The Tomkins-Johnson Co.

TOMKINS-JOHNSON CO 31 The Tomkins-Johnson Co. and District Lodge 117 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 7-CA-11977 May 24, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The Tomkins-Johnson Co., Jackson, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION On January 5, 1976, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. 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 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 1 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 In finding that Respondent's suspension of Dodds and its discharge of Beebe were unlawfully motivated, the Administrative Law Judge considered it questionable whether these employees were absent from their work sta- tions and were engaged in excessive talking with other employees to the extent described by Supervisor Penchoff In this regard , the Administrative Law Judge found the testimony of Leadman Baird to be "scant corrobora- tion" of Penchoff's version , suggesting that Baird was unaware of such con- duct by the two employees Baird , however, testified that he had frequently observed the two employees engaging in such conduct Nevertheless, as noted by the Administrative Law Judge , Baird conceded that he had report- ed such conduct by Dodds to the foreman of his department on only one occasion and did not mention having so reported Beebe at any time in these circumstances , we find a sufficient basis for entertaining serious doubt as to whether the asserted misconduct of the two employees was as aggra- vated as Penchoff maintained We additionally agree with the Administrative Law Judge 's finding that Respondent was unlawfully motivated in discharging Beebe because, inter ala, at the hearing it asserted that Beebe was terminated for having falsified his production records, a reason which it had not previously disclosed to Beebe . See, e g , Inland Motors, 175 NLRB 851 , 852 (1969), Hurd Corpora- tion, 143 NLRB 306 , 318 (1963) In so doing, however, we specifically do not adopt the Administrative Law Judge's reliance on N L R B v Grede Foun- dries, Inc, 521 F 2d 1403 (C A 7, 1975), an unpublished order of the court 2 We agree with the Administrative Law Judge 's conclusion that Respon- dent, through the remarks made to Dodds by its Supervisor Mossen in the latter's office in early November 1974, violated Sec 8 (a)(1) In so finding, however, we rely on the nature of the remarks themselves and do not con- sider it significant here , as did the Administrative Law Judge , that the re- marks were made in Mossen 's office, inasmuch as Dodds requested to meet with Mossen STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This proceed- ing, held pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), was heard at Jackson, Michigan, on September 22, 23, and 24, 1975,' pursuant to due notice. The issues raised by the pleadings 2 are, in essence, whether The Tomkins-Johnson Co. (herein the Company or Respondent) interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act, and discriminated against two of its employees in violation of Section 8(a)(3) of the Act, by acts and conduct of its agents and supervisors hereinafter set forth. Subsequent to the hearing, a helpful, posthearing brief was timely filed by counsel for Respondent, which has been duly considered. Also filed by counsel for Respon- dent was a motion to correct the transcript of proceedings in certain respects , to wit : To include two questions and answers put to the General Counsel's witness, John Yeager, on cross-examination , which were assertedly inadvertently omitted from the transcript of proceedings . Counsel for the General Counsel filed an opposition to Respondent's mo- tion, claiming, in essence, that he did not recall-nor did his notes reflect-that such questions were posed by coun- sel for Respondent nor that such answers were given by the witness Yeager After due consideration , the motion is denied. The Ad- ministrative Law Judge , like counsel for the General Coun- sel, has no recollection of the questions being asked or answered, and the record-except for grammatical and spelling errors-appears to be otherwise correct and com- plete. Upon the entire record in the case , including my obser- vation of the demeanor of the witnesses,3 I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, has at all times material maintained its principal office and place of busi- ness in Jackson, Michigan , with a plant located at West Michigan Avenue in that city (herein called the Jackson i All dates hereinafter refer to the calendar year 1975, unless otherwise indicated 2 The charge was filed April 30, the complaint issued June 11 3 Cf Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161 (1966) 224 NLRB No. 6 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant). Respondent maintains plants in States of the Unit- ed States other than the State of Michigan , but the Jackson plant is the only facility involved in this proceeding. At the Jackson plant, Respondent is engaged in the manufacture, sale, and distribution of hydraulic and pneumatic cylinders and related products. During the annual period ending December 31, 1974, which period is representative of its operations, Respon- dent purchased and caused to be transported to its Jackson plant goods and materials valued in excess of $5 million, of which goods and materials valued in excess of $1 million were transported and delivered to its Jackson plant directly from points located outside the State of Michigan . During a similar time period, Respondent manufactured , sold, and distributed at its Jackson plant products valued in excess of $15 million, of which products valued in excess of $1 mil- lion were shipped from said plant directly to points located outside the State of Michigan. I find, as Respondent admits, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that at all times material District Lodge 117 of the International Association of Machinists and Aerospace Workers, AFL- CIO (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background So far as the record shows, the employees at the Jackson plant have never been represented for purposes of collec- tive bargaining by a labor organization during the period of the plant's existence.' There is, however, a statement of the Company's policy regarding union representation of its employees, which is contained in a booklet entitled "Shop Employees Handbook" distributed to all employees. In that section of the booklet entitled "What about a union?", it is stated, in essence, that the Company has since 1917 met the needs of both its customers and employees without a union and that a union would be of no advantage "to any of us." It goes on to state that the Company has "enthusi- astically accepted our responsibility to provide you with good working conditions, good competitive wages, and benefits, fair treatment and the personal respect which is rightfully yours." It is further noted that it is the Company's desire to "keep our plant free from any artifi- cially created tensions which could be brought on by an outside party in our plant." 5 It appears that the Union was engaged in an organiza- tional campaign at the Jackson plant in the fall of 1974, and two employees who were active in that campaign were ° There is no definite time stated in the record as to how long the Jackson plant has been established One of the employees testified that he had worked there for almost 13 years 5 See G C. Exh 5, pp 31-32 subsequently the recipients of disciplinary action and ulti- mate discharge . It is the contention of the General Counsel that such discharges were causally related to the employ- ees' union activities. Respondent vigorously denies such contention, and urges that the discharges resulted from various deficiencies in the work habits and proficiency of the employees. We come now to an examination of the evidence respecting these issues. B. Thomas E. Dodds Dodds was first employed by the Company on March 26, 1974, and discharged almost a year later on February 18. He worked as a machine operator in the burr bench department, and his job function was principally that of deburring pieces of metal ; i.e., smoothing down or sanding the rough edges of the parts. His immediate supervisor from November 1974 until the date of his discharge was one Dick Penchoff.6 The first indication in the record of Dodds' activities on behalf of the Union was his uncontradicted testimony that in September 1974 he asked his then "supervisor," Jim Kowzienski, if he could attend a union meeting which was scheduled that afternoon after work (Dodds had been scheduled to work overtime that day). At that time Kow- zienski declined to allow Dodds to be excused. However, after overtime had commenced, and Dodds asked Kow- zienski again to be excused, Kowzienski assented and Dodds attended the meeting. Subsequently, Dodds secured union authorization cards and testified that he handed out approximately 150 to 200 cards to fellow employees while at the plant during lunch hours and breaks. In early November, Dodds requested a meeting with one Michael Mossen, general supervisor of his department, for the purpose of requesting a raise in pay. The meeting was held in Mossen's office and only the two men were present. Mossen denied Dodds' request, but as Dodds was prepar- ing to leave his office , Mossen asked Dodds why he wanted a union. Mossen also inquired how many union cards had been signed and "how strong we were." Dodds declined to tell him anything about the cards, but did state that he wanted a union in order to achieve better pay and benefits. Mossen declared, "you will never get the union in." 7 I find the foregoing remarks of Mossen, made to an em- ployee in the sanctum of his office, without legitimate rea- son or assurance against recrimination , to constitute inter- ference, restraint, and coercion within the meaning of Section 8(a)(l) of the Act. 6 The record is not altogether clear as to Dodds ' immediate supervisor prior to November 1974 He claims his supervisor in September was one Jim Kowzienski However, unlike Penchoff, Respondent declined to concede the supervisory status of Kowzienski , and it was never proven There is some documentary evidence in Respondent's files that the supervisor was one Les Dalton, but Dalton was not called as a witness at the hearing r The foregoing findings are based upon the uncontradicted testimony of Dodds, which I credit Mossen was not called as a witness by Respondent although, as far as the record shows , he was still employed by Respondent at the time of the hearing and, indeed , the record shows that he was present in the hearing room for most if not all of the 3 days of hearing time Under such circumstances I infer that his testimony would have been adverse to Respondent See International Union, UAW [Gyrodyne Company] v N L R B, 459 F 2d 1329, 1335-46 (C A D C, 1972), Golden State Bottling Co v NLRB, 414 U S 168, 174 (1973), M J Pirolli & Sons, Inc, 194 NLRB 241, 246 (1972) TOMKINS-JOHNSON CO. As respects Dodds' proficiency as an employee, it must be assumed from the record that from the time of his em- ployment in March 1974 until November 1974 that his work performance was satisfactory to the Company. Thus no supervisor testified to the contrary, and Dodds' person- nel file contained only one document which could be con- strued as derogatory. However, commencing with a writ- ten "warning notice" dated 12/4/74, Dodds' work performance thereafter became the subject of a veritable multitude of written memorabilia. Thus, as previously noted, Richard Penchoff became foreman of the burr bench and drill press department (day shift) on or about November 11, 1974.9 Penchoff testified that he gave the written notice to Dodds on December 4 because the latter was "wandering around his department and leaving his work station." The text of the notice is as follows: During your time of employment with T. J. you have shown a very poor & unproductive attitude. This is a written warning to emphasize the need for corrective action or the next offense will result in immediate ter- mination. The record shows that on the same date, December 4, 1974, Penchoff went to Personnel Director William Hom- jak seeking advice as to what to do about Dodds in view of his continuous chatting with other employees or being out- side the department. Homjak advised Penchoff to keep notes on Dodds' behavior so that the latter would have "some sort of a record to refresh his memory." The record shows that on December 16, 1974, Penchoff reviewed Dodds' work performance and noted that he "does not get his work done regularly . . . [and] . . . does not follow some instructions. [He] talks too much, does not get his work done on time, bothers others so they can't work. [He] has been written up for this, and has had two verbal warn- ings." 10 On January 20, 21, 22, and 24, Penchoff made notes concerning Dodds' failure to work and being out of the department. However these notes were placed in Dodds' personnel file without being called to Dodds' attention. On February 5, Penchoff noted that Dodds "did not do any- thing from 1:10 to 1:25, and spent most of the time talk- 8 This document , which was in the nature of a file memorandum (as distinguished from a formal, written warning) is dated May 29, 1974, and signed by Les Dalton, apparently Dodds' supervisor at the time According to the document (Dalton was not called as a witness), Dalton noticed that Dodds had his head in his arms on the workbench When asked what was the matter, Dodds replied that he was suffering from heartburn Dalton responded that when an employee was sick at work, he was expected to go to the first aid room, and that if Dodds (a probationary employee at that time) "wanted to work at Tomkins-Johnson, he should improve his work habits, such as staring into space , excessive talking, etc " (Resp Exh 31 ) However, since Dalton did not testify at the hearing, and the record fails to show that this document was ever shown to Dodds, I have given it little if any weight as probative evidence In any event, Dodds' performance as an employee during his probationary period was obviously good enough to pass muster and become a permanent employee of the Company 9 Penchoff had been a foreman at the Company for approximately 10 years, but worked on the night shift 10 Resp Exh 34(a) and (b) 33 ing." On that day, February 5, Penchoff gave Dodds a 3-day suspension from work." On February 6, according to the testimony of Personnel Director Homjak, Dodds came into his office seeking an interview. Homjak requested that Dodds speak with his assistant, Ford, since Homjak was busy. Later Homjak joined the discussion, and testified that, in essence, Dodds complained about his relationship with Penchoff which had existed since November 12, 1974, at which time Pen- choff had refused to give Dodds a raise in pay. According to Homjak, Dodds conceded that since November 12 he (Dodds) had "held back his production because he had not received a raise." 12 Homjak stated that he did not see how Dodds could expect his supervisor to give him a raise when he had been holding back his production and performance, and that Dodds' problem was his "own attitude and per- formance " 13 The next criticism of Dodds' work, according to compa- ny records, occurred on February 14 when Penchoff ad- vised Dodds that he should not take time sweeping the floor at the instruction of a coworker when Penchoff had instructed Dodds to work on an order at around 2 p.m. that day. Penchoff recorded this in a memo to the file with- out, again, calling such memorandum to Dodds' attention. On February 17 the incident occurred which gave rise to Dodds' termination. It appears that during the day a part- time forklift driver named John Yeager had some "down time." It was the practice in the plant that when forklift drivers were temporarily idle, they would come over to the burr bench (located in the same department) and assist the operators there in their deburring work. On February 17, Yeager burred approximately 120 pistons and advised Dodds that he could have them; i.e., report the work on his production card. Whereupon, Dodds recorded this work on the "labor reporting card" which he turned in that day. 14 Penchoff, in checking the labor cards at the end of the workday, discovered the above fact and realized that Dodds had not performed the work since he (Penchoff) had assigned Dodds anotherjob. Whereupon, according to Penchoff's testimony, he "went down and got General Foreman Mike Mossen, and we went back to the burr bench and I showed him the card. We had a discussion and we decided at that time, for falsifying his records and due 11 The language on the notice of suspension is as follows Excessive unauthorized time away from work station You have been verbally counseled about this and also received a written warning If after this second written warning, with a three (3) day disciplinary lay- off, this situation does not get corrected , you will be immediately dis- charged from this Company 12 Resp Exh 37(a) 13 Resp Exh 37(b) Dodds did not recall having visited the plant or hav- ing had any such conversation with Homjak and Ford Ford was not called as a witness, the record indicating that he is no longer employed by Respon- dent While it is difficult to believe that Homjak fabricated the interview, it is equally difficult to believe that Dodds would have admitted a willful with- holding of work while at the same time requesting a wage increase It is also rather incredible that ( I) Homjak did not warn Dodds of discharge if his attitude did not change and/or (2) that such "willful" withholding of pro- duction was not mentioned as a reason for Dodds ' discharge (G C Exh 4) However, I find it unnecessary to make a credibility resolution on this particular incident in order to reach a conclusion on the ultimate issue of discrimination, infra 14 Resp Exh I 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to being away from his work station and talking and from his previous record, we decided we would terminate him." 15 The following morning, Penchoff took Dodds into the office with Homjak and Mossen and advised him that he was being terminated because he falsified his card. Dodds claimed that this had been the practice since he had worked there and freely admitted that Yeager had "worked those pistons and authorized Dodds to place them upon his card." Penchoff, however, contended that he had instruct- ed all the men after the first of the year on the proper way to fill out the timecards.16 However, Penchoff did not testi- fy that he advised the employees that it was a discharge- able or disciplinary offense for a lift truck operator to place any of his production on a burr bench operator's card; indeed, Penchoff, having only recently come into the burr bench department, may not have been aware of this prac- tice. Late in the day, the three supervisors (Penchoff, Hom- jak, and Mossen) called Yeager into the office to question him about the previous day's activities. Yeager, like Dodds, was surprised. He readily admitted that he had produced some pistons and authorized Dodds to take credit for that production on the latter's labor reporting card, and asked the three supervisors, "what's wrong with that?" Yeager was advised that this was not the proper procedure, and it was later determined to give him a written warning rather than discharge in view of his length of service.17 Marvin Kelly , a witness for the General Counsel, testi- fied that he had been employed by Respondent as a lift truck driver for 8 years, and was presently employed at the time of the hearing. He confirmed the testimony of Dodds and Yeager that it had been a practice for lift truck drivers at Respondent's plant to work at the burr bench when they had "down time," and to give the burr bench operators credit for such work as the lift truck drivers performed. He further averred that he had been given instructions to do that by one Robert Bush, who was his foreman at the time.18 Kelly further testified that his policy was changed about 2 months prior to the hearing-subsequent to Dodds' discharge-when Penchoff instructed him to place the work on his own card.l9 Analysis and Concluding Findings as to Dodds As previously stated, Respondent contends that Dodds was discharged for cause; General Counsel urges that he 15 Testimony of Penchoff 16 The record shows that in the fall of 1974 the Company instituted what was called its "Ticem Project," designed to improve work and reporting procedures throughout the plant As applied to the Burr Bench Department, it appears that prior to the change brought about by Ticem around January I, an operator might have had to complete several different jobcards repre- senting different job functions performed during the day Under the new procedure, only one card was required 17 Testimony of Penchoff 18 He also testified that Jim Kowzienski and Jerry Phillips, another fore- man, had given him similar instructions Neither Bush , nor Kowzienski, nor Phillips was called as witnesses by Respondent , although it was not shown that they were unavailable 19 Credited testimony of Kelly, Penchoff was not interrogated concerning such incident as was attributed to him was terminated because he engaged in union activities which Respondent opposed. The legal principles surround- ing the issue were succintly stated by the Court of Appeals for the Second Circuit in N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (1962), enfg. 133 NLRB 911 (1961): The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities. The fact that the em- ployer had ample reason for discharging them is of no moment. It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activity. And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act....20 Applying the foregoing principles to the case at bar, the evidence establishes-contrary to Respondent's conten- tion-that Respondent was well aware of Dcdds' union activities in the fall of 1974. In the interview between Dodds and General Supervisor Mossen in November, the latter so indicated and opined that Dodds would "never get the union in." It was shortly following this conversation that Dodds' work performance, which had apparently theretofore been satisfactory, became the object of much attention and criticism. This commenced with the written warning of December 4 Interestingly enough , this warning notice did not refer to any specific misconduct of Dodds but only adverted to his "very poor and unproductive atti- tude" during his time of employment with the Company. It would seem that if Dodds' work performance had been as poor as Respondent would have us believe prior to Decem- ber 4, there would have been some recordation of such conduct. However, as the record discloses, there was only one file memorandum of a prior supervisor dated May 29, 1974, during Dodds' probationary period. As previously noted, if Dodds had not been a satisfactory employee, he presumably never would have progressed beyond the pro- bationary status. Thereafter, as the record shows, Penchoff, pursuant to Homjak's suggestion, commenced to make a "record" of Dodds' derelictions. (This, even though the warning notice of December 4 stated that "the next offense will result in immediate termination .") The evidence further shows that Penchoff made notes of Dodds' asserted misconduct on several days in January, but these were never called to Dodds' attention.21 Moreover, it seems at least questionable whether Dodds, in fact, engaged in the extent of misconduct attributed to him by Penchoff in the light of the testimony of Leadman Don Beard. Thus the latter testified that even though he was in day-to-day contact with the workmen in the burr department, and it was his responsibility as a leadman to report to the foreman respecting the activities of these op- 20 See also N L R B v Hanes Hosiery Division , Hanes Corporation, 413 F 2d 457, 458 (C A 4, 1969), N L R B v Grede Foundries, Inc, 521 F 2d 1403 (C A 7, 1975) 21 Indeed , one may ponder why such a "record" was desired unless it was anticipated that it might be needed to buttress a defense in future litigation Cf The May Department Stores Company, d/b/a The May Company, 220 NLRB 1026 (1975) TOMKINS-JOHNSON CO. 35 erators, he had only one occasion when he reported to Pen- choff that Dodds was away from his work station and was "talking too much."22 If Dodds' misconduct was as notori- ous and frequent as Respondent would have us believe, it might reasonably be expected that the leadman would be aware of such activity. 23 Under these circumstances, I have serious doubts as to whether Dodds was as poor an em- ployee-at least compared to other employees in the burr bench department-as Respondent sought to picture him. Finally, the incident which triggered the discharge-al- leged falsification of records-does not withstand scrutiny. Thus, the overwhelming evidence shows that it was the practice for many years prior to the events here in question for lift truck drivers who sporadically performed burr bench work, to give such work to the operators for report- ing purposes.24 Whatever changes were made in the man- ner of labor reporting by the Ticem project in late 1974, did not alter that practice. This is clearly shown by the uncontradicted testimony of Kelly who stated that Pen- choff instructed him to change his manner of reporting only after Dodds was discharged. In the light of such evi- dence, Respondent, indeed, relied on a slender reed upon which to hang the reason for Dodds' discharge. Finally, I have considered as indicia of discriminatory motivation the fact that the decision was made to termi- nate Dodds prior to giving him the opportunity to explain the circumstances of the incident which assertedly gave rise to discharge. United States Rubber Company v. N.L.R.B., 384 F.2d 660, 663 (C.A. 5, 1967). In view of all of the foregoing, I am convinced and therefore find that Respondent's reason for Dodds' 3-day suspension on February 5 and his termination on February 18 was motivated, at least in part, because of his protected, concerted activities, and was effectuated in order to dis- courage membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. C. Richard Beebe Beebe worked for the Company from October 1969, un- til he was terminated on February 21, 1975. Until Septem- ber 1974, he worked in two departments: Department No. 1 as a lathe operator and Department No. I1-the burr bench department. In September he was assigned full time in the latter department where he worked until his termina- tion.25 22 Beard was unable to recall specifically the time when he gave such report 3 Dodds denied that he took the time from his work station without authority, and only left the burr bench area in connection with his work For example, he had to use a vise, which was located in the heat treating department 4 There is some evidence that, on occasion, the lift truck drivers would record such production on their own labor report cards 25 There is a conflict between the parties as to the circumstances under which Beebe became a full-time operator in the burr bench department in September he claims that he was assigned to Department No 11 only until his machine in Department No I had been repaired, and it had not been repaired as of the day of his termination, the Company's position is that he was transferred on a trial basis due to his production of an "excessive amount of scrap parts (and) to see if he will be compatable with that type of work (in Department 1I)" (see Resp Exh 13) For aught that the record shows, Beebe was a satisfacto- ry employee at Respondent's plant from the day of his employment in 1969 until August and September 1974. During those months he received three warnings (one ver- bal and two written) 26 for machining excessive scrap. "Scrap," as the term implies, means producing products which are unuseable either because of negligence of the machine operator or because of imperfections in the ma- chine itself. As previously noted, Beebe claimed that the scrap he produced on these occasions in August and Sep- tember was because of imperfections in the machine. No supervisor of Respondent who had knowledge of the cir- cumstances was called as a witness to refute this conten- tion; it therefore stands on the record uncontradicted. In any event, the record contains no derogatory material respecting Beebe from September 9 until January 10. In the interim-in December-Beebe secured some union cards from other employees (including Thomas Dodds), and so- licited signatures from other employees in the shop during lunch periods and breaks. Beebe testified that Supervisors Penchoff and Mossen, as well as Plant Manager Eaton, were present at times when he was passing out the union cards. He further testified that around mid-January he had a conversation with Mossen who approached him at his workbench and asked why the men wanted the Union in the shop. Beebe responded that they wanted better working conditions and better wages. Around this same time, Mossen observed him passing out union cards during a lunch period and asked him to go back to work. Beebe did not respond but walked away; however, he did not return to work because, as he testified, it was his lunch period.21 Beebe further testified that on or about February 13, Plant Manager Eaton approached him at his workbench and asked him why the men wanted a union. Beebe responded that they wanted better working conditions and better wages. Eaton replied that "he didn't think the employees wanted a union in . . . [and] . . . did not think they were very smart in wanting a union, the employees." 2 1 find that the above question and statements of Eaton were intimidatory of the employees' rights protected by Section 7 of the Act, and therefore violative of Section 8(a)(1), as alleged in the complaint. Beebe received a "warning notice" on January 10, signed by Penchoff and Eaton, for "excessive unauthorized time away from your work station." 29 Penchoff testified that after Beebe received this warning, the latter's work did not improve; accordingly, Penchoff talked to Homjak about it. The latter suggested (as in the case of Dodds) that Pen- choff keep notes on Beebe. Penchoff complied, and noted on January 30 and 31 that he observed Beebe on several 26 Resp Exhs 11, 12, and 13 n The foregoing findings are based upon the credited testimony of Beebe Neither Mossen nor Eaton was called as a witness by Respondent, although it was not shown that they were unavailable, and, as previously noted, Mos- sen was present in the hearing room during the hearing Penchoff testified that although he was aware that there was a union campaign going on in the plant, he had "no idea" if Dodds and Beebe were active in the union cam- pai#n This testimony is not credited 2 Testimony of Beebe 29 Resp Exh 14 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions and that he was either talking to other employees or away from his workbench "most of the time." 30 On February 14, Penchoff was informed by someone in Respondent's inspection department that there were some brass pistons there which were "scrap." Penchoff went to look at the pistons and ascertained that they were Beebe's work. He confronted Beebe about the matter, and Beebe acknowledged that he had worked on some of them (ap- proximately 85 of 300 pieces), but that someone else on the second shift did the remainder.31 As a consequence of this incident, Beebe received a 3-day suspension. The reason for the suspension was set forth on an "employee warning notice" dated February 14, signed by Penchoff and Mos- sen, as follows: EMPLOYEE WARNING NOTICE On an order of 300 3/4" bore pistons, 280 were found to be discrepant caused by careless deburring equally divided between first and second shift. In that this is your third warning due to excessive scrap, we have no alternative but to suspend you with- out pay for a period of 3 days, February 17, 18, 19, 1975.32 The employee on the second shift who worked on the defective pistons, one Robert Page, received a "verbal warning" (see Resp. Exh. 29). Penchoff explained that the reason Page was not suspended was because this was not his regular job. Beebe returned to work-following the 3-day suspen- sion-on February 20. According to his testimony, nothing untoward occurred that day or during the morning of Feb- ruary 21. However Penchoff made notes of Beebe's activity on both days. He noted that Beebe commenced work 10 minutes late on February 20 and that several times during the day when Penchoff came by his bench, Beebe was "either just standing around talking or was gone from his area. He left 5 minutes early to wash up [for lunch], and returned 5 minutes late." On February 21, Penchoff noted that when he (Penchoff) "went over to the burr bench to pay [Beebe], he had to wait 15 minutes before Beebe came back from the restroom." Later in the day, it was reported to Penchoff that Beebe was away from his work area "without telling [Penchoff]. So therefore [Penchoff] had no other alternative but to let him go." 33 The activities of Beebe during these 2 days which gave rise to the foregoing memorandum were never discussed with him by Penchoff, nor (as in previous instances) was Beebe notified that the memorandum was placed in his personnel file. In the early afternoon of February 21, Penchoff took Beebe into Mossen's office where, in the presence of Plant Manager Eaton, Penchoff explained to Beebe that the lat- ter had just come back from a 3-day suspension for scrap- ping pistons, and when he returned he was still not per- 30 Resp Exh 27 However, again as in the case of Dodds , Penchoff did not show the handwritten notes to Beebe , but rather had them placed in Beebe's personnel file 31 Beebe worked on the first shift 32 G C Exh 7 33 Resp Exh 26 forming satisfactory work, and was away from his work station. Whereupon, Beebe was terminated.34 Analysis and Concluding Findings as to Richard Beebe From the record itself, as well as demeanor consider- ations, it may be fairly concluded that Beebe, like Dodds, was not Respondent's most exemplary employee. However I am convinced, and therefore find, that there is substantial evidence to sustain the General Counsel's position that it was his union activities, to which Respondent was unalter- ably opposed, which provided the motivating reason for his termination. To begin with, Beebe had been a satisfactory employee of Respondent for approximately 5 years prior to the events here at issue. It is true that in August and September he received several warnings concerning the machining of "scrap," but it is acknowledged that such "scrap" could have been produced by a malfunctioning machine as well as any negligency or ineptitude on the part of Beebe. In- deed, as previously noted, his contention in this respect is undenied on the record except for the hearsay evidence in his personnel file. In any event, after he became a full-time employee in the burr bench department in September, there is no evidence of faulty work on his part until subse- quent to his becoming active in the Union in December and January. At that time, Penchoff began keeping a secret "record" on his time away from his machine. Here again, as in the case of Dodds, there is scant corroboration of Beebe's alleged misconduct by testimony of any supervisor other than Penchoff, including Leadman Don Baird.35 Even crediting Penchoff that Beebe was away from his ma- chine as testified, there is no proof that: (1) he was not required to be away in connection with his work as Dodds testified, and (2) his time spent in the restroom or washing up early for lunch was greater than that of other operators. As for his production, there can be no question but that he did, on or about February 14, produce some pistons which were found to be "discrepant." Inasmuch as this was the third warning notice which he had received for produc- ing "excessive scrap" he was, in accordance with company policy, given a 3-day layoff.36 When he returned to work on February 20 and 21, there is no substantial evidence that he committed any offense or dereliction which could reasonably have triggered his discharge. In this connection, I note that the asserted misconduct testified to by Penchoff was never brought to Beebe's attention, and the decision to 14 At the hearing, Penchoff testified on cross-examination that in addition to Beebe's being away from his work station on February 20 and 21, Beebe's "production for the 21st was way low And Mr Homjak checked it out and also found out that he had falsified on his time, too " Also at the hearing, counsel for the Respondent acknowledged on the record that falsification of records was one of the reasons Beebe was termi- nated Yet such was not stated as a reason by counsel in his preheating communication to the Regional Office (G C Exh 4), nor is there any evi- dence that it was cited to Beebe at the exit interview, or thereafter 35 Baird did not testify as to a single occasion when he reported to Fore- man Penchoff concerning any misconduct on the part of Beebe He further testified that he had never reported any employee to the foreman because such employee was machining scrap 36 Although, as noted, there can be no question that Beebe produced the scrap, the material was not lost to the Company An employee witness for the General Counsel credibly testified that he later assembled the pistons and they were presumably placed in the Company's inventory TOMKINS-JOHNSON CO 37 discharge him was made without giving him any opportu- nity to discuss, deny, or explain the matters 31 I have also taken into consideration in resolving the issue of discrimi- nation the fact that Respondent asserted a reason at the hearing which was not theretofore disclosed to Beebe 38 For all of the foregoing reasons, I find and conclude that the reasons advanced by Respondent for Beebe's termina- tion are pretextuous I conclude that Respondent's conduct was, at least in substantial part, motivated by its opposition to Beebe's union activity and to discourage membership in the Union in violation of Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(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 suspending and terminating Thomas E Dodds, and by terminating Richard L Beebe, in the manner afore- said, because they engaged in activities on behalf of the Union, as described above, and by thereafter failing and refusing to reinstate them, Respondent has violated Section 8(a)(1) and (3) of the Act 4 By coercively interrogating its employees concerning their union activities, Respondent has engaged in interfer- ence, restraint, and coercion within the meaning of 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 Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having been found that Respondent unlawfully sus- pended and discharged Thomas E Dodds and unlawfully discharged Richard L Beebe, I shall recommend that Re- spondent offer said employees immediate and full rein- statement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suffered as a result of the discrimination against them Any backpay found to be due shall be computed in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co, 138 NLRB 716 (1962) As the unfair labor practices committed by Respondent strike at the very heart of employee rights safeguarded by the Act, I shall recommend that Respondent be placed un- der a broad order to cease and desist from in any manner 37 N L R B v United States Rubber Co, supra 38 See , e g, NLRB v Grede Foundries Inc 521 F 2d 1403 (C A 7 1975) infringing on the rights of employees guaranteed in Section 7 of the Act 39 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER40 The Respondent, The Tomkins-Johnson Co , its officers, agents, successors, and assigns, shall I Cease and desist from (a) Discouraging membership in District Lodge 117 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by suspending, discharging, or otherwise discriminating against employees because of their union membership or activities (b) Coercively interrogating employees concerning their union membership or activity (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join , or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act (a) Offer Thomas E Dodds and Richard L Beebe im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights or privileges , and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them 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 to analyze the amount of backpay due under the terms of this Order (c) Post at its Jackson, Michigan, plant copies of the attached notice marked "Appendix " 41 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 7, after being duly signed by the Company's author- ized representative, 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 customarily posted Rea- 39 N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941) 40 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 41 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading Posted by Order of the National Labor Relations Board shall read ` Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, after a hearing in which all parties were permitted to introduce evidence, found that we suspended and discharged Thomas E Dodds and discharged Richard L Beebe unlawfully and that by such conduct we discouraged our employees from engaging in concerted activities and from becoming mem- bers of District Lodge 117 of the International Association of Machinist and Aerospace Workers, AFL-CIO, or any other labor organization WE WILL offer the above-named employees their for- mer jobs or, if those jobs no longer exist, substantially equivalent positions, and will restore their seniority or other rights and privileges WE WILL pay them any backpay they may have lost as a result of our discrimination against them WE WILL NOT unlawfully suspend or discharge em- ployees for lawfully engaging in union activities or protected concerted activities WE WILL NOT unlawfully interrogate employees with respect to their union or concerted activities WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended The laws of the United States give all employees these rights To organize themselves To form, join, or help unions To bargain as a group through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things All our employees are free to remain, or refrain from becoming or remaining, members of a labor organization THE TOMKINS-JOHNSON CO