Picker Corp.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Picker Corporation and Alan Strelzoff. Case 8- CA-8816 January 15, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER On June 23, 1975, Administrative Law Judge Mor- ton D. Friedman issued the attached Decision in this proceeding. Thereafter, General Counsel, on behalf of Charging Party, filed exceptions and a supporting brief, and Respondent filed a brief answering Gener- al Counsel's exceptions. 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. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration giv- en to the contentions advanced by the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a wholly owned subsidiary of Commercial Investment Trust, a New York corporation, is engaged at Cleveland, Ohio, in the manufacture and sale of medical X-ray equipment. Annually, the Respondent receives at its facilities in Cleveland, Ohio, goods of a value in excess of $50,000 directly from points located outside the State of Ohio. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Local 1377 of the Interna- tional Brotherhood of Electrical Workers, AFL-CIO, here- m called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 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 and hereby orders that the Respondent, Picker Corporation, Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This proceeding was heard on March 18, 1975, at Cleveland, Ohio, on the complaint of the General Counsel issued Feb- ruary 4, 1975, which complaint was based upon a charge filed on December 17, 1974. The complaint alleges, in sub- stance, that the Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discharging an employee for engaging in union activity and violated Section 8(a)(1) of the Act by threatening employ- ees that the Respondent would do anything to keep the Union out of the plant and by creating the impression of surveillance. The Respondent's timely served answer, while admitting certain allegations of the complaint, denies the commission of any unfair labor practices. At the close of the hearing the parties made oral argument and thereafter the Respondent filed a brief in support of its position. A. The Issues The complaint alleges, in substance, that at the time that the above-named Union was seeking to organize the Respondent's technical writers who were employed in the engineering department, the Respondent's supervisor, George Patser, told employees that he would only deal with them on a one-to-one basis with regard to wage in- creases; that he would do anything to keep the Union out of the engineering department; that during the meeting with the employees he referred to a union meeting sched- uled for Sunday, December 8, 1974, and thereby created the impression that the said meeting would be under sur- veillance by the Respondent; that he told an employee dur- ing his termination interview that he was a disruptive force and that since his employment by the Respondent the em- ployees at the Respondent's facility had become more mili- tant; and that he told employees that a union would not be tolerated in Respondent's engineering department, all of the foregoing in violation of Section 8(a)(1) of the Act. The complaint further alleges that, by reason of the union activity in assisting in the organizing of the Respondent's technical writing unit, the Respondent termi- nated employee Alan Strelzoff, the Charging Party herein, in violation of Section 8(a)(3) and (1) of the Act. In addition to generally denying all of the foregoing, the Respondent contends (a) that neither Patser nor any other principal of the Respondent had knowledge of any union activity among its employees or, more specifically, of any union activities on the part of Alan Strelzoff, (b) that al- though Strelzoff was discharged on the date alleged in the complaint, the discharge was for cause because Strelzoff 222 NLRB No. 49 PICKER CORPORATION 297 had lied on his application for employment with the Re- spondent, and (c) that Patser discharged Strelzoff because he found that Strelzoff was a Communist. Therefore, Strelzoff's union activity did not enter into Patser's deter- mination to discharge Strelzoff. B. The Facts The events which occurred leading up to Strelzoff's dis- charge on December 16 are not in serious doubt. The basic issue presented by these facts is one of interpretation. On October 17, 1974,1 Strelzoff applied for employment as a technical writer in the Respondent's technical docu- mentation department which is a subdivision of the Respondent's engineering division. On his written applica- tion, Strelzoff stated that from June 1973 until August 1974 he had worked for Case Western Reserve University as a programmer analyst in biomedical engineering performing research under the supervision of a Dr. L. Harmon, and that he had left Case Western Reserve in August 1974 be- cause of "disagreement over research direction." The rec- ord establishes that neither Donald F. MacArthur or Pat- ser, who interviewed Strelzoff, asked Strelzoff directly whether the latter left voluntarily or was discharged by Dr. Harmon. Both testified, credibly, that they were under the impression, from their interview with Strelzoff and from the employment application, that Strelzoff had voluntarily left the employ of Case Western Reserve. Patser testified, in agreement with Strelzoff, that he was much impressed with Strelzoff's apparent ability inasmuch as Strelzoff pos- sessed scientific knowledge appropriate for the work to be performed at the Respondent facility under Patser's super- vision, Strelzoff having received a Ph. D. degree in physics and the work at Western Reserve being appropriate as background for the work to be performed as a technical writer for the Respondent. Accordingly, Patser being most impressed with Strelzoff, and without making any inquiry of former employers to verify, the statements made on Strelzoff's employment application, the Respondent hired Strelzoff, who began work as a technical writer for the Re- spondent^ on October 22. About the time, or shortly after, Strelzoff was hired, the technical writers in the document department under the supervisionn of Patser were becoming agitated over benefits which they were not receiving from the Respondent and were also, evidently, discontented with their pay. As a re- sult, shortly after Strelzoff was hired, they began to discuss among themselves the possibility of union representation. Strelzoff informed employee William R. MacNeill, a fellow technical writer, that Strelzoff had had some experience in the past in union organization. As a result of this, the tech- nical writers, numbering approximately 9 or 10, held a noontime meeting at a nearby restaurant on November 16. Present beside Strelzoff and MacNeill were employees Gerald l4iester, Robert Hise, Rosemary Bennett, and Andy Birch. At this luncheon meeting, the possibility of being represented as a group through a union was dis- cussed. 'MacNeill and Strelzoff were appointed by the 1 All dates herein are in 1974 unless otherwise specified. group to make contact with the various locals in the area to find out the possibility of obtaining recognition for union representation of the technical writers by some union. The following week, MacNeill made some contacts and was instructed by one union representative, an Operating Engineers business agent, of the guidelines necessary under the National Labor Relations Act, herein called the Act, for representation by his local. However, before anything more was done, the same group held a further meeting on the following Friday, November 22, at the same restaurant. MacNeill told the group of the information he had re- ceived and gave them certain recommendations. At that meeting, MacNeill was elected president of the group, Rosemary Bennett was elected vice president, and Alan Strelzoff was elected secretary. As a result of these elec- tions and the discussion at that meeting, the three officers above-named had a series of work meetings on two consec- utive weekends, the first and second weekends of Decem- ber. The first meeting was at Bennett's home and the sec- ond meeting at MacNeill's home. Present at each meeting were the three officers and at the second meeting, in addi- tion, Robert Hise. However, between the first and second committee meetings, Strelzoff and MacNeill contacted Business Agent Carpinelli of the IBEW Local 1377 in Cleveland. At the meeting with Carpinelli, Strelzoff and MacNeill were given union designation cards and instruc- tions regarding how to obtain signatures for the purpose of organizing the group for representation by the Union? With the exception of some exchange of information with regard to salaries, none of the umon activity, or the meet- ings of the technical writers at the nearby restaurant, or the meetings of the officers held at the officers' homes, was made known by any of the individuals attending these meetings to any of the Respondent's officials insofar as the record shows. Additionally, all of the General Counsel's witnesses, those named above as officers, testified to the effect that they were never questioned about any of their union activity by either Patser, Ramsay, the editor of the technical writers who was immediately below Patser in the Respondent's hierarchy, or any other Respondent official. Nor did anyone, to their knowledge, ever offer any infor- mation to any respondent official. However, the apparent discontent among the technical writers led, according to credited testimony of Supervisor Patser, to a condition where there was virtually little or no production among these individuals during the months of October and November. Patser became concerned about this lack of production and, as a result, on or during the first week in December called a meeting of the writers in the conference room of the documentation department, which meeting was attended not only by Patser but also by Ramsay, their immediate supervisor. Patser presided at the meeting and the employees freely voiced their discontent. Patser informed the employees of the Respondent's policy regarding salary and the medical program that the Respon- dent was offering to its employees. This meeting consumed about 4 hours of that day starting after the lunch period at approximately 1 or 1':30 p.m. Although it is not certain at 2 All of the foregoing, from credited, uncontroverted testimony of Mac- Neill, Bennett, and Miester, as confirmed by credited testimony of Strelzoff. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which of the series of meetings held over the next week or week and a half between Patser, other company officials, and the technical writers, Patser on at least one occasion and, according to MacNeill, at the very first meeting, in- formed the employees that the Respondent would not per- mit a union in the engineering department.' Additionally, at several of these meetings, held between the first week in December and December 13, Patser re- peated that, with regard to salaries and other matters con- cerning the employees whom he supervised, he would pre- fer to deal with them not as a group but on a one-to-one basis 4 Nonetheless, at all of these meetings, with the possible exception of the last meeting held on December 13, Patser listened to the complaints of the individuals who spoke up freely and who were permitted to voice their opinions with regard to the various benefits they sought from the Re- spondent in addition to increases in salary. Moreover, the record also reveals that the two most vociferous speakers at these meetings, and the individuals among the writers who led the discussion, were MacNeill and Miester, although Strelzoff and the others did participate to some extent. However, at none of these meetings was the union organi- zational campaign among the employees mentioned by either Patser or the employees involved, nor was there any information given to Patser by any of the employees to the effect that MacNeill, Bennett, and Strelzoff were elected officers of the committee or group seeking to bring the IBEW into the plant as their representative.5 With regard to this series of four or five meetings which were held within a period of 2 weeks and lasted for several hours each, the General Counsel's witnesses uniformly tes- tified that no such meetings were ever held by Patser for the employees in the technical writing department until the union movement among the writers was started. Patser ex- plained this by stating that he did hold what he called "bullpen management" monthly meetings, although rather informally, with the technical writers in the past quite regu- larly. However, Patser was alarmed by the lack of produc- tivity and by the obvious dissatisfaction of the employees whom he supervised, which became apparent approximate- ly the latter part of October and into November. Therefore, he called these frequent meetings in order to hear out the employees' complaints and the basis for their dissatisfac- tion so that he could once again put the department on a satisfactory production basis. The last of . the so-called "head-to-head" meetings was 3 Although Patser denied making such a statement, the testimony of Mac- Neill, Bennett, Miester, and Strelzoff was almost uniform in this respect. Inasmuch as MacNeill, Bennett, and Miester were not particularly willing witnesses in view of the fact that they later on learned that Strelzoff, the Charging Party herein, was at least accused of being a Communist, and was admittedly a member of the Progressive Labor Movement, I find that their testimony in this respect is more credible than Patser's denial'Additionally, as will hereinafter be set forth more fully, Patser described on the witness stand his feeling toward unions generally with regard to engineering and hi4hly technically trained people. From the credited testimony of the foregoing named individuals and also from the admissions of Patser in his testimony 5 There was testimony that the reason the IBEW was chosen was because the IBEW already was representing the production employees at the Respondent's facility held on December 13. According to MacNeill, as support- ed by the testimony of Bennett, Miester, and Strelzoff, at that meeting Patser did not seem to be as agreeable as he had been at the former meetings with regard to the leeway he was allowing the technical writers in voicing their griev- ances and opinions. According to MacNeill, he and Patser had a heated discussion about the cost of living. Patser stated that he did not believe that MacNeill had a leg to stand on considering the amount of increase MacNeill had accumulated at that time. Thereafter Patser and Miester had the same sort of discussion. However, most of the talk- ing and most of the contribution to the discussion from the wnters group was by MacNeill and Miester. At that meet- ing Patser again repeated the only way that he would deal with the salary problem was on a one-to-one basis and that Respondent would not permit a union of the writers in the engineering department .6 On Monday, December 16, after the rather heated meet- ing of December 13, Strelzoff was told by Ramsay that Patser wanted to see him in Patser's office. Accordingly, Strelzoff accompanied by Ramsay went into Patser's of- fice. This meeting was held at about 4:30 p.m. on that day. Patser told Strelzoff that he had bad news for the latter. He stated that since Strelzoff had come to work there Patser had never seen such a militant office. He stated, that "His presence in the department is disruptive,, and, therefore, for that reason I am discharging him." 7 Strelzoff admitted that the interview of his discharge lasted but a few minutes, no more than 5. C. The Contentions of the Party, the Respondent's Defense and Conclusions In his oral argument at the close of the hearing herein, General Counsel emphasized that Patser, by his own testi- mony, condemned himself in that he told Strelzoff that the latter was a disruptive force in the technical writers depart- ment and that this, together with Patser's having stated to the employees that he would deal with them only on a one-to-one basis and that the Respondent would never per- mit a union in the Respondent's engineering department, clearly establishes that Strelzoff was discharged for his union activity in seeking to bring the IBEW into the plant. However, the Respondent contends in the first instance that it had no knowledge whatsoever of any union activity on the part of any single employee. Accordingly, the Re- spondent argues, it could not have discharged Strelzoff for union activity of which it had no knowledge. With regard to the question of knowledge, it should be 6 According to Miester, at one of these meetings, probably the meeting held December 6, Patser stated that he "did not care if we had the meeting on Sunday, that the Company would stop at no ends to prevent the forma- tion of a union within the professional staff, the writers." However, inas- much as the other employees who testified to what occurred at these meet- ings did not testify to this particular statement by Patser, I do not credit Miester in this respect but believe that he misconceived what Patser had stated at the meeting which was, as' testified to by the other employees, that he preferred to deal with them on a one-to-one basis and that the Respon- dent would not permit a union in the engineering department. _ r The statement by Patser to the effect that Strelzoff was a disruptive element in the department was pretty much agreed upon by both Patser and Strelzoff in their testimony The above-quoted portion is from Patser's testi- mony. -PICKER CORPORATION 299 noted that all of the General Counsel's witnesses, Mac- Neill, Bennett, Miester, and Strelzoff, affirmatively testi- fied that at no time did they offer any information to any of the Respondent's management people to the effect that they were considering the formation of the Union. More- over; all of the meetings of the writers group were held at an outside restaurant with'the writers attending, and the officers' meetings, between MacNeill, Bennett, and Strel- zoff, were held at the homes of both Bennett and MacNeill, again away from the Respondent's plant. Accordingly, there is no direct -evidence of Respondent's knowledge of any union activity among its employees. Therefore, the tes- timony of Patser must be closely examined in light of this testimony of-the Respondent's employees in order to assess whether the testimony of,, all of the witnesses and the evi- dence presented as a whole establishes, at least inferential- ly, that the Respondent,- and more particularly Patser, had knowledge of --union activity among the employees and, more specifically, of Strelzoff's union activity. While I have credited General Counsel's witness to the effect that Patser had stated at least once, if not more, that the Respondent would not permit a union in the engineer- ing department of which the technical writers department was a part, this must be viewed in the light of Patser's apparently sincere feelings with regard to unions generally. There is no doubt that Patser did not favor unions. Patser testified that, at probably the December 6 meeting with the writers, he did make a statement about unions which re- flected his own personal bias as follows "In unions I am not able to solve problems, and my statement was basically in reference to that fact." Patser further testified that, with regard to unions and -engineering departments, it is impos-- sible to establish rules between a union and management in an- engineering. department because' "You can not ever tell an engineer that today you-are going to be inventing something. Invention is coming-from a^ development of the mind. It comes from within the individual, and this is the main philosophy and the main reason why-I don't believe that unions should be present in any engineering depart- ment." Patser went on to testify that this was the reason for the destruction and the breakdown of another firm which had accepted a union in its engineering ' department and had swung to -a -relatively low level among its competitors. With regard to Patser's decision that he,would only treat with the writers with regard to their salaries on a one-to- one basis, Patser testified that this was because he felt that salaries were a matter of personal privacy, that-it would be embarrassmg to a certain extent for individuals to reveal what they-were earning masmuch as all of the employees in the technical writing department were not earning the same amount, being in different classifications according to their skills, their length of service, and their technical training. Accordingly, in substance what Patser told the employees was that he did not believe that their problems could be solved by a union. With regard to an allegation in the complaint, and some testimony by General Counsel's witnessMiester that Patser stated that he knew -of a scheduled future meeting of the employees for the formation of the Union, he testified he never heard' anything about a union until he received the charge from the Board to this effect after Strelzoff had filed such-charge. In view of the testimony of the- General Counsel's own witnesses, I credit this portion of Patser's testimony. However, despite Patser's statement as to why he be- lieved that unions generally were not suitable for engineer- ing departments, I do find that, at- least at one point, in discussion with the employees, he did overstate himself and did state that the Respondent would never permit a union in the engineering department. Further, I also find and conclude that Patser had no knowledge of any specific union organizational activity on ' the part -of the Respondent's employees in the technical writing depart- ment. In coming to this conclusion, I have considered the con- tention of the General Counsel to the effect that there were only 8 to 10 employees in the technical writing department and that the "small plant theory" should be applied here to infer knowledge on the part of Patser and the Respondent s However, as noted above, the meetings of the employees were held in secret and there is no evidence whatsoever that Patser had any knowledge that any kind of meeting among the employees was held other than the meetings with Patser himself and, accordingly, 'l do not find that the "small plant theory" is here applicable. While I have found that Patser did state that the Respondent would never per- mit a union in the engineering department, this neverthe- less referred to unions generally, and could have arisen from an idea that 'the employees might perhaps desire to have a union because of their manifest unrest and-unhappi- ness with working conditions unless this unrest and unhap- piness was resolved. Additionally, specifically with regard to Strelzoff, if there is'no knowledge as to union activity among the employees 'generally, it follows that Patser and the Respondent had no knowledge as to Strelzoff's union activity as outlined heretofore. Moreover, there is further testimony on the part of Pat- ser and other respondent witnesses, as hereinafter related, which would indicate that Strelzoff was not discharged for any union or protected concerted activity. Patser credibly testified that he was a Hungarian refugee who fled Hunga- ry in 1956 as a result of the Communist activity in his country which he described as having a lasting and almost devastating effect upon his life. He stated that he witnessed atrocities in Hungary committed by the Communists to the extent that Communists and communism have become anathema to him. This state of mind of Patser and this fear and hatred of communism constitute the background un- der which the Respondent claims Strelzoff was discharged. As noted above, when Strelzoff applied for employment with the Respondent, he stated that he had left Case West- ern Reserve as a researcher because of a difference of opin- ion with regard to certain aspects of the research being performed. He did not state that he was discharged nor was he asked whether he was discharged or left voluntarily. As noted above, both ^ MacArthur, the individual in the Respondent's employee relations department-who had first interviewed Strelzoff, and -Patser 'were under the impres- sion that- Strelzoff had left voluntarily. Accordingly, be- 8 Wiese Plow Welding Co., Inc, 123' NLRB 616, 618 (1959). 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause Patser was so struck with Strelzoff's background, education, and very real talent for the work for which he was being considered, Strelzoff was hired without checking with any of previous employers named in his employment application. However, on December 13, the day of the last meeting between Patser and the employees in the technical writing department, John Mugnano, the manager of em- ployee relations for the Respondent, was informed by em- ployee George Fulton, not a technical writer, that Strelzoff was engaged in subversive activity at Respondent's facility. It is evident that Mugnano did not know what was meant by the term "subversive activity," but Mugnano, in order to satisfy the questions raised in his mind by the informa- tion given to him by Fulton, instructed his assistant, Don- ald MacArthur, to check Strelzoff's application form and make inquiry among Strelzoff's former employers. Accord- ingly, MacArthur called Dr. Harmon on the telephone. Harmon, as noted above, was Strelzoff's supervisor at Case Western Reserve. The conversation, or the gist of the conversation, be- tween MacArthur and Harmon was recorded by Mac- Arthur on what is known as a "reference check." This check was received in evidence. According to the docu- ment, and according to MacArthur's testimony, he was told by Harmon that Strelzoff was an extremely intelligent, very capable young man. However, he was an admitted member of the Communist Party and the Progressive La- bor Party. Harmon told MacArthur that Harmon knew this at the time he hired him but felt that technically Strel- zoff was so good Harmon would more or less take a chance on Strelzoff. Initially Strelzoff's work was excellent. How- ever, when Strelzoff learned that the research project to which he was assigned would take the direction of investi- gating physical, differences between races, his attitude changed. According to Harmon, Strelzoff actively attempt- ed to destroy the research program by passing out leaflets to Case Western Reserve students claiming that the pro- gram was racist. Dr. Harmon stated further that the biomedical research department, of which Dr. Harmon was the chief, was able to prove Strelzoff wrong and Strel- zoff lost all his support except for a close-knit group of his political friends. Supporting this phone call was a letter from Harmon to Strelzoff, introduced into evidence at the hearing herein, in which Harmon gave Strelzoff the reasons why he was dis- charging Strelzoff which reasons were similar to the rea- sons given by Harmon to MacArthur during the phone call check on December 13. Patser was immediately informed by Mugnano who had been informed by MacArthur of the situation on that af- ternoon, Friday, December 13. Over that weekend, accord- ing to Patser, he struggled with the problem of whether he should let Strelzoff go because of the report that Strelzoff was a Communist or at least associated with a labor orga- nization, the, Progressive Labor Movement which, itself, was associated with the Communist Party according to Patser's information. Patser hesitated on`the one hand to discharge Strelzoff because Strelzoff had a wife and family. On the other hand, Patser could not forget, according to Patser, the horror which he testified he was witness to in Hungary as a child and as a young man for reasons of (1973). which he fled that country to come to the United States as a refugee. Finally, according to Patser, he made up his mind that he would have to discharge Strelzoff. Whether morally, politically, or constitutionally Patser was correct-in coming to this conclusion is not the question before the Board at this juncture. In view of the well-estab- lished principle that, so far as the Act is concerned, an employer may discharge employees. for any reason or no reason as long as the discharge is not such as to infringe upon the rights guaranteed employees under the Act, it would seem that if, in fact, Patser discharged Strelzoff be- cause Patser thought Strelzoff was a Communist, and also, as brought out in a testimony of Mugnano and Patser and MacArthur, because they felt that Strelzoff -had withheld information on his employment application and in his em- ployment interviews to the effect that he had been dis- charged from Case Western Reserve and had not quit vol- untarily, there can be,no violation of the Act inasmuch as such discharge does not interfere with protected concerted activity or activity on behalf of a labor organization? Finally, there is the question of whether all of the fore- going may be accepted as the reason for Strelzoff's dis- charge in view of the use of the words admittedly uttered by Patser to the effect that Strelzoff's presence in his de- partment was "disruptive." These words may be construed to mean that the disruption referred to the activity which Strelzoff undertook in organizing the Respondent's em- ployees on behalf of the IBEW, or, at least, in being one of the prime movers in that direction. However, in view of all of the testimony herein I conclude that "disruptive force" in the view of Patser would be anyone who was linked to communism in any way. Accordingly, I cannot accept General Counsel's contention that the use of this language by Patser is clear evidence of knowledge on the part of Patser that Strelzoff engaged in either union or protected concerted activity and that Strelzoff was discharged for that activity. In his testimony, Patser freely admitted his opposition to unionization of people engaged in scientific engineering work. This is set forth heretofore. Moreover, under all the circumstances, it is very understandable that in view of Strelzoff's withholding of the information that he was dis- charged from Case Western Reserve, whether deliberate or not, would indicate that Patser's problem was one of emo- tion against what he considered subversion through com- munism rather than one of protected activity. In coming to this conclusion, I have considered the fact that Patser did not tell Strelzoff that he was discharging Strelzoff because Strelzoff was a Communist or associated with Communist activity. Nor, have I ignored the possibili- ty that if Patser was so concerned about Strelzoff's family that he did not wish to put this in writing or mention this so as to put a blemish on Strelzoff's character, there would have been little reason to discharge Strelzoff for commu- nism or Communist sympathy. However, I have also con- sidered the fact that Strelzoff was discharged upon the first working day after it was learned that Strelzoff was alleged- ly a member of the Communist Party and admittedly a e See Whittaker Knitting Mills, Inc., Div Whittaker Corp, 207 NLRB 1019 PICKER CORPORATION 301 member of the Progressive Labor Movement. Further- more, I have also considered the fact that, as mentioned above, the meetings of the employees in their movement toward unionism were kept secret and were not undertaken at any time upon the premises of the Respondent's facility. Additionally, as testified almost uniformly by the Respondent's witnesses, Patser and Mugnano, and by the General Counsel's witnesses, MacNeill, Bennett, and Mies- ter, it was Miester and MacNeill who were the outstanding spokesmen for the employees in the technical writing de- partment and Strelzoff, at least on the surface, insofar as Patser could observe; played a very minor role. These fac- tors, coupled with the additional fact that MacNeill, Ben- nett, and Miester are still on the Respondent's payroll, would seem to obviate any finding that Strelzoff, whose activities were virtually unknown, or at least kept quiet, was chosen to be discharged for his union activity. More active individuals and more outspoken individuals were not so discharged. The fact that at the time of the hearing herein these more active. individuals and more outspoken individuals were not so discharged. The fact that at the time of the hearing herein these more active individuals were still employed is indicative of the fact that, as found above, Strelzoff was discharged not for union or protected concerted activity but for what Patser felt was subversive activity by Strelzoff being a member of a communist party or at least associated with such, in Patser's mind. In view of Patser's background, his reaction 'to the information given him by MacArthur and Mugnano on Friday afternoon, December 13, is completely understandable. Whether a discharge for being a Communist or being associated with communist causes is a violation of any other rights which Strelzoff may have is not the problem before the Board in this case. The Board has already held that a discharge for being a Communist, and for no other reason, is not a viola- tion of the Act.10 Although I find that Strelzoff's discharge was not dis- criminatory within the meaning of the Act, I do find that Patser's statement to the effect that the Respondent would never permit a union to come into the engineering depart- ment was, in fact, a threat in violation of the Respondent's employees Section 7 rights and as such is a violation of Section 8(a)(1) of the Act. However, I do not find that Patser's statement to the effect that he would prefer to deal with the employees on a one-to-one basis with regard to their salaries is necessarily a violation of employees Section 7 rights. Additionally, I have heretofore found that Patser did not make the statement to the employees that he knew that they were going to have a meeting on Sunday night December 8 and, accordingly, I do not find this to be a threat of surveillance and a violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section III, above, occurring in connection with its opera- tions set forth above, have a close, intimate, and substan- iU See Whittaker Knitting Mills, Inc., Div. Whittaker Corp, supra. tial relationship to trade, traffic, and commerce among the seveal States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent unlawfully threat- ened its employees that it would not tolerate a union in its engineering department, it shall be ordered that the Re- spondent cease and desist therefrom. On the basis of the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. Picker Corporation is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Lo- cal 1377, is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully threatening its employees that it would not permit any union to represent the employees in its en- gineering department, the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10 of the Act, I hereby issue the following recommended: ORDER I1 The Respondent, Picker Corporation, Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees that it will not permit any labor organization to represent the employees of its engi- neering department. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to form, loin , or assist, or be represented by Local 1377 of the International Brotherhood of Electrical Work- ers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post at its facilities in Cleveland, Ohio, copies of the attached notice marked "Appendix." 12 Copies of said no- ' i In the event no exceptions are filed as prrovided 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 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Continued 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tice, on forms provided by the Regional Director for Re- gion 8, after.being duly signed by Respondent's representa- tives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material., (b) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dis- missed insofar as it alleges violations of the Act not found. 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." APPENDIX- NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT threaten our employees that we will not permit them to be represented by any labor organiza- tion of their choosing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist to be represented by any labor organization of their own choosing, to bargain collectively through representatives of their own choosing or to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain mem- bers of IBEW, Local 1377, AFL-CIO,'or any other labor organization, or refrain from becoming members of any such organization except as such agreement may be affect- ed by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. PICKER CORPORATION