Classic Products Corp.

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Classic Products Corporation and Lola Holmes and United Furniture Workers of America, Local 75, AFL-CIO and Richard Lenet Classic Products Corporation and United Furniture Workers of America, Local 75, AFL-CIO, Peti- tioner. Cases 5-CA-7512-1, 5-CA-7549, 5-CA- 7592, and 5-RC-9408 September 29, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, PENELLO, AND WALTHER On May 4, 1976, Administrative Law Judge Jo- seph I. Nachman issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , Classic Products Corpo- ration, Beltsville, Maryland, its officers, agents, suc- cessors, and assigns, shall take the action set forth in said recommended Order. IT IS HEREBY DIRECTED that, as part of the investiga- tion -to ascertain a representative for the purposes of collective bargaining among certain employees of Classic Products Corporation, in the unit set forth in the Stipulation for Certification Upon Consent Elec- tion, the Regional Director for Region 5, shall, pur- suant to the Board's Rules and Regulations, within 10 days from the date of this Direction , open and count the ballots of Carole Lann and Duane Hanlon and, thereafter, prepare and cause to be served on the parties a revised tally of ballots , including therein the count of said ballots . In the event that the revised tally of ballots shows that the United Furniture Workers of America, Local 75, AFL-CIO, has re- ceived a majority of the valid votes cast, the Regional Director shall issue the appropriate certification of representative. However, in the event that the above-named labor organization does not receive a majority of the valid votes cast, it is directed that the Regional Director set aside the election in Case 5-RC-9408 and direct a second election to be conducted at such time as he deems it appropriate to do so. In such event, the fol- lowing shall be applicable. [Direction of Second Election and Excelsior foot- note omitted from publication.] DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This matter heard before me at Washington, D.C., on January 21-23, 1976, involves a consolidated complaint I pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein Act), which alleges in substance that dur- ing the course of an organizational campaign among its employees by United Furniture Workers of America, Local 75, AFL-CIO (herein Union), Classic Products Corpora- tion (herein Respondent or Company) interfered with, re- strained, and coerced its employees in the exercise of rights protected by Section 7 of the Act, and discriminatorily dis- charged three employees because of their assistance to and support of the Union. By answer, Respondent admitted certain allegations of the complaint , but denied the com- mission of any unfair labor practice . For reasons hereafter more fully stated, I find and conclude (1) that certain con- duct of the Company did violate Section 8(a)(1); (2) that the discharges of Charles Reveillac and Duane Hanlon were discriminatorily motivated; (3) that the ballots of Hanlon and Latin be opened and counted, and if this re- sults in a majority of the votes being cast in favor of the Union, certification should issue. However, if the counting of the Hanlon and Lann ballots results in the Union receiv- ing less than a majority of the valid votes cast , the election held September 9, 1975, should be set aside and a new election conducted by the Regional Director at such time as he may deem it appropriate; and (4) that as the General Counsel failed to prove the remaining allegations of the Issued November 21, 1975, on three separate charges The charge in Case 5-CA-7512- 1 was filed and served September 8, 1975 ; in Case 5-CA- 7549, the charge was filed and served September 26, 1975 , and in Case 5- CA-7592, the charge was filed and served October 17, 1975. In the represen- tative case the material events, all in 1975, are: Petition filed July 16, Stipulation for Certification Upon Consent Elec- tion-August 11, Election conducted on September 9 resulted in II votes for and 12 votes against union representation , and 8 challenged ballots, Objections to conduct affecting results filed on September 9, Report on objections and challenges-November 25 (Regional Director sustained six of the challenges The challenges to the ballots of Carole Lann and Duane Hanlon were referred for disposition in the unfair labor practice cases As the events alleged as affecting the conduct of the election are also alleged to constitute unfair labor practices, decision on said objections was deferred pending results of the unfair labor practice proceeding); and Regional Director's report adopted by Board on December 22 At the hearing the Union withdrew its challenge to the ballot of Carole Lann , and that issue is no longer in the case 226 NLRB No. 14 CLASSIC PRODUCTS CORPORATION 171 complaint by a preponderance of the evidence, such allega- tions should be dismissed. At the hearing, all parties had full opportunity to intro- duce relevant and material evidence, to examine and cross- examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel and Respondent have been duly considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, the briefs of counsel, and the entire record in the case, I make the following: FINDINGS OF FACT 2 A. Interference, Restraint, and Coercion Sometime in March,' a nonemployee of the Company began passing out leaflets at a door of the plant leading to the parking lot 4 This leafletting was observed by several employees, including Dorothy Malone and Katherine Harp, as they were leaving the plant at the end of the work- day. The following morning, Allan Marcus, an admitted supervisor, told employee Malone, in the presence of Harp, that the person distributing leaflets the preceding day had been physically ejected from the Company's property; that the Company did not want a union; and that Company President Fogel would fire any employee that tried to bring a union into the plant.5 The leaflets distributed at the plant in March had at- tached to them a card which employees might complete and mail if they desired further information. Several em- ployees, including Duane Hanlon, mailed such a card, but about a month later, not having heard anything in response to the card, he telephoned the office of the AFL-CIO for further information. This resulted in an AFL-CIO repre- sentative contacting Hanlon, and subsequent meetings were arranged which were attended by a representative of the Union. At one of the meetings authorization cards were made available and some 20 to 25 signed cards were ulti- mately obtained. The evidence shows that three employees were particularly active in distributing and collecting signed cards, arranging for meetings, and advising employ- ees of the time and place of meetings. The three were Han- lon, Charles Reveillac, and Richard Lenet.6 This organiza- tional effort resulted in a representation petition being filed on July 16, and the Company admits that it received a copy thereof on July 18. On July 22, Magill, manager of the waterbed depart- 2 No issue of commerce or labor organization is presented The complaint alleges, and the answer admits, facts which establish these jurisdictional elements I find those facts to be as pleaded 3 All dates hereafter mentioned are 1975, unless otherwise indicated 4 Investigation by the Company disclosed that the leaflets related to a union, and that the person distributing them was the son of a company employee The distributor of the leaflets was required to leave Respondent's premises The General Counsel makes no contention that this conduct vio- lated the Act. 5 Based on the credited testimony of Malone and Harp Marcus denied that he made the statement referred to, but I do not credit his denial 6 The complaint alleges that each of the three was discriminatorily dis- charged on July 25, July 31, and October 13, respectively The facts sur- rounding these-separate discharges are set forth in connection with the 8(a)(3) allegations of the complaint ment, and an admitted supervisor, called a meeting of the employees in that department, at which time he discussed employee tardiness. Prior to this meeting a posted notice on the subject had been understood by employees to mean that two instances of tardiness in a 1-week period would result in discharge. At the July 22 meeting, Magill an- nounced that any employee late for work even 1 minute would for the first offense receive a written warning, and for the second offense, not mentioning any time period, would be discharged. The evidence shows that Respon- dent's employee handbook made no mention of discipline for two instances of tardiness .7 On Monday, August 11, employees Veely and Lenet, along with Hanlon and Reveillac both of whom had at that point been discharged, met at the Regional Office with re- spect to the representation petition the Union had filed. Attending for the Company were Vice President and Gen- eral Manager Longson and Attorney Dukes. A consent election agreement was quickly negotiated. The following day all employees were summoned to a meeting where At- torney Dukes spoke generally - about unions and an- nounced the filing of the petition and that an election had been set for September 9. Vice President Longson and President Fogel were present at this meeting. Beginning about September 5, and virtually each work- day thereafter until the election on September 9, various employees were called to the office of Company President Fogel or Production Manager Magill. Two employees testi- fied regarding the discussion while they were in the office. Employee Bruce Ross testified that when he reached the office he found President Fogel, General Manager Long- son, and Production Manager Magill, with the latter two doing virtually all of the talking. Although Ross was un- able to identify the speaker, he testified that he was asked first whether he was aware of the upcoming election, and he replied in the affirmative. He was then asked how he felt about the Union, to which Ross replied that he was sitting in the middle and did not know which way he would go. To this management stated that it was better not to sit on the fence, but to take a position one way or the other. Ross was then asked how he thought the vote would go, and he expressed the opinion that it would probably be in favor of the Union. Management then stated that if the Union won the election it would probably ask for a raise for the em- ployees, which the Company could not afford to pay, and the Union would probably call the employees out on strike. Management also brought up the name of Lenet in this conversation; stating he would probably be in favor of the Union, so he could be the shop steward if the Union was successful . There is no testimony that employees so called to the office were given assurance against reprisal if they participated in the interview. Employee Finney testified that when he was called to the 7 Based on the credited testimony of Hanlon and Reveillac Magill admit- ted that he spoke to the employees on July 22, but claimed that he made no basic change in what had always been the rule, simply reiterated policy that had existed since 1974, and therafter enforced it as he had in the past According to Magill, when he returned from vacation on July 21, he found extensive tardiness and absenteeism that was affecting production . Magill gave no testimony regarding those problems prior to his going on vacation To the extent that Magill's testimony may be regarded as in conflict with that of Hanlon and Reveillac, I do not credit it 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office, only he and Magill were present, and that the latter asked what he thought about the Union, to which Finney replied, "not much." Magill then stated that if Finney thought the Union would be ,good for him, to vote for it, but if he thought it would not be good for him, to vote against it, but that either way Finney should vote. Magill then stated that if the Union got in and teed to get the employees a raise, it would probably result in a strike.' B. The 8(a)(3) Allegations 1. The discharge of Charles Reveillac Charles Reveillac was employed by Respondent on Oc- tober 24, 1974, and worked in the waterbed department as' a machine operator until his discharge on July 25. Respon- dent stipulated that Reveillac was among the best machine operators it had. Initially, Reveillac's immediate supervisor was Magill, but when Keith came to work about mid- March, he took over supervision in that department. Some- time in April or May, Reveillac was given a number of union cards, eight of which he distributed among employ- ees, and got five back signed, in addition to signing one himself. Also Reveillac attended union meetings at the homes of employees, having been informed of such meet- ings by Hanlon. On July 10, Reveillac was suspended for 2 days, because he had absented himself from work for a half day and the following day was approximately an hour late returning from lunch. Reveillac did not deny that he was in fact absent as indicated. On July 22, Reveillac was among the employees present when Magill spoke concerning the rules on tardiness, above set forth. A day or two later, Reveillac was 20 min- utes late reporting for work. As a result of this, Reveillac was given a written notice which stated that the next time he was late, he would be discharged.9 The morning of July 25, Reveillac reported for work on time. Shortly after work started, Reveillac complained to Supervisor Keith that the man performing the operation ahead of his was not doing his work properly, and as he worked at piece rates this affected his (Reveillac's) produc- tion and earnings. According to Reveillac, Keith ignored his complaint, and shortly thereafter he called Keith to his machine again and reiterated his complaint. On this occa- sion, according to Reveillac, Keith stated that he had a poor attitude toward his work and that he (Reveillac) should keep his machine going. After a short interval, Re- veillac called Keith to his machine a third time, again com- plained about the operator ahead of him, and asked that 8 My findings in the last two paragraphs are based on the credited testi- mony of Ross and Finney, and certain admissions by Longson and Magill. Longson admitted that in the latter part of the week before the election he talked to some five or six employees who were selected at random, and that he did this to ascertainwhat the Union was promising the employees, and what Respondent had failed to do that made employees want the Union Longson did not deny that he asked these employees how they felt about the Union Magill testified that he heard Longson's testimony with respect to the meetings mentioned and agreed with his testimony He also admitted that he talked with employees Finney and Rubin, and perhaps one other. 9 My findings in this and the preceding paragraphs are based on the credited and undisputed testimony of Reveillac Keith change that man's operation. Reveillac claims that Keith ignored his requests, and stated that he wanted to see Reveillac's machine operating and at full speed, in order to get the maximum production. Reveillac conceeded that the basis of the difference between he and Keith was that Keith wanted quantity, while he wanted quality. Following these discussions Reveillac did not complain to Keith again, and continued to work at his machine until about 2 p.m., when, because of a power failure, he was sent to the bean bag department to work for the rest of the day. Short- ly after 4:30 p.m., Reveillac was called to Magill' s office where the latter discharged Reveillac, giving him a memo- randum reading as follows: This is to inform you of your immediate dismissal from Classic Products Corporation. The reasons for this action are as follows: (1) you have averaged being absent from work during the term of your employ- ment approximately one day per week; (2) you have averaged being late to work almost two days per week during the term of your employment; (3) you have for the past few months had disputes with and _questioned the'authority of your supervisor on several occasions. The more immediate causes for this action are as follows: (1) you were suspended for two days on July 10 and 11 because of a series of breaches of Company policy including (a) late two hours and fifty minutes on July 7, a Monday; (b) late forty-one minutes re- turning from lunch on July 8, the following Tuesday; and (c) did not return from lunch on July 9, the very next day; (2) you were absent on July 21, Monday; (3) on Tuesday July 22, you along with the entire crew, were warned verbally concerning the Company's con- cern with excessive tardiness and absenteeism; (4) you were late to work on Thursday July 24, and received a written warning advising you that any further breach in company policy would result in your dismissal. On Friday July 25, commencing almost immediately, you showed disrespect toward and disputed the decisions made by your supervisor.10 2. The discharge of Duane Hanlon Hanlon worked for Respondent as a machine operator in the waterbed department from August 20, 1974, until his discharge on July 31. Respondent makes no claim that Hanlon's work was in any respect deficient. In, fact Produc- tion Manager Magill conceded that except for the fact that Hanlon was at times late in reporting for work in the morn- ing, or in returning from his lunchbreak, the latter was a satisfactory worker. Hanlon was active in the movement to obtain union representation in the plant, having contacted the union agent who initially met with the employees, solic- ited employees to attend scheduled, union meetings and to sign authorization cards; he also gave cards to other em- 10 Reveillac additionally testified that on July 29 (the Monday following his discharge on Friday), he returned to the plant for personal reasons, and while there talked with Keith According to Reveillac, Keith asked if he (Reveillac) knew why he had been fired, and when he asked why, Keith replied that it was because of his poor attitude and his union activity. Keith denied that he made the statement attributed to him I do not credit Reveil- lac in this regard. CLASSIC PRODUCTS CORPORATION ployees who solicited signatures , collecting a total of 22 signed cards which he delivered to the Union. A few days after the filing of the representation petition on July 16, Hanlon asked Supervisor Keith for permission to take 2 hours off to attend to personal matters." Keith refused the request , and when Hanlon explained that the matter was urgent and that he needed the time off, Keith replied, "why should I do you any favors, you are trying to screw us." In this conversation, no mention of the Union was made by Keith or Hanlon.12 On July 25, Hanlon asked Magill for timeoff on July 28. The latter replied that he would look into the matter, and in a little while told Hanlon that production schedules made it impossible to permit him to take time off on July 28, but that he could do so on July 30. Before 8 o'clock the morning of July 30, Hanlon telephoned Magill at the plant to remind the latter that he had permission to be off that morning. Hanlon then also told Magill that he did not ex- pect to be more than a few hours, but if he was unable to get back to the plant by noon, he would telephone- Magill replied that in such event Hanlon should bring a note. Hanlon's business took him much longer than he antici- pated, with the result that he did not return to the plant at anytime on July 30. When Hanlon attempted to check in the morning of July 31, he found his tunecard missing from its customary place and went to Magill asking where it was. Magill replied that Hanlon was fired , and when the latter asked why, Magill stated that it was because Hanlon had not called in the previous day as he had promised . Hanlon explained that Magill had said that all he needed was a note, and tendered a note for Magill to examine, but the latter refused, saying he did not want to see it. Magill admits that he granted Hanlon's request for time off on July 30. He also admits the telephone conversation with Hanlon the morning of July 30, and that he told Han- lon that if the latter would be later than noon in returning to the plant, to bring a note. According to Magill , he decid- ed to discharge Hanlon the afternoon of July 30, and that he reached this conclusion because Hanlon did not tele- phone as he had promised, if he was later than noon in getting back. Magill also admitted that when he discharged Hanlon the morning of July 31 , the latter sought to give him a note to explain why he-did not return to the plant by noon July 30, and that he refused to accept it. According to Magill his reason for refusing to accept the note was that Hanlon had already breached the agreement to telephone the plant if he was delayed beyond noon . Magill also testi- fied that Hanlon's job attitude became a problem ; that he defaced company property, disputed orders of his supervi- sors, argued incessantly with his fellow workers, appeared on the job in outrageous uniforms such as a band uniform with a trumpet in his hand and playing ,the trumpet in the building. Magill's testimony in this area is entirely uncorro- borated. Although Magill claimed that this conduct' on the part of Hanlon existed over the entire period of the !latter's employment, and got steadily worse as time went on,: there 11 Hanlon explained that he went to Keith, rather than to Magill, his own supsaervisor, because the latter was then on vacation. Based on the credited testimony of Hanlon Although Keith testified as a witness, he did not deny making this statement. 173 is no evidence that Magill, or any management representa- tive, reprimanded Hanlon for it. Moreover, Magill admit- ted, that had Hanlon telephoned on July 30, as promised, he would have had no reason to discharge him at that time. 3. The discharge of Lenet Lenet was employed by Respondent on September 20, 1973, to perform various factory functions and except for some temporary layoffs for short periods was so employed until his discharge on October 13. Because of the nature of the case and the facts involved , something of Lenet's back- ground and training is relevant. In 1967, Lenet graduated from the University of Mary- land with a B.S. degree in business administration , special- izing in advertising and marketing, and is now working towards a Masters degree at American University. From 1967 to 1972, Lenet worked as director of management training and marketing communications for International Fabric Care Institute, where as part of his duties he taught finance and marketing and wrote various management bul- letins. He voluntarily left that job to 'become marketing manager for Carpet Tec, a franchise operation for carpet cleaning, charged with developing a market for this service in the Washington area. About 3 months later Carpet Tec was purchased by Eastern Airlines which decided to move the operation to Chicago, leaving Lenet without work. From 1967 to the termination of the Carpet Tec job, Lenet's annual income was from a low of $7,500, to a high of about $13,500. After termination of the Carpet Tec job, Lenet became an investment broker, spending the first 6 months in training and obtaining the required license. At the same time he worked for Leasco Information Products, analyzing financial statements for the S.E.C., pursuant to a contract between that agency and Leasco. After a short time the aforementioned contract was terminated, and with the reduced activity in investment securities, Lenet again found himself without meaningful employment . It was at this point that Lenet answered a blind ad for general facto- ry work, which resulted in his employment by Respondent at a starting rate of $2.75 an hour, with his first assignment being to the waterbed department where he cut vinyl to pieces of predetermined length . After about 2 months, Len- et was made a supervisor in bean bag filling at a weekly salary of $ 125 and was on that job for about 2 months. About mid-March 1974, Lenet was assigned to the job of preparing packages for shipment via United Parcel Service, and on this job he, worked at an hourly rate of $3.13. After a short period in that job Lenet was transferred back to the waterbed department, this time inventorying bean bag skins in preparation for their being filled, also at an hourly rate of $3.13. Lenet was working at this job when the union activity above referred to began. Lenet learned of the union activity from Hanlon in the latter part of June. He took a number of union cards from Hanlon which he distributed in the plant, and eventually returned signed cards, which included his own, to Hanlon. Lenet was also active in arranging for union meetings; and himself attended a number of meetings. As heretofore indi- cated, he was one of the three employees who appeared at the Board's office on August 11 in connection with the 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation petition; as well as the meeting of all em- ployees a few days later which was addressed by Company Attorney Dukes and at the conclusion of that meeting, in the presence of company officials, announced the union meeting to be held that night, urging all employees to at- tend. Also on August 15, Lenet was told by Longson that there would be no work the following Monday in the bean bag filling department, where Lenet then worked. Lenet replied that he had theretofore worked in the waterbed department and asked to be assigned there. Longson said there was a full complement of employees in the waterbed department and suggested that Lenet telephone the plant Monday to ascertain if there would be any work Tuesday. When Lenet called Monday, Longson said there would be no work in bean bag filling on' Tuesday. Lenet again asked to be as- signed to waterbed, but Longson replied that the waterbed crew ,was full. Being of the opinion that the refusal to per- mit him to work in the waterbed department was discnmi- natorily motivated, Lenet discussed the situation with Union Agent Stover who filed a charge alleging that Lenet had been unlawfully terminated. In a telephone conversation with Longson on August 19, the latter told Lenet to report for work in the bean bag department on August 21, and when Lenet did so,13 Long- son discussed with him the charge that had been filed.14 Later the same day Lenet had another conversation with Longson, to seek a- final answer to his request for permis- sion to take off Thursday afternoon and all day Friday so that he might take his wife for necessary medical attention, to which request he had not theretofore received an an- swer. After considerable conversation, 15 Longson told Len- et that officially he could not have the requested time off. Lenet replied that his wife's health was more important to him than filling bean bags, and that he would take the time off for the purpose stated.16 As indicated, the election was held September 9, be- tween 8:30 and 9 a.m. Lenet testified that he served during the election as an observer for the Union." During the afternoon of September 9, Longson sent for Lenet and in- formed the latter that he would thereafter work in the headroom,18 and that the transfer would be effective the 13 Lenet testified that when he returned to work on August 21, he learned that various employees had,worked in the bean bag department during the 3 days he was not-permitted to work. Except for this hearsay, there is no testimony to establish such to be a fact 14 Longson took exception to the use of the word "discharged" claiming that was untrue. Lenet agreed that the use of that word was inappropriate, and said that he would so inform Union Agent Stover so that the latter might correct the charge. Both Longson and Lenet admit that their discussion ranged over a wide area of subjects Lenet testified that toward the end of this conversation Longson stated'that there would never be a union at Classic, and that he laid Lenet off the preceding week because of his union activity, but that he would not repeat the statement publicly I do not credit Lenet's testimony in this regard. 16 Based on the credited testimony of Lenet, which is basically undisput- ed 17 The tally of ballots is signed by Bernard Jeweler as observer for the Union, but the certificate that the election was fairly conducted is signed by Lenet. As heretofore indicated the vote was 11 for the Union, 12 against, and 8 challenged ballots, 2 of which are involved in this proceeding ' is The headroom is a small room about 10' by 25', with no windows, where drug related products, which Respondent sells, are stored and orders following morning. Lenet was also told that the reason he was selected for that job was that the items there' were small and susceptible to pilferage, and that Longson con- sidered him honest and reliable. Except for about 3 hours on September 11, when Lenet was temporarily assigned to bean bag filling, he worked .in the headroom for about a week and was then told that he was being transferred to turning bean bags,19 and that he would be paid for this work at piece rates. Lenet protested this' transfer, saying that bean bag turning was the most "degrading, ignomini- ous, demotivating [and] ego deflating". job in the plant and asserted that the transfer was being made to, punish him for his union activities. Lenet also told Longson that he was the most senior employee at the Company, and the job he was being transferred to was usually performed by the very new employees or those "who don't have much manual dexterity or intelligence" for a higher position. Lenet asked for assignment to some other duty in the plant, but Long- son insisted that bean bag turning was work that had to be performed and that he wanted Lenet to perform it.20 Lenet began turning bean bags on September 15. After about a week, Supervisor Marcus told Lenet that thereafter he was restricted in his movements to the bag turning area. Prior to this Lenet was permitted to carry bags he had turned to the bag filling area. The same day Supervisor Marcus told Lenet that thereafter he could not receive calls from, or make calls to, his wife on the company phone, except in a dire emergency. Prior to this, according to Len- et, he had made calls to his wife at least once a day and had received calls from her. According to Lenet, Marcus knew that his wife's health was the reason for these calls, and Respondent stipulated that it knew that Lenet was us- ing the telephone as Lenet claimed. Also, on October 3 Marcus informed Lenet that the latter would not be per- mitted to smoke in his work area. Prior to this time, Lenet and other employees had been permitted to smoke in their work areas. On September 12, General Manager Longson gave Len- et a written warning concerning complaints from fellow employees and supervisors that Lenet was annoying and disturbing other employees with matters unrelated to com- pany business, and that any further instances of such con- duct would result in Lenet's immediate dismissal: Twelve for such goods are prepared for shipment. Due to the nature of the goods, they cannot be sent by mail and must be shipped by United Parcel Service on a CO D basis 19 Among the items Respondent produces are bean bag chairs and has- socks. These are made both in vinyl and cloth' After cutting the Material to length, it is folded over, sewed on two sides 'and a zipper installed on the top Because the material is sewed on the wrong side,i it is necessary to turn the bag inside out before it is filled with beans The vinyl being quite heavy, is more difficult to turn and takes more time', than bags made of cloth 20 Company President Fogel testified without contradiction that he made the decision to transfer Lenet out of the headroom , but left it to Longson to decide the work Lenet should be transferred to. Fogel's reasons for his decision were that the headroom was isolated 'land a place that could not be observed from other parts of 'the plant;, that' on two occasions during the 'week Lenet worked there, he had occasion to go by and heard Lenet and other employees talking about matters unrelated to company business, from which he concluded that Lenet spent too much time talking, and that he therefore directed Longson to transfer Lenet to a job where he would work in the open Lenet admitted that on at least two occasions during the week he worked in the headroom, he did talk at some length ,with other employ- ees, regarding matters unrelated to company, business. CLASSIC PRODUCTS CORPORATION days later Longson gave Lenet another written warning, complaining that: (1) his production for the 3 preceding weeks was unsatisfactory in that his piece rate earnings were insufficient to satisfy the minimum statutory rate of pay; (2) Lenet was receiving and making numerous tele- phone calls on the Company's lines, which should be used for business and emergency calls only; and (3) on Septem- ber 19Yand September 23,,Lenet had left work before com- pleting his 8-hour- tour of duty, allegedly for personal rea- sons. The warning stated that `unless Lenet's production improved, and his conduct in the other areas mentioned ceased, Respondent would be forced to terminate him. Lenet gave no testimony to the effect that the allegations by Marcus were untrue. On October 7, Supervisor Marcus gave Lenet another written warning. This stated that a review of Lenet's time- cards for the past 2 weeks indicated a pattern of being late for work; that company policy required that he report for work at 8 a.m.; and that if he continued to be late Respon- dent would be forced to terminate him. Lenet, when he testified before me, admitted that the charge of being late was true 21 On October 13, Lenet was called to Longson's office and told that he was being discharged for inadequate produc- tion.22 Documentary evidence shows that from Monday through Friday, October 6-10,23 Lenet's production and earnings -were as follows:, - Units ' Earnings at Earnings at Date produced piece rates minimum rate Oct. 6 worked at hourly rates $16,80 Oct. 7 273 $9.56 16.80 Oct. 8 191 9.51 16.80 Oct; 9 110 5.50 16.80 Oct. 10 66 3.30 - 16.80 The evidence additionally shows that during the early peri- od of his assignment to bean bag turning, Lenet's normal daily production was from 500 to 600 units in an 8-h6ur day, which would give him gross earnings of $25 to $30 per day, -and' that on at least one occasion he produced over 1,000 units a day.24 C. Contentions and Conclusions 1. The 8(a)(1) allegations Upon the facts above detailed, I find and conclude that Respondent violated Section 8(a)(1) of the Act by (a) The statement by Marcus, an admitted supervisor, to employee Malone in the presence of employee Harp, that 21 Lenet additionally testified that he told Marcus that other employees, as well as supervisors, reported late, that no warning had been given to them, and asked if the threat of termination applied also to those employees and supervisors. 22 Lenet did not dispute Longson's claim of inadequate production, but argued that thejob of bean bag turning was an uninteresting job which did not challenge his interest land asked to be transferred to some other duty, but Longson insisted that'Lenet be terminated 23 The plant did not` work Saturday and Sunday, October 11 and 12 24 Although Lenet kept no records of his production, be admitted that the figures mentioned are substantially correct 175 Company President Fogel would discharge any employee that attempted to bring a union into the plant. This was clearly a threat to discharge employees who sought to exer- cise rights protected by Section 7 of the Act. The fact, if it be a fact, that Marcus may not have been authorized to make such a statement, or that the statement did accurate- ly reflect Fogel's views, is beside the point.-To the employ- ees he spoke with the authority of management. (b) Magill's announcement to employees on July 22 that henceforth any employee tardy would be reprimanded for the first offense and discharged for a subsequent offense. This change in the working conditions of the employees, being made as it was dust 4 days after Respondent learned of the filing of the representative petition and only the day after Magill returned to the-plant from his vacation, was made, I find and conclude, to retaliate against the employ- ees for their concerted activity, in an effort to deter them from further activity in that regard, and hence interfered with their Section 7 rights. (c) Supervisor Keith's statement to employee Hanlon following the filing of the representation petition, and in response to Hanlon's request for time off for personal rea- sons, "why should I do you any favors, you are trying to screw us." In context, this was clearly a statement that the request for time off was being denied because Hanlon and his fellow employees had exercised their Section 7 rights to assist, and support the Union, and constituted the interfer- ence,restraint, and coercion proscribed by Section 8(a)(1) of the Act. Keith's testimony that he was unaware of any union activity -among the employees until sometime after August 5, and hence could not have been referring to the union activities of the employees when he made the state- ment referred to on or about July 25, 1 reject as incredible, and I find that he was in fact well aware of the union activity at the time mentioned. (d) The conduct of Company Officials Fogel, Longson, and Magill in calling employees into the office and interro- gating them concerning their views about the Union, and what the'Union was promising them. In the circumstances of this case, the interrogation was plainly for the purpose of ascertaining the union sympathies and attitudes of the interrogated employees. In fact, Longson did not deny the testimony of employee Ross that he was asked how he felt about the Union, and Magill testified that Longson' s testi- mony correctly reflected what was said at the interviews. Moreover, at the interviews Respondent gave the interro- gated employees no assurances against reprisal. Absent such assurances, interrogation reasonably tends to be coer- cive, and hence violative of Section 8(a)(1) of the Act. Long Island Airport Limousine Service Corp., 191 NLRB 94 (1971), enfd. 468 F.2d 292 (C.A. 2, 1972).25 25 The General Counsel additionally alleged in his complaint and urged before me that, in the interviews above referred to, management also told the interviewed employees that if the Union became their bargaining repre- sentative-a strike would be inevitable and would cause Respondent to cease operations According to employee Ross, Respondent stated that if the Union won the election, it would probably have the employees go on strike, but that nothing was said as to why there aught be a strike Finney 's testi- mony is to the same effect. According to Longson, management' s statement was that if ' the Union won the election and asked for a raise it would bargain with the Union regarding that issue, but if the parties were unable Continued 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The 8(a)(3) allegations a. Duane Hanlon Upon consideration of the entire record I am convinced, and therefore find and conclude, that `Respondent dis- charged Duane Hanlon because of his activity on behalf of the Union, and that the latter's failure to telephone Magill the preceding day was a mere pretext seized upon in an attempt to obscure the true motive for the discharge. I reach this conclusion on the totality of the following con- siderations: 1._ The evidence leaves no room ' for doubt, indeed Re- spondent concedes, that Hanlon performed his work in a satisfactory manner. 2. Likewise, the evidence leaves no room for doubt that Hanlon was among the most active, if not the leading force, in the movement to obtain union representation for the employees. Although Magill testified that when he dis- charged Hanlon on July 31 he was unaware of any union activity among the employees because he was on vacation for 2 weeks proceeding July 21, I reject his testimony in that regard as incredible. 6 3. That Respondent was opposed to the unionization of its employees is made evident by its interrogation of a sub- stantial number of its employees just before the election. 4. Magill granted Hanlon permission to take time off for personal reasons on July 30. When Hanlon told Magill that he thought he could be back at the plant by noon of that day, and, if this proved not to be possible he would tele- phone, Magill rejected the suggestion and instead told Hanlon to bring a note from the person with whom he had his business. Notwithstanding this arrangement, Magill ad- mittedly discharged Hanlon because the latter did not tele- phone on July 30, and when Hanlon offered the note which Magill directed him to obtain, the latter admittedly refused to even look at it, allegedly because Hanlon had already broken his promise to telephone if he was delayed beyond noon. This is not the reaction of a normal employer and strongly suggests that something other than the failure to call in was the true motive for the discharge.27 5. What all this adds up'to is that a theretofore satisfac- tory employee is discharged hard upon discovery of his union and concerted activity, for an alleged reason that is not only trivial, but on analysis does not withstand' scruti- ny. From this it is appropriate to infer, as I do, that the to agree, the. Union would„have the right to strike I find this evidence insufficient to support the General Counsel's contention. 26 As theretofore indicated, Respondent admittedly received a copy of the representation petition on July 18 To believe that such a fact was not made known to one of the top members of management when he returned from vacation on July 21, the following business day, simply strains credulity beyond the breaking point. 7 Magill also complained that Hanlon frequently reported late for duty, defaced company, property, and came to work dressed in outrageous uni- forms saying this conduct was engaged in by Hanlon from the inception of his employment in August 1974 and that it got worse as time passed Magill did not claim and there is no other evidence to show that Hanlon was ever reprimanded for this alleged conduct or otherwise informed that Respon- dent objected to it. The conduct therefore was plainly tolerated by Respon- dent for 11 months ,'and reliance upon it as a reason for Hanlon's discharge not only has all the indicia of an afterthought, but is itself evidence of discriminatory motivation assigned reason for the discharge was not the true reason therefor, and that the true reason is one which the employ- er desires to conceal ; namely, Hanlon's union and concert- ed activity. As the Court of Appeals for the Ninth Circuit stated the principle in Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (1966): If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can, infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as-in this case, the surrounding facts tend to reinforce that inference. Accordingly, for the reasons stated, I find and conclude that by discharging Hanlon, Respondent violated Section 8(a)(3) and (1) of the Act. b. Charles Reveillac Consideration of the entire record convinces me, and I therefore find and conclude, that Respondent also dis- charged Revveillac for the latter's' union and concerted ac- tivity, and that the factor's enumerated in the discharge letter given Reveillac on July 25 were in the main matters that Respondent had long tolerated and forgiven, but res- urrected at the time of the discharge in an attempt to ob- scure-the true motive for the discharge. I am led to this conclusion by the following factors: 1. Like Hanlon, Reveillac's work performance was ad- mittedly satisfactory. 2. As in the case of Hanlon, Reveillac was among the leading forces in the campaign to organize Respondent's employees, and I have heretofore rejected Magill's claim that he was unaware of any union activity among the em- ployees for some period after he returned from vacation on July 21. 3. The discharge memorandum given Reveillac on July 25 was predicated primarily on his record for absenteeism and tardiness, most of it extending over the entire 9-month period of his employment. If this record was as intolerable to Respondent as the memorandum indicates, it is difficult to understand .why Respondent did not discharge Reveillac long before it did. The answer, of course, lay in the fact that Respondent, for reasons best known to it, chose to tolerate Reveillac's absenteeism and tardiness, and found that conduct intolerable only after Reveillac's union activi- ty came to light . Respondent's reliance upon Reveillac's prior conduct, in the circumstances of this case, as a reason for the latter's discharge in July, not only has all the indicia of an afterthought, but is itself evidence of a discriminatory motive. The final reference in the memorandum to Reveillac's alleged disrespect toward and disputing the de- cisions of his supervisors was likewise seized upon, I am convinced, in an attempt to obscure the true motive for the discharge. The "dispute"-if such it can be called-be- tween Reveillac and Supervisor, Keith during the morning of July 25 was one of a very, minor nature and of a kind any competent supervisor should be able to control with- out any real difficulty. In fact,, the record shows that the precise situation had occurred on "several occasions" in CLASSIC PRODUCTS CORPORATION 177 the past, and Respondent apparently found it unnecessary to take any action to control the situation.28 4. In short, the basic picture presented by the facts relat- ing to Reveillac's discharge shows that a satisfactory work- man, whose past derelictions of duty-if his past conduct was actually considered by Respondent to be such-but except for a 2-day suspension for being absent from work for 4 hours without leave it had never imposed discipline for, is suddenly discharged hard upon discovery that union activity was in progress, and in which I infer Respondent believed Reveillac was a participant, for reasons which it had in the past accepted without finding it necessary to impose discipline. These factors are the classic indicia of a discriminatorily motivated discharge, appropriately giving rise to the inference that the stated reason for the discharge is simply a pretext, and that the true reason for the dis- charge, and the one which Respondent desires to conceal, was its desire to stamp out one of the moving spirits in the organizational campaign, and this is particularly true where, as in the instant case, the alleged reason for the discharge does not withstand scrutiny. Shattuck Denn Min- ing Corporation v. N.L.R.B., 362 F.2d 466, 470, 472 (C.A. 9). Accordingly, for the reasons stated, I find and conclude that by discharging Reveillac on July 25, Respondent vio- lated Section 8(a)(3) and (1) of the Act. c. The discharge of Lenet The discharge of Lenet, I find and conclude, was for cause and hence did not violate Section 8(a)(3) and (1) of the Act. Although the evidence offered by the General Counsel to support his claim that the September 15 trans- fer of Lenet to bean bag filling, as well as the subsequent warnings to and restrictions placed upon Lenet were all discriminatorily motivated, leaves much to be desired, I assume for the purposes of decision, and that such was the case. Had Lenet quit because of the discrimination against him, it could be appropriately concluded that he had been constructively discharged. Instead, as the evidence shows, Lenet elected to engage in a partial strike against Respon- dent by slowing down, or at least failing to achieve even a minimal standard of performance of his duties. Although the right of an employee to strike his employer is protected by the Act, he may not continue to work and at the same time strike. Such conduct is unprotected by the Act, and provided Respondent with the . opportunity to affect the discharge of Lenet for cause, onolulu Rapid Transit Com- 28 The final sentence of the first paragraph of the memorandum of July 25, which was given Reveillac at the time of his discharge and set forth Respondent's reasons therefor, states that Reveillac had "for the past few months had disputes with and questioned the authority of your supervisor on several occasions." 29 Respondent devoted portions of its brief to arguing that the evidence does not -support an allegation that Lola Holmes was discriminatorily dis- charged. Although a charge filed by Holmes, which alleges here unlawful termination by Respondent, is attached to the complaint issued herein, the complaint itself makes no allegation that Lola Holmes was discharged for discriminatory reasons, nor did the General Counsel introduce any evidence regarding her termination. Accordingly, I make no findings regarding the alleged discharge of Lola Holmes. pany, Limited, 110 NLRB 1806 (1954).21 1 so find and con- clude. Upon the foregoing findings of fact and the entire record in the case, I state the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and 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. By the conduct set forth in section C,1 hereof, Re- spondent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By discharging Charles Reveillac on July 25 and Duane Hanlon on July 31, because of their union and con- certed activities, Respondent discriminated against each of them in regard to their hire, tenure of employment, and the terms and conditions thereof, discouraging membership in a labor organization, and thereby engaged in, and is engag- ing in, unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The General Counsel has failed to prove by a prepon- derance of the evidence that Respondent's discharge of Richard Lenet was for reasons other than cause. THE REMEDY Having found that Respondent interfered with, re- strained, and coerced its employees in the exercise of rights protected by Section 7 of the Act, and discriminatorily dis- charged two employees, I shall recommend that it be re- quired to cease and desist from such conduct, and take certain affirmative action hereafter set forth , designed and found necessary to effectuate the policies of the Act. The unfair labor practices found being of a character which got to the very heart of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon employee rights is warranted , and I shall so recommend. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941); California Lingerie Inc., 129 NLRB 912 (1960). Having found that Respondent discriminatorily dis- charged Charles Reveillac and Duane Hanlon, I shall rec- ommend that it be required to offer each of them immedi- ate, full, and unconditional reinstatement to his former job or, if such job no longer exists , to a substantially equivalent one, without prejudice to his seniority and other rights, privileges, or working conditions, and make each of them whole for any loss of earnings suffered by reason of the discrimination against them, respectively, by paying them, severally, a sum of money equal to the amount each would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during that period. Such backpay shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent'per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended that Respondent be required to pre- serve and upon request make available to authorized agents of the Board, all records necessary or useful in de- terminging compliance with the Board's Order, or in com- puting the amount of backpay due. REPORT ON OBJECTIONS AND CHALLENGES As above indicated, the election held on September 9 showed 11 votes for the Union, 12 against, and 8 chal- lenged ballots. The Regional Director sustained the chal- ' lenges to six of the ballots, referring the other two for de- termination in this proceeding. The two challenged ballots here involved are those of Carole Lann, whose right to vote was challenged by the Union on the ground that she was a clerical employee and not within the unit, and of Duane Hanlon, whose right to vote was challenged by Respondent on the ground that he was not an 'employee during the eligibility period, having been allegedly discharged for cause on July 31. At the outset of the hearing the Union withdrew its chal- lenge to the ballot of Carole Lann. Having 'found the dis- charge of Duane Hanlon to have been disc'riminatonly mo- tivated, it follows that Duane Hanlon remained in employee status and was entitled to vote at the election held on September 9. The discharge of Reveillac and Han- lon and promulgation of work rules and interrogation of employees, which I have found violative of Section 8(a)(1) of the Act, all occurred between the filing of the petition and the date of the election, the time which the Board regards as the critical period, it follows that unless a count of the challenged ballots will resolve the matter, the elec- tion should be set aside. Dal-Tex Optical Company, Inc., 136 NLRB 1782 (1962); Leas & McVitty, Incorporated, 155 NLRB 389 (1965); L. B. Foster Company, 168 NLRB 83 (1967), enfd. 418 F.2d 1 (C.A. 9, 1969), cert. denied 397 U.S. 990; Kaiser Agricultural Chemicals, A Division of Kai- ser Aluminum & Chemical Corporation, 187 NLRB 661 (1970), enfd. 473 F.2d 374 (C.A. 5, 1973). Accordingly, it will be recommended that the ballots of Carole Lann and Duane Hanlon be opened and counted by the Regional Director, in accordance with Board practice,' and that he serve a revised tally of ballots on the parties. If this results in a majority for the Union, the Regional Director shall certify the Union as the exclusive collective-bargaining representative of the employees in the unit involved. If the revised tally of ballots show no majority for the Union, it is recommended that the election held on September 9 be set aside, and that a new election be conducted by the Region- al Director at such time as he may deem it appropriate to do so. 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, I hereby issue the following rec- ommended: ORDER" The Respondent, Classic Products Corporation, Belts- ville, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees with respect to their assistance to, or support of any labor organization. (b) Threatening to discharge employees who assist or support a"labor organization. (c) Promulgating changes in the wages, hours, or work- ing conditions of its employees because such employees have assisted or supported a labor organization: (d) Denying employee requests for time off because such employees have assisted or supported a labor organi-' zation. (e) Encouraging or discouraging membership in United Furniture Workers of 'America, 'Local 75, AFL-CIO, or any other'labor organization of its employees, by' discharg- ing, or in any other manner discriminating against any em- ployee in regard to his hire, tenure, or any other term or condition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor, organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the, policies of the Act: (a) Offer to each Charles Reveillac and Duane Hanlon immediate, full, and unconditional reinstatement to his for- mer job or, if that job no longer: exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges or workmgconditions, and make each of them whole for any loss of earnings suffered, in the manner stated in the section hereof entitled "The Reme- dy.' (b) Preserve and, upon request, make available to au- thorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social securi- ty payment records, timecards, personnel records and re- ports, and all other records necessary' or useful in de- termining compliance herewith, or in computing the amount of backpay due. (c) Post at its plant in Beltsville, Maryland, copies of the attached notice marked "Appendix." 31 Copies' of said no- tice, on forms provided' by the Board's Regional Director for Region 5, after being signed by an authorized represen- tative of Respondent, shall be posted as herein provided 30 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. 3l` In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read"`Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CLASSIC PRODUCTS CORPORATION immediately upon receipt thereof and be so maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we violated the National Labor Relations Act, and we have been or- dered by the National Labor Relations Board to post this notice. We intend to carry out the order of the Board, the judgment of any court enforcing the same, and abide by the following: The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union 179 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 and all such activities. WE WILL NOT in any other manner interfere with our employees in the exercise of those rights. All our em- ployees are free to become or remain members of United Furniture Workers of America, Local 75, AFL-CIO, or any other union, or not to become or remain a member of Local 75, or any other union. WE WILL NOT coercively interrogate you concerning your assistance to or support of any union. WE WILL NOT threaten to discharge you because you assist or support a union. WE WILL NOT refuse time off to any employee be- cause our employees assisted or supported a union. As' the National Labor Relations Board found that we violated the law when we discharged Charles Reveillac and Duane Hanlon, WE WILL offer each of them reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent one without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay suffered, together with 6 percent interest. CLASSIC PRODUCTS CORPORATION