Consolidated Accounting Systems, Inc.

CONSOLIDATED ACCOUNTING SYSTEMS 93 Consolidated Accounting Systems , Inc. and Printing Pressmen and Graphic Arts Union No. 3, affiliated with International Printing and Graphic Communi- cations Union, AFL-CIO. Cases 13-CA-14600 and 13-RC-13788 June 24, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On March 31, 1976, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 her recommended Order. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This consolidated proceeding was heard at Chicago, Illinois, on January 12 and 13, 1976. In the unfair labor practice case (Case 13-CA-14600), in which the charge was filed on Au- gust 13, 1975,1 and the complaint was issued on October 10, the questions presented are whether Consolidated Ac- counting Systems, Inc. (the Company) interrogated and threatened its employees in connection with their union activity, in violation of Section 8(a)(1) of the National La- bor Relations Act, as amended (the Act), and discharged employee Richard Gillespie because of his activity on be- half of the Printing Pressmen and Graphic Arts Union No. 3, affiliated with International Printing and Graphic Com- munications Union, AFL-CIO (the Union), in violation of Section 8(a)(3) and (1) of the Act. Pursuant to a petition filed by the Union after the alleged commission of these unfair labor practices and a Stipulation for Certification Upon Consent Election between the Union and the Com- pany, an election was conducted on September 19. The tally of ballots disclosed a 3-to-3 tie vote, with a challenged ballot cast by Richard Gillespie, the alleged discriminatee in the unfair labor practice case. The issue in the represen- tation case (Case 13-RC-13788) is Gillespie's eligibility, which turns on whether his preelection discharge was un- lawf ul. Upon the entire record,2 including my observation of the witnesses, and after due consideration of the brief filed by counsel for the General Counsel and the brief and appen- dix filed by the Company, I make the following: 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, Consolidated Account- ing Systems, Inc., Highland Park, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that Case 13-RC-13788 be, and it hereby is, remanded to the Regional Director for Region 13 for further proceedings consistent with the recommendations of the Administrative Law Judge. 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 her findings FINDINGS OF FACT 1. JURISDICTION The Company is an Illinois corporation with its plant and office located in Highland Park, Illinois, where it man- ufactures and retails office supplies. During the year pre- ceding the issuance of the complaint, a representative year, it made direct shipments valued at more than $50,000 to points outside Illinois. I find that, as the Company con- cedes, it is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. 1 All dates hereafter are 1975 unless otherwise stated 2 The unopposed motion of counsel for the General Counsel to correct the transcript in certain respects is hereby granted The Company correctly points out that the transcript of the oral testimo- ny fails to show that Resp Exh 5 was received in evidence However, the exhibit shows on its face that it was received, and my notes also so show I have considered it as a part of the record herein 225 NLRB No. 13 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ii. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Richard Gillespie was hired by the Company in July 1973 as an offset pressman, at $5 an hour. He received a 25-cent wage increase in November 1973, and a 15-cent increase in May 1974. In September 1974, employee William O'Donnell went into Company President Harold Petit's office to ask him for a raise for himself and fellow pressmen Gillespie and Paul Malchow. Petit replied that he was "not about to let [O'Donnell] walk in there like a union and [Petit was] not going to negotiate or discuss anything with [O'Donnell] coming in, as [he] did, for the three men." About May 1, 1975, Gillespie met with Petit and Compa- ny Executive Vice President Richard LeVally. Gillespie told them that he was going to quit in 2 weeks unless he received a 25-cent raise. He was told that the current fiscal year ended on May 31, and that he would get a raise if the Company made money during that year. Petit said, "I think you are making a mistake if you quit. We want you to stay." The first payday after May 31 was June 2. Gilles- pie became angry at the fact that his paycheck did not contain a raise Employee O'Donnell told him that the June 2 check covered the pay period in May before the fiscal year ended, and that, if he was going to receive the raise, it would be on the next check Gillespie then settled down and continued to work. No raise appeared in Gillespie's next paycheck, on June 16. Gillespie thereupon went into LeVally's office, threw his check stub onto Le- Vally's desk, complained that he had not received a raise, and accused the Company of lying to him about the mat- ter.3 Later that day, LeVally told Gillespie that the Compa- ny had heard from several former employees who were looking for jobs, and Gillespie replied that he "hoped to hell one of them was a pressman " 4 Plant Manager Rowland operated the papercutter to cut all the stock for pressmen O'Donnell and Malchow, except that after early 1975, O'Donnell would run the papercutter when Rowland was not in the building. However, prior to the June 16 conference with LeVally, Gillespie, the only other pressman , had frequently operated the papercutter to cut his own stock. After the June 16 incident, Gillespie told Rowland that Gillespie would not operate the papercutter During the next 2 weeks (see infra), Rowland cut Gillespie's stock as well as O'Donnell's and Malchow's, except that Gillespie cut his own material when Rowland was not around. Rowland never asked Gillespie to operate J My findings about the dates and contents of the Gi llespie-Petit- LeVally conference and the Gillespie-LeVally conference are based on Gillespie's testimony, to some extent corroborated by O'Donnell's testimony about his June 2 conversation with Gillespie Although still in the Company's employ at the time of the hearing, Company President Petit did not testify For the reasons stated infra, sec I1,C,1,b, I do not believe LeVally's testimony as to the dates and contents of such conversations 4 My finding in this sentence is based on a composite of Gillespie's testi- mony and Resp Exh 10, an allegedly contemporaneous memorandum pre- pared by LeVally For reasons stated infra, I believe Gillespie's testimony that this discussion occurred after the conversation in LeVally's office, rath- er than during it as implied in Resp Exh 10 However, I do not regard the issue as of any significance the papercutter After about 2 weeks, in early July 1975, Gillespie decided-of his own volition, and without any prodding by Rowland-that Gillespie's failure to run the papercutter was "`kind of stupid," and he resumed operat- ing it as he had before. In early 1975, O'Donnell had re- fused the instructions of both Rowland and Petit to run the papercutter. He was never told that he would be dis- charged for his refusal, and was still working for the Com- pany at the time of the hearing in January 1976. O'Donnell, whose demeanor impressed me favorably, testified that Gillespie failed to operate the papercutter for "a short period of time" after June 16 (Gillespie specified 2 weeks), that O'Donnell had never seen him unoccupied during this period, and that Gillespie's failure to operate the papercutter helped the operation of the printing room because "we had one more man working in the back room." The Company contends that Rowland "had to .. . run the papercutter for a matter of several weeks while Gillespie would just sit and wait." As to Gillespie's conduct when Rowland was operating the papercutter, the Compa- ny points to Gillespie's testimony that he resumed working on the papercutter because "I didn't want to get caught standing around," and to the italicized portion of his testi- mony on redirect: Q. And when you weren't using the paper cutter, did you go and sit down and have a cup of coffee? How did you spend your time when you were not running the paper cutter? A I went to another press or something, that is why I thought it was stupid Just sitting around Q When you were not running the paper cutter, were you working on another assigned duty of your job? A. Right Q. And you were never simply sitting around wait- ing for someone else to run the paper cutter? A. No. Company Executive Vice President LeVally, who alleg- edly decided on Gillespie's discharge and was allegedly motivated in part by the papercutter incident, testified that he first heard about the incident around June 16, and that he never noticed Gillespie without any work to do because he was not running the papercutter.5 On the basis of O'Donnell's, Gillespie's and LeVally's testimony, I conclude that Gillespie's failure to operate the papercutter lasted for 2 weeks, and that he occasionally just sat or stood around while waiting for Rowland to cut Gillespie's stock, but usually did work elsewhere. In con- tending that Gillespie failed to operate the papercutter for several weeks, and that while Rowland used the papercut- ter Gillespie "would just sit and wait," the Company heavi- ly relies on Rowland's preheating affidavit, which was sworn to on September 19, 1975, and was attached to the Company's answer in connection with a complaint allega- tion regarding an incident which occurred on August 7, 1975.6 The General Counsel's motion for leave to call Row- s LeVally testified, "I never paid that much attention whether he was out of work or not " 6 Par VI(a) of the complaint alleges that about August 7, 1975, the Com- pany, through Rowland, "interrogated its employees concerning their CONSOLIDATED ACCOUNTING SYSTEMS 95 land as an adverse witness under rule 611(c) of the Federal Rules of Evidence and rule 43(b) of the Rules of Civil Pro- cedure for the United States District Courts was granted without objection. After Rowland had answered a few questions, company counsel stated that Rowland's pre- hearing affidavit was already part of the record. At this point, the General Counsel stated that "with the indication of Mr. Rowland's affidavit and the Company that are on the record, the Board has no further questions of Mr. Row- land at this time." Company counsel said that he would subsequently call Rowland as the Company's witness, but never did. The Company's brief repeatedly cites Rowland's affida- vit, including assertions allegedly favoring the Company and assertions unrelated to the August 7 incident, as if it were testimonial evidence. I agree with the General Counsel's contention that while plant manager Rowland's statement may be used to show admissions unfavorable to the Company, it is nonprobative hearsay with respect to allegations favoring the Company.7 In any event, both Gil- lespie and O'Donnell impressed me as reliable witnesses, whereas Rowland was not on the stand long enough for me to form any judgment about his demeanor. Accordingly, even if Rowland's statement were also receivable as to mat- ters not unfavorable to the Company, I would not accept it to the extent it conflicts with these employees' testimony. B. Gillespie's Union Activity and His Discharge About mid-July 1975, in annoyance at his failure to re- ceive a raise, Gillespie decided to bring in a union to orga- nize the Company's shop. On Wednesday, July 30, he met with Union Representative Richard Bee and asked him how to organize the shop. During this conference, Bee gave Gillespie some blank union authorization cards. During lunch and after work the rest of the week, and on the fol- lowing Monday, August 4, Gillespie gave out blank cards to his fellow employees. About five employees signed cards and returned them to Gillespie, who mailed them and his own card to the Union on his way to work on August 5. Among these employees was Thomas Maes, whose card is dated August 1, 1975. On Monday, August 4, Company President Petit came into Plant Manager Rowland's office, said that Maes had union membership, activities, and desires" The Company's answer alleges that the August 7 conversation "did not constitute within the meaning of the law any interrogation of its employees which would in any way undermine or influence the employees' rights under Section 7 or in any way encourage or discourage Union membership or affect the employees' Union activities, if any, with regards to Union membership Respondent further states that the [Board] investigation clearly substantiates the Respondent's posi- tion through a sworn statement signed by Rowland, and in support thereof attaches hereto a copy of said signed statement which [supports] the Respondent's position as alleged herein in all respects" 7 Rules 801(c)(d)(2), 802, Federal Rules of Evidence, Golden State Bot- tling Company v N L R B, 414 U S 168, 174 (1973), P R Mallory & Co, inc v N L R B, 400 F 2d 956, 959 (C A 7, 1968), International Union. United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca [Gyrodyne Co of America] v NLRB, 459 F 2d 1329, 1335-45 (C A D C. 1972) told Petit there was a union being organized at the plant, and asked Rowland if he knew anything about it . Rowland replied that he had heard nothing, and that he thought if it were "serious" he himself would have heard about it, being in the shop so much Later that day, when Gillespie came to Rowland to get some more work, Rowland said, refer- ring to Petit, "The old man heard rumors that there is union talk." Gillespie replied , " that is what I heard, too." 8 Executive Vice President LeVally and his wife, Dorothy, the Company's bookkeeper, were on vacation during the week preceding Monday, August 4 . LeVally testified that on August 4, Mrs LeVally, outside of his presence, tele- phoned three newspapers-the Pioneer Press, the Wauke- gan News-Sun, and the Chicago Tribune-to place a help- wanted advertisement for a pressman . Immediately after LeVally so testified , the General Counsel pointed out on the record that there was no probative evidence about when these telephone calls were made. Mrs. LeVally did not testify . The Company's brief asserts that the advertise- ment "could not possibly have appeared in the Waukegan News-Sun on Tuesday, August 5 [as it admittedly did] if it had not been placed on the morning of August 4" and, elsewhere, that "To have been printed on August 5, the advertisement had to have been placed before noon on August 4." However, the portions of the record cited by the Company do not support this allegation , nor can I find any substantial support therefor elsewhere in the record (see infra, fn . 21) 9 On Tuesday , August 5, through Monday, August 11 (3 days after Gillespie's discharge ), the News- Sun carried the following help-wanted advertisement placed by the Company, "Offset Pressman, Experienced on A B. Dick 360 and ATF 17 x 22, Highland Park, 831-2250. Call Mr. LeVally." to About 9: 15 a in. on August 7, Row- land drew Gillespie's attention to the News-Sun advertise- ment. Gillespie said that he had seen it. Rowland said that he did not know who placed it. Gillespie said, ". . . maybe 8 My findings in this paragraph are based on Gillespie's and Rowland's testimony and Rowland's affidavit to the extent consistent with Gillespie's testimony For reasons summarized supra, sec 11,A, I regard as nonproba- tive the assertion in Rowland's affidavit that he never spoke with Petit again about the Union, or with LeVally, and that Rowland took it very lightly 1 note that Petit did not testify 9 The Pioneer Press advertisement was printed on Thursday, August 7 Company counsel asked LeVally what date this Pioneer Press advertisement had to be called in in order to be printed on the 8th The transcript sets forth LeVally's reply as follows "it had to be in Tuesday noon because-but it had to be done Monday, that is when I found the ad had not been placed, they were both put in Monday because the ad in the Waukegan Sun ap- peared on Sunday " The Company's appendix states that this last word should be "Tuesday " I am unimpressed by the Company's reliance on the fact that the Waukegan News-Sun advertisement appeared on Tuesday (as shown infra, other dates tendered by LeVally were inconsistent with docu- mentary evidence) or on company counsel's notes (in view of the dating error in counsel's own question) Nor has company counsel moved to cor- rect the record, which is not inconsistent in this respect with my own recol- lection In any event, neither LeVally nor anyone else gave any testimony regarding the News-Sun classified advertisement deadlines As noted infra, there is hearsay testimony that the Pioneer Press Thursday, August 7, adver- tisement had to be telephoned in by noon on Tuesday, August 5, but this was the date on which the News-Sun advertisement began to run 10 A similar advertisement appeared in the Pioneer Press on August 7 and in the Chicago Tribune on August 9 and 10, after Gillespie's August 8 discharge 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it is because I am going to be on vacation and they wanted somebody to run the press while I am gone." Rowland said, ". .. if you are into this union thing pretty deep it will be hard to fire you." Gillespie said that the employees were "in it pretty deep." Rowland asked, "what union?" Gillespie replied, "the Pressman Union No. 3, from Chica- go." Gillespie further said that six out of seven of the em- ployees were "for it." Rowland thereupon disappeared for 45 minutes. There is no direct probative evidence about where he went 1l Rowland's affidavit avers that on that same day (that is, the day before Gillespie's discharge), LeVally told him that LeVally was preparing a discharge letter to Gillespie. On Friday, August 8, at 3:15 p.m., Rowland told Gilles- pie that LeVally wanted to see him. When Rowland and Gillespie entered LeVally's office, LeVally gave Gillespie an envelope containing his paycheck and the following let- ter dated that day and signed by LeVally: Requests for credit information and our assistance in helping your creditors collect amounts long over due have been increasing for several months and this has caused our bookkeeping department and our ad- ministrative personnel costly time on records and the telephone. Together with this, an examination of your work record in 1974 shows only four (4) pay periods (8 weeks) out of the entire year where you worked a full 40 hour week. Your record in 1975 has not improved, showing only one (1) pay period (2 weeks) where you worked the full 40 hour week required. It is our decision that we can no longer tolerate this record and we must seek to improve our pressmen's performance. Therefore, your employment is termi- nated effective the close of business August 8, 1975. We are, however, paying in advance your one (1) week vacation pay to which you are entitled. May I wish you success in your new employment wherever you choose to locate Gillespie thereupon opened the envelope, looked at the check, read the letter, and asked whether the reasons set forth in the letter were the only reasons for his discharge. LeVally said no. Gillespie asked what the other reasons were. LeVally said, ". . . your attitude." Gillespie got up and started to walk out. LeVally said, ". . . wherever you go to look for a job, I will give you a good reference " Gillespie then walked back to his work station, picked up his belongings, and left the plant.l2 ii My findings as to this Rowland-Gillespie conversation are based on Gillespie's testimony, which is partly corroborated by Rowland's affidavit For the reasons stated, supra, Sec II,A, I credit Gillespie's testimony to the extent it conflicts with Rowland's affidavit For reasons stated, supra, sec II,A, I regard as nonprobative the statement in his affidavit that " 1 never spoke with Mr Petit again [after their August 4 conversation] about the Union or with Mr LeVally " 12 My findings in this paragraph are based on Gillespie's testimony Rowland's affidavit does not describe this conversation LeVally admitted promising Gillespie a good reference and otherwise gave testimony consis- tent with Gillespie's, except that LeVally testified that he said Gillespie was also being discharged because of his "attitude toward Mr Rowland lately" On Monday, August 11, Union Representative Bee vis- ited the plant, met members of management (including Le- Vally) for the first time, demanded recognition, and filed the representation petition which gave rise to the instant Case 13-RC-13788. About August 13 or 14 (infra, In. 13), Company Presi- dent Petit called employee O'Donnell into Petit's office and gave O'Donnell his profit-sharing statement. Petit fur- ther said that "this union stuff really got me shaken up," and that he and his wife had worked very hard to put the Company where it was today. Petit then said that he knew how O'Donnell felt. O'Donnell (who on August 1 had signed a union card at Gillespie's instance) said that no- body but O'Donnell himself knew how he felt, that the only time he had ever belonged to a union was in 1946 or 1947 when he was working for another employer, and that Petit should not assume that O'Donnell was strictly union. O'Donnell said that Petit had been wrong in firing Gilles- pie, and suggested that Petit should call him in and try to "straighten it out." Petit "agreed, he blew his top, he agreed to that." O'Donnell said that Gillespie was a good pressman and a good worker. Petit agreed, and said, "This damn thing . . . is costing me a lot of money . . . God dammit, I will spend it, you know, I will beat this." O'Don- nell suggested that Petit get hold of Gillespie, "maybe it's not too late, maybe you can straighten the whole thing out before it goes far." Petit said that this was a good idea, and suggested that Gillespie and O'Donnell could come togeth- er to "my place." O'Donnell said, "Fine." Petit further said, "There is only one thing, Bill, with this union stuff. There is a lot of no-nos and things that I can't do or can't say and things like that, but I will ask my attorney." O'Donnell said that Petit should stop by O'Donnell's press and let him know, and that he would talk to Gillespie over the weekend. On Monday, August 18, the Company received its copy of the Union's charge herein, alleging that Gillespie had been discharged because of his union activity. About Au- gust 19, Petit approached O'Donnell, shoved a copy of the charge at him, and said, ". . . this is going to cost me a bundle, but dammit, I am going to beat it." 13 For demeanor reasons , because of Rowland's failure to testify as to this matter, and because of LeVally's demonstrated unreliability as to other mat- ters (infra, sec 11,C,1), I credit Gillespie over LeVally where their testimony conflicts u My findings as to these O'Donnell -Petit conversations are based on O'Donnell's testimony, received over the Company's objection based on materiality and remoteness in time O'Donnell placed the first conversation as having occurred on a Wednesday or Thursday toward the end of August and the second as having occurred the following Tuesday The fact that the Company received the charge on Monday, August 18, leads me to conclude that O'Donnell erred about the date of the first conversation The Company contends that Petit failed to testify about these conversa- tions mostly because the General Counsel "admitted questioning O'Donnell regarding these conversations with Mr Pent for the sole purpose of estab- lishing Mr Petit's anti-union attitude and opinion " The record contains no such admission The portions of the record relied on by the Company are directed partly to a subsequent letter from Petit to O'Donnell and partly to their September 1974 conversation CONSOLIDATED ACCOUNTING SYSTEMS 97 C. Analysis and Conclusions 1. Gillespie's discharge a. Evidence bearing on the Company 's explanations (1) Evidence regarding the hire of Gillespie's alleged replacement As somewhat amplified below , the Company contends that the Company's decision to discharge Gillespie was made many weeks before his union activity began. On di- rect examination, LeVally testified that in response to a telephone message left at the Company's switchboard by Martin Rudolph , which message is dated August 5 at 2:05 p.m.,14 LeVally telephoned Rudolph on an undisclosed date, talked to him about his qualifications , and "asked him to come in and fill out an application ." When compa- ny counsel then asked, "When did he come in, do you recall?", LeVally testified "it was about two days later, he had to make arrangement , he couldn't come while he was at work, so he came in after 5:00." LeVally went on to testify that Rudolph was hired before LeVally wrote out Gillespie's termination and that Rudolph was Gillespie's replacement. On cross-examination, upon being asked when Rudolph began his employment , LeVally initially testified , "He gave one week notice at Abbott Lab [Rudolph's then employer], he would have begun on the 18th, I would assume." (As previously noted, Gillespie was discharged on Friday, Au- gust 8.). The General Counsel thereupon drew LeVally's attention to Respondent's Exhibit 8, which is a summary prepared by the Company of the hours worked by its em- ployees in 1974 and 1975, and which states that Rudolph was "hired 9-30-75." The General Counsel then asked, "So his actual beginning date was 9-30-75, not August 8, as you have just stated?," to which LeVally replied , "Yes, I would have to check with the time cards and sheets and his earnings record." On redirect examination , LeVally testi- fied that Rudolph came in on August 5 and filled out an application. On further redirect examination by Company Counsel MacDonald, LeVally testified as follows' MR. MACDONALD ' . . . [Rudolph] told you that he wanted what, a week or two notice to give Abbott Laboratory before he quit that fob? THE WITNESS: Yes, Sir. MR. MACDONALD' And or about- JUDGE SHERMAN: Which, a week or two weeks? THE WITNESS . Two weeks , I think. Q. (By Mr. Macdonald) The Petition, in this case, was filed on August the 11th, is that correct? A. Yes, sir. Q. And then, subsequent [sic] to Mr. Rudolph com- ing to work , didn't we, as your counsel, give you in- structions not to hire anybody or fire anybody? A. That is right, sir. Q. And then you made arrangement, therefore to have Mr. Rudolph start his employment after the [September 19] election, is that correct' 14 This document is further discussed infra, fn 21 A. Yes, sir, that is right. Q. And you communicated to Mr. Rudolph to that effect? A. Yes. When asked to explain the interval between the Septem- ber 19 election and Rudolph 's September 30 starting date, LeVally testified, "Apparently , I didn't need him up to that point." LeVally was not asked to give the date of his al- leged posthire communication or communications to Ru- dolph about a starting date Nor was LeVally asked what, if any, discussion occurred regarding Rudolph's arrange- ments with Abbott. LeVally gave the foregoing testimony on the first day of the hearing. On the second day of the hearing, the General Counsel offered Rudolph's job application into evidence. This job application is dated September 25, 1975; repre- sents that Rudolph worked for Abbott between September 1973 and September 14, 1975, when he left for "lack of interest"; 15 states that Rudolph could start work as soon as possible;16 and contains an entry, admittedly filled out by LeVally, which states that Rudolph was interviewed by Le- Vally on Thursday , September 25, 1975, contains a check mark after the printed word "hired," and contains a hand- written "9/29" after the printed words "will report." On redirect examination after Rudolph 's application was re- ceived into evidence, LeVally testified that the first time he saw Rudolph face to face was "I think it was Saturday of that same week [referring to the week which included Tues- day, August 5, when Rudolph allegedly first contacted the Company] but it was a Saturday morning , I know that, he came in and we talked and I didn't have him fill out an application at the time . . . I gave him an application and told him to take it home with him and fill it out because we weren't going to do anything for a while anyway ." As pre- viously noted, before the General Counsel drew this Sep- tember 25 application to LeVally's attention, he had testi- fied that Rudolph came into LeVally's office for a job interview after 5 p.m. on a working day which he initially dated as about Thursday, August 7,17 and then as Tuesday, August 5; that during that visit Rudolph filled out an ap- plication ; and that Rudolph was hired by LeVally (who was on vacation during the week ending Sunday, August 3) before Gillespie was discharged on Friday, August 8. Moreover (as previously noted), before thus attempting to explain the September 25 date on the application , LeVally testified that he had told Rudolph not to report to work until late September because of company counsel 's advice based on the Union's petition , which was filed 2 days after the Saturday when (according to LeVally's final testimony) he allegedly told Rudolph that "we weren't going to do anything for a while anyway." 15 The application states that Rudolph worked for Abbott from "9-I8- 73" to "9-14-73 " LeVally testified that the latter entry should be "9-14- 75 " 16 LeVally so explained Rudolph 's entry "ASAP" after the printed words "Date you can start" 17 This was the date on which LeVally, according to Rowland 's affidavit, told Rowland that LeVally was preparing Gillespie's discharge letter, which according to LeVally was prepared after Rudolph was hired On the first day of the hearing, LeVally testified that he hired Rudolph after 5 p in 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Waukegan News-Sun continued to carry the Company's advertisement for a pressman for 3 days after Gillespie's discharge-that is, on August 9, 10, and 11. The Chicago Tribune began to carry this advertisement on Au- gust 9, the day after Gillespie's discharge, and also carried it on August 10. The Tribune advertisement cost the Com- pany about $35 The News-Sun advertisement and (infer- entially) the Tribune advertisement requested applicants to telephone the Company There is no evidence that the Company made any attempt to cancel either of these ad- vertisements. (2) Evidence regarding the date of the decision to discharge Gillespie Company counsel asserted in his opening statement that the decision to discharge Gillespie had been made "weeks before" Gillespie's discharge. LeVally testified that his "mind was pretty well made up" after a meeting (discussed infra) which allegedly oc- curred on June 2, 1975, to discharge Gillespie "as soon as possible." 18 However, a document (Resp. Exh 10) which LeVally identified as a memorandum prepared by him on June 2, 1975, to Company President Petit, makes no refer- ence to any decision to discharge Gillespie but, instead, states, "I think we should advertise for a pressman, as I believe [Gillespie] is going to quit. In fact I have a very strong suspicion, he has been looking around anyway." Le- Vally initially testified that "June and July are very busy seasons for us, and to try to get through the June and July, I was going to wait until that, after that busy period was over." (As discussed infra, the Company contends that Gil- lespie was discharged partly for tardiness, absenteeism, and refusal to perform certain work.) Then LeVally testified that he wanted to run advertisements on July 1 for a re- placement. LeVally went on to testify that he told Plant Manager Rowland "to get an ad in the paper about two weeks before I left on vacation," which vacation began on July 25. LeVally further testified that Rowland "wrote the ad and gave it to the Assistant Manager and he missed the deadline and didn't get it in." The assistant manager did not testify, and LeVally's testimony in this respect is not corroborated by Rowland's affidavit. LeVally went on to testify that before leaving on July 25 for his vacation, he left instructions with Rowland to put an advertisement in the Waukegan News-Sun and the Pioneer Press Rowland's statement avers: "Before the [Pioneer Press] ad went in I was instructed by Mr. Petit to put the ad in in two weeks I wrote the ad and Mrs. LeVally called it in . . . There was another ad run in the Waukegan News-Sun after this .. " It is undenied that Rowland told Gillespie that Rowland did not know who placed the News-Sun adver- 18 This was his initial testimony on direct examination and his testimony on cross-examination However, toward the end of his direct examination, he replied, "Right, yes sir," to the following question by company counsel, "When you filled out [Gillespie's] termination notice this was a culmi- nation of a decision which you had reached, as you testified to, in the prior, latter part of [sic] middle part of June to the first of July9" The Company's brief asserts that the decision to replace Gillespie was made "early in the month of June, which was two months prior to the earliest admitted union activity " tisement. LeVally further testified that during his July 25- August 3 vacation, Rowland prepared a draft advertise- ment which LeVally identified as being Respondent's Ex- hibit 11. Rowland's affidavit does not corroborate Le- Vally's testimony in this respect, and it is unclear from Respondent's Exhibit 11 which newspapers the advertise- ment was to be placed in.19 LeVally further testified that when he returned to the office on August 4, Assistant Bookkeeper Rena Simchiff told him that she had tried to place the advertisement in the Pioneer Press by telephone call on Tuesday afternoon, July 29, to be printed on Thurs- day, July 31; that she had then learned that an advertise- ment has to be phoned in before noon on Tuesday of a particular week for it to be printed on Thursday of that week; and that since she missed that deadline, she did nothing about putting the advertisement into the Wauke- gan Sun-News or the Chicago Tribune.20 LeVally went on to testify that Mrs. LeVally telephoned all three of these newspapers on August 4 to place advertisements for a re- placement pressman. However, he admitted that these tele- phone calls were all placed outside his presence. Although still in the Company's employ at the time of the hearing, Mrs. LeVally did not testify. Aside from the fact that help- wanted advertisements did appear in the Waukegan Sun- News on Tuesday, August 5, the Pioneer Press on Thurs- day, August 7, and in the Chicago Tribune on Saturday, August 9, there is no probative evidence about when these advertisements were called in.21 Rowland's affidavit avers that the first time he, Petit, and LeVally discussed firing Gillespie "was probably six "The Pioneer Press is listed with an "X" in front of it, but is crossed out The Tribune is listed with a question mark The Waukegan News-Sun is also listed Rowland's affidavit does not allude to the Tribune As previous- ly noted, his affidavit does not aver that he was asked to put an advertise- ment in the News-Sun, and he said he did not know who placed this adver- tisement While the phrasing of the News-Sun and Pioneer Press advertisements is much the same, the latter bears a closer resemblance than the former to Resp Exh 11, which LeVally testified was a draft advertisement prepared by Rowland The record fails to show the precise language of the Tribune advertisement 20 This was the first reference to the Tribune in LeVally's testimony At the time of the hearing, Simchiff was no longer in the Company's employ I draw no inference from her failure to testify 21 LeVally testified that a document received in evidence as Resp Exh 14 is a message written to him on Tuesday, August 5, by the Company's then switchboard operator, who at the time of the hearing was no longer in the Company's employ This document asserts, inter a/ia, that Rudolph had telephoned at 2 05 p in about "job offer in paper " This time entry would to some extent limit the time before which the News-Sun advertisement must have been telephoned in, assuming that Resp Exh 14 is accepted at full face value Entries made thereon by LeVally, allegedly when talking to Rudolph on the telephone later that day, state that Rudolph was then work- ing for "Abbott Labs" and "needs $4-hr" Rudolph's September 25 job application, however, states that Abbott had been paying him $4 50 an hour when he quit on September 18 and that the Company hired him at $4 50 Because it seems unlikely that the Company would have hired him when unemployed at a figure 10 percent higher than he had been willing to accept when still employed 2 months earlier, and in view of LeVally's untruthful representations about other aspects of the timing and circumstances of Rudolph's hire, I have grave reservations about the authenticity of Resp Exh 14 Moreover, while it is true that the document contains certain nota- tions in LeVally's handwriting about, inter a/ia, Rudolph's plant telephone number, it is curious that the Company allegedly kept this August 5 docu- ment after he allegedly filled out an employment application and was prom- ised a job later that same day, and until the Company received the charge on August 18 CONSOLIDATED ACCOUNTING SYSTEMS 99 months before he was fired"-that is, in early February 1975. LeVally did not corroborate Rowland's statement in this respect, it is undenied that in early May Petit urged Gillespie not to quit, and Petit failed to testify. Rowland's affidavit further avers that "the last couple of months [Gil- lespie has] refused to run the paper cutter . . . I thought we could work this out, but after a couple of weeks I could see we couldn't, so we ran an ad for a pressman, I think it was in August." 22 In addition, Rowland's affidavit avers that the Company obtained no qualified applicants from the Pioneer Press advertisement, that an advertisement was run in the Waukegan News-Sun after the Pioneer Press advertisement had run, that qualified applicants were ob- tained from the News-Sun advertisement, that "We had qualified applicants from that ad before the decision was made to fire" Gillespie, and that the discharge decision was made by LeVally. As previously noted, LeVally testified that he decided on June 2 to discharge Gillespie and that Gillespie's replacement called in about the job 2 days be- fore the Pioneer Press advertisement was printed. Nor does LeVally's testimony describe any other applicants for the job. Rowland's statement also avers that LeVally told him the day before Gillespie was fired that LeVally "was get- ting together a letter because they just had too much aggra- vation in bookkeeping." (3) Evidence regarding the Company's tendered reasons for discharging Gillespie The Company contends that the decision to discharge Gillespie was made by LeVally. As previously noted, Le- Vally testified that on June 2, he "pretty well made up his mind" to discharge Gillespie after July. When asked by company counsel, "Did [Gillespie's] refusal to work on the paper cutter have any effect on your judgment?", LeVally replied, "Part of it, sir." Counsel then asked LeVally what factors he had considered in arriving at his June 2 decision to terminate Gillespie, and LeVally replied, "The general attitude over the period of time and Mr. Rowland's contin- ually talking to me about the attitude out there, out in the plant and just a build-up of things along the line, and when he did this, that is when I just knew we had to do some- thing about it." LeVally further testified that he discharged Gillespie because of his "attitude toward Mr. Rowland, lately," which LeVally explained as "Just refusing to run the cutter and being obstinate and what he would do and what he wanted to do and run the job he wanted to run and not run the job he did not want to run and so on " LeVally testified that he found out about the papercutter incident about 2 weeks after June 2, the day on which he allegedly reached a decision to terminate Gillespie. LeVally did not further amplify his description of Gillespie's "atti- tude" toward Rowland 23 22 It is unclear whether "the last couple of months " referred to the months Just before Gillespie's discharge (in which event, Rowland was dating the papercutter incident as having begun in early June) or the months just before he gave the statement on September 19 (in which event , Rowland was dating the papercutter incident as having begun in mid-July) Gillespie's and O'Donnell's credited testimony that Gillespie failed to run the papercutter during the last 2 weeks in June is to some extent corroborat- ed by LeVally's testimony about when he learned about this LeVally's termination letter to Gillespie asserted that he was being discharged partly because of inconveniences al- legedly imposed on the Company in consequence of Gillespie's difficulties with creditors.24 LeVally testified that he had never had any telephone conversations with Gillespie's creditors. LeVally further testified that Mrs. Le- Vally and Petit had had such conversations, but neither of them testified. Later in LeVally's testimony, he conceded that the only harassment he was aware of that the Compa- ny suffered because of Gillespie's creditors was the harass- ment of sending letters to the Company. During the 2 years that Gillespie worked for the Company, he received five or six notices of creditors' claims which were sent to him at the Company's address and which the Company turned over to him unopened. In addition, during this period, the Company received three or four letters stating that the signer was having trouble collecting a debt from Gillespie and asking the Company to see if he would take care of the matter (see infra, In. 26). On one occasion in the winter of 1973-74, Mrs. LeVally spoke to Gillespie about a bill for a child's crib and furniture. That same day, Gillespie punched out for lunch, took extra time, and drove over to pay the bill.25 On two later occasions, once in the summer of 1974 and once in the spring of 1975, LeVally gave Gil- lespie a letter to the Company from a creditor of Gillespie's and said, "For God sake, just take care of this ... Please get off the hook " 26 In addition, on one occasion when the LeVallys were out of town, Petit spoke to Gillespie about his creditors' problems. This conversation occurred about June 1975, but the record fails to show whether it occurred prior to June 2, when LeVally allegedly decided to dis- charge Gillespie. Some of these creditors' letters were based on hospital and doctor's bills for the September or October 1974 delivery of Gillespie's child; but aside from inferences suggested by the identity of the creditors, there 23 For reasons set forth supra, sec II,A, I regard as nonprobative the statement in Rowland's affidavit that Gillespie "had a very bad attitude " 24 The Company makes no claim that the mere existence of Gillespie's debts played a part in his discharge Between July 1974 and May 1975, employee Maes obtained four loans from the Company which totaled $1,000 and which included one loan of an undisclosed amount for tuition fees, one $150 loan which may have been for moving expenses, one $200 loan for rent when he still owed $50 on a previous $200 loan, and a $500 loan for a purpose which LeVally did not recall After a 1970 discharge because Maes' creditors were dunning the Company, he was rehired in May 1974 and remained in the Company's employ until at least the end of 1975, more than 4 months after Gillespie's discharge Also, in December 1974 the Company lent $100 to employee Allen Glader, and in November 1975 the Company advanced $100 bail to employee Pat Maddox, who was charged with driving while his license was suspended On five occasions between March 1974 and June 1975, the Company made advances to Gillespie for sums ranging from $20 to $150 and totaling $420, but all of these were prepayday advances for moneys already earned In March 1975, the Com- pany also deducted about $130 to pay off the balance of some furniture he had bought from it, and about $2 for a phone call made by him 25 My findings as to this bill for a child's crib and furniture are based on Gillespie's testimony on redirect examination On cross-examination, he de- nied having "some problems with the furniture collection" I have consid- ered this discrepancy in assessing his credibility 26 My findings as to the number of letters received by the Company, which LeVally testified were all shown to Gillespie, and the number of conversations between him and LeVally are based on Gillespie's testimony, which I credit over LeVally's for demeanor reasons and because of Le- Vally's demonstrated unreliability as to other matters My findings as to the contents of the LeVally-Gillespie conversations about this matter are based on a composite of their testimony 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no evidence that the Company knew why Gillespie had incurred these debts. Gillespie was never told that he would be discharged if there were any more inquiries from his creditors, or that disciplinary action would be taken against him because of creditors' inquiries. Nor were his wages ever garnisheed before his discharge.27 Respondent's Exhibit 2 purports to be a notice instruct- ing a collection agency to place for collection a $200 claim against Gillespie by `Dr. Joseph L Burke, M.D.S.C." (cf, supra, fn. 27) 10 days from June 3, 1975. The document is stamped, "Listed June 13, 1975." After being marked for identification, this document was shown to LeVally, who testified on direct examination as follows: Q. (By Mr. MacDonald): Mr. LeVally, I will show you Respondent's Exhibit 2, and ask you if you know what that is? A. Yes. This is one of the documents we received in our office regarding credit due, or payment due a Dr. Joseph Burke by Mr. Gillespie. Q. And was that document handed to you? A. Yes, it was. Q. And about what date was that? A. Well, we received it on June the 13th, or so I assume I gave it to him the same day. Q. I see. All right. And did this particular notice that you received have any particular significance in regards to your thinking in conjunction with all of the prior discussion and history that you have had with Mr. Gillespie? A It was basically the same one or the same client-the same document I had seen many times be- fore, and it was just an additional from the same one when I had asked many times to have it taken care of. I assumed that he would and it was on a friendly basis and it wasn't-It was just the straw that broke the camel's back about that time. At this point, company counsel offered Respondent's Exhibit 2 for identification into evidence. On voir dire, Le- Vally testified that his allegedly authenticating testimony was based on a belief that the document had been sent to Mrs. LeVally in consequence of an August 4 conversation between her and the creditor outside LeVally's presence LeVally did not know of his own knowledge when this alleged conversation occurred or when the Company re- ceived the document. Respondent's Exhibit 2 was received in evidence simply to explain LeVally's testimony, and not as an authentic document in fact received by the Company before Gillespie's discharge LeVally did not in terms testify that he discharged Gil- lespie for frequently failing to work a full 40-hour week, 27 In December 1975, more than 3 months after Gillespie's August 1975 discharge, the Company received a wage deduction summons based on a November 1975 judgment in favor of Or Joseph L Burke against Gillespie for $200 plus costs In response to an attached interrogatory, the Company denied that it owed Gillespie any money A document attached to the wage deduction summons states, inter alia, that Federal law provides, "No em- ployer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness " However, LeVally testified to a company feeling or policy that an employee with one garnishment would be terminated nor does Rowland's statement aver in terms that Gillespie was discharged for this reason. However, Gillespie' s termi- nation letter asserts that he was discharged partly for this reason. Moreover, Gillespie's "Confidential Employee His- tory" in the Company's records states that he was dis- missed for "unsatisfactory work record (attendance)," and mentions no other reason. The Company's records disclose that during 1974 and 1975, Gillespie missed more hours of work than any other employee Gillespie admitted that he put in "very few" full 40-hour weeks and that he was "late a lot"-usually 15 or 30 minutes, but sometimes up to 2 hours. LeVally testified, and the Company's records show, that Gillespie missed no more hours of work during the period immediately before he was discharged than he had throughout his 2-year tour of duty with the Company. On some of the occasions when Gillespie was late, he drove to the shop with Plant Manag- er Rowland or employee O'Donnell, both of whom were still in the Company's employ at the time of the hearing. Gillespie testified that LeVally may have mentioned Gillespie's tardiness and attendance record when Gillespie asked for a raise in March or April 1975; but LeVally did not testify that he then mentioned Gillespie's tardiness and attendance record to him. Gillespie testified that with the foregoing exception, no company officials ever talked to him about his tardiness or his attendance, or threatened to discipline him if he continued to be late or absent, or told him that in consequence of his tardiness or absence the entire schedule would get behind. He further testified that his tardiness never caused the schedule to get behind. Pressman O'Donnell testified that he had never seen the Company miss a deadline or have its schedule interrupted because of Gillespie's lateness in arriving, and that neither he nor any other employees had to work overtime because of Gillespie's absences. LeVally testified that in the first part of April 1975, Petit reproached Gillespie for his tardi- ness and attendance record, and that in early June LeVally reminded Gillespie of Petit's reproof, but Petit did not tes- tify. Rowland's affidavit avers that Gillespie "very seldom" missed a whole day without calling in, but that Rowland "talked to [Gillespie] a number of times about his lateness. It was very casual. I'd tell him Dick, you better start com- ing in on time or its gonna get me in trouble, I didn't call him in and chew him out or anything like that. Then he'd be ok for a couple of weeks and it would start all over again " Rowland's statement further avers that when Gil- lespie was late, the whole shop was behind schedule the whole day. In addition, Rowland's statement avers, "A couple of times when [Gillespie] had missed a day I had him come in Saturday or work late, and I came in with him and did work in my office to make up for the time. There hasn't been much overtime because of his being late, but I've had to pull a man off the overhead press to run his press, I've even had to run the vertical press myself, where if he was here I would have been working in my office." 28 28 O'Donnell's testimony and Rowland's affidavit as to the absence of overtime gain some support from Resp Exh 8, which sets forth the number of hours available to each employee if he worked a full week and the num- ber of hours which he actually worked over or under that amount However, the exhibit does not in terms distinguish between straight time and overtime hours CONSOLIDATED ACCOUNTING SYSTEMS 101 LeVally testified that the Company used the vertical press a couple of hours in a day, and, at a maximum, once a week. O'Donnell testified that this press was very seldom used, and that it was run by him, Gillespie, and Rowland. For the reasons stated supra, section II,A, and infra, sec- tion II,C,I, I credit Gillespie's testimony regarding the ab- sence of statements to him about his lateness and absences. For the reasons stated supra, section II,A, I credit Gillespie's and O'Donnell's testimony that Gillespie's late- nesses did not cause the Company to get behind schedule, O'Donnell's testimony that they did not cause the Compa- ny to miss deadlines, and O'Donnell's testimony (corrobo- rated by Rowland's affidavit and the Company's records) that they did not cause the Company to work employees overtime. On the basis of the probabilities of the situation, I conclude that Gillespie's lateness and absences did incon- venience Rowland to some extent. However, for the rea- sons stated supra, section II,A, Rowland's affidavit is non- probative as to Rowland's alleged reproofs to Gillespie and as to the extent that Gillespie's tardiness inconvenienced the Company. Moreover, LeVally's and O'Donnell's testi- mony that the vertical press was seldom used and was used by others as well as by Gillespie leads me to conclude that Rowland's affidavit exaggerated such inconveniences. I note, further, Rowland's affidavit that "There was never any problem with [Gillespie's] work, as far as production." b. Reasons for crediting Gillespie 's testimony regarding predischarge conversations with management As previously noted, I have credited Gillespie's testimo- ny regarding the dates and contents of his two conferences with management, several weeks before his discharge, about his wages. LeVally and Gillespie both testified that the first of these conferences had been requested by Gilles- pie, that it was attended by them and Petit, that during this conference Gillespie asked for a raise, and that in refusing to give Gillespie a raise Petit said that the Company's fiscal year closed on May 31. Moreover, Gillespie testified with- out denial that he threatened to quit in 2 weeks if he did not receive a raise, and that Petit said, "I think you are making a mistake if you quit. We want you to stay." Le- Vally testified that Petit said the Company would not give raises to anyone until it learned from its accountant, about August 1, how good its business had been during the cur- rent fiscal year; that "there was no .. . promise for a raise. There was a promise to be investigated as to whether a raise would be profitable on both parties"; and that Petit also said that Gillespie had frequently been late or absent, to which Gillespie made no response. LeVally's testimony in these respects conflicts with Gillespie's testimony that he was promised a wage increase after the close of the fiscal year if the Company made money, and that Petit never mentioned Gillespie's tardiness or attendance record. Petit did not testify. LeVally testified that the second meeting with Gillespie occurred on June 2 (contrary to Gillespie's testimony, indirectly corroborated by O'Donnell, that this meeting did not occur until June 16). Both LeVally and Gillespie testified that during this meeting, Gillespie al- leged that he had been promised a raise, pointed out that he had not received one, threw his check stub on LeVally's desk, and said that he had been lied to again. Both LeVally and Gillespie further testified that the same day this con- ference was held (during the conference, according to Le- Vally, see supra, fn. 4, and later that day, according to Gillespie), LeVally remarked that he had received job ap- plications from several former employees and that Gilles- pie replied that he hoped one of them was a pressman. LeVally testified that during this conference, Gillespie said "he was finished with a very nasty attitude." Gillespie de- med saying on this occasion that he was finished. If the Company had really told Gillespie during the first meeting that (1) he might not get a raise even if the Compa- ny made money during the current fiscal year, and (2) in no event would he receive a raise until August-according to LeVally, 3-1/2 months later, I regard it as unlikely that Gillespie would have left the meeting with the belief that (1) he had been promised a raise if the Company made money during the current fiscal year and (2) he would re- ceive it on May 31. Moreover, Gillespie's subsequent con- duct is consistent with his version of the first conference, but inconsistent with LeVally's to the extent it differs from Gillespie's. Thus, as LeVally in effect conceded, Gillespie's admitted assertion during the second conference that he had been "lied" to obviously referred to an unkept promise of a raise . Furthermore, the testimony of O'Donnell, who was still in the Company's employ at the time of the hear- ing, establishes that Gillespie expressed extreme annoyance at not receiving a raise in his June 2 paycheck, but calmed down when O'Donnell pointed out that this paycheck cov- ered the fiscal year which terminated on May 31. Further, O'Donnell's testimony in this respect indirectly corrobo- rates Gillespie's testimony that his complaint to LeVally about the Company's failure to give him a raise was made on June 16, rather than on June 2 as LeVally testified. For these reasons, because Petit failed to testify about the first conference, because LeVally was demonstrably untruthful as to other matters, and in view of the witnesses' demeanor, I credit Gillespie's testimony regarding the dates and contents of both conferences, and discredit Le- Vally's testimony except where corroborated by Gillespie. More specifically, I discredit LeVally's testimony that dur- ing the first conference Gillespie was not promised a raise if the Company made money that year and his tardiness and attendance record was mentioned by Petit;29 that the second conference occurred on June 2, and that during the second conference (which according to LeVally preceded Gillespie's discharge by more than 2 months) LeVally re- minded Gillespie of Petit's alleged prior reproof and told Gillespie that he had not been promised a raise, and Gilles- pie said that he was "finished." I regard as without proba- tive value Respondent's Exhibit 10, which LeVally testified is a memorandum written by him to Petit on June 2. There is no testimony from Petit, who did not testify, that he 29 Gillespie testified that this conference occurred about May I and Le- Vally that it occurred during the first half of April Because I regard Gillespie's testimony as more credible than LeVally's in connection with both conferences, I also credit Gillespie as to the May I date However, this particular conflict is of little significance Indeed, the Company's brief as- serts that this conference occurred in May 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received this alleged memorandum. The document strongly implies, if indeed it does not state, that the first conference was initiated by management, rather than by Gillespie as both he and LeVally testified. Further, although both Le- Vally and Gillespie testified that during this conference Gillespie asked for a raise, the document at the very most implies that he made such a request. Moreover, plant man- ager Rowland did not corroborate the statement in the document that he suggested a discussion of Gillespie's fu- ture with him and was not in favor of a raise. Furthermore, although the document suggests that the Company adver- tise for a pressman, the Company did not do so for more than 2 months after this document was allegedly prepared. I conclude that Respondent's Exhibit 10 is not in fact a memorandum written on June 2 to Petit which is an honest attempt accurately to describe events which occurred on June 2 and previously, but rather is a document prepared by LeVally in an effort to lend credence to LeVally's un- truthful testimony about the events leading to Gillespie's discharge. c. The legality of Gillespie's discharge, his eligibility to vote The uncontradicted evidence establishes the following sequence of events : On July 30, Gillespie, an employee of 2 years' standing, began to distribute union cards to his fel- low employees . Rumors of the union movement reached Company President Petit by August 4, and , later that same day, Gillespie admitted his awareness of the union drive to Plant Manager Rowland. On August 5, after having solic- ited all his fellow employees to sign cards , Gillespie mailed to the Union his own union card and five cards which he had successfully solicited from his fellow employees. Early in the morning of August 7, Rowland drew Gillespie's at- tention to the Company's advertisement for a pressman and commented ". . . if you are into this union thing pret- ty deep it will be hard to fire you " Gillespie told him that the employees were "in it pretty deep," and, in response to Rowland's inquiries, that six out of the seven employees were for the Union . Rowland thereupon disappeared for 45 minutes. That same day, LeVally told Rowland that Le- Vally was preparing a discharge letter for Gillespie. The following day, in Rowland's presence , LeVally gave Gilles- pie a discharge letter, but volunteered to give him a good reference elsewhere . In a conversation with employee O'Donnell less than a week later, Company President Petit said that "this union stuff really got me shaken up." When O'Donnell then brought up Gillespie 's discharge, Petit agreed that he had been wrong in firing Gillespie, agreed that Gillespie was a good man and a good worker, and then added, "This damn thing is costing me a lot of money ... God dammit , I will spend it, you know , I will beat this." That by "This damn thing" Petit meant the Union is shown by his earlier reference to being "shaken up" by "this union stuff" and to the Company 's hard-earned pre- sent position, by his earlier reference to O'Donnell's feel- ings followed by Petit's tacit acceptance of O'Donnell's in- ference that such remarks referred to his union feelings, and by Petit's immediately following remarks, when agree- ing to confer with O 'Donnell and Gillespie in order to try to straighten out Gillespie's discharge, that Petit would have to consult with counsel about what to do with "this union stuff." These last remarks disclose, moreover, that Petit was spontaneously connecting Gillespie's discharge with the "union stuff" which Petit was determined to "beat." About a week later, upon receiving the union charge which alleged that Gillespie had been discharged for union activity, Petit evinced a change of heart about possibly recalling Gillespie, concomitantly with again ex- pressing an intent to "beat" the Union. The foregoing evi- dence, all of it uncontradicted, makes a strong prima facie case in favor of the General Counsel's contention that the real reason for Gillespie's discharge was his union activity. This prima facie case is strengthened by the numerous inconsistencies and improbabilities in the Company's ten- dered explanations regarding the timing of and reasons for Gillespie's discharge. LeVally testified that Gillespie was discharged on August 8-10 days after he began to distrib- ute union cards-because, earlier that week, LeVally had hired Rudolph as Gillespie's replacement. However, Le- Vally's initial testimony that Rudolph was hired that week during an interview when he filled out an application blank is inconsistent with Rudolph's application blank, which bears a late September date and includes LeVally's written "remarks" bearing that same date; and is also rendered questionable by the Company's failure (so far as the record shows) to try to save money and the receipt of further tele- phone calls from applicants by canceling its help-wanted advertisements, which continued to run for 4 to 6 days after Rudolph was allegedly hired. LeVally's initial testi- mony that Rudolph began work on August 18 or 25 is refuted by company records showing that he began work on September 30. LeVally's subsequent testimony that this 7-week interval subsequent to Rudolph's alleged August 5 or 7 hire was due to counsel's advice regarding the inter- vening August 11 representation petition is inconsistent with LeVally's final testimony that the Rudolph hiring in- terview occurred in the morning of Saturday, August 9, and that LeVally then told him to fill out an application blank at home because the Company would take no action for a while anyway, which final testimony is inconsistent with LeVally's initial testimony that Rudolph's hire preced- ed and triggered Gillespie's August 8 discharge. Further, LeVally's final testimony that on Saturday morning, Au- gust 9, he told Rudolph to fill out an application blank at home is inconsistent with LeVally's initial testimony that Rudolph filled out his application during an interview which occurred after 5 p.m. on a weekday prior to August 8. Also, LeVally's testimony that Rudolph was to work out a notice to Abbott Laboratories until August 18 or 25, and LeVally's notations on the purported August 5 memoran- dum that Rudolph needed $4 an hour, are difficult if not impossible to reconcile with Rudolph's September 25 ap- plication blank, which recites that Rudolph wanted to start work as soon as possible, resigned from Abbott on Septem- ber 14 for "lack of interest," was making $4.50 an hour there, and was hired by the Company at the same rate. Likewise characterized by inconsistencies and improba- bilities is the Company's contention that it decided to dis- charge Gillespie almost 2 months before he started his union activity, and more than 2 months before he was ac- tually discharged. Thus, after testifying that LeVally CONSOLIDATED ACCOUNTING SYSTEMS reached the discharge decision on June 2 (a decision not reflected in LeVally's alleged June 2 memorandum to Pet- it), LeVally testified that his discharge decision was partly based on the papercutter incident (which he admittedly learned about some 2 weeks after June 2, and which began about June 16) and on Respondent's Exhibit 2 (relating to a doctor's bill owed by Gillespie), characterized by LeVally as the "straw that broke the camel's back" which was not received by the Company until June 13.30 Moreover, the Company admittedly did not request the placement of any help-wanted advertisement to obtain a replacement for Gillespie until a date which was more than 2 months after LeVally allegedly decided to discharge him but which coin- cided with Petit's admission that he had heard rumors of a union movement. LeVally sought to explain the last 5 weeks of this delay by testifying that in early July and again in late July he directed Rowland and others to place such advertisments, and on both such occasions someone missed a deadline. For demeanor reasons, and because this somewhat fishy testimony is inconsistent with both Rowland's affidavit and his representations to Gillespie, I do not believe LeVally's testimony that he issued such in- structions. LeVally testified that he made no efforts to ob- tain a replacement during June because June and July are the Company's busy season, but this testimony is difficult to reconcile with the Company's contention that it dis- charged Gillespie partly because of his attendance and tar- diness record. For demeanor reasons, and for the reasons set forth supra, I do not believe this testimony either. The evidence likewise militates against the Company's contention that Gillespie's discharge was motivated by his deficiencies as an employee. Thus, although LeVally testi- fied that he decided to discharge Gillespie partly because of his failure to run the papercutter, LeVally admitted that he did not find out about this incident until 2 weeks after allegedly deciding on the discharge. Moreover, the Compa- ny did not discharge O'Donnell when he refused the in- structions of both Rowland and Petit to run the papercut- ter, Gillespie went back to working on the papercutter a month before he was discharged, Rowland never ordered him to operate the papercutter, Rowland had always cut the stock for the other pressmen, and the other pressmen never operated the papercutter at all (except that O'Don- nell would run it when Rowland was not in the building). Gillespie's discharge letter asserted that he was being dis- charged partly because "Requests for credit information and our assistance in helping your creditors collect amounts long over due have been increasing for several months and this has caused our bookkeeping department and our administrative personnel costly time on records and the telephone." However, Gillespie was never told that he would be discharged if there were any more inquiries from his creditors, or that disciplinary action would be tak- en against him because of creditors' inquiries. Moreover, so far as the probative record evidence shows, the predis- charge inconveniences imposed on the Company by Gillespie's difficulties with his creditors were limited to giv- ing him five or six unopened letters from creditors and 30 As found supra, sec II,C,3, there is no probative evidence that the Company received the document before discharging Gillespie 103 receiving three or four letters requesting assistance in get- ting Gillespie to pay; nor does the record support the dis- charge letter's assertion that such requests had been in- creasing toward the end of his 2-year tenure. Furthermore, according to LeVally, "the straw that broke the camel's back" was a "Notice before Placement" which (according to LeVally's initial testimony) the Company received more than 2 weeks after LeVally allegedly decided to discharge Gillespie, and there is no probative evidence that the Com- pany received it before discharging him. Nor do the Company's personnel records state that Gillespie was dis- charged because of his difficulties with creditors. More- over, while the Company contends that Gillespie was dis- charged partly for lateness and absenteeism, LeVally conceded that Gillespie's record in this respect was no worse during the period immediately before his discharge than throughout his 2-year tour of duty with the Company; he was never told that he would be disciplined if he contin- ued to be late or absent; and his conduct in this respect did not substantially discommode the Company. Further, Rowland's affidavit concedes that "There was never any problem with [Gillespie's] work so far as production"; and the Company's contention that Gillespie's shortcomings rendered him unsatisfactory to it is difficult to reconcile with LeVally's admission that during the discharge inter- view, he volunteered to give Gillespie a good recommenda- tion for a job elsewhere. Indeed, less than a week after Gillespie was discharged, Petit admitted that he was a good pressman and a good worker. Finally, the Company contends that the complaint as to Gillespie must be dismissed because there is no evidence that before his discharge, the member of management who decided to discharge him knew about his union activity. I regard this contention as disposed of by Petit's mid-August remarks to O'Donnell, which show that Petit was spontane- ously associating Gillespie's discharge with the Union which Petit was determined to "beat." The Company's con- tention to the contrary focuses on LeVally's testimony that he did not find out about the union movement until the Company received the Union's bargaining demand 3 days after Gillespie's discharge, LeVally's further testimony that it was he alone who decided to discharge Gillespie, and the events of August 4 and 5. At the time Gillespie was discharged, the Company had about seven employees. LeVally testified that the Compa- ny runs a very small operation and has only three manage- ment officials-himself, Rowland, and Petit. LeVally fur- ther testified that although "Mr. Petit and I are not too much in contact pretty much of the time," LeVally and Rowland "are in contact pretty much." Rowland's testimo- ny (as an adverse witness) and affidavit establish that on or before August 4 Petit heard of the union movement, and that on August 4 Petit told Rowland about it. In effect, the Company seeks to depreciate this evidence on the ground that there is no direct evidence that before orders were issued to telephone in the help-wanted advertisements, in- formation about the Union had reached the company rep- resentative who initiated such orders. The difficulty with the Company's position in this respect, however, is that much of the relevant information lay solely within the knowledge of persons connected with the Company whom 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it elected not to call as witnesses. Company President Petit was not called to testify about the date and hour when he found out about the union movement and Gillespie's active role therein,31 or whether and when he relayed this infor- mation to LeVally, or whether and when a role in the dis- charge decision was played by Petit, whose postdischarge remarks to O'Donnell strongly suggest that it was Petit who decided thereon'32 and who according to Rowland's affidavit told him to put in the Pioneer Press help-wanted advertisement. Plant Manager Rowland was not called by the Company to testify about the hour when Petit told him about the union movement, or about whether and the date and hour when Rowland told LeVally about it, or about whether Rowland played a part in the discharge decision, as his affidavit suggests he did. Mrs. LeVally (who is the Company's bookkeeper and is the wife of executive Vice President LeVally) was not called to testify about the date and hour when her husband allegedly told her to telephone in the advertisements, and the date and hour when she allegedly made the calls. Indeed, although LeVally testi- fied, in effect, that his alleged instructions to his wife were issued in the "early morning" of August 4, he never gave a more exact hour. Moreover, there is no evidence other than the date of actual publication regarding the deadlines for the August 5-11 News-Sun and August 9-10 Tribune ad- vertisements, and no probative evidence other than the date of actual2ublication for the August 7 Pioneer Press advertisement. In short, the Company's entire contention regarding pre- discharge ignorance of Gillespie's Union activity rests upon the testimony of its sole witness LeVally, even though his testimony, if true, could have been almost wholly cor- roborated by Mrs. LeVally, by Company president Petit, and by plant manager Rowland, and even though Le- Vally's testimony in other material respects was repeatedly impeached. I reject the Company's explanations for its fail- ure to call Mrs. LeVally and Petit,34 and I conclude that their and Rowland's testimony would have been adverse to the Company (see cases cited supra, In. 7) 35 Further, for all 31 O'Donnell's uncontradicted testimony about his posthearing confer- ences with Petit establishes that by August 13 or 14, Petit knew that Gilles- pie was involved in the union movement 32 O'Donnell testified in part as follows I probably come back and says, "Hal, God dammit, you knew you were wrong in firing this-" and I called him a "Bad Hutta," "You knew you were wrong in firing him" I said, "Why don't you just call him in and talk to him and try to straighten it out " [Petit] agreed, he blew his top, he agreed to that 33 There is hearsay testimony that the relevant Pioneer Press deadline was noon on August 5 This was the date on which the News-Sun advertisement was printed 34 The Company's brief advances the view that Mrs LeVally's testimony would have added nothing to her husband's testimony, and (citing LeVally's testimony) that "there is ample testimony that Mr LeVally made the deci- sion to terminate Gillespie on his own, in June " Counsel further asserts that Petit (referred to in the plant as "the old man") "has not enjoyed the best of health recently and it seemed foolhardy to subject him to a hearing where his presence was not required " However, counsel does not assert that Petit was physically unable to testify and, indeed, suggests that the General Counsel could have subpenaed him 35 The Company's failure to call Rowland as a witness undermines its analysis of Rowland's August 7 remark to Gillespie, "if you are into this union thing pretty deep it will be hard to fire you " The Company argues that "There would have been no reason for such a statement if a decision the foregoing reasons and in view of LeVally's demeanor, I do not believe his testimony that he alone decided on the discharge, that he discharged Gillespie before learning of his union activity, that Rowland and Petit did not tell him about such activity, and that such activity played no part in the motives for Gillespie's discharge. Rather, I conclude that Gillespie's discharge was motivated by his union activ- ity. While the Company may have had valid grounds for discharging Gillespie, "the presence of valid grounds for an employee's discharge does not legalize a dismissal which was nevertheless due to a desire to discourage union activi- ty." Borek Motor Sales, Inc. v N.L.R B, 425 F.2d 677, 680 (C.A. 7, 1970), cert. denied 400 U.S. 823.36 Accordingly, the Company's motion to dismiss the complaint as to Gillespie is hereby denied. The Company contends that the August Petit-O'Donnell conversations must be ignored because of Section 8(c) of the Act, which provides, "The expressing of any views, ar- gument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not consti- tute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force of promise of benefit." I regard Section 8(c) as irrelevant to the Petit-O'Donnell conversa- tions. These conversations are significant because they show that even before the charge was filed, Petit spontane- ously connected the admittedly "wrong" discharge of an admittedly good worker, Gillespie, with a union movement which Petit said had "shaken [him] up" and he would "beat"; and that upon receiving the charge, Petit evinced a change of heart about possibly recalling Gillespie concomi- tantly with again expressing an intent to "beat" the Union. Although clearly calling for the inference that Petit pos- sessed antiunion views, such remarks did not constitute merely an expression of those views but, rather, were im- plicit admissions and otherwise acts in themselves and, as such, unaffected by Section 8(c). II Leg. Hist. 1541, 1624 (1948) National Labor Relations Act, 1947, (remarks by Senator Robert Taft, Sr.). Further, I regard the evidence summarized supra regard- ing events before and during this second Petit-O'Donnell had not been made long before to replace Gillespie and if the Company were not looking for a replacement Rowland saw the union activities as a totally unanticipated roadblock to the discharge " In the absence of any such explanation by plant manager Rowland , I infer that such remarks reflected Rowland's awareness that an active union and a number of union sympathizers would make it hard for the Company to carry out unscathed its previous decision or tentative decision to discharge the Union leader for his union activities J6 Nor do I believe LeVally's testimony that he hired Rudolph as a re- placement for Gillespie before discharging Gillespie on August 8 Rather, on the basis of the Company's payroll records and Rudolph's job applica- tion form, I infer that Rudolph quit his job with Abbott on September 14 for reasons unrelated to any notice being worked out by him, that when he quit this job he was being paid $4 50 an hour, that prior to this date he had not accepted any company promise to hire him, that on September 25 Le- Vally interviewed him and promised to hire him at $4 50 an hour, and that he started to work on September 30 Assuming, arguendo, that I should take at full face value the alleged August 5 telephone memorandum slip regard- ing an alleged telephone call for LeVally from Rudolph (Resp . Exh 14, see supra, In 21), this memorandum and the other documentary evidence would lead me to infer that LeVally talked to him over the telephone on or within a few days after August 5, that he was then making no more than $4 an hour, that Abbott thereafter increased his wages to $4 50, and that his Au- gust discussions with LeVally were inconclusive CONSOLIDATED ACCOUNTING SYSTEMS 105 conversation as preponderantly establishing that Gillespie was discharged because of his union activity . Accordingly, the result herein would remain unchanged even if I accept- ed the Company's contention that Section 8(c) compels me to ignore its September 1975 letter to O'Donnell , about 6 weeks after Gillespie's discharge , which concluded with the following capitalized message, "BE SURE TO VOTE VOTE RIGHT-VOTE NO, VOTE NO AGAINST THIS OUTSIDE UNION " 37 In any event, the Board entertains the view that statements of this type are admissible evidence of motive. Smith 's Transfer Corporation of Staunton, Virginia, 162 NLRB 143, 161-164; Sun Hardware Co, 173 NLRB 973, fn . 1, (1968), enfd. 422 F.2d 129 (C A. 9, 1970). While the Company cites some judicial precedent pointing to a contrary result ,38 "it re- mains the [Administrative Law Judge's] duty to apply es- tablished Board precedent which the Board or the Supreme Court has not reversed . Only by such recognition of the legal authority of Board precedent , will a uniform and or- derly administration of a national act, such as the National Labor Relations Act, be achieved ." Iowa Beef Packers, Inc., 144 NLRB 615, 616 ( 1963), modified 331 F.2d 176 (C.A. 8, 1964). Up to this point in my Decision , I have disregarded an affidavit executed by Thomas Maes, who did not testify. Paragraph VI(b) of the Company's original answer, filed on October 17, 1975, denied the complaint allegations that Petit threatened to sell the printing part of the Company's business if a union successfully organized the employees in that department, "and in support thereof attaches hereto the affidavit of Thomas Mayes [sic], a document taken by an attorney of the National Labor Relations Board on Sep- tember 16, 1975, wherein it appears that any conversation pertaining to the Union with . . . Petit, was not only of a jocular nature, but said statements were in fact non-coer- cive in nature." Because this original answer with its at- tached affidavits was received in evidence , on the General Counsel's motion and without objection, as General Counsel's Exhibit 1(g), I regard the Maes affidavit as pro- bative against the Company even though, after such an- swer was received, I granted the Company' s motion for leave to amend this paragraph VI(b) and to substitute a denial of the foregoing complaint allegations 39 Nisbet v. Van Tuyl, 224 F 2d 66, 71 (C A 7); Fuhrer v. Fuhrer, 292 37 No contention is made that this letter constituted an unfair labor prac- tice At the hearing, company counsel asserted , inter aba, "I wrote it, so I would like to know in what way it reflects the company , in the course of the campaign , prior to the election , that it is taking a position it 's opposed to the union " The Company's brief does not renew this contention 38 Indiana Metal Product s Corp v N L R B, 202 F 2d 613, 617 (C A 7, 1953) Cf NLRB v Kropp Forge Co, 178 F 2d 822, 827-829 (C A 7, 1949), cert denied 340 U S 810, N L R B v LaSalle Steel Co, 178 F 2d 829, 834-835 (C A 7, 1949), cert denied 339 US 963, Angwell Curtain Company, Inc v NLRB B . 192 F 2d 899, 903 (C A 7, 1951) 39 Company counsel stated on the record at this point that the motion for leave to amend his answer was required by the parties' prior stipulation at the hearing, contrary to the eventually amended paragraph of the original answer, that Maes was an employee rather than a supervisor Not until all parties had rested did company counsel in terms allege that the effect of the amendment to the answer was to effect "the withdrawal and the no longer assertion by the respondent" of the Maes affidavit At this point, the Gener- al Counsel averred that if he had understood the motion to amend as en- compassing the striking of the Maes affidavit , he would have opposed the motion and , if it had been granted , would have called Maes as his witness F.2d 140, 144 (C.A. 7); Borel v. United States Casualty Co., 233 F.2d 385, 387-388 (C.A. 5), and cases cited ; 3 Moore, Federal Practice, 15.08[7] (2d ed ), 29 Am. Jr., Evidence § 693, pp. 748-751 (1967); 71 C.J.S. Pleading § 321 at 717 (1951). To be sure, because my action in granting the mo- tion to amend deprived the amended portion of the origi- nal answer of all function as a pleading ,40 the Company thereafter had the right to bring in evidence contrary to the Maes affidavit, but the Company did not do so. The Maes affidavit states that Maes first learned about the union activity on the day Maes and Gillespie had lunch at MacDonald's (a restaurant), a date which Gillespie's tes- timony and Maes' union card fixes as Friday, August 1, a week before Gillespie's discharge . The Maes affidavit fur- ther states that Maes told Petit, "We've got talk of a union again," about a week and a half before Gillespie's August 8 discharge. However, Maes' statement elsewhere suggests that this conversation with Petit occurred a day or two after Maes' August 1 execution of a union card (that is, on Saturday, August 2, or Sunday, August 3). Moreover, O'Donnell testified without contradiction that Petit was on vacation until August 4 Accordingly, I conclude that Maes told Petit about the union movement on August 4. In this connection, I note that Petit failed to testify. Accord- ingly, the Maes affidavit provides some additional corrob- oration for my previous finding that the Company knew about Gillespie's union activity before discharging him. In view of my finding that the Company discharged Gil- lespie on August 8, 1975, because of his union activity, in violation of Section 8(a)(3) and (1) of the Act, I further find that he was eligible to vote in the election on September 19, 1975, and that the challenge to his ballot should be over- ruled. Accordingly, the Company' s motion to sustain the challenge is hereby denied. 2. The independent 8(a)(1) allegations I agree with the General Counsel that the Company vio- lated Section 8(a)(1) of the Act when Plant Manager Row- land impliedly asked how "deep" Gillespie was "into this union thing," and further asked the identity of the union in question . In so finding, I note that no legitimate reason appears for such questioning, and that Gillespie was dis- charged on the following day because of how "deep" he was "into this union thing." I note, moreover , the assertion in the Company's brief that Gillespie "attempted to protect himself by intentionally keeping his union activities se- cret." Under these circumstances , the fact that Gillespie and Rowland were personal friends is not available as a defense to the Company. Princeton Sportswear Corporation of Pennsylvania, 220 NLRB 1345 (1976), Hanes Hosiery, Inc, 219 NLRB 331 (1976). Accordingly, the Company's motion to dismiss the complaint as to this interrogation is hereby denied 40 Bullen v DeBretteville , 239 F 2d 824, 833 (C A 9), cert denied 353 U S 947, Lubin v Chicago Title and Trust Company, 260 F 2d 411, 413 (C A 7) 41 However, LeVally did not refer to Petit's absence when asked to ex- plain why Petit and Rowland allegedly did not tell him about the union activity when LeVally returned from his vacation on August 4 Moreover, it is a little curious that two members of the division's three-member manage- ment team were both on vacation the same week 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record contains no evidence to support the com- plaint allegation that the Company threatened to sell the printing part of its business if a union successfully orga- nized it . Accordingly, the Company' s motion to dismiss the complaint as to the alleged threat is hereby granted. CONCLUSIONS OF LAW I The Company is 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. The Company discharged Richard Gillespie on Au- gust 8, 1975, because of his activity on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act 4 The Company violated Section 8(a)(1) of the Act by interrogating Gillespie about activity on behalf of the Union. 5. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Company has not threatened to sell part of its business if a union successfully organized it. THE REMEDY Having found that the Company has violated the Act in certain respects, I shall recommend that the Company be required to cease and desist therefrom . Because the unfair labor practices found include the discharge of the leader in the union movement because of his union activity, a broad order is called for. SKRL Die Casting, Inc., 222 NLRB 85 (1976); Brom Machine and Foundry Co., 222 NLRB 74 (1976). Accordingly, I shall recommend that the Company be required to cease and desist from infringing on employ- ee rights in any other manner. I shall also recommend that the Company be required to offer Gillespie immediate re- instatement to the job of which he was unlawfully de- prived, or, in the event such job no longer exists , a substan- tially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, from the date of his discharge to the date of a valid offer of reinstatement, less his net earnings during this period, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as described in Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962). In addition, I shall recom- mend that the Company be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act and the Regional Director's order consolidating cases dated October 14, 1975, I issue the fol- lowing recommended: ORDER 42 The Respondent, Consolidated Accounting Systems, Inc., Highland Park, Illinois, its officers , agents, successors, and assigns, shall: I Cease and desist from: (a) Discouraging membership in Printing Pressmen and Graphic Arts Union No. 3, affiliated with International Printing and Graphic Communications Union, AFL-CIO, or in any other labor organization , by discharging employ- ees, or otherwise discriminating in any manner in regard to hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees about activity on behalf of that Union or any other labor organization, in a manner constituting interference, restraint, or coercion. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Richard Gillespie immediate reinstatement to his former job or, if his former job no longer exists, to a substantially equivalent job, and make him whole for any loss of pay he may have suffered by reason of the discrimi- nation against him, in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful to analysis of the amount of backpay due under the terms of this Order. (c) Post at its place of business in Highland Park, Illi- nois, copies of the attached notice marked "Appendix." 43 Copies of the notice , on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative , shall be posted by it, in con- spicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 13-RC-13788 be re- manded to the Regional Director for Region 13 to open and count the ballot of Richard Gillespie, to issue a revised tally of ballots, and to take such further action as then becomes appropriate. IT IS ALSO FURTHER ORDERED that the complaint is dis- missed to the extent that it alleges that the Company vio- lated the Act by threatening to sell part of its operation 42 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 43 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 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 " CONSOLIDATED ACCOUNTING SYSTEMS 107 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 opportunity to present their evidence, it has been decided that we violated the law by, among other things, discharging Richard Gil- lespie because of his union activity . We have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discharge or otherwise discriminate against any employee to discourage membership in Printing Pressmen and Graphic Arts Union No. 3, af- filiated with International Printing and Graphic Com- munications Union, AFL-CIO , or any other union WE WILL NOT ask our employees about union activity in a manner constituting interference , restraint, and coercion. WE WILL offer Richard Gillespie reinstatement to his job or, if that job no longer exists , to a substantially equivalent job, and make him whole, with interest, for loss of pay resulting from his discharge. The National Labor Relations Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion To refrain from any such activities WE WILL NOT in any other manner interfere with, restrain , or coerce employees in exercise of these rights. Our employees are free to exercise any or all of these rights, including the right to join or assist Pressmen's Union No 3, or any other union . Our employees are also free to refrain from any or all such activities , except to the extent that union membership may be required by a collec- tive-bargaining agreement as a condition of continued em- ployment as permitted by the proviso to Section 8(a)(3) of the Act. CONSOLIDATED ACCOUNTING SYSTEMS, INC.