory to any agreement. Mrs. Jean Fletcher, the mother of Jordan, testified that she spoke to her son about February 19, concerning his layoff, and that he stated he had been laid off "because he had contacted the Union." She related that she was present during the telphone conversation her son had with Charles and that the latter asked to speak to her and said that her son had been laid off, in her words, "because he had con- tacted the Union and he blamed Mr. Keefer for putting them up to calling the Union and then he said that they didn't need the Union because they had all the benefits anybody would need and they had this royalty and he ex- plained it to me. He said that he couldn't see any reason why they should join the Union. He said he wouldn't join any union . . . because he had money. He could quit. He's dust selling equipment and retire before he would join a Union." I On cross-examination, Mrs. Fletcher acknowledged that her son drinks but she stated, "I wouldn't say its a prob- lem, but he drinks." She further testified that on the Satur- day in February when Charles asked to speak to her, her son had been drinking but he "wasn't drunk." She denied that Jordan was yelling or spoke belligerently on the tele- phone to Charles. C. The Bonus Plan Under date of January 31, the Respondent distributed to its employees the provisions of a bonus or incentive plan designed "to provide a situation where employees will reap the benefits from their diligent work" as well as to induce the employees "to be more productive." The plan provided that the Respondent would fund it at the rate of 25 cents per net ton of coal produced, which moneys would be set aside each month and at the end of each calendar year paid to eligible employees, who were all equipment opera- tors, mechanics, laborers, and truckdrivers who worked at the coal strips. The plan provided that employees hired after September 1 would not be eligible to participate in the plan for that particular calendar year, that any employ- ee who quit or was fired would forfeit his eligibility even though he may have worked nearly all year, and that any employee laid off for a period of 5 months out of the calen- dar year would not be eligible for benefits. The amount of money to be received by each employee would be calculat- ed on the following basis: The gross wages of all eligible employees would be added together and the individual em- ployee would receive the same percentage of the moneys from the fund as his wages represent of the total gross wages of all participating employees. Thus, if an employee had wages of $12,000 during the year and the total gross wages of all employees participating in the fund was $150,000, the individual employee, assuming the fund con- tained $20,000, would receive 8 percent or $1600. The plan further provided that the fund "will terminate if the em- 1 My notes and recollection indicate that what Mrs. Fletcher actually said was "He'd just sell the equipment ." The transcript is corrected ac- cordingly RONDELL CO. 333 ployees are represented by any Union or Collective Bar- gaining Association and all monies paid into the fund will revert back to the Company." Also that the Company re- tained the option to terminate the program at the end of each calendar year. D. Concluding Findings Although counsel for the General Counsel asserts that the termination or layoff of Keefer and Jordan was dis- criminatorily motivated and, further, contends that the re- fusal to recall Keefer and the delay in recalling Jordan were occasioned by their union activity, I am persuaded that these two situations cannot be attributable to the same circumstance. There is no question that at the time of the layoff the weather was inclement and the tonnage pro- duced by the Respondent was considerably less than nor- mal both because of the weather and the decline in sales. While I am satisfied that the Respondent was aware of the union activity engaged in by Keefer and Jordan at the time of the layoff, I am not convinced that this circumstance was a motivating factor in the layoff. On the other hand, I believe and find that the failure to recall Keefer and the delay in recalling Jordan was attributable to their union activity. Although both employees were told, at the time of their layoff, that they would be recalled when the weather cleared up, the fact is that they were not. Indeed, when they visited the jobsite about the middle of February, they found that the employees were working and that the Re- spondent had hired a new employee to operate the bulldoz- er that Keefer had operated. When Keefer telephoned Charles near the end of February and asked why they had been laid off, Charles told him that he had "torn up ma- chinery." The only reliable evidence concerning this was that Keefer acknowledged that in the summer of 1974 he had damaged a ladder on a high lift, for which he was not disciplined. There is testimony from Supervisor Floyd Ov- erly that Keefer was not an efficient operator and that he appeared on the job on occasion under the influence of alcohol. Employee Howell, who repaired equipment, testi- fied that Keefer was "rough on equipment" and that a bulldozer he had operated required substantial repair; however, no shop records indicating the extent of the re- pair were produced. I was very favorably impressed with the testimony of Mrs. Fletcher, the mother of Jordan, who related that in the telephone conversation with Charles the latter told her that Jordan had been laid off because he had contacted the Union and, in addition, blamed Keefer for initiating the contact with the Union and stated that in his view the employees did not need the Union inasmuch as they had all the benefits they needed and further said that before he would operate under a union he would sell his equipment and retire .3 2 The Respondent's monthly records of production reveal the following: January 1975, 7857.98 tons, February 1975, 3037.00 tons; March 1975, 4743.40 tons; April 1975, 3611.05 tons. 3 In his brief, counsel for the Respondent states that "little weight" should be given to Mrs. Fletcher's testimony "because of her maternal relationship and the inherent prejudice and bias which must arise when talking about her son." I have considered this circumstance , but do not agree that it vitiates her testimony As pointed out by counsel for the General Counsel in his brief, there are inconsistencies and contradictions in the testimony of witnesses for the Respondent. Thus, Charles admitted that Keefer had never been disciplined or repri- manded, and testified that the Respondent's business was conducted in an "easy" manner while, on the, other hand, Lovrich said, in connection with his statement to the effect that the previous year the employees had mined all the coal they could during the previous year, that "we watched them all the time." If this be so, then it seems more than odd that Keefer, allegedly incompetent, inefficient, and prone to damage equipment, escaped reprimand or disci- pline. In addition, Charles admitted that he never decided to discharge Keefer, that Keefer was on layoff and had not been recalled for purely economic reasons, and denied that failure to reinstate him was due to any alleged damage to equipment or threats to persons or property. Despite this, Charles acknowledged that after Keefer's layoff the Re- spondent had hired two or three equipment operators. Lovrich testified that he did not agree with everything his partner had said, although he did agree that the men were laid off in January because of weather and economic conditions. In sum, I credit the testimony of witnesses produced by counsel for the General Counsel over that of the Respondent's witnesses, where conflict exists. I conclude, therefore, that the Respondent violated Section 8(a)(3) and (1) of the Act in refusing to recall Keefer and delaying,the recall of Jordan. I further find that by the antiunion state- ments to employees, as set forth above, the Respondent independently violated Section 8(a)(1) of the Act. Additionally, I come to the conclusion that the Respon- dent, by including in its bonus or incentive plan the provi- sion that it would terminate if the employees chose a union to represent them, violated Section 8(a)(1) of the Act 4 CONCLUSIONS OF LAW 1. The 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 not recalling Kenneth C. Keefer from layoff and delaying the recall of Robert L. Jordan, the Respondent violated Section 8(a)(3) of the Act. 4. By maintaining in effect a bonus or incentive plan 4 In Missouri Farmers Association, Inc., 194 NLRB 495 (1971 ), the Board held that the respondent in that case violated Sec . 8(a)(1) of the Act by maintaining a voluntary , contributory disability and accidental death group insurance plan for its employees which made any employee who was "cov- ered under any form of collective bargaining" ineligible for participation. It seems evident that the Respondent's plan provided a strong incentive for the employees to refrain from seeking union representation. Were they to do so, the plain terms of the Respondent's incentive plan required that they forfeit a substantial amount of money. As I stated in my decision in Bendix- Westinghouse Automotive Air Brake Company, which was affirmed by the Board, 185 NLRB 375, 378 (1970), involving a savings and stock ownership plan under the terms of which employees "within a collective bargaining unit for which a labor organization is recognized as collective bargaining agent" were ineligible to participate therein, such a program "is inherently restrictive of employee rights guaranteed in Section 7 of the Act ," and there- fore, violative of in Sec 8(a)(1) of the Act 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which provides for its termination in the event eligible em- ployees chose to be represented by a collective-bargaining representative and the reversion to Respondent of any moneys then in the fund, the Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that Respondent unlawfully failed to recall Kenneth C. Keefer from layoff and delayed the recall of Robert L. Jordan, it will be recommended that Respondent offer Keefer immediate reinstatement to his former position or, if such job no longer exists, to a sub- stantially equivalent position, without loss of seniority or other rights or privileges, discharging if necessary any re- placement hired, and make him whole for any loss of earn- ings he may have suffered by payment to him of a sum of money equal to the amount he normally would have earned from the date operations resumed to the date of Respondent's offer of reinstatement, in accordance with the Board's formula set forth in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962), and, with respect to Jordan, make him whole in the same manner for any wages lost from the time operations resumed until his recall. I have found that by maintaining in effect those provi- sions of its bonus or incentive plan excluding from partici- pation therein otherwise eligible employees if they chose to be represented by a collective-bargaining representative the Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights. I will accordingly recommend that the Respondent amend the foregoing plan by eliminating therefrom the provisions so excluding represented employees. I will further recommend that the Respondent cease and desist from in any other manner infringing upon rights guaranteed to its employees in Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing to or delaying to recall from layoff, or in any other manner discriminating against any employee because of membership in or activity in behalf of the Union or any other labor organization. (b) Maintaining in effect a bonus or incentive plan which provides that it shall terminate in the event eligible employees choose to be represented by a collective-bar- gaining representative and that in that event any moneys in the fund shall revert to the Respondent. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found-will effectuate the purposes of the Act: (a) Offer Kenneth C. Keefer immediate reinstatement to his former position or, if no longer available, to a substan- tially equivalent position, without loss of seniority or other rights or privileges, discharging if necessary any replace- ment, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him, in accordance with the provisions of the sec- tion of this Decision entitled "The Remedy." (b) Make whole Robert L. Jordan for any loss of earn- ings he may have suffered by reason of Respondent's dis- crimination against him, in accordance with the provisions of the section of this Decision entitled "The Remedy." (c) Delete from its bonus or incentive plan provisions that it shall terminate in the event eligible employees choose to be represented by a collective-bargaining repre- sentative and that in that event any moneys in the fund shall revert to the Respondent. (d) Preserve and, upon request, make available to the Board or its agents payroll and all other records necessary to facilitate the effectuation of the recommended Order herein. (e) Post at its office and place of business in Monon- gahela, Pennsylvania, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 6, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted, Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 6, in ,writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Respondent Wendell Charles and Ronald Lovrich, Part- ners, d/b/a The Rondell Co., Monongahela, Pennsylvania, 5In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, 6 In the event that the Board's Order is enforced by a Judgment of a conclusions, and recommended Order herein shall, as provided in Sec . United States Court of Appeals, the words in the notice reading "Posted by 102 48 of the Rules and Regulations, be adopted by the Board and become Order of the National Labor Relations Board" shall read "Posted Pursuant its findings, conclusions, and Order, and all objections thereto shall be to a Judgment of the United States Court of Appeals Enforcing an Order of deemed waived for all purposes the National Labor Relations Board"