Hehr International, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hehr International, Inc. and Aluminum Workers In- ternational Union, AFL-CIO, Case 4-CA-7755 October 13, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 25, 1976, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 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, Hehr International, Inc., Orwigsburg, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the -action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge, It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- mg, with all parties represented, was heard on April 6 and 7, 1976, in Pottsville, Pennsylvania, on the complaint of the General Counsel issued on February 23, 1976,1 and the answer of Hehr International, Inc., herein called the Re- spondent or the Company. In issue is the question whether i The complaint is based on a charge filed by Aluminum Workers Inter- national Union, AFL-CIO, on December 16, 1975, a copy of which was duly served on the Respondent by certified mail on the same day. the Respondent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,2 discrimi- natorily discharged Beverly Baver because of her union support and sympathies and threatened to close down the plant and relocate it if she tried to bring a union in. At the close of, the hearing, the parties waived oral argument but thereafter submitted briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties,- I make, the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent, a California corporation, is engaged in the manufacture of aluminum architectural materials at its Orwigsburg, Pennsylvania, plant, which is the only facility of the Respondent involved in_this proceeding . During the past 12 months, the Respondent sold and shipped goods valued in excess of $50,000 from its Orwigsburg plant to points located outside Pennsylvania. The Respondent admits for the purposes of this case only, and I find, that it is an employer engaged ,in com- merce within, the meaning of Section 2(6) and (7),of the Act. It. THE LABOR ORGANIZATION INVOLVED It is _conceded by the Respondent for the purposes'of this case, and I find, that Aluminum Workers International Union, AFL-CIO, herein called the Union, is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence This is another one of those familiar cases where the employer is charged with unlawfully terminating the em- ployment of an employee to discourage union membership or support and the employer vigorously resists the charge of discrimination, insisting that his action was prompted solely by legitimate business considerations. 1. Events preceding Bayer's discharge; the Union's appearance Beverly Baver, the subject of the alleged discrimination 2 Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent, Sec. 7, in turn, provides that "[elmployees shall have the 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 . " Sec. 8(a)(3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization .. " 226 NLRB No. 72 HEHR INTERNATIONAL, INC. in this case, worked in the fabrication department of the Respondent's Orwigsburg plant from January to December 5, 1975,3 when she was summarily terminated without prior warning or notice. At the time of her discharge, she operat- ed a saw, as well as other machines. There is no question that she was a competent operator, having received four wage increases in the 11 months of her employment, the last one in August. Admittedly, Baver was never given a written reprimand or warning or its equivalent, a so-called discussion report . The Respondent asserts that Baver was discharged solely for failing to notify the Respondent of her absence on three separate occasions, as required by its rule, and not because of her support of the Union. This rule, which is included in a -handbook given to new em- ployees upon their employment and which is posted near the employee timeclock, provides: If you know that you will have to be absent, notify your immediate supervisor or the Plant Superinten- dent's office in advance or as early as possible on the day of your absence. No notification by noon of the day of your absence will be considered an absence without notice, except under extenuating circum- stances. Two absences without notice are grounds for dismissal. In its brief, the Respondent concedes that through the years it has been lenient in the enforcement of this rule and that it has not discharged employees solely for two absenc- es without notification. The-pertinent events leading up to Bayer's discharge are as follows: Probably on Tuesday morning, November 25, employee Bonnie Engleman, in the presence of Baver, inquired of Foreman Harold Wagner whether she would be paid holi- day pay for Thanksgiving Day if she were sick the next day. Upon receiving a negative answer, Engleman returned to her machine. As Engleman was walking away, Baver asked Wagner for a day off to go deer hunting. There is a serious conflict in testimony concerning the ensuing con- versation. Baver testified that-she asked Wagner whether she could be off on Monday, December 1, for the indicated purpose;, that Wagner refused to give her the requested day off but added that she could have Tuesday or Wednesday (December 2 or 3); and that Baver thereupon responded that then she would take Tuesday off .4 Wagner, on the other hand, gave this testimonial ac- count of the conversation: Ms. Baver approached me in this manner: She said, "I am not going to be here on Tuesday, the 2nd [of December]; I'm going hunting." I said, "Wait a minute." I said, "This isn't the way it's done." I said, "When we go hunting, we either have vacation time coming or permission from man- agement to be off-that day." Ms. Baver said, "Then, I would like your permission." I said, "I'm sorry. I can't 3 All dates refer to 1975 unless otherwise indicated 4 Engleman testified that, as she was walking away, she heard Baver ask whether she could have Tuesday off so that she could go hunting However, she further testified that she did not hear Wagner's answer as she had al- ready reached her machine 391 give you permission to be off, for two reasons: one, one of the other saw operators [Doris Brady] is on vacation that week; and the other one being, the back- up saw operator, Bob Kalochie, is going to be out that day hunting, so it would leave me with one saw opera- tor, which would be an impossible situation; and, therefore, I cannot let you have the day off." And she said, "Well, I'm going anyway." She said, "I'll call in sick." I said, "If you call in sick, you'd better be sick." And that's it. In view of the subsequent events, I find that Bayer's ver- sion of the conversation in question is more convincing and credible than the embellished testimony of Foreman Wagner. Thus, Engleman testified to a later conversation she had with Wagner in the presence of employee Helen Ver Dier 5 on Wednesday, November 26, as follows: She asked Wagner who was going to run the saw operated -by employee Dons Brady who was scheduled to go on-vaca- tion the week of December 1. Wagner replied that she, Engleman, would take over Brady's saw. When Engleman thereupon inquired who would run the saw operated by Baver, who she evidently presumed would be off on De- cember 2, Wagner stated that Ver Dier would'be assigned to it. Wagner testified that it is possible that he had had a discussion with Engleman regarding the operation of Brady's saw and that he might have told Engleman to op- erate it for 1 day when the group leader, Bob Kalochie, was scheduled to be absent. However, he denied having had any discussion with Engleman concerning the operation of Bayer's saw. In fact, he denied that Ver Dier was in the plant on November 26 although, when shown Ver Dier's attendance record disclosing that she had worked that day, Wagner agreed to its correctness. Moreover, it is undisput- ed that Ver Dier actually operated Bayer's saw on Decem- ber 2 in the latter's absence. Engleman, who recently left the Respondent's employ, impressed me as an honest, forthright, and reliable witness who had no reason to contrive testimony against the Re- spondent. I, therefore, credit her account which is consis- tent with the events that ensued. Another indication that Baver was given permission by Wagner to be off on December 2 is evident in the instruc- tions Baver received on December 1, in anticipation of her absence the next -day, from the group leader, Bob Kalo- chie,b who substituted for Foreman Wagner while the latter was on leave that day.' Between 12:30 and 1 p.m., on De- cember 1, Kalochie went to Bayer's machine, handed her work orders for December 2, and told her to do most of the assigned work since she was going to be out that day. Bav- er thereupon proceeded to perform the assignment 8 Baver did not work on Tuesday, December 2, and, in her 5 Ver Dier was not called as a witness by any party 6 It was stipulated that Kalochie was not a supervisor within the meaning of Sec 2(11) of the Act, although on occasions, in the absence of Foreman Wagner, he performed some of Wagner's functions , involving the routine scheduling and assignment of work It appears that Wagner went deer hunting on December 1 e The foregoing findings are based on the uncontradicted testimony of Baver and Engleman, which I credit . Kalochie was not produced as a wit- ness 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence, Ver Dier operated her saw. The next morning (December 3), after reporting for work, Baver credibly tes- tified that Wagner asked her whether she had seen any deer while hunting. Baver answered in the negative and, in response to her inquiry, Wagner stated that he had had the same experience. Baver also testified that Wagner did not question her about her absence or failure to call in on De- cember 2; nor did he make such an inquiry on December 4. Although Wagner denied that he discussed with Baver their deer hunting experiences, he admitted that he said nothing to her on December 3 or 4 about her December 2 absence without notification to the Respondent. This lack of inquisitiveness is inexplicable especially since, according to Wagner, Bayer's absence was in plain defiance of his warning to her not to take off. Indeed, it is undisputed that, when Baver was previously absent on October 13 without notifying the Respondent, Wagner questioned her the very next day regarding her absence. In these circumstances, it is certainly reasonable to assume that Wagner's failure to question Baver about her December 2 absence was due to the fact that he had previously granted her permission to take off. ' Plant Superintendent Ronald Shappell testified that on December 3, between 7:30 and 8 a.m., in accordance with his daily procedures, he inspected the employees' timecards for the purpose of computing and noting on each timecard the hours each employee worked the day before and to record the nature of the absence of an employee on that day, if such were the case 9 He further, testified that on this occasion he inserted on Bayer's timecard for December 2 an "N" designating an absence without notification. How- ever, he also testified that, although it is his practice before noting an "N" on a timecard to check with the secretary or other persons in the office and the employee's foreman whether a telephone call had been received from the absent employee, he did not recall' checking with the office or Foreman Wagner whether Baver had notified the Compa- ny of her absence. In addition, Shappell testified, he did not remember talking to Baver about her absence before recording the "N" on her timecard. On Thursday evening, December 4, the, Union, which had previously been contacted by several employees, held an organizational meeting at a local motel. Bayer and three other employees attended. A union representative distrib- uted union literature and explained the organizational set- up and the benefits to be-derived from unionization. Work- ing conditions at the Respondent's plant were then discussed and union authorization cards were handed out for those in attendance to complete and sign. Baver filled out and signed her card and returned it to the union repre- sentative. Before the meeting ended, the employees were handed, additional authorization cards to be used in solicit- ing signatures from other interested employees. Each em- ployee who was present at the meeting also received a plas- 9 Alphabetical letters are used for such purpose as, for example, "N" for absence without notification, "V" for vacation, "P" for permission to be absent , "L" for lateness , and "X" for insufficient excuse to be absent, al- though notification was given. These notations are subsequently transcribed by the office secretary to a permanent attendance record card when it is convenient for her to do so. tic pen and pencil holder with the Union's name, Alumi- num Workers International Union, AFL-CIO, imprinted on the flap. 2. The discharge The next morning, December 5, Baver reported for work, wearing her union pen and pencil holder in the breast pocket of her blouse with the flap of the holder on which the Union's name was imprinted completely ex- posed and visible.10 Baver testified that about 8:30 a.m., when she approached Foreman Wagner in the plant to ask a question, he noticed the pocket holder and remarked to Baver that if she "keep[s] on trying to bring a union in here, they are going to close down the plant and move it to Route 80 or 81 where they have a better access to Canada." Baver, according to her testimony, simply turned around and walked away. Wagner admitted that he observed Baver wearing the pocket pen and pencil holder with the Union's name dis- played; that he asked her what it was; that she responded that it was the Aluminum Workers of America; and that he only commented, as he would when a person wears a new dress or has a haircut, "That's nice." He, however, categor- ically denied making any threat to Baver. I am not convinced that Wagner's inquiry was entirely innocent. As indicated above, Wagner was not a candid witness in other respects. On the other hand, I find Bayer's recollection of this incident, as well as of others, more reli- able and not imagined to support her case against the Re- spondent. Accordingly, I credit her testimony. Baver continued to wear the union pocket holder in open view when she and Engleman took their coffeebreak between 9 and 9:10 in the morning. While she was standing in the coffee line and was subsequently seated at the table drinking her coffee, Bayer was observed by`Plant Manager John H. Raffa. At the end of the coffeebreak, Baver returned to the work area and within a few minutes Wagner directed her to accompany him to the office. Upon arriving there, Wag- ner told her to wait in Plant Superintendent Shappell's of- fice, which was adjacent to the main office, while he (Wag- ner) went into the latter office. After a few minutes,during which time Baver overheard Raffa telling someone to type "it" up right away, Raffa, Shappell, and Wagner entered Shappell's office where Baver was waiting. Declaring that Baver had had a third unexcused absence, Raffa informed her that she was being dismissed. Baver voiced dis- agreement that she had three unexcused absences and asked for the dates. Raffa thereupon stated that the dates were September 13 (a Saturday),] October 13, and Decem- ber 2. In response, Baver asserted that she had taken off only one time without notifying the Respondent and that that was on October 13 when she went to Reading, Penn- 10 It appears that only one other employee wore the pen and pencil holder which she had received from the Union. 11 It appears that the Respondent's secretary had erroneously noted on Saver's permanent attendance record an "N" (absence without notification) for September 13 and an "X" (notification given but excuse insufficient) for September 20 The timecards , from which the information for the atten- dance record is derived, disclose an "X" for September 13 and an "N" for September 20 HEHR INTERNATIONAL, INC. sylvania, to seek other employment.12 As for the September 13, Saturday, absence, 'I Baver stated that.she was involved in mapping out a route for the "Ride-A-Thon," a horse- riding event, which was scheduled for Sunday, September 21. Referring to her December 2 absence, Baver explained that Wagner had given her permission to take off that day. Raffa thereupon left the room and returned with Bayer's attendance record and showed her the "N" notation for the indicated days.14 This led to a heated argument in which she challenged Wagner to deny that he had given her per- mission to take, off on December 2. After evading Bayer's challenge two or three times, Wagner denied granting her permission. This provoked Baver to accuse Wagner of lying. Thereafter, Baver was handed a dismissal slip 15 to sign. At first, she refused to sign it because the reason was untrue, even though Raffa offered to insert any statement she wanted. Eventually, out of sheer anger, she signed the slip and returned to her machine to collect her personal effects. While so engaged, Raffa approached Baver to ar- range for remitting her final paycheck. Obviously irritated, she expressed the lack of interest. Thereafter, she punched out and left the plant. 16 It is the Respondent's position that it was Foreman Wagner who made the final decision to terminate Baver because she had received a third "N" for her absence on December 2 without notifying the Respondent, under the following circumstances: Although Plant Manager Raffa makes routine checks of employee timecards almost every morning to determine to- tal hours worked in the various departments the previous day as a basis for determining the number, of work hours to schedule for the next day, he was too preoccupied with other tasks due to the absence of a number of supervisors and other production employees during the week of De- cember 1 to inspect the timecards until Friday, December 12 Bayer credibly testified, without contradiction, that when she came to work on October 14 Wagner questioned her about the October 13 absence and that she candidly answered that she had applied in Reading for a better job paying $4.04 an hour and good benefits. As Shappell was passing by, Wagner mentioned those terms to him, receiving Shappell's response that he could not blame her for trying to get such a job 13 According to Bayer's uncontroverted testimony, which I credit, on Fri- day, September 12, Foreman Wagner asked her and other employees, as he customarily did, whether they intended to work that Saturday (September 13), which was an overtime day. Baver informed Wagner , who incidentally was one of the sponsors' of the "Ride-A-Thon," that she would not be in because she was going to map the route for that horse -riding event. When she came to work the following Monday, September 15, neither Wagner nor any other supervisor mentioned her September 13 absence . Significantly, Wagner also testified, under cross-examination, that on one occasion Baver asked for time off to participate in the "Ride-A-Thon" and that he granted her request. 14 At the hearing, Raver testified that she did not recall seeing the "N" notation for December 2 when she punched the timeclock on subsequent das of that week 5 The slip, which is entitled "Notice To Employee As To Change In Relationship," stated that she was discharged on December 5. "This week you had your third absence without notice." The slip has a blank space for the employee's signature but adds the phrase "Only necessary for leave of absence." 16 The foregoing narrative of Bayer 's exit interview is based on her testi- mony, which I find more accurately reflects what probably transpired on this occasion Whatever variances there are in the testimony of the other participants with respect to Bayer's account, as well as with respect to their own testimony, they do not relate to significant matters. 393 5. About 8 o'clock that morning, Raffa, while inspecting the timecards, noticed that an "N" was inserted on Bayer's card for December 2. Raffa promptly discussed this dis- covery with Plant Superintendent Shappell, who testified that he had made that notation. Raffa told Shappell that he thought that the "N" was Bayer's second unexcused ab- sence while Shappell, in response, expressed his belief that it was her third. Raffa and Shappell thereupon proceeded to the main office where they verified from Bayer's perma- nent attendance record that the December 2 was her third. They then entered the plant and informed Wagner that, as a result of Bayer's December 2 unexcused absence, she had three "N's" on her record. When Wagner stated that he was unaware of the three "N's, Raffa asked him and Shap- pell what they intended to do about it." Wagner replied that he would let Baver go.18 In this connection, it cannot be overlooked that, although Shappell was the one who, on December 3, assertedly noted the "N" for December 2 on Bayer's timecard and believed that it was her third one, he did not take any action against Baver or apprise Raffa until the latter initiated the measures to terminate Baver. B. Concluding Findings 1. With respect to Bayer's discharge The question whether an employee was illegally dis- charged because of his or her union sympathies or activi- ties is not susceptible of easy determination as it largely involves an inquiry into the employer' s state of mind. In resolving this question, therefore, all the facts and circum- stances surrounding the separation must be carefully ap- praised with due recognition being accorded to the settled principle that an employer may terminate an employee for any reason, good, bad, or indifferent, provided he is not motivated by union-related considerations. Of course, it is equally well established that the existence of a "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause."19 A careful review of the evidence persuades me that the Respondent discharged Baver because of her union sympa- thies and support and not because of her three absences without notification to the Company, as it vigorously con- tends. Without repeating the details, it is clear that the Re- spondent summarily discharged Bayer, concededly a com- petent employee, on December 5, without prior notice or warning. While it appears that the Respondent does not have a rigid or consistent policy for issuing written repri- mands or warnings described as "discussion reports," it is undisputed that such discussion reports have been issued to a number of employees for unexcused absences, poor attendance, and lateness, but never to Baver. Indeed, there is evidence that several employees with apparently worse attendance and lateness records than Bayer's during a much shorter tenure were given discussion reports before their eventual termination. Viewing the suddenness and 17 Raffa testified that at this point a decision could have been made to give Baver a written or oral discussion report, that is, a warning 18 The foregoing embodies the combined testimony of Raffa, Shappell, and Wagner. 19 N L R B v Solo Cup Company, 237 F.2d 521, 528 (C A 8, 1956). 394 N DECISIONS OF NATIONAL LABOR RELATIONS BOARD severity of-the penalty visited upon Baver in light of the fact, as found above, that the reason-which allegedly pre- cipitated the Respondent's action-Bayer's unexcused ab- sence on December 220-has no credible basis, an inescap- able inference is warranted that the purported reason is a pretext designed to hide the Respondent 's true motive. In- deed, the falsity of the reason relied upon by the Respon- dent strongly indicates that the discharge was actually prompted by an improper consideration. 21 What this con- sideration was is betrayed by the timing of the discharge within 1 hour after Foreman Wagner noticed Baver wear- ing for the first time the pen and pencil holder bearing the Union's name and warned her that plant closure would result from her continued efforts to unionize the plant. Certainly, in these circumstances, the participation of the plant manager, the plant superintendent, and the foreman in the investigation, decision, and termination of a produc- tion worker, such as Baver was , suggests more than a nor- mal business procedure to separate an employee for violat- ing a company rule which requires notification in case of absence. Collective action of this nature,- in my opinion, reinforces a finding of discrimination. This is especially so here where Plant Superintendent Shappell testified that on December 3 he noted an "N" on Bayer's timecard for De- cember 2 without even ascertaining whether Baver had failed to call in her absence. Moreover , Shappell testified that he believed that the December 2 "N" was Bayer's third and, yet, no punitive action was taken until Baver appeared in the plant displaying her union pen and pencil holder. The fact that , as the Respondent , points out, anoth- er employee also wore a union pen and pencil holder, in the plant and was not discharged does not exculpate the Re- spondent's discrimination against Baver. As one court ob- served, "a discriminatory motive, otherwise established, is not disproved by an employer's proof that it did not weed out all union adherents." 22 Nor, for that matter, is a find- ing of discrimination negated, as the Respondent also ar- gues, because the Respondent permitted, an employee, who was hired after the charge in this case as filed, to wear, a cap in the plant with insignia of United Steelworkers Union, or because the Respondent hired an employee who at the time was on strike at the plant of another employer, or because the Respondent hired a part-time truckdriver who was a member of a Teamsters union. In sum, I find .that Bayer was discharged because of her union sympathies and support and that her purported three absences without notification were, at best, a pretext to conceal the Respondent's real motivation to nip the Union's organizational effort in the bud. Such conduct, I conclude, constitutes discrimination in employment to dis- 20 As indicated previously, I have serious doubt that Baver had an unex- cused absence in September. 21 Winchester Spinning Corporation v N L R B, 402 F 2d 299, 306 (C.A 4, 1968), in which the court observed that "[w]here an asserted business motive is discredited, or contradicted by substantial evidence, the Board is free to treat it as pretextuous and infer discrimination on account of union activi- ty22 Nachman Corporation v N L R B, 337 F 2d 421, 424 (C A 7, 1964), enfg. 146 NLRB 23 (1964) Accord N L R B v W C Nabors, d/b/a W C Nabors Company, 196 F 2d 272, 276 (C A 5, 1952), enfg. 89 NLRB 538 (1950), cert. denied 344 U S 865. courage union membership violative of Section 8(a)(3) and (1) of the Act. Even were it -assumed that Bayer's alleged unexcused absences to some extent entered into the-Re- spondent's decision to terminate her, I find her union inter- est was a substantial moving cause and-that therefore her termination would still violate the same statutory provi- sions.23 2. With respect to Foreman Wagner's threat As found above, when Foreman Wagner noticed Baver wearing a union pen and pencil holder, he warned her that, if she continued her efforts to bring the Union into the plant, the Company would close the plant down and move it to Route 80 or 81. Plainly, such'a threat necessarily inter- feres with, restrains, and coerces employees in the exercise of their self-organizational rights and' violates Section 8(a)(1) of the Act. THE REMEDY It is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to ef- fectuate the policies of the Act. I have found that the Respondent unlawfully discharged employee Beverly Baver because of her union sympathies and support. To remedy this violation, it is recommended that the Respondent offer her immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she normally would have earned from December 5 , 1975, the date of her discharge, to the date of offer of reinstatement, less her net earnings during the said period. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). To facilitate the computation , as well as to clarify Bayer's right to reinstatement and employment , the Re- spondent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recommend- ed. In view of the nature of the discrimination for union sympathies and support which "goes to the very heart of the Act," 24 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respon- dent , be ordered to cease and desist from in any other man- ner infringing upon the rights guaranteed employees by Section 7 of the Act 25 23 J P Stevens & Co, Inc v N L R B, 380 F 2d 292, 300 (C A 2, 1967), cert denied 389 U.S 1005 , NLRB v Jamestown Sterling Corp , 211 F 2d 725, 726 (C A 2, 1954). 24 N L R B v Entwistle Manufacturing Company, 120 F 2d 532, 536 (C.A 4, 1941) 25 N L R B v Express Publishing Company , 312 U S 426, 433 (1941) HEHR INTERNATIONAL, INC. 395 Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer 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 discriminating in regard to the hire and tenure of employment of Beverly Baver to discourage membership in, and activities on behalf of, the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct and by threatening Baver that the Respondent would close down the plant and move it if she persisted in her unionizing efforts, the Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Sec- tion 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 26 The Respondent, Hehr International , Inc., Orwigsburg, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Aluminum Workers International Union, AFL-CIO, or any other labor organi- zation, by discharging employees or in any other manner discriminating against them in regard to their hire or ten- ure of employment or any term or condition of employ- ment. (b) Threatening employees to close down the plant or move it to another area if they persist in their efforts to unionize the plant. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Beverly Baver immediate and full reinstate- ment to her former job or, if her job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges , and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her , in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports , and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant in Orwigsburg, Pennsylvania, the attached notice marked "Appendix." 7 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 4, after being duly signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 26 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 27 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 sides had the opportunity to give evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and ordered us to post this notice. The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these activities. WE WILL NOT discharge or lay off employees or otherwise discriminate against them because of their membership in, or activities on behalf of, Aluminum Workers International Union, AFL-CIO, or any other labor organization. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees that we will close down our plant or move it to another area if they persist in their efforts to unionize the plant. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a con- dition of employment as authorized by Section 8(a)(3) of the Act. WE WILL offer Beverly Baver immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to her seniority or other rights and privi- leges, and WE WILL make her whole for any loss of earnings suffered by reason of the discrimination against her. All our employees are free- to become or remain, or re- frain from becoming or remaining, members of Aluminum Workers International Union, AFL-CIO, or any other la- bor organization, except to the extent that such right may be,affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized by Section 8(a)(3) of the Act. HEHR INTERNATIONAL, INC.