Huron Copysette, Inc.

HURON COPYSETrE, INC. Huron Copysette, Inc. and Coopers' International Union of North America, AFL-CIO. Case 9-CA- 10329 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 13, 1977, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,1 and conclusions of the Administrative Law Judge, to modify his remedy, 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Huron Copysette, Inc., Leitchfield, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his finding. We agree with the Administrative Law Judge's finding that John Pawley is a supervisor within the meaning of the Act. In so doing, however. we rely solely on the facts that Pawley in December 1975 effectively recommended the hiring of an employee; he attended a management meeting at which Respondent's supervisors were instructed as to their conduct during the organizing campaign; he has taken part in the formal reprimand of employees by writing up discipline reports, cosigning them as a witness and, in the case of the Febraary 1976 repnmand of discrminatee Howell, signing the discipline report in lieu of a foreman; and he is paid a salary. unlike the employees who are paid an hourly wage. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any of you for supporting Coopers' International Union of North America, AFL-CIO, or any other union. WE WILL NOT threaten to close the plant or to provide less favorable working conditions if you vote for a union. WE WILL NOT coercively question you about union support or union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL offer William Howell immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay or benefit he may have suffered as a result of our discrimination against him, plus interest. HURON COPYSETTE, INC. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was heard at Bowling Green, Kentucky, on October 21-22, 1976, and at Louisville, Kentucky, on November 4. 1976. The charge was filed on May 14, 1976,1 and the complaint was issued on June 30. After successfully defeating a union organizing drive in 1973, the Company again succeeded in doing so in 1975- 76, and thereafter discharged the union observer and a union supporter. The primary issues are whether the All dates are between August 1975 and June 1976 unless otherwise stated. 232 NLRB No. 92 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent (a) coercively interrogated employees, threat- ened plant closure and other reprisals, and engaged in unlawful discrimination during the 1975-76 organizing campaign, and (b) discriminatorily discharged the union observer and supporter after the election, in violation of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. Upon the entire record, 2 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACr I. JURISDICI!ION The Company, a Michigan corporation, is engaged in the manufacture of paper products at its plant in Leitchfield, Kentucky, where it annually ships products valued in excess of $50,000 directly to points outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALL EGED UNFAIR LABOR PRACTICES A. Threats and Interrogation Upon the invitation of employee William Howell (who later served as union observer at the January 29 election), four company employees attended an informal union meeting with Howell. two former employees, and a union representative on October 23. Howell was a leading union organizer during the 1975-76 campaign (following the unsuccessful organizing campaign in 1973). About 2 weeks after the first union meeting on October 23, as employee Truman Newton credibly testified, Foreman Danny Blessitt asked Newton about the union campaign and told him that, if the Union got in, "Old Dad [General Manager Louis Sturdevant] will move the plant." Then, "a few days, maybe a week" later, Blessitt again asked Newton about the campaign and told Newton, "He'd hate to be the one who started it because ... they would be fired so fast they wouldn't know where they was at." (Foreman Blessitt admitted talking to Newton about the Union. He claimed, however, that, in the first conversation, Newton asked him if Sturdevant would shut the plant down if the Union came in, and he answered, "Hell, anything is possible." Blessitt further claimed that, in the next conversation, he merely asked Newton how the Union was going and did not pursue the matter. When so testifying, Blessitt impressed me as being less than candid.) The Company contends that the "General Counsel has failed to meet its burden of establishing that these alleged conversations occurred on or after November 14, 1975" (6 months before the May 14 filing date). I agree. Although Blessitt fixed the dates as "somewhere around" November or December, Newton candidly testified that the conversa- tions occurred about 2 or 3 weeks after the October 23 2 The General Counsel's unopposed motion to correct transcript, dated December 21, 1976, is granted and received in evidence as G.C. Exh. 5. meeting. Therefore, because of the 6-month limitation provision in Section 10(b), I do not find that either conversation constituted coercive interrogation or a threat. I do, however, take this evidence of union animus into consideration when determining the Company's motiva- tion for the March 26 discharge of Howell. (I also find that the early November interrogation of employee Outis Meredith by Blessitt and Sturdevant is likewise not shown to be within the 6-month limitation period.) Union meetings were held in November, December, and January. After the December meeting, Foreman Blessitt (in the presence of Head Foreman Charles Walls) approached material handler Meredith in the incinerator room. Blessitt asked Meredith "how the Union was going," "did I go to the meeting," "who all was there," and "what happened." Meredith answered that the Union was going "pretty good," that he did attend the meeting, that "a few people was there, and nothing much happened." A few days later, Blessitt approached Meredith near the baler, again men- tioned the union meeting, and said, "Well, come on outside and let's talk about it." There, behind the building, Blessitt asked what happened at the union meeting, who all were there, "and he named four employees and asked if they were there." Meredith said he was not going to say because he did not want to get anybody in trouble. Blessitt then said "Sturdevant would close the doors if the Union come in, and that if it come in they would put in horns for when you go on breaks" and the plant "would have to be run by the book." Later in December, Blessit walked by the baler and asked Meredith "how many cards I was getting signed." Meredith said "a few." (Blessitt testified that the foremen were "heavily drilled" by Sturdevant on what they could and could not say and ask during the union campaign, but admitted, "I violated the rules that Mr. Sturdevant set forth on the Union." However, after pointing out that Meredith was a good friend, Blessitt claimed that he merely recalled asking Meredith "at one time how the Union was going. And later on I asked him again how the Union was going." As previously indicated, Blessitt appeared to be less than candid.) Contrary to the Company's arguments, I find that the incinerator room interrogation (to which Meredith gave mostly evasive answers, in the presence of the head foreman), the next interrogation (seeking specific information about four employees attending the union meeting) and threats (of plant closure and less favorable working conditions), and the later interrogation (concerning the number of cards signed) were coercive and violated Section 8(a)(1) of the Act There were about 30 employees on the day shift. Meredith was one of the approximately 10 employees who were wearing union fountain pens on that shift. On one occasion in December, General Manager Sturdevant saw Meredith's pen (bearing the Union's name), "asked where was his pen, and where could he get one," and "said he was going to file charges with the Labor Board against the Union for not sending him a pen." Meredith commented that Sturdevant could go to a union meeting if he wanted one, and said that, if Meredith ever got another one, 562 HURON COPYSETrE, INC. Sturdevant could have it. About 2 weeks later, Sturdevant asked Meredith if the pen he was then wearing was Sturdevant's, and Meredith answered, "You can have it if you want it," giving it to Sturdevant. The General Counsel argues that Sturdevant was "badgering" Meredith with respect to his union pen, interfering with his right to carry it. The Company contends that Sturdevant was merely "kidding." I agree with the Company. Although, as testified to by Meredith, Sturdevant was using an "angry" tone of voice during the first conversation, I find that the content of what was said indicated that both conversations were merely jocular exchanges, which did not tend to interfere with Meredith's union support. About January 15 (2 weeks before the January 29 election), Quality Control Manager John Pawley got into a discussion with a prounion employee, vertex helper D'Anna Winn, when Winn's machine in the collator department was down. Vertex helper Betty DuVall was working with Winn, and overheard the conversation. As credibly testified by DuVall (who impressed me as being an honest, forthright witness), Winn asked Pawley what he thought about a union. Pawley answered that he thought anybody that is for a union is a "damn fool," and Winn responded that she thought anybody that is against a union is a "damn fool." Then Pawley stated, "If the Union goes in, Mr. Sturdevant will close the plant down and move it back to Michigan" and "I wouldn't work for a union place." (Winn testified that Pawley "said that if the Union went in there, Mr. Sturdevant would pack up the plant and go back to Michigan, and he hoped that he did because he wouldn't work for a company that had a union." Although Pawley admitted giving his personal opinion "that anybody that joins the Union is a damned fool," he claimed he told Winn that "they've got too much at stake to move the plant" when Winn asked if he expected them to move the plant. I discredit this version of his statement.) Clearly, Pawley's statement, that General Manager Sturdevant would close the plant if the Union won the election, was coercive if Pawley was acting or speaking on behalf of the the Company. While acknowledging that Pawley occupied "various positions throughout his employment," the Com- pany contends that "he was not at any time material to this cause, a supervisor as that term is defined in the Act, nor was he considered as such by the employees." The General Counsel contends that Pawley has served "in various supervisory and managerial capacities, including that of personnel manager." Pawley testified that he was quality control manager when the plant first started (in 1972). Since then (except for the period from June 1974 until May 1975, when he was working in production planning), he has remained in that capacity, although serving also at times as personnel manager and administrative assistant to the general manager. He has interviewed applicants and, as late as December (a month before the election), interviewed and effectively recommended the hiring of an employee. About five times in 1975 and twice in 1976, he took part in the reprimand of employees: for example, witnessing the reprimand of union observer Howell in February (a month before his discharge), writing up the "Discipline Form," and signing it on behalf of the Company (in lieu of a foreman). General Manager Sturdevant omitted Pawley's name from a list of those present at a management meeting held during the campaign. Sturdevant testifying that he called in the assistant treasurer, plant superintendent. assistant plant superintendent, general foreman. and Foreman Blessitt on November I or 2 and told them to "go out and do some listening and see what you can observe and then report back to me if you hear anything or see anything" concerning the union organizational drive. Pawley, however, admitted being in one such meeting when, he testified, Sturdevant "just told us to keep our mouth shut. Do not say anything to anybody about it." Thus, during the organizing campaign, the Company regarded Pawley as part of management. Although he is the only person working in quality control and does not directly supervise anyone, I find that he has additional authority in personnel matters, that he effectively recom- mends the hiring of employees, and that at the lime he made the threat concerning plant closure he possessed supervisory authority and was regarded as a supervisor by the employees. I therefore find that his threatening statement was coercive and violated Section 8(a)(l) of the Act. (In the absence of objections to the election, I do not rule on whether the threats and interrogation interfered with the employees' free choice.) B. Alleged Discrimination 1. Against Outis Meredith a. His cleanup assignments Hired in May 1973, Meredith was a material handler whose duty it was to empty the broke carts (discard containers), burn broke carbon paper in the incinerator, bale uncoated broke paper for recycling, cut cores, clean up around the garbage and incinerator areas, haul trash to the dump, and, when assigned, clean up outside the plant. He was not particularly active in the organizing cam- paign. He attended two of the four union meetings, signed an authorization card, got two other cards signed, and talked to "about five" other employees about the Union. As previously found, the Company discussed the union activity with him. The complaint alleges that the Company assigned Meredith "less desirable and more onerous work assign- ments" because of his union support. Meredith testified that, during December and January, General Foreman Charles Walls sent him "out in ditches a lot of time [to] pick up cans, board, and paper, and across the railroad tracks and pick up about the same, and around the building picking up paper." Meredith testified that this caused him to get behind in emptying some of the broken carts. However, there is no showing that the Company was discriminating against him when so assigning him these cleanup duties. The Company gave him and other employees such assignments when they were not busy, and there is no showing that he was not idle when these assignments were made to him during January and February. Although it is undisputed that these cleanup duties did cause him to fall behind in emptying some of the 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD broke carts, there is no showing that he did not have sufficient time to empty the carts before the end of the shift. I therefore find that the General Counsel has failed to prove that the Company discriminated against Meredith by making these assignments to him. b. His discharge The timing of Meredith's April 12 discharge (shortly after the March 26 discharge of the union observer, William Howell) may appear suspect, but I find that the General Counsel has failed to prove that the discharge was discriminatorily motivated. Meredith was a good employee until a short time before the organizing campaign began. On September 10 his immediate supervisor, General Manager Walls, reprimand- ed him for spending too much time on his breaks. After this reprimand, there were hard feelings between Meredith and Walls. Walls repeatedly found Meredith idle and would curse and order him to get to work. Meredith was given an hour of overtime each morning to allow him sufficient time to perform all his day-shift duties. However, because of an apparent lack of proper motiva- tion, particularly after the Union lost the January 29 election, he would sometimes get behind in emptying the broke carts during the day, and be idle for the last 30 minutes or so of the shift, without ensuring that all of the carts were left empty for the evening shift. Finally, on March 10, General Foreman Walls reprimanded him again, this time for standing around and interfering with other employees. A few days later, in an effort to enhance his motivation, the Company placed him under the supervision of his good friend, Foreman Blessitt. There was only temporary improvement. On April 12, Meredith was on his way to the washroom near quitting time when Foreman Walls called him into the office and discharged him. He had been standing around idle and there was a full broke cart which he was preparing to leave without emptying (causing a disruption of the work on the evening shift). Meredith did not deny that he had been loafing. (Although Meredith generally impressed me as being a credible witness, I do not credit some of his testimony directly bearing on his discharge. I specifically discredit his testimony that he had emptied the broke cart only 15 minutes before. I also discredit his denial of the testimony by Assistant Teasurer Larry Rappes-who impressed me as being an honest witness-that, during Meredith's unemployment compensation hearing, the referee asked Meredith "if he had been goofing off on the job" and that Meredith replied, "Yeah, I was goofing off.") After weighing all of the testimony concerning Meredith, I find that he was deliberately loafing on the job (as he later admitted at the unemployment compensation hear- ing), and that he was lawfully discharged for this reason- and not because of his union activity-after his reprimand and reassignment to a different supervisor a month earlier had failed to motivate him to do a betterjob. (In so finding, I do not rely on certain partisan testimony given at the hearing. On the General Counsel's side, I specifically discredit the claim by employee Winn that Meredith "never" left broke carts over half full. On the Company's side, I specifically discredit the testimony by collator operator Gregory Pierce that "nine times out of ten" during the fall, winter, and spring, Meredith would leave the broke carts "full," and the testimony by collator operator Elizabeth Cain that "since about January," the broke carts "just wouldn't get emptied; they'd be full." From their demeanor on the stand, both Pierce and Cain impressed me as being most untrustworthy.) Accordingly, I reject the allegation that the Company discriminatorily discharged employee Outis Meredith in violation of Section 8(aX3) and (1) of the Act. 2. Discharge of William Howell a. Company motivation Employee Howell initiated the 1975-76 union organiza- tional drive and worked under the direct supervision of Foreman Blessitt who, as found above, told another employee early in the campaign that "He'd hate to be the one who started" the union organizing because "they would be fired so fast they wouldn't know where they was at." Howell initiated the drive by inviting six other employees to the informal October 23 union meeting. Four of the six employees attended the meeting with Howell, two former employees, and a union representative. Within the next 2 weeks, Howell asked about 40 employees to sign union authorization cards and succeeded in getting about 15 cards signed. (The Company admitted knowledge that Howell was active in the union campaign, but not until November 6, as discussed later.) Howell continued his organizational efforts, attended all three union meetings of employees, and, at the third meeting, sat at the head table with the union representative. On January 29, he served as union observer at the election. He was discharged less than 2 months later. The evidence reveals the Company's union animus. About 2 years earlier at the beginning of the 1973 organizational drive, as Howell credibly testified, General Manager Sturdevant called a meeting of employees and warned that "as long as he was vice-president and general manager he would see to it that no union ever came into Huron Copysette," stated that "they had left Michigan to get away from the Union," and (as recalled in his pretrial affidavit) "said that he thought that it would be better for company-employee relations not to have a union." (From his demeanor on the stand, Howell impressed me through- out as being an honest witness, endeavoring to give his best recollection of what happened.) As previously found, Foreman Blessitt told one employ- ee during the 1975-76 campaign that "Old Dad [Sturde- vant] will move the plant" if the Union would go in, repeatedly engaged in coercive interrogation of another employee, told the second employee that "Sturdevant would close the doors" if the Union came in, and threatened less favorable working conditions. Another supervisor, Quality Control Manager Pawley, also told employees that "If the Union goes in, Mr. Sturdevant will close the plant down and move it back to Michigan." After the Union lost the January 29 election, the Company demonstrated that it was endeavoring to "build a case" against Howell, who was an experienced rewinder 564 HURON COPYSETrE, INC. operator, hired in July 1973. Failing twice to establish that Howell was at fault in running bad paper on his machine, the Company reprimanded him on February 26 and suspended him on March 8 for other purported offenses, under circumstances indicating a discriminatory motiva- tion. Sometime in February, Foreman Blessitt showed Howell a roll tag bearing the capital letters, "BILL," and "told me that I'd ran some bad paper." Howell, who signs his name, "Bill," told Blessitt that was not his handwriting and that Blessitt should check the worksheet (the rewinder report). Blessitt did, later stated that another operator had run the paper, and said that the operator "could" (but was not) get "fired for this." The next time, the Company summoned two employees to act as witnesses-until it learned again that Howell was not the operator at fault. On this occasion, as vertex helper DuVall credibly testified, the collator operator reported some bad carbon (from the rewinder) to Foreman Shelby Ford, who went with Foreman Blessitt over to the collator. Ford commented, "This looks like some of Bill Howell's work," and Blessitt said, "I guess so." Ford immediately summoned two employees who worked on the conveyor and had them look at the faulty carbon paper. DuVall, however, then pointed out that the weight ticket bore the initials "D.L." (for rewinder operator D. Logsdon). Ford and Blessitt looked at the ticket and walked off, without saying anything. On February 26 (a month before Howell's discharge), the Company reprimanded him for being idle, despite the fact that he was awaiting repairs on his machine. Howell had reported the breakdown (a bad switch and electric eye) to his foreman and had been assisting the maintenance men in making the repairs. The maintenance men left to get a replacement part and, while awaiting their return, Howell was standing behind the machine, talking with coater operator Newton, who came over from his coater to talk when the repairmen left. Howell had already cleaned up his area and, as he credibly testified, there was nothing that he should or could have been doing. He knew of no rule against talking, and it is undisputed that his foreman had previously seen him talking to employees during a machine breakdown without reprimanding him. While awaiting the maintenance men, Howell noticed General Manager Sturdevant (who had previously stated that "as long as he was vice-president and general manager he would see to it that no union ever came into Huron Copysette") going through the plant with a visitor and looking in Howell's direction. Howell observed Sturdevant leave the visitor and, without investigating to determine why the rewinder was down, go to the plant superintendent who came and told Howell, "If you don't have anything to do, clock out and go home." Howell said that his machine was torn down and that he was waiting for maintenance to return to repair it. The superintendent merely responded, "Oh," turned and walked away. About 10 minutes later, the Company called Howell and Newton into the office, reprimanded them for "standing," and told them that they would be "written up." Howell's writeup or "Discipline Form," which was not shown him, was later prepared and signed by Quality Control Manager Pawley. It falsely accused Howell of not cleaning up around his machine in violation of rule 15 ("Insubordination, or failing to follow the working instructions of supervision"). The writeup also stated that "by stopping and talking to Mr. Newton," Howell "interfered with Mr. Newton" in violation of rule 17 ("Threatening, intimidating, coercing or interfering with fellow employees on premises"), even though Howell was at his own machine and Newton was away from his. (Although admitting on the stand that Newton "belonged in another department," Sturdevant appeared to be giving a mostly fabricated account of the incident: claiming that he watched Howell and Newton "approximately five to ten minutes," that they did not see him, and that they were still "lying over a cylinder and shooting the breeze while the maintenance men were working on the machine" for a total of "approximately 15 or 20 minutes" by the time the plant superintendent came. From his demeanor on the stand, Sturdevant impressed me as being more interested in protecting the Company's cause than giving a factual account.) I find it clear that, by placing such false accusations in Howell's personnel file within a month after the election, the Company was endeavoring to "build a case" against this union organizer. On Monday, March 8, 11 days later, the Company suspended Howell for not calling in daily when he was off sick-despite the fact that there was no company rule requiring such a daily call-in. (Rule 14 merely stated that "Failure to report for duty without calling in for three consecutive days will be considered an automatic quit," and it is undisputed that employee Newton had previously been off sick for a week without having to call in daily.) Howell's wife properly called in the first day, Wednesday, March 3, and it is undisputed that Howell met and spoke to General Manager Sturdevant that same day as Howell was leaving the doctor's office. It is also undisputed that Foreman Blessitt said nothing to Howell on Friday about calling in when Howell went to the plant to pick up his paycheck. Blessitt merely asked how Howell felt, and "I told him I was still sick but I hoped to return to work on Monday." (I note that the rewinder reports indicate that the Company was not expecting Howell to return that Friday, because another rewinder operator worked Ho- well's entire 8-hour shift that day.) Nevertheless, when Howell returned to work on Monday, Foreman Blessitt called him to the office and suspended him 3 days (thereby causing a loss of production that morning, inasmuch as the March 8 day-shift rewinder report states that, from 8 a.m. to noon, there was no operator). Although there was no specific rule on daily call-ins after the first day of s;ckness, Blessitt admitted that when Howell said that Monday morning that he thought the one time "was all he should call in," Blessitt told him "all you had to done" was to read the manual book and "I have no other choice" but to give him 3 days off. Under all the circumstances, I find that this suspension was also discriminatorily motivated. (Although the General Counsel contends that the actions taken by the Company against Howell on February 26 and March 8 were for "unfounded" and "spurious" reasons, he did not allege them to be separate violations of the Act.) On March 26, following these two discriminatorily motivated disciplinary actions, the Company called Howell into the office and summarily discharged him. When he 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entered the office about 1:45 p.m., as Howell credibly testified, Foreman Blessitt said, "Bill, I've got some bad paper here that you've ran," and showed him about 10 sheets of carbon paper lying on the desk. As Howell had done previously in February, he asked if Blessitt had the worksheet on the paper. Blessitt admitted that he did not, and Howell denied that he had run the paper. Then Blessitt said, "Your production is down 20%, and I'm going to have to let you go." (Blessitt-without any corroboration from either Head Foreman Walls or Assistant Plant Superinten- dent John Zauner, who were also present-claimed on the stand that he showed Howell a stub roll, some bad splices, and "to the best of my recollection, white wrinkles," and claimed that "The exhibit had the name tag right in front of it." However, the Company did not support this testimony with any name tag or other evidence that this was Howell's work. Again Blessitt impressed me as being less than candid, and I discredit his version of what happened.) On the following Monday, March 29, as coater operator Newton credibly testified, Newton was having trouble with the coater, getting white wrinkles on one side of the carbon paper. Foreman Blessitt told him to adjust it the best he could and run it. Then, "In the same conversation I asked [Blessitt] how come he fired Bill. And he said [Howell] run some of that paper," with the white wrinkles. (This undisputed testimony tends to corroborate Howell's testi- mony that Blessitt showed him some sheets of bad carbon paper, but does not reveal which rewinder operator ran the faulty paper, without noticing the white wrinkles, before it went to the collators and was cut into sheets.) b. The Company's defenses (1) Purported faulty work Howell positively testified that, between the time of his (September 12) reprimand and his March 26 discharge, nobody complained to him about the quality of his work. (Howell, who was poor at remembering dates, erroneously recalled that the Friday, September 12, reprimand occurred on Friday, November 14, the day after "my wife had left on Thursday to attend a Cursillo meeting in Owensboro at St. Stephens Cathedral.") That reprimand was for not watching his rewinder closely enough to ensure a proper margin on the carbon paper. During the preceding 2 weeks, "the electric eye was not working properly, and it wouldn't hold the paper true as it came through the machine." (This was the only time Howell had ever been reprimanded since being hired in July 1973, except for once striking a fellow employee.) As a defense, Foreman Blessitt claimed that he talked to Howell "several times" about defective paper: at times "scattered out I guess all through November, December, January, February, March," and "quite often" in February and March. During this time, Blessitt was personally inspecting all of the rolls of paper which had to be "broke out" (discarded) "so it would give me an idea of the operator that run it and what my problems was." (The jumbo rolls from the coater, which puts carbon on the paper, are split on the rewinder into five smaller rolls, before they go to the collator for the carbon paper to be combined with the manifold paper, to be cut and made into copysettes, nonreusable carbon sets.) Blessitt testified that, when he came in in the mornings, he would find stacked to the side the rewinder rolls which could not be run on the collators during the preceding shifts because of incorrect margins, white lines, ink spots, or bad splices. He added that he would get some bad paper from all of the rewinder operators because of their duties away from the machine during running time. (While the rewinder is running, the operator moves paper with a towmotor, stacks paper, sharpens the slitter, sweeps up, eats lunch, etc.) However, according to Blessitt, there at last, in January and February, he would get these rolls of bad paper "every other day," and "the majority of it" was Howell's paper. If this claim were true, it would have been a simple matter for the Company to prove it with documentary evidence. As revealed by collator operator Cain, every time a collator operator finds a bad roll of paper, the operator fills out a transfer slip. This slip shows the lot number, size and kind of paper, "what's wrong with the paper, why you had to take it off' the collator, the operator's name and shift, "a place for you to check if it's the rewinder'sfault or the coating's fault, and then a place for the foreman to sign." (Emphasis supplied.) Furthermore, if Blessitt's claim were true that a majority of the rolls of defective paper were run by Howell and if the Company considered Howell at fault, undoubtedly the Company would have reprimanded him for faulty work- as it did in September when the electric eye on his No. I rewinder was not working properly, requiring closer attention. In the absence of any reprimand, and instead of introducing into evidence the transfer slips prepared at the time, the Company introduced the testimony of two employees, collator operators Cain and Pierce, who gave discredited testimony concerning Meredith, as indicated above. Cain testified that she ran a set (five rolls) of Howell's paper maybe every other day, or five or six sets a week, and claimed that throughout the lastyear of Howell's employment, "Almost all the rolls that I would have [of his] would have something wrong with them." (Relying on Foreman Blessitt's testimony, the Company contends in its brief that the problems with Howell's work "began to surface around August," whereas Cain claimed that Howell was no longer a good employee after the preceding "February, March," or "Sometime in there.") Pierce testified that he first experienced rolls of bad paper from Howell during a week which was "maybe a month, or maybe two months" before Howell's discharge. Pierce (who worked on the evening shift, following Howell's day shift) testified that, on one Friday, he called General Manager Sturdevant over to his collator, showed Sturde- vant a sheet of copysette from each of the five rolls on the machine, and pointed out the margins on the carbon going from wide to narrow. Sturdevant told him to pull off the five rolls, which had a tag that "read Bill Howell." (Sturdevant testified that this occurred in late February.) However, Pierce did not stop after giving this apparently factual account of the bad paper. He claimed that on each of "at least" two or three earlier occasions that week, five 566 HURON COPYSETTE, INC. rolls of Howell's paper had to be discarded, and that nothing was done about it. As previously indicated, both Cain and Pierce impress me as being most untrustworthy witnesses. But even apart from their demeanor on the stand, I find it implausible that (as testified to by Cain) Howell ran bad paper for a whole year (particularly inasmuch as Pierce did not experience difficulty with paper bearing Howell's name until late February), and that (as testified to by Pierce) 15 or 20 rolls of Howell's paper had to be discarded that week. Howell was not reprimanded for running the five rolls of paper which collator operator Pierce showed General Manager Sturdevant in late February (apparently near the date of Howell's discriminatorily motivated February 26 reprimand discussed above). The evidence does not disclose whether this was the same time when somebody printed the name "BILL" on the roll tag and the rewinder report showed that it was not Howell's paper, or whether the foreman found that Howell was not at fault for some other reason. (I find it most improbable that disciplinary action would not have been taken against Howell if, as Pierce claimed, Howell had run "at least" 15 or 20 rolls of bad paper during that week-particularly in view of Howell's reprimand for another purported reason near that same time.) The Company had three new employees in the coater department. The rewinder operators were getting an excessive amount of bad paper from the coater operators, and there was an excessive amount of broke. (I note on rewinder operator Logsdon's February 9 report the remarks, "Bad Roll Carved out. 3 hr. Downtime. All the rolls are Bad." He again complained about the paper on his February II rewinder report, writing "Don't want No More of Them.") Sometime during the first week of March while Howell was off sick (probably on Friday, March 5, the date of the writeups placed in the employees' files), the Company held a meeting with the coater and rewinder operators to find ways of cutting down on broke (such as having the coater operator mark ink spots for the rewinder operator). Foreman Blessitt claimed that Howell was in this meeting and that "It didn't seem to help him much; if anything, it made him worse after the meeting." (When questioned about when the meeting was held, whether Howell was off sick at the time, and the date written on the March 5 writeups, Blessitt claimed that the meeting was held on Monday, March 1, and that he prepared and dated the writeups 4 days later. I discredit this testimony, and credit Howell's testimony that the meeting was held in his absence.) I find that Blessitt's testimony about the meeting not helping Howell much, and it making him worse, was fabricated. I credit instead Howell's testimony that nobody complained about the quality of his work before his discharge. (2) Quantity of work As proof that Howell's production was low, the Compa- ny introduced into evidence a summary of production on the No. 1 rewinder. This exhibit (prepared for the hearing) shows the total monthly production (pounds, hours run, and pounds per hour) for Howell and six other rewinder operators who were working on the No. I rewinder between October and March. As an example, it shows that, in February, Howell averaged, in round figures, 982 pounds an hour. Logsdon (hired November 1975) averaged 1,201 pounds an hour, Darrell Allen (hired December 1975) averaged 780 pounds an hour, and Eddie Webb (hired February 1976) averaged 1,134 pounds an hour. Also in October and November, when Kenneth Vinson replaced Howell on the day shift for 4 weeks, Howell's average production was 947 and 1,059 pounds an hour, respectively, to Vinson's 1,149 and 1,120 pounds an hour. However, a different picture is painted by the daily rewinder reports from which the summary was made. They show many breakdowns of the No. I rewinder and highly fluctuating production rates when the machine was and was not running properly (for example, Logsdon producing 5,275 pounds in 7 hours on February 2 and 11,750 pounds in 7 hours on February 4, running the same size paper). They show instances of low production on the day shift when most of the repairs and "changeovers" (from one size paper to another) are made. As an example, on February 24, Howell produced 5,520 pounds in 7 hours on the day shift when the electric eye was repaired, and Logsdon produced nearly twice as much, 10,916 pounds, in 7 hours on the following evening shift after the machine was back in order. Two days later, when there were a changeover and switch and electric eye repairs made on the day shift, Howell's production was 4,736 pounds in 5.25 hours, as compared to Logsdon's production of 10,560 pounds in 7 hours on the following shift, after the machine was running well again. I also note that, during the second week in February, Howell was training Webb on the first shift and that Webb's high production that month (1,134 pounds per hour as compared to Howell's 982 pounds) included Webb's production while being trained by Howell and his production thereafter on the third (midnight) shift, when there were no repairs or changeovers made. The daily rewinder reports show that in October, while Howell was on the No. I rewinder, the machine was down repeatedly for repairs, including a 5-3/4-hour breakdown ("Brakes Hot") on October 21. Also, there were six changeovers between October 13 and 25, usually resulting in low production. (On October 9, Howell's last workday on the machine before these frequent changeovers began, the rewinder was running well and Howell had the very high production of 17,175 pounds in 11 hours.) After Vinson was assigned to operate the No. I rewinder on October 27, there were repairs on the brakes and other repairs (including repairs to the electric eye on November 10), but it happened that there was only one changeover from October 27 through November 18, permitting more continuous, faster running of the machine. (I note that after Vinson's November 19 changeover, from one paper size to another, he produced only 2,960 pounds in 4 hours.) I bear these records in mind when evaluating the testimony concerning Vinson's temporary assignment to the No. I rewinder (from October 27 through November 22). Howell testified that he had been having trouble with the electric eye at the time of his (September 12) reprimand and that there were "other problems" with the machine when Vinson was assigned to operate it on the day shift. 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (The daily rewinder reports show a "blowed tube" on October 3 and 8, a clutch repair on October 8, and hot brakes on October 20 and 21.) Howell testified that, when he returned to the No. i rewinder (on November 24), he was having no further problems with the machine. He believed that both the brakes and electric eye had been replaced. The daily reports show that his production was high on November 24 and that there had been repairs on both the electric eye and the brakes (including 2-1/2 hours of brake repairs on November 17 and 2 hours on November 20). 1 discredit Foreman Blessitt's testimony that there had been "nothing in particular" wrong with the machine, and that the brakes were not repaired. I also discredit Vinson's testimony that he did not see anything wrong with the No. I rewinder, and that the brake and electric eye were not worked on. (He appeared on the stand to be attempting to help the Company's cause.) Howell testified that, when he was reassigned temporari- ly to the No. 4 rewinder, Foreman Blessitt said, "I'd been having trouble with my machine and he wanted to see if Kenny Vinson could operate the machine better than I did." Blessitt also explained that Vinson (who was suffering from hemorrhoids-not a hernia, as Howell recalled) was having difficulty operating the heavy shaft on the No. 4 rewinder "and asked me if I would change with him." Howell positively testified that Blessitt did not criticize Howell's work or say anything about giving Howell a writeup. Blessitt, on the other hand, testified that he told Howell that this was his "last chance"; and the Company produced from its files a writeup which bears the handwritten date, October 27, and states that Howell "would have to make production on" the No. 4 rewinder "or we would let him go." There was no proof that this discipline form was actually written on October 27 (which was during the 2 weeks in which Howell, following the October 23 union meeting, solicited about 40 of the employees to sign union authorization cards, and succeed- ed in getting 15 signed). Blessitt testified that he occasion- ally waits "a couple or three days" before writing such a discipline form, and claimed that he prepared the March coater department writeups 4 days afterwards. (As previ- ously noted, the Company denies that it knew about Howell's active campaigning until November 6-the date General Manager Sturdevant gave an antiunion speech to the employees-although Sturdevant testified that, on November 1 or 2, he instructed members of management to go out, listen, and report back on the union organizing.) Having considered Blessitt's and Vinson's incorrect testi- mony concerning the circumstances of the October 27 assignment, and having found Howell to be an honest witness, I credit his account of what happened on October 27, discredit Blessitt's version and his claim that he then warned Howell of being discharged, and infer that the writeup was an afterthought, prepared after the Company became aware of Howell's prominence in the organizing campaign. After 4 weeks, Foreman Blessitt reassigned Howell to the No. I rewinder. Although Blessitt checks over the produc- tion reports each morning, he at no time thereafter criticized Howell's work until he discharged Howell on March 26 (as Howell credibly testified, contrary to Blessitt's claims). Working on the same shift with Howell, Blessitt undoubtedly was aware of the repairs and change- overs being made mostly on the day shift, and the reasons for limited production at times on that shift when compared to the other shifts. (It is undisputed that the Company did not reprimand Howell for low production during these months, as it surely would have done if-as claimed by Blessitt-Howell's production was considered too low and if Blessitt had "quite often" talked to him about it.) The daily rewinder reports show that, when Howell returned from the 3-day discriminatorily-motivated sus- pension on March 11, he had a total offive changeovers in a period of 6 workdays, and repeated breakdowns. On March 17, when he began a changeover at 3 p.m., the "Electric Eye wouldn't Work," and the "End plate came off Chuck on Unwind Shaft." On the following evening shift, rewinder operator Logsdon similarly recorded the "Electric Eye not working," that "Keep tearing valve stims upon Back Chuck," and "Down altogether 2.5 hours with Changeover." Production for both operators was low that day and Logsdon produced two "bad rolls." (I reject the contention made in the company brief that during this period of time, between Howell's reassignment to the No. I rewinder and his discharge, "there was nothing wrong nor anything reported to be wrong with the machine." Frequent repairs were necessary, including electric eye repairs on December 5 and 22, January 7 and 16, February 5, 18, 24, and 26, and March 11 and 17. Although the rewinder reports show that full production could some- times be resumed after a changeover, on many occasions there were electrical and/or mechanical problems experi- enced when the rewinder was adjusted to a different paper size, and there was low production for varying periods of time after the changeover.) Production was higher on March 25 and 26, the last 2 days of Howell's employment. In fact, about 1:30 p.m., on March 26, Foreman Blessitt was at Howell's machine, sharpening the slitter from another rewinder, and congrat- ulated Howell for "running real good" that day. By then, after working about 5-1/2 hours without any downtime, Howell had already finished running four jumbo rolls weighing 7,595 pounds, and was near completion of a fifth 1,410-pound roll-which was completed (but not unload- ed) 10 or 15 minutes later when he was called into the office and discharged. (Howell was in error in recalling that he had completed his seventh roll that day, instead of his fifth.) c. Concluding findings The General Counsel contends that Howell's discharge was based on the Company's "desire to rid itself of the Union's chief employee supporter, in accordance with Foreman Blessitt's statement" to employee Newton, shortly after Howell began organizing (that the Company would fire "the one who started it ... so fast they wouldn't know where they was at"). The Company, which has made a major effort to justify the discharge of this union election observer, contends that it had a "good faith, legitimate business reason for imposing the discipline upon Howell," and that it meted out the discipline "in complete 568 HURON COPYSEITE, INC. disregard for any union connections Howell may have had at one time." The Company suddenly discharged Howell on March 26, less than 2 months after its second defeat of the union organizing efforts, and shortly after it began its endeavor to "build a case" against Howell, by discriminatorily repri- manding and suspending him for other purported offenses (as previously found). Foreman Blessitt called Howell into the office in the middle of the afternoon and accused him of producing defective paper on the rewinder. When Howell denied that this was his paper, Blessitt said that Howell's production was down and "I'm going to have to let you go." At the hearing, the Company offered testimony not only that the defective paper on March 26 was Howell's, but also that he had run a "majority" of the defective paper for months. However, the Company failed to substantiate these claims by producing its own records, including the "transfer slips" which were prepared by the collator operators at the time, showing which operators had run the paper (by recording the lot numbers) and who were responsible for the defects. Moreover, the Company made no effort to explain, if its testimony were true, why it had failed for several months to reprimand Howell for running bad paper on the rewinder. The Company also offered testimony that Howell was discharged for low production. Again it failed to explain, if Howell was at fault in producing less on the day shift than rewinder operators on other shifts, why it had gone for months without reprimanding Howell for it. Moreover, both at the hearing and in its brief, the Company ignored the effect of the day-shift changeovers and repairs (revealed by the rewinder reports in evidence) on the average day-shift production as compared to the averages on other shifts. After weighing all of the evidence and making credibility findings, and after considering all of the circumstances, the General Counsel's strong case of union animus and discriminatory motivation, and the unpersuasive defenses, I find that the Company's real reason for discharging Howell was to rid itself of this leading union organizer before the Union began another effort to organize the plant. I therefore find that the Company discriminatorily discharged Howell in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW I. By discharging employee William Howell on March 26, 1976, because of his union activity, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. The General Counsel has failed to prove that the Company unlawfully discharged or discriminated against employee Outis Meredith. 3. By threatening plant closure and less favorable working conditions if the employees voted for a union, and I 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. by coercively interrogating employees, the Company violated Section 8(aX I) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, I find it necessary to order it to offer him full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatement. Inasmuch as Respondent's unlawful conduct goes to the very heart of the Act, I find it necessary to issue a broad Order, requiring the Respondent to cease and desist from infringing upon employee rights in any other manner. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 The Respondent, Huron Copysette, Inc., Leitchfield, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging and otherwise discriminating against any employee for supporting Coopers' International Union of North America, AFL-CIO, or any other union. (b) Threatening to close the plant or to provide less favorable working conditions if the employees vote for a union. (c) Coercively interrogating any employee about union support or union activity. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer William Howell immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay or other benefits in the manner set forth in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. 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. 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Leitchfield, Kentucky, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the 4 In the event that this 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 Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 570