Thurner Heat Treating Corp.

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thurner Heat Treating Corp. and Allan Mann and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and Bruce Buenning. Cases 30-CA-3086, 30-CA-3112, and 30-CA-3152 November 2, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 26, 1976, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief supporting the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge that the Respondent committed extensive and pervasive unfair labor practices, as fully described in his Deci- sion, and that, therefore, a bargaining order is war- ranted. We further find that, in the circumstances of this case, the Respondent violated Section 8(a)(5) of the Act, although that specific allegation was not in- cluded in the consolidated complaint. We assume that this failure resulted from our decision in Steel- Fab, Inc., 212 NLRB 363 (1974), which was modified in Trading Port, Inc., 219 NLRB 298 (1975). In any event, the record discloses that the issue of the Re- spondent's bargaining obligation was fully litigated at the hearing. Thus, the Administrative Law Judge found, as alleged in the complaint, that since April 10, 1975, the Union has been the duly designated bargaining representative of a majority of the Re- 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C.A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 In the absence of exceptions thereto, we adopt , pro forma, the finding of the Administrative Law Judge that Paccagnella was not constructively dis- charged in violation of Sec 8(a)(3) and (1) of the Act spondent's employees in an appropriate unit. The Administrative Law Judge further found, as alleged, that the Union demanded recognition-on April 10, and that the Respondent received the-Union's April 10 letter demanding recognition on or about the same date. The Respondent has filed no exceptions to the foregoing findings of the Administrative Law Judge and we adopt these findings which are fully support- ed by the record. While the complaint` alleged that the Respondent "failed and refused" to bargain with the Union, upon receipt of the April 10 demand let- ter, the Administrative Law Judge made no specific finding in this regard. However, in view of its silence in the face of the Union's demand, we find that the Respondent has failed and refused to bargain within the meaning of Section 8(a)(5) of the Act. Accord: N.L.R.B. v. RegalAluminum, Inc., 436 F.2d 525 (C.A. 8, 1971), enfg. 171 NLRB 1403 (1968). Accordingly, all of the elements necessary to prove a violation of Section 8(a)(5) were established in connection with the General Counsel's theory that a bargaining order was necessary to remedy the instant unfair labor practices. Therefore, we find that since April 10, 1975, and thereafter the Respondent has refused to recognize and bargain with the Union as the repre- sentative of its employees in an appropriate unit.' AMENDED CONCLUSIONS OF LAW In accord with the above findings, we adopt the Administrative Law Judge's Conclusions of Law with the following modifications: 1. In Conclusion of Law 5, change "Section 9(e)" to "Section 9(a)." 2. Substitute the following for Conclusion of Law "6. By failing and refusing, since April 10, 1975, 6: and at all times thereafter, to recognize and bargain with the Union as the exclusive representative of its employees in the appropriate unit set out above, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act." 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 as modified below and hereby orders that the Respondent, Thur- 3 Although Respondent embarked upon its course of unfair labor prac- tices prior to April 10, 1975, the Union did not achieve majority status until that date Accordingly, our Order does not require Respondent to bargain for any period prior to April 10, 1975. 226 NLRB No. 111 THURNER HEAT TREATING CORP. 717 ner Heat Treating Corp., Wauwatosa, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(n) and relet- ter present paragraph 1(n) as 1(o): "(n) Failing or refusing to bargain collectively with International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica (UAW), as the exclusive bargaining representa- tive of the employees in the following unit: "All production and maintenance employees of Respondent, excluding office clerical employees, .professional employees, guards, and supervisors as defined in the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT transfer,, discharge, demote, re- fuse to employ, or otherwise discriminate against employees in order to discourage mem- bership in or support of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organization. WE WILL NOT threaten employees with dis- charge or other reprisals if they become or re- main union members or give assistance or sup- port to a union. WE WILL NOT threaten employees that the plant will be shut down or moved away, or that the work done in the plant will be moved away, if a union comes into the plant. WE WILL NOT threaten or enforce more oner- ous conditions, of employment to discourage union membership or activities. WE WILL NOT threaten -employees that the se- lection of a union as their bargaining representa- tive will result in loss of benefits or other detri- ment. WE WILL NOT interrogate employees concern- ing their union membership or activities in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT solicit and encourage employees to initiate, circulate, and subscribe to a petition discouraging employee support of the UAW, or any other labor organization, and threaten em- ployees with discharge if they do not subscribe to such petition. WE WILL NOT promise or grant employee bene- fits in order to discourage union activities or membership. WE WILL NOT engage in, or create the impres- sion of, surveillance of the union activities of employees. WE WILL NOT induce, instruct, or encourage employees to ascertain or report on the union activities, membership, or union adherence of other employees. WE WILL NOT threaten employees that we will not bargain with a union selected by employees, or will not contract with such a union except upon unfavorable terms, or by any like or simi- lar means indicating that the selection of a union by the employees as their bargaining rep- resentative will be a futile act. WE WILL NOT solicit employee grievances or tell employees they do not need a union in order to discourage union membership or activities. WE WILL NOT require prospective employees to answer questions on the employment applica- tions as to their union membership. WE WILL NOT refuse to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive bargaining representative of the employees in the unit de- scribed below. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer to the following named employ- ees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of our discrimination against them: Lau- ra Giefen, Allan Mann, Amos Raffeet, John Banner, Del Wilson, Garth Fletcher, Brian Holst, Robert Hardtke, Robert Rau, Thomas Whitney, Ralph Andersen, Bruce Buenning, and Pamela Miller. WE WILL, upon request, recognize and bargain with the International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive representative of all the employees in the bar- gaining unit described below and, upon request, if an understanding is reached, embody such un- derstanding in a signed agreement. The bargain- ing unit is: 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL convene during working time, by de- partments and shifts, all our current employees, and a responsible official at the departmental supervisor level or above will read to depart- ment employees the contents of this notice. All our employees are free to become or remain, or refrain from becoming or remaining, members of In- ternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or, any other labor organization. THURNER HEAT TREATING CORP. DECISION STATEMENT OF THE CASE Wisconsin. During the past calendar year , a representative period, Respondent, in the course and conduct of its busi- ness operations, performed services valued in excess of $50,000 for firms located in Wisconsin , each of which in turn sold and shipped goods and materials valued in excess of $50,000, in interstate commerce, to points located out- side the State of Wisconsin. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the -meaning of Section 2(6) and (7) of the Act, as well'as an employer engaged in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is now, and has been at all times material herein ; a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES ELBERT D. GADSDEN, Administrative Law Judge: Pur- suant to an original and amended charge filed on March 21 and 24, and April 1, 1975, respectively, by Allan Mann, an individual; and charges filed on April 11 and May 21, 1975, by Bruce Buennmg, an individual, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, respectively, the General Counsel of the National Labor Relations Board thereupon issued complaints I on May 21 and 29, 1975, respectively, alleging that Thurner Heat Treating Corp., herein called Respondent, among other 8(a)(1) violations, discriminatorily discharged several of its employees for engaging in Section 7 protected rights, in violation of Section 8(a)(3) and (1) of the National La- bor Relations Act, as amended, herein called the Act. Respondent filed an answer denying violations of the Act as alleged. The hearing in the above matter was held before me at Milwaukee, Wisconsin, on June 23-26 and July 14-17, 1975. Briefs have been received from counsel for the Gen- eral Counsel and counsel for Respondent, respectively, which have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is now, and has been at all times material herein, a Wisconsin corporation, where it is engaged in the heat treating of metals at its plant located in Wauwatosa, 1 The complaints issued pursuant to the charges filed by Allan Mann and the Union were consolidated for hearing by order dated May 8, 1975, and the complaint issued pursuant to the charge of Bruce Buemmng was consoli- dated with the complaints of Mann and the Union by order dated May 29, 1975 A. Background Respondent, Thurner Heat Treating Corporation, is a family corporation engaged in the heat treating (softening) of metals at its plant located in Wauwatosa, Wisconsin. The corporate family-consists of Robert Thurner, president and owner, and his three sons, Timothy, Scott, and Thomas Thurner. The Respondent's amended answer to the complaint admits that all of the Thurners are supervi- sors within the meaning of the Act , but it denies superviso- ry status of the following persons: Donald Hausen; Randy Kocherer; Michael Adamski; Ted Davis; and Joseph Be- lich. Subsequently, during the proceeding the parties stipulat- ed that Don Hausen is also a supervisor. The complaint alleges that in March 1975 Respondent's employees decided to organize a union and, thereafter, proceeded to engage in union activity on behalf of that effort; that during. the course of its organizing campaign various employees were interrogated by certain supervisory personnel about their union interests, sympathies , and ac- tivities; that Respondent was surveilling the employees' union activity; that Respondent threatened to withdraw benefits, demote, transfer, or terminate employees and/or close its plant; that Respondent solicited employees' griev- ances, promised wage increases to employees, solicited and encouraged employees to initiate and subscribe to a peti- tion discouraging employees' support of the Union, threat- ened employees with discharge if they did not sign the aforedescribed petition, constructively discharged two em- ployees; and that in late March and early April 1975, the Respondent -discriminatorily changed the work assignment of 'one employee and discharged the following employees on the dates set opposite their names, for engaging in union activity: Laura Giefen 3/17 Allan Mann 3/20 THURNER HEAT TREATING CORP. 719 Amos Raffeet 3/20 John Banner 3/20 Del Wilson 3/20 Garth Fletcher, 3/24 Brian.Holst 3/24 Robert Hardtke 3/24 Timothy Zimmer 3/24 Richard Thraves 3/24 Robert Rau 3/26 Thomas Whitney 3/27 Jeffrey Piemazek 3/3 Ralph Andersen 4/7 Bruce Buenning 5/20 The Respondent denies that it engaged in such conduct as alleged, and maintains that the above-named employees were discharged for cause and not for union activity. The Respondent amended its answer and admitted to paragraph 9 of the complaint that a unit consisting of all production and maintenance employees of Respondent, excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act, is appro- priate for purposes of collective bargaining? B. Union Activity of Employees and Their Discharge by Respondent Dischargee Laura Giefen was employed by Respondent from May 15, 1974, to March 17, 1975, as an induction machine operator. On March 10, 1975, Giefen was trans- ferred from the second shift to the first shift by Supervisor and General Foreman Don Hausen, who advised her that all women were going to be transferred to the first shift. However, Donna Riley, who also worked second shift, was not so advised. On that evening Giefen asked the second- shift foreman, Randy Kocherer, why she was being trans- ferred and he said he did not know. About 11:30 a.m. on March 11, 1975, Giefen went to the office of Tom Thurner and asked him why she was being transferred . He said she was not the only one being transferred, that Bruce, from the inspection division, and others were being transferred, too, and that it was nothing personal against her. On March 13, 1975, Giefen held a conversation with em- ployee Garth Fletcher about how she felt Respondent was treating her unfairly and she suggested the employees orga- nize a union. Fletcher agreed with her. On March 14, 1975, Giefen and other employees (Allan Mann, Amos Raffeet, Chuck Lentz, Del Wilson, and Don and Pamela Miller met at 12:30 a.m. on March 15, 1975, at the Tosa Inn and discussed organizing the Union. Giefen further testified that on Monday, March 17, 1975, just after she punched in at work at 7:25 a.m. General Foreman Don Hausen asked her what kind of car did she drive and she asked him why did he want to know; that she finally acknowledged that it was red ; and that he then said someone had, reported she was driving through the parking lot at a rate of 60 to 90 miles an hour. Giefen then said try 10 or 15 miles per hour and asked Hansen was he going to give her a speeding ticket. Foreman Hausen said; "No, you're fired for driving too fast." Giefen denied that she was driving at an excessive rate of speed and she described how she has to make two-right- angle turns in leaving the parking lot. On March 19, 1975, Giefen, Allan Mann, John Banner, Amos Raffeet, Chuck Lentz, Charlie Brah, William (Dewey) Webber, and Mary and Dick Thraves met at the Tosa Inn, where they further discussed and finally decided to secure the services of the UAW Union, which Dick Thraves agreed to contact. She and her aforenamed fellow employees met-again at the Tosa Inn on March 20, and they called and held a meeting on March 22 at the UAW hall. Employees present at that meeting were herself, Allan Mann, Dewey Webber, Mary Makal, John Banner, Tim Zimmer, Charlie Brah, Tony Rose, Ralph Andersen, and Dick Thraves. Tom Schneider of the UAW explained the advantages of the Union and gave them union authorization cards to solicit the signa- tures of their fellow employees. He explained that they needed the signatures of 65 percent of the employees. General Foreman Hausen testified that he transferred Giefen from the second shift to the first shift because her work performance was unsatisfactory. He acknowledged that Joe Belich reported the parking lot speeding incident to him on March 14, 1975. However, Belich testified that he recognized Giefen as the driver of the car- although he was not able to recall the make, model, or color of the car, nor estimate its speed . Foreman Hausen further testified that on March 17, 1975, he discharged Giefen for the speeding incident, and that Belich told him the car he ob- served speeding was a red car. On cross-examination, Lau- ra Giefen admitted that her prior foreman, Randy Kocher- er, warned her about being tardy in January 1975; that between March 10 and 12, 1975, she discussed the Union for the first time with Amos Raffeet and Del Wilson at her house. She does not recall ever having been warned or told by management about allowing someone else to punch her in or to punch her timecard. She also admitted that she was disturbed on March 14 when Foreman Hausen told her to go to lunch early, and she thereupon flipped her lunch into the wastebasket. She denied that Hausen asked her about 13 lost pieces of a customer's product and she admitted that the employees did not have any `union activity in the plant prior to March 24, 1975.3 Laura Giefen further testified that she signed ,a union authorization card on March 22, 1975, and that she saw 3 I credit the undisputed and corroborated testimony of Laura Giefen that, on March 13, she spoke to Garth Fletcher in the plant about organiz- ing the Union, and that on March 14 and 15 she and fellow employees Mann, Raffeet, Lentz, Wilson, and Fletcher commenced union organizing efforts at the Tosa Inca I further credit Giefen's denial of the parking lot incident over the testimonial version of Belich because Belich did not ap- pear to be telling the truth and his answers to questions on Giefen's work performance appeared selective. He was squirming in the witness chair while giving his vague description of the speeding charge, be could not recall the make, model, nor, color of the car , and he caused Giefen to be dis- charged precipitously 'without any warning against a repetition of such speeding conduct. Belich's version is further discredited by the credible testimony of Pamela Miller who said Belich told her, in the presence of Sheila and Joyce Flory, that he did not know Giefen was the one speeding on the parking lot, and that the car was a big red car with green splotches When Giefen's discharge is considered along with the, several dischar es g 2 The facts set forth above are undisputed and are not in conflict in the and all of the evidence , of record, infra, I am persuaded that she was testify- record, ing truthfully I 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chuck Lentz sign such a card-, in the union hall. On March 24, 1975, she said she, Amos Raffeet, Allan Mann and his wife, and Banner congregated at the end of Respondent's parking lot, where they solicited Respondent's employees for the UAW while Joe Belich from management was standing by the gas pump at the top of the hill. She com- pleted a union authonzation card for Chuck Brah at his request and he signed it on March 24, 1975. On or about March 26 or 28, 1975, Giefen said she submitted union authorization cards to the UAW representative, Donald Schneider, for the following persons: Donna Riley, Don- ald Kargus, Ferdinand -Koehn, Kenneth Colle, William Zacher, Charles Brah, Anthony Farkas, Laura Giefen, John Banner, Allan Mann, Garth Fletcher, Del Wilson, Timmy Zimmer, and Amos Raffeet. Pamela Miller testified that she was employed by Re- spondent as a clerical in the shop's office from September 23, 1972, until March 21, 1975, when she voluntarily termi- nated her employment . Although she was employed in a clerical capacity under the supervision of Joyce Flory, she nevertheless associated with shop employees and attended the first organizing meeting at the Tosa Inn on March 14 and 15, 1975. At or about 4:30 p.m. on March 20, 1975, Dewey Webber stuck his head in the door of the office and told her that Amos Raffeet had dust been fired and she said, "You're kidding." Shortly thereafter, Webber re- turned to the office and told her that Allan Mann, Del Wilson, and John Banner had been fired . She asked Web- ber what was going on and he said he did not know. At or about 5:15 p .m. she saw Amos Raffeet in front of the shop's office and asked him what happened and he said he was fired for being late too often. Miller also said that between 5:15 and 5:30 p .m., Belich said to her in the presence of coworkers Sheila and Joyce Flory he did not know that Laura Giefen was the person speeding through the parking lot. She said she asked him what color car Giefen was driving and he said a big red car with green splotches and that it was after 4:30 p.m. She said she knew that a friend of Sheila who picks her up between 5:30 and 6 p .m. had a red Javelin. On the next morning, March 21 , 1975, Miller said she was informed by Joyce Flory that she (Miller) was to re- port to shipping and receiving and not to say anything with a gesture, "putting her finger across her throat " as if to say, cut your throat. She had worked in shipping and receiving before' as a fill-in on occasion, but this was not a fill-in in her judgment, and the last such occasion when she filled in was in November 1974. She nevertheless reported to ship- ping and receiving and proceeded to perform the work (in- voices, etc.). Behch came into the shipping and receiving office 30 minutes later and said to her, "Orders from the front office, you have to wash windows." She then asked if it were Scott's orders and he said, "Yes ." She said this was the first time she was asked to wash windows and she did have enough clerical work to do to keep her busy for the entire day, so she told Belich she was not going to wash windows because that was not her job . Belich said he had his orders. However, she nevertheless got a pail of water and a squeegee and started washing the windows. About 30 minutes later Behch returned and told her she wasn't sup- posed to do the entire job (washing windows) right away because it was just a fill-in job. She told him to make up his mind and she returned to the invoices. About 10 o'clock, Timothy Thurner entered the shipping and receiving department and Miller said she asked him to level with her, she wanted to know if Scott Thurner was trying to pressure her, trying to make her mad, so that she would quit ; and he said, "Yes." Subsequently, between 10:30 and 11 a.m. Belich came into the office and said, "More orders from the front , you can only take half of an hour for lunch and you cannot leave the plant." She asked Belich were these more orders from Scott Thurner and he said, "Yes." She said she had always had an hour for lunch and she customarily left the plant during that hour. Never- theless, she complied with the orders and she went to the office of Tom Thurner about 1:30 p.m. and asked him why the new orders, was Scott Thurner trying to pressure her into quitting. He replied that he was responsible for the restricted lunch period but he said he would check with Scott Thurner about the other orders. An hour later, Tom Thur- ner called her into his office and told her he did not know how she knew it but she was right. She then asked why and he said because she had friends in the plant and Scott Thurner did not want her at Thurner Heat Treating. He further said, that there were two against one, Robert Thurner and Scott Thurner, and he (Tom) was for her. She asked him what she should do, and he told her, if she wanted to walk out with a little bit of dignity, she should quit. He then asked her if she wanted to quit formally and she said, "`Yes." As he shuffled the timecards of Amos Raffeet , calling off the times he had been late or absent, he said to her, "You have some savory friends." Earlier that day he went into the of- fice and asked for the last 15 timecards of Raffeet. Miller said she had been late -several times during the last 15 workdays and had never been warned about being late. About 4 :45 p.m. on the same afternoon she went to Tom Thurner's office to ask if it was all right if she left at 5 o'clock and he said that was fine and told her that some of her friends were holding a meeting down on the parking lot. She then left the plant. Miller also stated that she did not sign a union authorization card with the UAW but she did solicit and obtain a signed card from Wayne Krieger and mailed it to Tom Schneider, the UAW representative. On cross-examination she admitted she had cleaned windows in the shop office before only when her regular work was slow. She admitted she had never held or had a discussion of the Union involving managerial personnel. Supervisor Joseph Belich testified that Pamela Miller manifested a negative attitude towards doing any work when he assigned her to the receiving and shipping office in accordance with orders from Scott Thurner . He denied that he ever told Miller to stop washing the windows but admitted that he ordered her to take half an hour for lunch because the normal lunch period in the shipping office is one-half hour. He also denied that he told Miller not to leave the plant during the lunch period but he did order her not to go out with truckdrivers from other companies in accordance with company policy. He further stated that Miller refused to do the assigned work and went to the office of Tom Thurner and did not return . He admitted that he mentioned Miller's conduct to Scott Thurner but did not report the same to his supervisor, Don Hansen. THURNER HEAT TREATING CORP. Timothy Thurner denied having any conversation with Pamela Miller and Belich testified that Pamela Miller's as- signment to the shipping room was a part of an overall effort of Respondent to train all "our girls" on the opera- tion of all aspects of the work. Tom Thurner corroborated his testimony in this regard but dewed that he told Miller she was right about Scott Thurner trying to pressure her out of the job and that he would check with SScott on that matter, or that there were two against one, that he was in her favor, and that she should quit if she wanted to walk out with dignity. On cross-examination he said he knew that Pamela Miller had worked for Belich before and that she had told him on a prior occasion that she had a person- ality conflict with him .4 Dischargee Allan Mann testified that he was employed as a general laborer in early August 1974 for $3 per hour until March 20, 1975, when he was discharged by Respondent. During his interview and completing his application for employment with Respondent, he had the following con- versation with Tom Thurner: Mr. Thurner asked me about the Union, what I thought about it there. And, I said I thought it was pretty good, except there was a lot, you know, there was a lot of layoffs. Because, you know, the car indus- try, it's up and down all the time. And then, he asked me what I thought about having a Union at Thurner. And, I said, well, I says, if there hasn't been a Union in this many years, there, they probably didn't need one, but I didn't know for sure, because I was never working there. Mann said Tom Thurner then told him Respondent has never had a layoff and he hired him (Mann). With respect to organizational activity of the employees, Mann testified that he attended a meeting at the Tosa Inn on March 11, 1975, with other employees where they dis- cussed organizing a union. He also attended the meeting on March 15, 1975, at the Tosa Inn. On March 17, 1975, he said he went to Ralph Andersen in the inspection shop, just behind Tom Thurner's office, and told him a union meet- ing had been scheduled for 10 a.m. on March 20, 1975, and asked him to try to be present. He also talked to several other employees about that meeting. On March 20, 1975, he and Amos Raffeet were in the induction department talking about the Union when Supervisor Don Hausen ap- proached them and told Raffeet to go and see Tom Thur- ner in his office. Raffeet returned about 45 minutes later and informed him that he (Raffeet) had been fired by Tom Thurner for being in arrears in alimony to two or three wives and he was in trouble with the welfare board, and also for being late too many times. 41 credit the testimony of Pamela Miller with respect to her social rela- tionship with the organizing employees, her assignment to the receiving and shipping department, her conversations with Timothy Scott and Tom Thur- ner about her being pressured to quit her job; that she had some savory friends, and her friends (the organizing employees) were holding a meeting down on the parking lot; and that, if she wanted to walk out of thejob with dignity, she should quit. I credit Pamela Miller's testimony in this regard not only because I was persuaded by her demeanor that she was telling the truth, but also because I was persuaded by the demeanor of Belich and the Thurners, as well as by the consistent tenor of all the evidence of record that the agents of Respondent were not testifying truthfully 721 Mann testified that later that same day, while he was performing a special job which necessitated the use of some asbestos rope, the following events occurred: A. Oh, I'd say after I did _ about thirty-five, forty pins, or so, I don't know the exact count, I ran out of this asbestos rope. And, I went over to Chuck Lentz, to find out where this asbestos rope was, because I didn't normally work in induction. So, I was over there asking him where it was, and Don Hausen had come up to me and he asked what I was doing away from the machine. I explained to him that I needed asbestos rope. And, then, he asked me how many pins I had left. I said, well, I don't- know exactly, maybe sixty, seventy pins. And, he says, well, you're fired. And, I said, for what. And, he said for leaving my machine. Q. Did you try to explain why? A. Yes. I told him that I needed asbestos rope. I couldn't run the machine without it. And, he said he didn't care. He says, punch out. Q. Did you say anything else? A. I said, well, I says, you didn't hire me, you're not my foreman. I says, I'd either like to see Randy Koch- erer, or I would like to talk to Tom Thurner. Q. What, if anything, did Mr. Hausen say? A. Well, he threatened he'd throw me out unless I punched out right now and left. Q. At the time you went over to talk with Chuck Lentz, regarding this asbestos rope, did you leave your machine on, or turn it off? A. No, it was completely off. We have set Compa- ny policy that when we leave the machine at any time, so the electric coil would not be on, you turn off the field. And, the field was off when I left the machine. So, it was impossible to run. With respect to Mann's discharge, General Foreman Don Hansen testified as follows: Q. Could you relate to us that conversation that you had with Mr. Mann in regards to his discharge? A. Yes, I can. He was talking to a Charles Lentz. At the time he was speaking to him, he was supposed to be running an induction machine. I noticed that the induction machine was running unattended. Which is strictly against Company policy. Q. What did you say to him and what did he say to you? A. I asked him if he knew what the policy ' was about leaving the machine unattended. He told me he did. At that time, I discharged him. Hansen further testified that, about 2 weeks prior to his discharge of Mann, the latter was in charge of an airplane parts job which was loaded on a truck for delivery to a customer in Minnesota. The crates had slipped and the parts were damaged. Mann admitted to him that he (Mann) was responsible for putting the parts on the truck improperly. Mann further testified that on March 22, 1975, he at- tended a meeting with the UAW representative, Tom Schneider, along with 14 or 15 other employees of Respon- 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent including the following: Amos Raffeet, Laura Giefen, Del Wilson, John Banner, Dewey Webber, Chuck Lentz, Tim Zimmer, Donna Riley, Mary Makal, and Pamela Miller. On March 24, 1975, from 6 a.m. to 8:30 a.m. he (Mann), his wife, Amos Raffeet, Del Wilson, Laura Giefen, and John Banner were on the road just east of the plant soliciting the signing of UAW authorization cards from the first-shift employees of the Respondent. Several of the em- ployees signed cards at that time, including Donald Kar- gus, Scott Webb, William Zacher, Dennis Mangless, and Timothy Zimmer. At or about 3 p.m. on April 4, 1975, Mann, Raffeet, Giefen, Lentz, Miller, Makal, and Webber solicited UAW authorization cards in front of the plant. During the course of their„ solicitation, Foreman Don Hausen and Mike Adamski drove up and Hausen asked them what were they doing and he told them, distributing UAW cards. Hausen then said he thought there were about 20 of them there and Mann said he informed him no, "only 10 of us," and Hau- sen said shortly he would send them a couple more. A few minutes later, four squads of the Wauwatosa police depart- ment arrived and parked around them; the officers asked them who was the leader and Mann said he was; and Mann told them what they were doing. Foreman Don Hansen said okay and walked away. The officers told them their rights and left. Mann said although they had solicited with union authorization cards in front of the plant two or three times prior to March 4., they had not seen the police before. On cross-examination Mann testified that on March 20, 1975, he left his machine unattended with the burner turned off. He said,he had left his machine before during working time and he was not warned nor was he told that he would be fired for leaving his machine while it was run- ning. He further stated that when he held a conversation with Raffeet about the Union on March 20, the day he was fired, Randy Kocherer could have been within hearing dis- tance of them and could have overheard their conversa- tion. He said he believed he was fired for union activities because five union organizers (Giefen, Raffeet, Banner, Wilson, and himself) were fired within a couple of days. He said he talked to employees Donna Riley, Ralph Andersen, Mike Vilnis, an employee named Bill, and others on a one- to-one basis either before the shift or during lunch periods on March 19, 1975. However, he stated that no one from management was within hearing distance of their conversa- tions. He was transferred to the induction job on February 26, 1975, and had had 2 days' instructions on how to per- form the job from Tom Tomatz when he was first em- ployed by the Respondent. Randy Kocherer did not testify in this proceedmg.5 5 I credit the testimony of Allan Mann not only because I was persuaded by the straightforward manner in -which he testified, but also because his testimony, in part, was corroborated by other employee witnesses On the issue as to whether Mann left his machine running on March 20 , 1 credit Mann's version over that of Foreman Don Hausen because I received the distinct impression from the overly emphatic manner in which Hausen testi- fied that he was exaggerating and trying to either fabricate or magnify a reason for discharging Mann This impression is further substantiated by the fact that Hausen started mentioning'an incident involving Mann's in- adequate loading of a truck 2 weeks before, and the fact that it is not Dischargee Brian Holst testified that he was interviewed for employment by Scott -Thurner on February 3, 1975, during which time Thurner told him he would be on a probationary period for 90 days and thereafter given a raise, plus profit sharing. He was thereupon employed on February 3, 1975, until he was -terminated by Respondent on March 24, 1975. He reported to work on March 24, 1975, and was approached by Laura Giefen outside the plant. Giefen asked him if he would sign a union authoriza- tion card and attend a union meeting on the following Sat- urday. He accepted a card, signed it, returned it to her, and told her that he wasn't sure he could make the meeting. He went into the plant to work about 7:25 and worked until 3:55, when Foreman Don Hausen approached him at his machine and told him he did not have to punch out- that day, that he (Hausen) would write him out at 4 o'clock. Holst asked Hausen why , and Hausen said for missing too many days during his probationary period. Holst said he was absent only March 17-19-due to influenza and he called the plant's office on March 17, and his mother called in on another day to advise the Respondent of the same. He denied that he stayed home to work on his car as an- other witness in this proceeding testified. He did not bring in an excuse for the absence because he was not advised to do so. When he returned, no managerial personnel said any- thing to him about being absent. He was never warned about being late and he had never been told about a policy on absenteeism during the 90-day probationary period. However, Holst admitted that Don Hausen had previ- ously spoken with him about his attendance on one occa- sion before he was sick or ill. With respect to his work performance, Holst testified as follows: He told me that I was working out good. He couldn't find enough work for me to do. Every time he gave me a job, I'd run, it out. I never ran the same job all day long. I was put on at least two different jobs every day. On one particular job, he told me the faster I ran it, the more money it would put in his pocket. Holst further stated that on March 24, 1975, he told Ed Muraczewski that he had signed a union card and asked him if he would complete and sign a card . Muraczewski said not at that time; that he would keep his mouth shut to save his own job,' but if a union came into the plant he would join it. No one else heard this conversation at the workbench. On cross-examination Holst said he had been late a few times but more specifically, on further examina- tion, he acknowledged that a few times meant during the week February 3-8, when he was late twice, he left early one time and during the week of February 22, he was late four times and left early once; that during the week of March 1 , he was late once and left early once; that during the week of March 15, he was late once and during the week of March 17-19, he was ill. Dischargee Tom Robert Whitney was employed by Re- spondent on March 8, 1975. During his interview for em- ployment a few days before, Scott Thurner asked him how he felt about unions and he told him he was not sympa- established by the evidence that he warned Mann about that incident or about leaving the machine running , if in fact he did, before he precipitously discharged him THURNER HEAT TREATING CORP. 723 thetic towards unions and would not engage in union activ- ities. He was hired by Respondent at a salary of $3 an hour. After reporting to work he asked Foreman Don Han- sen about the trouble Respondent has had with the Union, since he got that impression from the questions by Scott Thurner. Foreman Hausen then said, "We fire them right away." This statement is not denied by Hausen or any other managerial personnel . Whitney reported to work the next day (March 9) and 'sustained a fractured toe which necessitated his absence from work for 2 weeks. He re- turned to work on Monday, March 24, and observed some employees on the roadway in front of the plant. They ap- proached him and asked 'him if he had any interest in the labor union and he advised them that he did not want to be involved in such activity since he had just started `working there. Before lunch period that day, employee Chuck Lentz asked if he would join or support the union effort and he said no he did not want to be involved. Whitney further testified that on March 26, 1975, he had another conversation with Chuck Lentz as follows: At this time, I approached Mr. Lentz and told him that at a later time, I would like to discuss the possible, or, my possible involvement with the labor union. And, that only-I would only be involved with him if my involvement was to be kept completely a secret be- tween he and I. Upon which, he agreed. And, agreed to meet me after work. After work he met with Lentz, Mary Makal, Dewey Webber, and others and walked out to the parking lot and got into Lentz' car, which was 45 yards from the plant. Lentz gave him a union authorization card which he signed while the second shift foreman, Randy Kocherer, and one of the Thurners were in the plant when he left. He has no evidence that either one of them saw him. He mailed his card to the UAW and on the very next day, March 27, towards the end of the shift, Supervisor Randy Kocherer told him that, after he had gotten his things and punched out, that he (Whitney) should come back and talk to him. He asked Foreman Kocherer to talk to him'at that time because he was on the way out. Kocherer then said, "There would be no need in his coming back on the next morning," as Friday was Good Friday. He asked Kocherer why and he said he (Kocherer) did not think Whitney would work out. Whit- ney said he had never received any kind of warning, but rather, 'the day before his discharge, Randy Kocherer told him it appeared that he (Whitney) was working out and that Kocherer would move him from one job to another so that he could gain broad experience. Whitney believed someone from management saw him sign the card in Lentz' car after the midnight shift or that Chuck Lentz told someone he had signed it. Scott Thurner denied that he ever asked employee Whit- ney, or any other applicant for employment, how they felt about unions and he denied telling Whitney the Respon- dent was having trouble with a union, or asked him would he engage in union activities if he were employed. He also denied having any conversation about unions with Chuck Lentz.' Employee Kenneth J. Colle appeared in this proceeding pursuant to a subpena and testified that he is now and has been employed by Respondent since August 1974, and works as a small furnace operator under the supervision of Foreman Don Hausen. Upon his application for employ- ment with Respondent he said he was interviewed by Tom Thurner who asked him did he presently belong to a union and he replied, "No"; and that Thurner then told him that Respondent has never had a layoff, that it is nonunion and then asked him was he for or against unions. He said he replied that he was neither for nor against unions. Colle said he learned about the union activity at the plant on March 24, 1975, when Amos Raffeet, Laura Gief- en, and Allan Mann were fired. On that day, he was ap- proached by Laura Giefen who gave him a union authori- zation card which he read, completed, signed, and returned to Giefen. Thereafter, he said he distributed cards to fellow employees Tom Helm, Rocky Englebretson, Bob Rau, and Robert Hackman or Hackett. About a week and a half later Foreman Hausen came to him and said he had something for him and wanted to talk with him. Later during the same afternoon Colle testified that the following conversation took place: A. He asked me to pass out this petition that he had written, and that I was supposed to claim it as my own. I was to go around to all the employees and have them sign it, if they were against the Union coming in to Thurner's. Q. Did he say to you why he wanted you to do this? A. Yes. He told me that he thought it was unfair that the Union could force its way in without all the employees being for it. Q. What, if anything--did he give you anything, at that time? A. No. He told me that he didn't want to be seen with it, or handing it to me. That he told me where I could find it, and I was supposed to go and get it later on. Q. Where you were to find what? A. The sheet of paper that he had written out what he wanted me to type up. Q. Did you do that? A. Yes, sir. About a half hour later, I went and got it, and he had told me I could go home and have it typed up, and then bring it back. Q. Now, we're talking about a sheet of paper? A. Right. He had written it just on a plain sheet of paper. Q. Where was this sheet of paper located? A. He had put it in one of his folders. He carries a sheet around with a work list on it. He had slid it in there, and put it in his desk, and I was supposed to go and get it from there. He had told me where to find it. 6I credit Whitney's testimony that during his employment interview Re- employees Moreover. Scott Thurner's testimony partially corroborates spondent (Scott Thurner) asked him how he felt about unions , because, not Whitney's testimony in that he admitted he asked applicants for employ- only was I persuaded that he was telling the truth but his testimony corre- ment if they are members of the Union . I also credit Whitney's testimony sponds to that of the testimony of employee Colle's interview, and other that Scott Thurner told him Respondent was having trouble with the Union 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Is that what you did? A. Yes, sir. Q. So, you went to his desk and got a sheet of paper with certain writing on it? A. Right. Q. As, best you can recall, what did the writing, or what was written or printed, or whatever, on that piece of paper? A. We, the employees of Thurner Heat Treating Corporation, do not want a Union forced in, or any Union that we do not want, allowed into Thurner Heat Treating, and that we're asking the Labor Board to give us any help that they can to prevent it. Q. All right. What did you do with this =piece of paper after you obtained'it from Mr. Hausen's desk? A. I went home then and typed it up on another sheet of paper. Q. Did you return to work that afternoon? A. Yes, sir. Q. Did you circulate this sheet of paper that you had typed' up at home? A. For the rest of that afternoon, yes. Q. Who did you talk to about that? What employ- ees? Rocky Englebretson, Tom Helm, Wayne, and I don't know what his last name was, Ed, somebody in shipping, again, I don't know who their name was, and Wally Hefner (phonetic), Wally Adamski, and Mack Coleman, I-do believe it's his name, and Ted Davis. Q. Did you say anything to any of these employees, regarding signing of that petition? A. I felt that I told him- 'Q. What did you say to them? A. Okay, I said to them that the way the situation was at Thurner, at the present, that I didn't feel that not signing this petition would help them' any in keep- ing'their jobs. That they should sign it, if they wanted to stay. I couldn't guarantee that- Q. Why did you say that to them? A. Well, with the impression I got from Don, in talking with Don, that the petition was going'to' be used for other reasons than just to show to the Labor Board. Q. During the time you were passing this petition out, did Don Hausen see you doing this? A. Not that I know, personally. But, he had told me he was going to come by and yell at me, and simulate that he didn't know nothing about it, and he, was gon- na give the impression to other employees about it. That he was going' to bawl me out for passing it around. Q. Is that what he told you? A. He already told me that 'he was going to yell at -me, eventually, about passing it around. Q. When did he say this to you? A. Shortly after I had come back with the petition. Q. From lunch? A. Yes. Well, when I went home. It was after lunch. Q. You typed up-in typing up this petition, did you use Mr. Hausen's exact-the words that Mr. Hau- sen had written up on his piece of paper? ' A. The only thing that I had changed, was like, an of or a the. Otherwise, the basic text was his. Colle further testified that upon Foreman Hausen's in- structions he showed the petition to Tom Thurner who copied the names signed thereon. He thereafter circulated the petition the remainder of the afternoon and a part of the next day when he advised Hausen that he wasn't get- ting any responses. Hausen then instructed him to leave the petition in his (Hausen's) desk and someone else, would circulate it. Colle complied with Hausen's,instructions and later saw Ted Davis, chief inspector for Respondent, with the petition that afternoon and the next day. Colle further testified that he gave an affidavit to the National Labor Relations Board in the course of the investigation of this case and that Don Hausen had asked him was he for or against the Union; and that on three occasions Hausen asked him to see his affidavit that he gave to the Board, which he-refused to do on all three occasions. Hausen also told him Bruce Buenning should have been fired because he was late too often. In circulating the petition Colle said he had asked Ted Davis to sign it and the latter started to sign it but said he had better go talk to the Thurners first. When he returned, he (Davis) signed it and told him that he (Davis) could get signatures from people Colle could not get. Davis admitted Colle asked him'to sign the petition and he said he did not want to get involved or have it interfere with his job by something the Thurners did not approve, and that he would , have to check that out. Davis further testified that he asked Tom Thurner if his signing the petition would interfere with the Company and Thurner said he could not talk to him about that, that it would be an unfair labor practice and it was his business what he wanted to do about the petition. Davis said he thereupon signed the peti- tion but he denied that he told Colle he would rather circu- late the petition because he knew more people than Colle. Rather, he said he wanted to talk to a few people himself and he denied that he gave the names on the petition to anyone. He also denied that Colle told him where he got the petition and admitted that he asked. Tom Thurner for a raise 6 months prior to July 16, 1975, and that he thereafter received tt. Colle's testimony is corroborated in part by Foreman Don Hausen who admitted he saw Colle talking to Don I?accagnella-in the plant and that he later asked Paccagnel- la what Colle was talking about. Paccagnella said Colle was circulating an antiunion petition. At that time, Hausen said he did not know about the union interests or activities of the employees. However, Hausen denied that he drafted, suggested, or in any way initiated the preparation or the circulation of the antiunion petition. Thereafter,,he went to Colle and denied that he ever saw the petition, or ever asked what names were on the petition, who refused to sign it, and he did not tell- Colic to go and show or discuss the petition with Tom Thurner. He stated that he did not fire any employee for union activity and that the first time he learned about the Union was when Respondent received the first complaint from the Board.? ' I credit the testimony of Colle with respect to Respondent asking him about his union interest during his employment interview because he ap- THURNER HEAT TREATING CORP. 725 Employee Charles .O. Lentz testified that he was inter- viewed for employment by Scott Thurner on January 20, 1975, when he was asked his opinion of unions. He said he replied that unions had never done anything for him and that Thurner nodded his head up and down, He was hired on January 22 as a general laborer for a 90-day probation- ary period at $3 per hour. On Monday, March 10, 1975, Lentz said he attended a meeting at the Tosa Inn with Del Wilson, Amos Raffeet, and Dick Thraves during which they discussed organizing a union. He attended several or- ganizing meetings at the Tosa Inn on March 14, 15, 17, and 18, 1975. On March 20, 1975, Allan Mann approached Lentz at work and said he needed some asbestos rope and he told him he could find some in the maintenance department, when Foreman Don Hausen called Mann. Charles Lentz further testified that company -policy for- bids a machine operator from leaving the machine when a heating element is in it which can cause damage to the melting oil and short the machine:-He acknowledged that he left his machine running on one occasion and his super- visor warned him never to do it again. On March 25, 1975, Lentz said Foreman Randy Kocher- er called his attention to the fact that none of the jeeps were operating which he had observed. Kocherer then said apparently someone put sandblast shot in the oil systems of the deeps. Later that evening the employees were called to a meeting by Tom and Scott Thurner during which Scott Thurner advised that the jeeps had been sabotaged by someone putting sandblast shot into the oil systems. He held up a sign offering $1,000 reward for information lead- ing to the arrest and conviction of persons responsible for such act; that all employees were going to be required to take a polygraph test; and that anyone refusing to do so would be fired. He then named the people who were first to take the test and he (Lentz), Dewey Webber, Bill Zacher, and Don Kargus were told to report to work at 8 o'clock the next morning to be taken for the test at 9 a.m. Lentz took the polygraph test and he saw,Scott Thurner that evening about 7 o'clock when the following conversa- tion ensued: A. He said he would like to apologize for not trust- ing me, and by making me, to go down and take the polygraph test. He said that I would be paid for the time that I was sent home the night before. And, that I would also be paid $10.00 for the trouble I took going down to take test. I asked him if they had found the person responsible, and he told me that be thought they were getting close. He went on to say that there peared to be testifying truthfully and his version corresponds to the testi- monial version of the employment interview with employee Tom Whitney. I also credit Colle's testimony with regards to the preparation and the circula- tion of the antiunion petition I discredit Respondent's denial that it asked Colle about his union interest as well as Foreman Don Hausen's denial of knowledge of the employee's union activity or of the circulation of the antiunion petition because Hansen did not appear to be telling the truth and his version is contrary to the general tenor of all of the evidence of record Moreover, I credit Colle's testimony for the additional reason' that he is still employed by Respondent and testified in this proceeding pursuant to subpe- na. had- been threats made on employees , and that Thur- ners would spare no expense in protecting me. Q. Protecting you? A. Protecting the employees . He was talking to me. Q. Had you ever been threatened? A. No. At or about 4 p.m. on April 8,,1975, Lentz went to Tom Thurner and asked him had he been receiving threatening calls or had he been followed home. Thurner said yes he had` received such calls and had been 'followed home on three occasions. The conversation continued as follows: A. He told me that Amos was being looked, for by the Welfare people. That he had been divorced twice. That he could have wife and kids in rags down in the inner city. That he wasn't as fine a person `or respecta- ble personas I thought_ he may be. That he did do a good lob" on occasion, but that lie was embezzling Company funds. And, that was the reason for his dis- charge. Q. Did he say how he was embezzling Company funds? A. Yes. He said he had been observed punching Laura Giefen in,' for Laura Giefen while she-was in changing her work clothes. Into her work clothes. Thurner then stated that Amos Raffeet had been late 17 times in the last several months and that he was unreliable. He continued his conversation as follows: A. He said that Laura Giefen's-he considered Laura Giefen's attitude atrocious. That she was' a thundercloud and a bitch, and not a very pleasant per- son to have around the shop. And, that was basically why she was discharged. Q. Did- he- make any reference to her allegedly speeding in the parking lot? A. Yes. He said that she had been observed travel- ing around the parking lot two or three times;, you know, at ahigh rate of speed. Squealing her -tires. That was another indication of her tendency to fly into rages and be a had egg. - Thurner also said Respondent had gotten rid of,a bunch of bad eggs and that the Union was a bunch of hoodlums and gangsters who were responsible for having people killed, and were out to cut his throat, and that they were trying to take his business away from him by telling him how to run it. Lentz said Thurner also asked him when was the first contact made with the Union and he told him that it had been talked about the week before Laura Giefen was dis- charged, March 24, 1975; and he said if the Union wanted the business he would sell them the, business, move down the street, set up another heat treating plant,, and run-the Union out of business. However, Tom Thurner denied making the latter statement.' He said Allan Mann had a bad attitude and' John Banner was discharged because he was an alcoholic; and that Del Wilson was a child and irresponsible but he felt responsible for him and would 8I discredit Tom Thurner's denial of'the above conversation and credit the testimony of Lentz because Lenz was not discharged and his testimony is consistent with the tenor of all of the credible evidence of record. , 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take him back; and then he proceeded to tell in a general way how various 'employees were being harassed. Lentz said Thurner also told him he had received anonymous telephone calls asking him did he know what acid was for, and the caller indicated it was for his wife's face. On April 10, 1975, Lentz said Ted (Glen) Davis came to him and asked him if he would like to sign a petition against the Union (Resp. Exh. 9) and he (Lentz) read it and advised Davis that he did not want to sign it. On the next day about the same time, while in the presence of Donna Riley and Dewey Webber (nearby), he (Lentz) asked Ted Davis if he could see the petition again and his testimony continued as follows: A. I asked Ted if I could see the petition again. And, he said, certainly. And, handed me the petition. I read it over several times. And, I asked him, are you, you know, is this your petition. And, he said it was. I asked him, well, what are you going to do with it. He said, well, it was for his own personal use. It was Just to demonstrate, you know, who was going to play on the team, who was interested in doing, you,know, a job for the Thurners. And, that it was, you know, along that line. I said, well, what use do you-or, what do you have-what use can this be of to you. And, he told me that he had a lot of say-so around the shop. That he could get people raises. That he could, you know, put in a good word with me. For- me. Lentz further testified that during his interview for em- ployment Scott Thurner explained the 90-day probationary period and advised him that during such period more than two absences constituted grounds for discharge. He started work and thereafter signed a union authorization card on March 22, 1975. He told Don Paccagnella, Ed Muraczew- ski, John Kuchenreuther, and Bruce Buemmng where to get authorization cards in his jacket pocket after the shift. He also spoke to Tom Whitney and had him sign a card in his automobile with his pen and Whitney mailed the card to the Union. He said when he asked Davis was he going to give the petition to the Thurners, Davis said no, it was simply for his own personal use. When he asked Davis that same question on another occasion, Davis gave no re- sponse. Lentz explained that when he stated in his affidavit that Respondent knew about the antiunion petition he was actually assuming that Respondent knew about it. Davis did not dispute Lentz' testimony. Employee William (Dewey) Webber was employed by Re- spondent on July 20, 1974, until he voluntarily terminated his employment on June 18, 1975. He worked for Respon- dent as a furnace operator and was at work on March 25, 1975, when Foreman Randy Kocherer approached him and said, "In case you haven't noticed or haven't been informed, someone has put sandblast shot in the crank cases of the forklifts." He corroborated Chuck Lentz' testi- mony with respect to Respondent calling a meeting and advising of the, sabotage and the requirement of all em- ployees to take the polygraph test. When he reported to work the next morning, March 26, 1975, Scott Thurner met him and asked him to come to the office with him, he wanted to talk with him. They went into the office and the following conversation ensued: A. Okay. He - asked he asked about this other trouble. Not referring to the forklifts. And, he wanted to know-well, -he accused me of being a ringleader. And, excuse me. My mind is dust blank. He accused me of being a leader of this other trouble. I told him I wasn't. And, he said, yeah, they're all walking out now. They're out walking. And, he asked about-he referred to this one guy as a rabble rouser. Wanted to know what his- Q. Did he mention his name? Or, identify him in some way? A. I don't think he-I don't think he said his name. But, identified him as being-working through labor pool. His name was Dick, -that's all I knew. While he was in the office with Scott Thurner, Webber said the telephone rang and Thurner answered and, said, "Okay, fire him, I'll take care of him." After hanging up Thurner said, "there's another one, Robert Rau," he said he did not like to do this, and asked the secretary in the other room to bring Rau's record. Thurner then showed him (Webber) that the timecards of Robert Rau's absences and days tardy. Webber's testimony continued as follows: A. He said he didn't like to do these things. He said, I'm not after these people. He says-he asked me, why should I want to fight them. Why do I want to fight them. He says, you made enough money here with profit sharing. He says, if you put in the hours, you can make a lot of money here. And, during the conversation, he just-he was telling me, like, about some of the ownings of the Company, or some of the owmngs of the Thurners. Q. What did he say? .... A.. Yes. He was telling me there was no mortgage on the building that Thurner Heat Treating is located. They also own Jack White Ford. He says, there's no mortgage on that building. He says, they have very good lawyers as far as if they're gonna fight this thing. He mentioned them renting out the top floor of the Marine Plaza, or something like that .... A. He said in order to get all this trouble solved, he would be willing to spend, like, thousands of dollars, to get this whole problem solved. He says, we might have to take a couple people back; But, how long do you think they'd last. He says, I'd give them the, dirti- est, sloppiest jobs I could find. And, he said, he posed the question to me, what shift don't you like to work. Or, he says, you don't like working third shift. Some- thing like that. -And, I agreed with him. He says, well- Q. Did he say anything else to you in this conversa- tion? A. Near the end of the conversation, he asked me, or he said, don't fight me he says, why don't you play- be on our side. Play ball with us.. He says, you don't need a Union in here. Our doors are open all the time; to get your problems solved. And, somewhere in the course of the conversation, I mentioned there would be a meet- ing in the afternoon. And, I didn't specify what kind of meeting. And, he wanted me to call him before the meeting, to let me know-to let him know how I stood. THURNER HEAT TREATING CORP. How I felt about this other trouble, where my allegiance would stand. [Emphasis supplied.] Q. Is that what he said to you? Are those the words he used to you, as best you can recall? A. Well, yes. Webber said he did not take the polygraph test because Scott Thurner told him he did not have to take it because he did not believe he did it anyway. After he went home that day he called Scott Thurner and they held the follow- ing conversation: - Once I was connected with him, I told him, I had discussed it-we discussed it, referring to Mary and myself, my wife, and we've decided it would be best to play ball with you. To go along with the Company, I believe, is what I said. And, he said, okay. And, I also mentioned I would like to speak to him that af- ternoon, again. And, he said, okay, come in early. That was about the end of the conversation. When Webber reported to work that afternoon, he went to the office of Scott Thurner and they had a conversation as follows: A. Well, I told him I couldn't afford to live at 1975 prices. And, that I would like a raise. And, he said, okay, you'll get it. Then, he mentioned he had to go out of town for a week. Q. Later that evening, did you have another con- versation with Scott Thurner? Webber said he then asked Thurner who was being threatened and he replied Randy, Tom, and himself. He also stated that some people were being threatened and he would like for him (Webber) to find out who was being threatened and who was doing the threatening. In mid-April 1975, Webber said Ken Colle approached him at work and asked him if he wanted to sign a petition against the Union. He said he read it but did not sign it and Colle told him it was his petition. He asked Colle hadn't he (Colle) signed a union card and Colle said, "Yes, so had some other employees." Bob McGill was present during this conversation. He told Colle the employees were signing they petition to keep their jobs and, if he had to sign it to keep his job, he would quit first. - - On the next day in the,presence of Chuck Lentz and Donna Riley, Ted Davis approached Webber and asked him if he wanted to sign the same petition and he returned it, declining to sign it. This was the first time- he had ever seen, any kind of petition circulating. He admitted that he had never,heard any person from management mention the Union. He signed a card and talked to other employees about the Union. About the last of March or the first week in April 19,75, Foreman Randy Kocherer approached him and a discussion about the Union ensued during which he described unions as socialites . Webber said he expressed disagreement with Kocherer, adding that he thought unions were good in some instances and could benefit some companies. Kocherer then said he did- not think a union was necessary at Thurners. Webber said he terminated his employment with Re- spondent because he felt he was being persecuted and ha- rassed bybeing taken off regular jobs and assigned to jobs 727 for beginners, and that he and Foreman Randy Kocherer did not get along anymore. Finally, he was laid off for 5 days in the last part of May for driving a forklift too fast. Webber said 2 days prior to this proceeding Ken Colle told him he (Colle) did not write the petition. He did not tell him what changed his mind. - Scott Thurner denied- discussing the Union with Webber or accusing him of being a ringleader or troublemaker or stating that they're all out walking, and Respondent was willing to spend thousands of dollars to solve this trouble (union). He denied that he said Respondent might have to take a couple of people back but how long did he think they would last; that they would be given the dirtiest, slop- piest job; and that he did not ask him whose side he was on, where he stood, or asked him to play ball with Respon- dent. He categorically denied he asked Webber to find out who was doing the threatening and who was being threat- ened. Scott Thurner further testified that he coordinates the work and that he tells applicants for employment that Re- spondent is not a union shop and asked them if they still wanted to work for him, because he hired a man a year ago who quit after working 1 hour because he learned Respon- dent was not unionized. Such abrupt terminations cost the Respondent $25 for bank record (payroll) changes. He could not give a reason for the question about the Union on the application except that it had been used for a long time and was always on the application. He continued to testify as follows: Q. What is the policy as far as absenteeism is con- cerned, in the probationary period? A. Okay. Absenteeism. Last year, we had a hard time hiring people. People were very scarce to hire in this Milwaukee area. And, we really had a difficult time. So, what we did, we had a two day period, if a man missed two days in his ninety day probationary period, he was dismissed. If he was tardy, I'm not sure, I think it's two days, he was possibly dismissed. Dur- ing this short period of time, where for six, eight months, when it was so hard to find people, we did- we were kind of lax on those times. Q. What six, eight month period are we referring to, sir? A. From November to March. Oh, the first two, three months of this year. Q. From November of '74 to '75. A. Um-hum. At that point, we saw more potential in hiring people. We had more applicants. Thomas Thurner testified that he recalled a conversation with Dewey Webber after Respondent was served with an unfair labor practice charge following March 22, 1975, wherein Webber mentioned the circulation of the anti- union petition and the fact that a number of people who had signed union authorization cards had also signed the petition; and that they were hypocrites and he would not be one of them. Webber did not mention any names to him at the time. He also said Webber told him he (Webber) was for the Union and he responded that that was none of his business. Webber voluntarily terminated his employment with Respondent. Thomas Thurner further stated that he 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could not recall or could not remember whether he told Web- ber he knew about the Union when Webber told him about the petition. Nor could he remember which conversation was first, the one with Colle or the one with Webber.9 Dischargee Robert Rau was interviewed for employment by Respondent for employment the first week in October 1974. During the interview he indicated on his application that he had an honorable withdrawal card from Brewery Workers Union and also, possibly an honorable with- drawal card from United Auto Workers Union. On or about March 24 , 1975, Rau said he and employee Ken Colle had a conversation during the break period in the plant, during which Colle explained to him that the employees were interested in organizing a union. He ex- plained that the United Auto Workers had been contacted and showed him a UAW authorization card, which he gave him to complete. Colle explained that quite a few people had been fired and urged him to be careful . He (Rau) thereupon went into the men's room, read and signed the authorization card, and returned it to Colle. Colle had also told him that the card was a form of protection against being terminated by Respondent. Rau further testified that he had a conversation later that day with fellow employee Ralph Andersen , who ex- plained the organizational procedure to him and gave him five blank authorization cards along with preaddressed and prestamped mailing envelopes . On the following day he gave and explained union authorization cards to Glen Gus- tafason who said he was not interested, and to Keith Ja- cobs who said he was interested and did not want to be involved but accepted a card and said he wanted to think about it. Both Gustafason and Jacobs signed the cards. About 11 a.m. on March 25, 1975, Foreman Michael Adamski approached him on the forklift and advised him that Tom Thurner had pulled his timecard and he (Rau) was through. Adamski also said , if it had been up to him, he (Rau) would have been fired Monday (March 24, 1975). His conversation with Foreman Adamski continued as fol- lows: A. I said, why? What happened. I said, what do you mean, he pulled my timecard. And he said, he pulled your timecard, he saw you were late, and you're through. You know, turn in your helmet and glasses and leave. 9 I credit the testimony of William (Dewey) Webber regarding his conver- sations with Scott Thurner about the discharge of Robert Rau, about how far Respondent was willing to go to solve the union problem, about asking Webber whose side he was on and requesting him to find out who was doing the threatening, and about accusing him of being a ringleader or trouble- maker, not only because I was persuaded by his demeanor that he was testifying truthfully, but also for the following reasons Webber no longer has a job interest with Respondent to induce him to testify in favor of Respondent; Respondent obviously trusted and favored Webber as evi- denced by it granting him a raise after the conversation held with Scott Thurner, and by Respondent exempting Webber from taking the polygraph test, and because, as a practical matter,'Webber's account is graphically consistent with the creditable evidence of Respondent's conduct throughout the record For some of the same reasons, I also credit Webber's testimony with respect to the conversations he had with Randy Kocherer during the last part of March or the first part of April, and for the additional reason that his testimony in this regard is not disputed in the record Kocherer did not testify in this proceeding. Q. Did you say anything to Mr. Adamski after that? A. I told him, I says, I said, Mike, you know what's behind this. It's Union organizing campaign. I said, the reason this Company has grief is because of their hiring and firing practices. That's why they have pro- duction problems. I said, you're as much subject to it as we-you in supervision are as much subject to it as we employees are. I said, it's just-I said, frankly, I expected it. Everyone that worked there expected to be fired. I said, as a friend, Mike, why don't you look for a new job. Employee Rau admitted he was an hour and 20 minutes late on Monday and 6 minutes late on Tuesday, but he said he had been previously instructed to punch in between 6 and 8 a.m. because there was no set or definite starting time for the maintenance personnel not associated with production, since they did a great deal of overtime. He further stated that 3 months prior to his discharge he had not received any reprimand or warning regarding tardiness nor had he ever been told about company policy regarding tardiness. Starting times were not observed by Respondent but he acknowledged that as a member of a group of three or four employees, they had been warned of disciplinary action for excessive tardiness in January 1975. With respect to working hours Rau continued to testify as follows: A. Briefly, he said we're all on first shift, you know, with the changing hours. He said, I am now a mainte- nance foreman. That is when we were instructed, he said, you have been late and tardy and so forth, ab- sences, he said, we're gonna work straight days now. If you want, you can, start at 6:00 o'clock in the morning, since the work day ended at 4:00. Thereby gaining an hour and a half of overtime every day. At 'the begin- ning, you know, of the day, rather than end of the day. An hour and a half extra. You can start as early - as 6:00, and start as late as 8:00. You guys got to be here, there's a lot of work to do. Foreman Adamski did not say if the' employees did not comply with the work hours he outlined they would be subject-to disciplinary action or termination. About the last' week in January 1975 Rau said he ap- proached Scott Thurner and requested a raise and Thurner said he would talk with his foreman, Michael' Adamski. After talking with Adamski, his request for a raise was denied for tardiness and absenteeism (Resp. Exh. 12, time- cards.) Between October 1974 and the time of his discharge on March 25, 1975, Rau was absent 5 times and tardy approximately 55 times according to counsel for Respon- dent. Rau further stated that when he walked in late on March 24 Foreman Adamski did not make any comment and did not give him any reprimand because he had called in before his arrival. He was advised by-Foreman Adamski to report to work on March 26 at 6 a.m. However, he ad- mitted he did not punch in until 6:13 a.m. on March 26. He further stated that when he passed out the union cards in the plant he did not think anyone from management ' saw or overheard his conversations with the employees. THURNER HEAT TREATING CORP. 729 Supervisor Michael Adamski testified that he was the supervisor of Robert Rau during the year 1975; that Rau was excessively tardy or absent about 56 times; and that he spoke to Rau on several prior occasions about his atten- dance and timeliness. He denied that he gave Rau permis- sion to report for work at a later hour than the usual re- porting time and added that no other employee was extended such a privilege unless he worked until 1 .or 2 o'clock the next morning. He further stated that Rau was a poor worker who tried to avoid work. Foreman Adamski said he recalled telling Rau in late February 1975 that he had spoken to Scott Thurner about a raise for Rau, and that he opposed such a raise because Rau did not deserve it at that time. Foreman Adamski further testified that Rau reported to work late on March 24, 1975, but called in and said he overslept. He was late on March 25 and he warned him about his lateness. Rau was late again on March 26, 1975, and he discharged -him. He further stated that he did not speak to any employees about the union activity but he did observe some employees passing out union literature in the parking lot and he did not discharge Rau for union activity for which he said he had no knowledge. He said some sab- otage was done to the equipment before and subsequent to Rau's discharge; and that extensive damage was done to all seven forklifts and one truck in which Respondent de- tected the shot before damage was done. He acknowledged that he never told Rau if he were late one more time he would be discharged, and he never suspended or took any discipli- nary action against him for lateness or absences prior to his discharge. However, he maintains that Rau was terminated solely for excessive tardiness and absenteeism. He recalled, but did not further substantiate, terminating one other em- ployee (Rich Richardson) this year for the same reason.lo Dischargee Garth Fletcher testified that he was employed by Scott Thurner during the latter part of November 1974 as a heat treater under the supervision of Foreman Don Hausen. He learned about the union activities of the em- ployees on March 21, 1975, as he was leaving the plant and ran into Laura Giefen, Amos Raffeet, and Allan Mann on the parking lot, where they told him they were fired for organizing the Union. They then asked him would he join the Union and told him about a-meeting the next Saturday. As they were talking he observed Foreman Hausen walk by them and give them a dirty (angry) look. As he and John went to George Mikowski's car, Foreman Hausen walked by and looked in the direction of them with an angry expression. He reported to;work on March 24, 1975, about 7:20 a.m. and found employees Amos Raffeet, Lau- ra Giefen, and Allan' Mann on the parking lot passing out union authorization cards. He went over to them and signed a card and returned it to Amos Raffeet. At the hearing he identified his card and said he did not see any management people at the time he returned his card, but as soon as he went into the shop he noticed his timecard was missing from the rack. Although Ken Colle and Rocky Englebertson signed authorization cards they were nevertheless permitted to punch in for work. He (Fletcher) said to Foreman Hausen, "Well, if I'm fired what about those two? and, he said, because of your extra- curricular activities and being 3 minutes late." Fletcher said he had been absent about 3 or 4 days for illness and called in on all but one occasion when he was in an auto- mobile accident and could not call in; and that he has been 10 or 15 minutes late about five times. He said he had never been given a warning about poor attendance or time- ly attendance by the Respondent. About 2 weeks before he was terminated, Foreman Hausen told him he was one of the five people he could trust to work unattended and that he did a good job but was a little slow. Fletcher's timecards (Resp. Exh. 13) show he was absent 5 times, late 19 times, and left early 5 times. The parties stipulated that the time- cards are correct. With respect to Garth Fletcher's discharge, Foreman Hausen said he had never observed Fletcher talking with Mann, Giefen, Raffeet, or any other group of employees in March. He described the discharge of Fletcher and the ca- sual circumstances thereof as follows: A. Work habits, attendance and tardiness. Q. Did you discuss these work habits, attendance and tardiness with Mr. Fletcher prior to his discharge? A. Yes, I did. Q. Do you recall those conversations? A. Dates, no. But, every time he came in late, I'd talk to him about that. If he ever had an unexcused absence, I'd warn him about that. His work habits, I talked to him constantly about that." Employee Donald Paccagnella was employed by Respon- dent in September 1974 as a setup man in the induction section under the supervision of Foreman Don Hansen. He voluntarily terminated his employment with the Respon- dent on April 22, 1975. However, he testified that, on one Friday afternoon between 3:30 and 4 p.m. in March 1975, as he left the shipping room he met employees Garth Fletcher, Allan Mann, Amos Raffeet, and Laura Giefen just outside the door. Fletcher told him these people were trying to organize a union for which they were fired and asked him if he desired to attend a union meeting the next day. He did not see any persons from management during their conversation. On or about March 27, 1975, a fellow employee by the name of "Jeff" asked him if he wanted to fill out a union authorization card and he said he would and did read, sign, and return it to employee Ralph Ander- sen after work. On or about April 10, 1975, employee Ken Colle asked him if he wanted to sign a petition against the Union (Resp. Exh. 9) and he told him yes he would because there was no sense in getting fired over the matter; and he there- upon signed it and, a few minutes later, changed his mind and crossed out his name. A few minutes later, Foreman Don Hausen asked him what was Ken Colle passing around and he told him it was an antiunion petition and 10 With respect to Respondent's enforcement of timely attendance, I " I credit the testimony of Fletcher and Hansen because, although Hau- credit Rau's reason over that of Foreman Adamski, because it is'essentially sen testified that he had warned or spoken to Fletcher about timely atten- supported by the attendance records of other employees and employee wit- dance, he did not say he seriously warned or reprimanded Fletcher as nesses in this proceeding. Fletcher probably meant. 730 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Hansen said, "oh, oh," and asked him if he had signed it and he said, "No." Hansen then said `you should have be- cause if the Union gets in the plant all the benefits will stop." Later on one afternoon, March 27, Ted Davis asked Pac- cagnella why he did not sign the petition and he replied it was not something he thought he should have to do. Davis then told him he (Davis) was closer to the Thurners than most people thought, and that he (Paccagnella) was one of the people the Thurners were depending on, and if he did not sign the petition, they would think less of him. Paccagnella said he then told Davis he would probably be fired for not signing the petition and Davis lust laughed, and said, "No, they wont do that." A few days later Colle asked him if he had reconsidered signing the petition and he said "No." Fore- man Hausen thereafter told him to report for work at 7 a.m. on Saturday, the next day, and to be sure to punch out for lunch, which he had not done before. This is the first time he had been ordered to report for work on Saturday but he did not report. On Monday, April 21, 1975, nothing was said to him about not reporting on Saturday. However, on the next day, April 22, when he reported to work he noticed Chuck Lentz working the first shift and another employee named Ed showing another induction machine operator how to operate the machine. He went to Foreman Hausen and asked him what was he to do because he had no work and Hausen said he was not sure but he could probably go to the other end of the shop; that he needed someone to work Saturdays in induction and he (Paccagnella) could work in induction until he could find something else for him to do. Paccagnella worked until 11:30 or 12 and he said he quit because he was advised he would be transferred from the job he knew how to perform. - Paccagnella stated that loading or unloading the fur- naces manually and by crane is carried out at- the north end of the plant; that the furnaces at that end get hot and steam emits from inserting the hot metal in oil, and the area is hotter than the south end where he worked. Hausen never mentioned a union. Paccagnella said he signed the petition as "Don Paccagnella," although on more formal and official documents he generally signs his name "Don- ald Paccagnella" (Resp. Exhs. 15, 17, and 18). Foreman Hausen denied that he ever told Paccagnella to sign the antiunion petition; that if the Union gets in the plant all benefits will stop; and he maintained that he did not transfer Paccagnella to another job or refer by pointing to the other end of the plant. He acknowledged that he did ask him to work on Saturdays and that Paccagnella refused to do so, so he started training another man to be induction setup man and told Paccagnella he would work in induc- tion until he found something for him to do.12 Employee Eugene LaMarch, a laborer working under the supervision of Foreman Hausen, testified that on March 24, 1975, he walked into the shop and Foreman Hausen told him and fellow employee Tony to go out just off the 12I do not credit Foreman Hausen's denial that he told Paccagnella to sign the petition because I was persuaded by the demeanor of both witness- es that Paccagnella was telling the truth and Foreman Hausen was not, and because Paccagnella's version is consistent with the total credible evidence of record, with respect to Respondent's antiunion conduct parking lot and find out what was the purpose of the con- gregation of employees. They went out to the parking lot and Amos- Raffeet informed them that they (the employ- ees) were trying to organize a union. LeMarch and Tony went back to Foreman Hansen and told him the employees on the parking lot were trying to organize a union. Hansen then said he figured that or.had a hunch that that's what they were doing. LeMarch further testified that, in April 1975, employee Ken Colle asked him to sign the petition against the Union and he told him he knew how long he (LaMarch) had been working there and he did not sign it. Colle tried several other times that day to get him to sign it. A few days later Ted Davis told him if he would sign the petition against the Union he (Davis) would see about get- ting his safety glasses.- LeMarch said he then signed the petition without reading it because he cannot read. On cross-examination LaMarch admitted that Foreman Hau- sen had told him about January 10, 1975, that he was trying to ascertain which insurance company would pay for the safety glasses. Dischargee Robert (Bob) Hardtke testified that he was employed by Respondent in February 1975 as a general laborer and worked under the supervision of Foreman Hausen until March 24, 1975. When he reported for work at noon, instead of 7:30 a.m., on March 24, 1975, he stated he was late because he had car trouble. He further testified that he called the plant about 8 or 8:30 a.m. and again about 11 a.m. and informed the office girl he would be late as a result of car trouble and would be in soon. The girl said she would tell Foreman Hausen. When he reported to work at 12:18 p.m., he asked Foreman Hausen, about 12:48 p.m., what work he was to do and Hausen said he was to work out front with Dave. On that afternoon em- ployee Colle asked him how he felt about the Union and he said he did not care either way. Colle then asked him if he wanted to sign a union authorization card and he said, "Yes." About 3:30 or 3:45 p.m., Colle gave him a card which he took back to his work station and later proceeded to fill it-out about 4 p.m., when he suddenly turned around and discovered Foreman Hausen over his shoulder with his timecard in his hand. He tried to hide the card but he said Hausen obviously saw the card because it was in plain view, although he could not be sure. Hausen then told him he did not have to punch- out because Respondent no lon- ger needed him, and that his employment was terminated. He asked Hausen why, and the latter said no reason, slow- down in business, lack of work. Hausen did not mention his coming in late that morning nor his attendance or work performance record. - Hardtke further testified that he was off from work 1 day to register for school, with permission from Hausen. He acknowledged that he did sign and turn in a union card to the Union after he was terminated., Between February 11 and March 24, 1975, Hardtke admitted on cross-examina- tion, he was absent two times, late eight times, and left work early two times. He admitted that when he was em- ployed by Respondent he was told about the 90-day proba- tionary period which depended on attendance. However, on the day he was discharged he said he asked Foreman Hauser did the girl give him his message about being late and he said, "Yes." THURNER HEAT TREATING CORP. Foreman Don Hausen said he discharged Robert Hardtke because he was not working out after about 6 weeks' employment. He said Hardtke was small and slow and he (Hausen) usually would have to put another man on the job with him. He stated that he had never seen Hardtke engaged in any union activity nor observed him sigmng any (UAW) card.13 Dischargee Bruce Buenning testified that he was em- ployed by Respondent as a machine operator and an in- spector on February 3 and was terminated May 20. He last worked under the supervision of Don Hausen and also un- der the leadership or supervision of Ted Davis, who he said gave him orders, work assignments, trained him, gave him overtime, and gave him permission to leave early although he usually asked Hausen for permission to leave early or for time off. Buenning said around the end of March 1975 fellow employee John told him he was going to get some union authorization cards from employee Chuck Lentz when he came to work, and Buenning asked John to get one for him too. John did get him a card and gave it to him around 4 p.m., which card he read, signed, and mailed to the Union. On the afternoon of April 10, 1975, employee Ken Colle approached him (Buenning) and Ted Davis with a petition against the Union, which he asked them to sign. Ted Davis asked Colle did the Thurners know about the petition and he said, "Let's just say that I talked to some people about it." Both he and Davis refused to sign the petition, Davis saying he would have to check into the matter. About 30 or 60 minutes later, Buenning said he walked past Colle and Davis, and Colle called to him and asked if he was going to sign the petition and he said, "No." About half an hour later, Davis asked him why was he not going to sign the petition and he told Davis he did not want to get involved. Davis then said he°had "heard some talk around the shop that you're [Buenning] one of the guys that might be around here for a while, so why not sign the petition so as not to jeopardize your future. " (Emphasis supplied.) He (Buen- ning) said he did not want to get involved and did not see why he had to sign it. The next day, Colle came to him and said, "Bruce, I have to ask you one more time, are you going to sign the petition?" And he said, "No." Colle then said, "Well, it's been nice knowing you Bruce," and walked away. (Emphasis supplied.) About a week later, Davis just ca- sually said he had been running around trying to get peo- ple to sign the petition. About 8:30 a.m. on or about May 20, 1975, Foreman Hausen came near him and called him and he went to Hausen who told him, "We've decided to let you go." Buenning asked Hausen why and Hausen said, "Well, you just haven't worked out in inspection or induction, you can ask anyone, ask Ted Davis." Hausen told him to punch out. After he punched out he went to Davis and initiated the following conversation: A. I walked up to Ted, and I said-told him that I 13 1 do not credit Foreman Hausen's denial that he did not observe Hardtke engaging in union activity because it is against the testimony of Hardtke and the weight of all of the evidence of record Even if Hausen did not observe Hardtke engaging in union activity, I do not construe such denial as a denial of knowledge of Hardtke's union activity 731 had been fired. And, he said, you've been fired? And, I said, yes. And then, he asked again, they fired you? And, by the tone of his voice, I could tell he was sur- prised. And, then, he told me that he had been satis- fied with my work. I asked him if he'd been satisfied with my work, and he said that he had been satisfied. And, he said, if you-he told me that I had good work habits and that if I ever needed a reference, he'd be happy to give me one. And, then I left the plant. Buenning further testified that, when he worked in the induction department, Foreman Hausen neither com- plained nor complimented him on his work. Don Paccag- nella told him Hausen was pretty upset with him (Paccag- nella) because he told Hausen he was not going to work-on Saturday. Paccagnella also told Buenning he had signed the petition against the Union, reconsidered the matter, and then crossed out his name. Foreman Hausen testified that he discharged Bruce Buenning because he could not satisfactorily perform any of the jobs for which Respondent tried to train him. He said when Buenning was transferred from induction to in- spection, he told Buenning it was due to his being too slow. Buenning worked with Ted Davis. Hausen said he never observed Buenning engaging in any form of union, activity. Dischargee Del Martin Wilson was employed by Respon- dent on or about September 3, 1974, until he was terminat- ed March 20, 1975. Wilson testified that, during his inter- view for employment by Tom Thurner, Thurner told him there was a umon in the plant and the men had gotten rid of it; that Respondent was a family-type organization and if he (Wilson) had any problems, to come to him immedi- ately and Respondent would see if it could take care of them. He then asked Wilson if he wanted a union and Wilson said he did not know. On March 3, 1975, Wilson said he accidentally spilled some cutter hooks on the floor and refused to pick them up on his own time, which was about 12 o'clock, because Randy Kocherer told him to for- get about the hooks and sent him to another job. His fore- man kept telling him to pick up the hooks on his own time and eventually he said, if he did not pick them up, he would be fired., On the next day, March 4, 1975, he was fired by Foreman Kocherer. He went,to the office of Tom Thurner where Kocherer joined them, and, after an hour's discus- sion, he was rehired on a month's probation: On March 14, 1975, Wilson said he,expressed his interest in the Union with Chuck Lentz at the Tosa Inn. On March 19, between 6:30 and 7:30, Charlie Brah told him about the union discussion among the employees and he told Brah he knew about it. During the lunch break, he had a discussion about the Union with Amos' Raffeet and Allan Mann. Mann was talking loudly and he saw Foreman Kocherer was standing at his desk so he told Mann riot to talk too loud. He had a conversation about the Union with Dewey Webber. He had another discussion about the Union on March 19, 1975, with Charlie Brah, while Foreman Koch- erer and Bob McGill stood 50 to 75 feet away. At another time that day when he and Charlie were discussing the Union, Kocherer was 25 feet away looking at them. On the next day, March 20, just after he punched in (4 o'clock), Foreman Hausen approached him and took him over to 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some parts called "yokes," and asked him if he had sand- blasted them. He said he might have but he was not sure because he did not finish the job on the previous night but noted that the job was then finished and "shots" were over the top of the box. Foreman Hausen asked him what he intended to do about it and he said there was nothing he could do about it. Hausen then said he (Wilson) was fired and insisted that he get out of the plant immediately. He asked Hausen to write the reason for his discharge on his card but Hausen refused to do so, although his timecard is now so marked. Wilson said he then went to Foreman Kocherer and asked him what the real reason was for his discharge and Kocherer told him to call him up that night and he would tell him. However, he did not call Kocherer. The next day Wilson said one machine was defective and the shot would come out of it. Whenever he told Kocherer about it he would simply say take a shovel and put it back in, that that particular machine was going to be replaced. Wilson said he was also fired by Respondent in January 1975 for sandblasting some parts Kocherer had told him to sandblast, which parts Kocherer later said he did not tell Wilson to sandblast. He was momentarily fired by Kocher- er and then rehired by Don Hausen who told him to go back to work. He signed a union authorization card on Monday or Tuesday of March 24 or 25, 1975. He said he did not believe management knew about his union activity before he was fired. However, since he was fired and sev- eral employees were thereafter fired also, he is now led to believe that he was fired for his union activity. With respect to the discharge of Del Wilson, Foreman Hausen testified as follows: Q. Can you relate to us the reasons for Mr. Wilson's discharge? A. Yes, I can. The morning prior to his discharge, I found a box of a customer's parts full of steel shot, a shot that's used in a sandblaster. And, I checked with the first shift sandblaster, to see if he ran the parts. He claimed that he did not. That evening, when Del came to work, I asked him if he sandblasted those parts. He told me that he did. I asked him if he knew he put all that shot in there. He said, yes, that he was the one that left the shot in there. At the same time I was talking to him, he was running a sandblaster. An auto- matic machine. On a manual cycle. I asked if he knew that he was supposed to only run it on a automatic cycle. And, he told me, yes. At that time, I discharged him. Foreman Hausen said the second-shift foreman told him Wilson spilled hooks on the floor.14 Dischargee Ralph Andersen was employed by Respon- dent in August 1974 and terminated April 7, 1975. He was interviewed by Tom Thurner and started to work at a sal- ary rate of $3 an hour and 90 days later was increased to $3.30 per hour, then $3.50 per hour, and thereafter to $3.65 14 With respect to the question as to whether Buenning's machine was being operated properly, I do not credit Foreman Hausen's version because his testimony has been discredited throughout the record, and it establishes a pattern of untruthfulness insofar as his discharge of several employees in late March is concerned. per hour. During his interview for employment by Tom Thurner, Thurner asked him if he had any prior experience with unions and he said yes, that it wasn't too good. Thur- ner then said, "Well, we have had a union in the shop in the past, and it's no longer in the shop. And it was a bitter fight getting it out." (Emphasis supplied.) On March 21, 1975, between 3:15 and 3:30 he went to Allan Mann and said, "I heard you got fired," and he (Mann) said, yes, for doing his job, but he actually believed it was for organizing the Union. Mann advised him of a union meeting scheduled for the next morning. Later that day, Andersen informed Ken Colle of the union meeting. Andersen attended the meeting and signed a union authorization card and turned it into the Union along with the cards of Rocky Englebret- son, Robert Rau, Bob Hardtke, and Jeff and Don Paccag- nella. On March 24, about 7 a.m., Wilson said he told Ted Davis hello and the latter said, "Some of the guys that were discharged last week are out front passing out literature." They both smiled and went to their jobs, He was told by Foreman Hausen he was next to take the polygraph test. He reported to the tester and described the procedure as follows: A. Prior to the test, it was, just he would go over the questions and I would, answer them for him there. Af- ter the first test, during the break, we chatted for about fifteen minutes. Q. What did you chat about? A. He says, you did kind of poorly on this test. He said, were you kind of nervous. I said, yes, I was. He wanted to know why. So, I said that 1 ,was waiting for a few zingers about organizing, because we were orga- nizing a Union at Thurner. And, I thought - that he might have some questions about it. On the test. He said- Q. Go ahead. A. He said, no, he wouldn't ask that kind of ques- tion. That he wasn't hired to ask questions about that. After that, we took the second test. Q. How did you do on the second test, if you know? Or, if you were told. A. After it was done, he says, well, you did a lot better this time. He said, but there was still one ques- tion you were a little bit shaky on. And, he said that the question was something to the effect, if you have any personal knowledge of who did the sabotage. He said, you're a little shaky on that yet. And, I says, well, I can't see why. He says, do you have suspicions. I says, yes. He says, well maybe it showed up. So, after that, we went back to his office. We talked a little bit. Q. What did you talk about? A. He was complimenting me. He said he could tell just by talking with me that I was brought up right. That I had a good sense of values. And, afterwards, I believe; I called up the shop to get a ride back. On or about April 7, 1975, Scott Thurner took him to the office of Robert Thurner where the following conversation ensued: A. Scott opened it up by saying,, I suppose you know why you're here. I said, no. He said, oh, come THURNER HEAT TREATING CORP. 733 on. That's when he pulled out a folder and he said, you flunked your test. And, I said, no, I didn't. And I told him exactly what the tester had said to me about the question on the second test. I told him the tester said that I was a little shaky on the question only. And, that I actually had done fairly good. Scott, I believe, then said, do you think you have a future with this Company. I said, yes, that I was hoping to have a future with it. Because I was learning more and more about heat treating. And, at that point, Scott and Mr. Robert Thurner -both shook their heads and said, no way. Scott then said we can't convict you on this, but when we find the person or persons that did this sabo- tage, we will hang you with them. After that, he says, we will hang you up by your ears. [Emphasis sup- plied.] Q. Was there anything else said? A. Yes. Then, I said to Scott, you can't fabricate things. He said, we have spent a lot of money so far, and we're gonna spend a lot more. And, at that point, he said, we're gonna have to let you go. And, he took me to the door leading to the shop and got me an escort. Q. Did he say anything to you as he took you to the door? A. Yes, he did. He says, get out and don't ever come back. Andersen further testified that, when he was transferred to the inspection department as a trainee, every few weeks Ted Davis would tell him he was doing a good job, just keep it up. He had also received criticism from Davis but never disciplinary action and had been complimented by Foreman Hausen for his work when he was on the third shift. On March 26, 1975, he told Ted Davis he would not be staying late and Davis asked why, and he told him he was going to a union meeting. About 2 weeks before he was discharged, Davis said, "you know there is a lot of talk around about unions," but he hadn't heard anything and no one told him about meetings. Andersen said he then told Davis, "Well, next time, just ask me." On or about March 27 or 28, he asked Stephen (Shawn) if he had filled out a union authorization card and he said, "No, he had been asked but did not want to get involved." He gave a card to ken Colle at 8 or 8:30 on March 24 and one to Bob Rau at his house. In April 1975, Andersen said he talked with Keith Ja- cobs and Bob Rau at Jacobs' home and had him sign and return a union card to him. Bob Hardtke signed and re- turned a card to him at work just after he was fired on March 24, 1975. With respect to the discharge of Ralph Andersen, Fore- man Hansen testified as follows: A. He took a polygraph test concerning the alleged sabotage in our shop. And, it was found that he knew who did it. And would not say anything. Q. Was Mr. Andersen a good employee? A. He wasn't either end of the spectrum. He was in the middle. Q. Did you ever observe Mr. Wilson in any Union activities? A. No, I did not. Q. Did you ever hear Mr. Wilson in any Union ac- tivities? A. No. Foreman Hausen stated that he was not involved in the discharge of Ralph Andersen. Scott Thurner testified that polygraph tests were given March 26, 1975, by a Mr. Wallace of Hargrow Secret Ser- vice and right after Wallace tested Ralph Andersen, Wal- lace called Thurman and advised him that Ralph Andersen had failed the test because there was a showing that he was not telling the truth when he denied knowing who was in- volved in the sabotage. He further stated that Wallace was not requested to test the employees on union activity. He thereupon informed Andersen, in the presence of Tom Thurner, that he had least expected him but Andersen had failed the test and he was therefore discharged. Wallace's polygraph report (G.C. Exh. 9) was received by Thurner about 2 days later March 28. However, Respondent's Ex- hibits 24 and 25 (the polygraph report) show that the enve- lope in which it was mailed to Respondent is postdated March 31, 1975. The date of the first complaint to the police about sabo- tage in the plant, a break in, was March 22, 1975; the second one involving shot in the forklifts and truck was March 25, and the third report of shot in the road truck was made on April 6 (Resp. Exh. 23). The polygraph re- port from Wallace was addressed to Scott Thurner, instead of his father, as he previously testified. He believes he had read the polygraph report before he discharged Ralph An- dersen but he denied he considered the union matter men- tioned in the polygraph report. Scott Thurner further testified that he has never fired an employee for union activity nor authorized any of Respon- dent's supervisory personnel to fire an employee for such activity. He maintained that he had no knowledge of his employees' union activity during the period January 1975 through March 1975 and that he did not see or hear of such activity. Dischargee John Banner was employed by Respondent on August 14, 1974, and worked under the supervision of Foreman Randy Kocherer as general laborer until dis- charged March 20, 1975. On or about March 18, 1975, he said he approached Allan Mann in the plant and told him he had heard about the organizing efforts of Mann and others and Mann asked him if he would be interested. He said, "Yes." Mann then said employees were -going to meet at the Tosa Inn after work and he (Banner) said he would be there. He met at the Tosa Inn with Amos Raffeet, Allan Mann, Laura Giefen, Chuck Lentz, Dick Thraves, Tim Zimmer, and Charlie Brah. On March 19, Allan Mann ap- proached him in the plant and advised him of an organiz- ing meeting on March 22, 1975. On March 20, about 4 o'clock, Mike Dunn came up to him and, in the presence of a fellow employee by the name of Bill, told him that Amos Raffeet had just been fired and he said he would not be surprised if it wasn't for trying to organize the Union. Bill said Allan Mann had discussed the feasibility of organizing the Union with him. He did not see anybody from manage- ment during the course of their conversation but later in 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that shift, about 6:30 p.m., Foreman Randy Kocherer ad- vised him that he (Banner) had lust been discharged. He asked Kocherer why and Kocherer said because about 2 weeks earlier he (Banner) had thrown a plastic coffee lid while in the plant. He then told Kocherer to think of a better excuse than that and Kocherer said, "The Thurners had looked at his work record and did not like what they saw." With respect to the incident of throwing the coffee can lid, he testified as follows: A. I was on my lunch break, at the time, and I noticed several of these plastic lids were on the floor. I picked it up and threw it like a frisbee for about thirty or forty feet. I didn't aim it at anybody or hit any- thing. Just hit the floor. And, Randy was in the dis- tance, and he came over and told me to pick it up. And, I picked it up. And, while I was throwing it away, I said something to the effect of this, as if I really needed this job. And, he overheard me, and said, well, if you don't, you know where your timecard is. And, I said, I don't bother you, you don't bother me. And, -I walked away. Banner said he did not receive any warning or repri- mand with respect to the coffee can lid incident. He re- ceived a union card at the union meeting on March 22 and signed it on March 24 and gave it to Raffeet or Giefen. He further stated that, about 2 months prior to his discharge, Foreman Kocherer told him he had been taking off too many days and that he (Banner) was put back on 90 days' probation; that if he came in on Saturday and worked some overtime maybe he could be put back on the good side of things, and he said okay. Kocherer thereafter asked him to work overtime several times but he said he was too busy. Tom Thurner testified that he did not speak to John Banner about flipping the frisbee a week or 10 days before he was discharged. Banner's timecards show he was absent, late, or left early fairly frequently but the record does not show that he was reprimanded or given any warning about it. Dischargee Amos Raffeet was employed by Respondent September 19, 1971, and worked in several capacities, the last of which was setup man- in the induction department until-March 20, 1975, when he was discharged. He said he was asked by Tom Thurner during his employment inter- view if he had ever worked in a union shop and he said, "No." He has worked in most jobs in Respondent's plant. He further stated that he met with John Banner, Allan Mann, Del Wilson, and Laura Giefen at the Tosa Inn and talked about organizing a union. They had other such dis- cussions between March 11 and 14, 1975, away from the plant. Specifically, they had meetings at the Tosa Inn on March 14 and 15 at 12:30 a.m. along with Chuck Lentz, Charlie Brah, Tim Zimmer, and Dick Thraves. Raffeet said he went to work on March 17, 1975, and was told by Laura Giefen that Foreman Don Hausen asked her what kind of car she had and she told him none of his business; that she then asked why and that Hansen got her timecard from the rack and advised her that she was fired. She asked him why and he said she was driving between 60 and 90 miles through the parking lot on Friday, March 14, 1975. The organizing employees had another meeting at the Tosa Inn on March 18, 1975, with Dewey Webber and Don Hausen joining them. On March 19, Raffeet said he asked employee Bruce Morgan what he thought about unions and the latter said unions have their good and bad points but he did not intend to remain at Thurners the rest of his life. At that time Foreman Randy Kocherer came by but he did not hear their conversation. He then walked over to employee Vilnis and told him, confidentially, some of them were trying to organize a union and asked him would he be interested and would he support it. He said, "Yes." Around 9 o'clock that day he approached Donna Riley and initiated the following conversation: A. I told her that I would like to talk to her about something that was personal. And, she asked me what did I mean about personal, you know. Then, I said, well, it's for your own benefit. I said, I understand that you're making $3.10 after thirteen months. And, you have other people that have worked less time who's making more money. And, I said, we're trying to get a Union in. And, she- said-she-asked me -who was the people that was trying to get a Union organized. So, I gave her all the names of these people that was at the meeting. I told her that we had a meeting the night before. And she said that she would have to check with her old man. She would let me know the next day. Q. What names did you give her? A. I gave her my name, Laura Giefen and Al Mann, John Banner, Del Webber, Tim Zimmer, Char- lie Brah, Chuck Lentz, and Dewey Webber. Raffeet further testified that Foreman Randy Kocherer passed by him and the other employees before the lunch break and he walked up to him and the following conversa- tion ensued: A. He came up to me,-he told me he had a special job that he wanted to set up, which was the old 50. After lunch, you know. So, I then set the machine up during the time I was on lunch . The coil was already there. So, the small job-I said I put the piece in, I balanced the machine off. So, after I returned back from lunch, I walked to the machine to see who did he want to operate the machine . And, he told me that the job was finished . Someone else had ran it. It was only seven pieces. And, he also, he said, there isn't very much work around here . I recall that's what he said. Isn't very much work. I said, well, I think it's sufficient amount of work. And, then, he said if most-shops that the Union was in, they would have laid off already, you know. And, he said that the Company has been think- ing about laying some people off. And I said, well, they never laid off before. You know. Then, he made the statement about the employees working at Thur- ner, was making more money than at other heat treat- ing places. And I-said, you're wrong. Because I know a place that they pay the sandblasters $4.85 for sand- blasting. And, he told me, he says, then, maybe you should go to that place. [Emphasis supplied.] THURNER HEAT TREATING CORP. 735 Raffeet said he asked Kocherer why did he mention union, was there a union in progress and Kocherer said, "No." Foreman Kocherer then told him that he (Raffeet) was the third highest paid man in the induction depart- ment. Based on this conversation Raffeet said he later told Chuck Lentz and Allan Mann that Respondent knew about the union activity. About 4:10 p.m. on March 20, 1975, Foreman Kocherer advised him that Tom Thurner wanted to see him in his office. He said he thought so and he reported to Thurner's office, where Thurner had several timecards in his hand and asked him why he was 15 min- utes late on March 17 or 18, and he told him he had a dental appointment. Mr. Thurner asked about his being tardy and absent on other occasions in December 1974, which he explained was due to his having the flu and that his foreman knew about. Thurner then told him the Re- spondent has received telephone calls from the child sup- port division of the welfare department which was looking for him and he replied that that was impossible because he did not have a child on welfare. He asked Thurner what branch of the welfare department had called Respondent and Thurner said he did not know. Raffeet said his conver- sation with Thurner continued as follows: A. So then, I think, that he asked me, why did Lau- ra Giefen never smile. And, he says, well, that's not important any more. She quit on Friday. And, I said, she did not quit on Friday. She was fired on Monday by Don Hausen. The general foreman. First shift fore- man. Q. Did Mr. Thurner say anything after that? A. He said that she brought me to work on the day that I was fifteen minutes late. ceived any warning or reprimand about his work or time and attendance but, on the day he was discharged, he was accused of punching in Laura Giefen. With respect to locations in the plant, Raffeet testified that the sienna section is located in the north center of the plant where the work is dangerous, the temperature is warm, and the air contains chemical fumes. Foreman Don Hausen further testified that he remem- bered seeing Allan Mann and Amos Raffeet talking on March 20, 1975, but could not hear their conversation and he had not heard any employee discussing the Union. Tom Thurner testified that, when he discharged Amos Raffeet on March 20, 1975, Raffeet did not ask him for reinstate- ment to his job. Also on March 20, 1975, he advised Raf- feet that he had learned that he (Raffeet) was clocking in Laura Giefen and Raffeet made no response. He then asked Raffeet if it was true or'not and he said yes it was true. Raffeet denied that he admitted punching in Laura Giefen. He said Thurner then asked him if he thought this was, in essence, cheating or defrauding the Company of time. "I asked him if she went directly to work, he said, she did not, thereby costing the Company time in which she would be changing, which is against Company rules and policy." Thurner said he did not recall Raffeet asking him for permission to work out the shift or his offering Raffeet to pay his transportation home.15 The record shows (G.C. Exhs. 8(a) and (b)) that the Union, by letter dated April 10, 1975, and received by Re- spondent on April 11, apprised Respondent of the fact that it had been designated by a majority of its employees as the exclusive collective-bargaining representative of the employees in an appropriate bargaining unit, and demand- ed immediate recognition for that purpose. Thurner told Raffeet that he was punching in Laura Giefen. He also told him that Giefen had filed several complaints against the Respondent and then he advised him (Raffeet) that he no longer worked there. Raffeet said he asked Thurner if he could work the remainder of the night because he did not have transportation home but Thurner told him to take the bus or a cab, and offered to pay his carfare, but he did not accept his offer. Thurner then told him he should not apply for unemployment compen- sation because the Company would fight it all the way. Raf- feet said he signed and submitted a union authorization card (dated March 22, 1975) to the Union. Raffeet said that on March 24, 1974, he distributed union cards outside the plant and about 12:30 a.m. on March 25 he received a telephone call at home from Don- na Riley, who told him Respondent possibly found out about the Union through her conversation with Foreman Kocherer, during which she told him Raffeet and other employees were tying to organize a union. Raffeet further testified that, during his tenure with Respondent, he had been terminated on November 12, 1972, for damaging shafts and machinery ; that 2 years later he was discharged for sight pins being spilled on the floor but that in each instance he was rehired shortly thereafter. He was dis- charged again in August 1974 because he was serving time in jail at night and was rehired after completing'his jail sentence. Prior to his current discharge, he had not re- Analysis and Conclusions A determination of the validity of the allegation with which the Respondent is charged, and the corresponding defenses asserted by it in response thereto, depends largely on a determination of the veracity of the several witnesses whose testimony is highly conflicting. While it is difficult in some instances to resolve such' vexing questions of fact to which the parties alone bear witness, I am nevertheless compelled to consider the relationship of each witness to the party on whose behalf he testified, the readily respon- sive, nonselective, nonexaggerating, consistent, and straightforward manner in which he testified, the reason- ableness of efforts made by the parties to bring essential witnesses and appropriate documentary evidence before the court, as well as how such testimony or other evidence 15I credit Raffeet's testimonial version of the conversations during his discharge conference over Tom Thurner's version because, not only did Raffeet deny admitting that he punched in Giefen, but Thurner could not recall Raffeet asking for permission to work out the shift, and the credibility of Respondent's (supervisory) personnel throughout the record does not coincide with the circumstantial and overall uncontroverted evidence of record. Moreover, I received the impression from his demeanor on the stand that Tom Thurner was testifying in a careful and selective manner, which persuaded me that he was not telling the whole truth 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relates to the logical consistency of all the evidence of rec- ord and the sequence of -events as they transpired. C. Respondent's Interrogation of its Applicants for Employment The credible testimony of practically all of the employee witnesses, corroborated in part by Respondent (Scott and Robert Thurner), establishes ,that during their respective employment interviews, Respondent asked each of them if they-were union affiliated and told them Respondent was nonunion. It was further established by the credible testi- mony of Allan Mann, Tom R. Whitney, Charles Lentz, Ralph Andersen, and Amos Raffeet that, during their in- terview for employment with Respondent, the Respondent asked them and posed, either one or a combination of the following questions and, statements: What were their opin- ions on, or,how they felt about unions; were they for or against unions; had they ever worked in a union shop; and Respon- dent stated that it is a family nonunion plant; that it had a union at one time, and it was a bitter fight getting rid of it. D. Employer Interrogates Employees-About Their Union Interests and Desires Respondent contends that its -employment interview question about union affiliation was asked of employment applicants in an effort to avert employing applicants who would later learn that Respondent is nonunion and there- upon voluntarily terminate their employment, at consider- able training and bookkeeping expense to the Respondent. However, when one considers Respondent's failure to pro- duce the names or appearance of any such past employees, Respondent's followup questions and statements about how the applicants felt about unions, its statements about how Respondent got rid of the Union, and the overall an- tiunion climate and conduct in the plant as demonstrated throughout the record, infra, Respondent's contention can hardly serve to justify the purpose for which such questions were asked and such statements made. In fact, the follow-- up questions and antiunion statements by Respondent now clearly reveal 'the pretextual nature and the self-serving purpose for which its contention is advanced, in an effort to justify the coercive, restraining, and illegal effect of its conduct, in violation of the protected rights of its employ- ment applicants and employees. This position is well sup- ported by Court and Board decisions in Phelps Dodge Cor- poration, 313' U.S. 177 (1941); Sterling Aluminum, a Division of Federal-Mongul, 163 NLRB 302 (1967); and Stainless Steel Products, Incorporated, 157 NLRB 232 (1966), proper- ly cited by counsel for the General Counsel. Consequently, based on the foregoing credible evidence and pursuant to the above-cited authority,,I conclude and find that Respondent's statements about getting rid of the Union constituted evidence of union animus; that Respon- dent's questions about union affiliation and opinion consti- tuted coercive interrogation of its applicants for employ- ment and employees about-their union interests, desires, sympathies, and affiliations, in violation of Section 8(a)(1) of the Act. E. Employees' Union Activity and Respondent's Discharge of Employees The-evidence undisputably establishes that the Respon- dent is a family-corporation doing business in a small plant (G.C. Exh.'6) with a total work force of approximately 52 employees who are distributed over three daily work shifts. Thirty-three of the total work force of employees signed union authorization cards during the period March 22 and April 9, 1975. Thirty-one -of such employees signed their union authorization cards between March 22 and 28, while 1 signed a card on April 4 and 1 on April 9. Although most of the employees' union activity (meetings and open solici- tation), prior-to March 25, took place outside the plant, a considerable number of union-related oral inquiries, dis- cussions, and notices about meetings, nevertheless, did in fact occur inside the plant prior to that date. The evidence of record more than amply establishes that on or about March 13, 1975, and the weeks immediately subsequent thereto, Respondent employees, pursuant to the suggestion of dischargee Laura Giefen, proceeded to discuss and in fact organize a union. The employees in- volved in the original organizational discussions on Friday, March 14, and Saturday, March 15, at the Tosa Inn (a tavern located a short distance down'the road from the plant) were : Garth Fletcher, Allan Mann, Amos Raffeet, Charles (Chuck) Lentz, Del Wilson, and Pamela Miller. On the following Monday, March 17, Laura Giefen reported to work and after punching the timeclock was precipitously discharged by General Foreman Don Hansen without any warning or reprimand 'for reportedly driving on the plant's parking lot at a high rate of speed. - On March 19, 1975, Laura Giefen and fellow employees Allan Mann, John Banner, Amos Raffeet, Chuck Lentz, Charlie Brah, William (Dewey) Webber, and Mary and Dick Thraves met at the Tosa Inn for further discussions on organizing the Union. Except for Laura Giefen suggest- ing unionization to fellow employee Garth Fletcher on or about March 11 or 13, all of her organizing discussions took place outside the plant. On March 19, 1975, dischargee Amos Raffeet 'ap- proached fellow employees Bruce Morgan and Mike Vilnis in the plant and advised them of the employees' organizing effort and tried to solicit their support. During his discus- sion`with Vilnis, Raffeet told him the names of all of the employees participating in the organizing discussions. Dur- ing Raffee't's discussions with Morgan and Vilnis, Foreman Randy Kocherer passed by. Later, Kocherer ,told Raffeet most shops-with unions having the amount of work Re- spondent had on hand would have laid off its employees already. Kocherer- also said Respondent's employees were making more money than other heat treating places. Raf- feet told Kocherer that he knew of a 'place where the sala- ries were higher and Kocherer told him maybe he should go to-that place. Raffeet then asked Kocherer why he men- tioned the union, was there a union in progress. Kocherer replied, "No." On the very next day, March 20, 1975, Raf- feet reported to work several minutes late, as he frequently did, and he was advised to report to the office of Tom Thurner who advised him he was discharged for excessive tardiness. THURNER HEAT TREATING CORP. On March 19, 1975, dischargee Allan Mann held conver- sations about the Union prior to the shifts and - during lunch periods with fellow employees Mike Vilnis, Donna Riley, and Ralph Andersen. On March 20, Mann'and Raf- feet had been conversing prior to Raffeet's discharge and Raffeet immediately reported the fact to Mann that he was discharged. Subsequently, Mann, while away from his ma- chine to get some asbestos rope to be used on the job he was working, was approached by General Foreman Han- sen, who without any warning or reprimand precipitously discharged him for allegedly leaving his machine unattend- ed. Mann's machine was not running at the time. Although he had in fact left his machine running on a previous occa- sion, even then he was not warned that he would be fired for such action. On March 19, 1975, dischargee Del Wilson had discus- sions about the Union in the plant with Charlie Brah, and on another occasion, with Amos Raffeet and Allan Mann. During the discussions with Raffeet and Mann, Wilson saw Foreman Kocherer standing within probable hearing range of their conversation. On the next day, March 20, Foreman Hausen asked him - about some finished parts which had sandblast shot over them. Wilson, who was re- hired on a 90-day probationary period for failing to pick up some spilled hooks was precipitously discharged by Foreman Hansen and advised to get out of the plant imme- diately. The evidence did not establish as a matter of fact that Wilson was responsible for the sandblast shot being over the parts. Dischargee John Banner had a conversation with Allan Mann about the Union in the plant on or about March 18, 1975, and he met with employees Amos Raffeet, Allan Mann, Laura Giefen, Chuck Lentz, Dick Thraves, Tim Zimmer, and Charlie Brah at the Tosa Inn after work. Also, on March 19, Banner was approached by Mann in the plant and advised of an organizing meeting scheduled for March 22. There is no evidence that any representative from management had heard Banner's conversations re- garding the Union or that management had any knowledge about his participation , in the discussions at the Tosa Inn. However, later during that shift (about 6:30 p.m. on March 20), he was advised by Foreman Kocherer that he had been discharged for throwing a plastic coffee lid like a fris- bee 3 weeks prior thereto. Former employee Pamela Miller was a clerical employee in the Respondent's office who associated with the shop employees and had attended the organizing meetings at the Toga Inn , between March 14 and 18, 1975. In the late af- ternoon of March 19, employee Webber came to the office and informed Pamela ,Miller that Amos Raffeet, Allan Mann, John Banner, and Del Wilson had just been dis- charged by Respondent. On the next day, March 21, 1975, on orders from Scott Thurner,,Miller was assigned to the shipping; and receiving department although she had book- keeping work to, perform in the shop's clerical office. As a result of this assignment and the nonclerical duties which she was ordered to perform (including washing windows), she voluntarily terminated her employment with the Re- spondent , on that afternoon. Just prior to terminating her employment, she was told by Tom Thurner that she was reassigned because she shad friends in the plant, that Scott 737 Thurner did not want her at the plant, and that she had some savory friends (union organizers). As Miller left the plant, she_ was told by Tom Thurner that some of her friends (organizing employees) were holding a meeting down on the parking lot. While Miller's conversations with Tom Thumer may not be the most explicit, they neverthe- less established, beyond a mere inference, that the Respon- dent was aware of its employees' union activity, upon which it looked with disfavor or animus. On March 21, 1975, dischargee Garth Fletcher was-leav- ing, the plant when he was approached by Laura Giefen, Amos Raffeet, and Allan Mann on the parking lot and apprised of their union activity and asked for his support. As they spoke to him, Fletcher noticed Foreman Hansen walk by and look in their direction with an angry expres- sion. As he reported to work on March 24, he observed Amos Raffeet, Laura Giefen, and Allan Mann distributing union authorization cards in front of the plant. He went up to them, took a-card, signed it, and returned it to Raffeet. He entered the, plant and observed that his timecard was missing from the timecard rack and he was advised by Foreman Don Hansen that he was fired for his extracurri- cular activities and being 3 minutes late. On March 24, 1975, dischargee Brian Holst reported to work and was approached by Laura -Giefen outside the plant. She asked him if he would sign a union authorization card and attend the union meeting. Hoist accepted a card, signed it, and returned it to her. He went into the plant and worked from 7:30 until 3:55 when he was advised by Fore- man Hausen that he did not have to punch out, he (Han- sen) would write him out at 4 -o'clock, and that he was discharged for missing too many days during his 90-day probationary period. On March 24, 1975, dischargee Robert Harrltke was ap- proached in the plant by fellow employee Ken Colle who first asked about his union interest, and then asked him to sign a union authorization card. He accepted- the card, walked to his work station, and later, proceeded to fill out the card when he suddenly turned around and discovered Foreman Hansen behind him with his timecard. Foreman Hausen then informed him that, he did not have to punch out because Respondent no longer needed ,him; and that his employment was terminated because of a slowdown in business or lack of work. Dischargee Robert Rau had a conversation about the Union in the, plant with fellow employee Ken Colle on March 24, 1975, during which time Colle gave him an au- thorization card to complete. Rau went into the men's room where he read and signed the card, and later returned it to Colle. Later during the same day he had a conversa- tion about the Union with Ralph Andersen, who gave him some authorization cards with which to solicit, On the fol- lowing day, March 25, be solicited the support of fellow employees. About 11 a.m. Foreman Michael Adamski, without any,warning, advised him that his timecard had been pulled by Tom Thurner and that he was discharged because he was late. As his record shows, he had been late on several occasions. On or a, few days subsequent to March 8, 1975, dischar- gee Tom Robert Whitney had asked Foreman Hausen about trouble with the Union and Hansen said, "We fire them 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right away." On March 25, Whitney was approached by the union organizers who requested his support. He walked out of the plant with some of the organizers and got into organizer Lentz' car where he completed and signed an authorization card. Near the close of the work shift on the very next day, March 26, Whitney was advised without any prior warning or reprimand that he was discharged because Foreman Kocherer thought he would not work out. Dischargee Ralph Andersen had a discussion in the plant on March 21, 1975, with Allan Mann who had been dis- charged but was seeking his support of the Union. Ander- sen attended the union meeting on March 22 where he completed, signed, and submitted to the Union an authon- zation card, along with the signed cards of five other fellow employees. Andersen was first employed by Respondent in August 1974 at a salary of $3 per hour, and 90 days later was increased to $3.30 per hour, then later to $3.50 per hour, and thereafter to $3.65 per hour. He had told Ted Davis on March 26 that he was going to a union meeting and 2 weeks later Andersen told Davis that if he wanted to know about the Union he could ask him (Andersen). Be- tween March 24 and early April 1975, Andersen solicited union support of fellow employees inside and outside the plant. The sabotage in the plant 'occurred between March 21 and 25, 1975, thus coinciding somewhat with the com- mencement of the employees' union activity in and outside the plant. Andersen was one of several employees who took the polygraph test on March 26, in an effort on the part of Respondent to ascertain who was responsible for the sabotage in the plant. During the test, Andersen told the tester he was involved in organizing a union in the plant although the tester did not ask that question. After the test, the tester advised Scott Thurner by telephone that Andersen had failed the test because the test results indi- cated he was not telling the truth when he denied knowing who was involved in the sabotage. The tester's written re- port is dated March 28, 1975, and the envelope in which it was mailed is addressed to Scott Thurner and dated March 31, 1975. However, after the tester' advised Scott Thurner by telephone of the results of Andersen's test, Andersen was called to the office of Scott Thurner and, in the pres- ence of Robert Thurner, was advised he was discharged on the basis of the report from the tester. Scott Thurner said he believed he had seen the written report containing infor- mation about Andersen's involvement in the Union prior to his discharge of Andersen. Although employee William (Dewey) Webber was not dis- charged by Respondent, the evidence shows that on March 26 he was called to the office of Scott Thurner wherein he observed Scott Thurner requesting the timecards of Robert Rau, in preparation for discharging him for untimely atten- dance. At that time, Scott Thurner said he was not after those people and he asked why should he want to fight them, the employees made enough money with profit shar- ing; that Respondent had very good lawyers and that they were going to fight this thing and would be willing to spend thousands of dollars to solve the problem; that Respondent might have to take a couple of people back, but, how long did he think they would last, Respondent would give them the dirtiest sloppiest jobs he could find. He then told Web- ber not to fight him, and asked him why didn't he (Web- ber) play ball on Respondent's side; that he did not need a union there because Respondent's doors are open all the time to get his problems solved. Scott Thurner then told him there was going to be a meeting (presumably a union meeting) that afternoon and asked Webber to call him be- fore the meeting and let him know how he (Webber) stood on this other trouble (union). During their conversation Scott Thurner asked Webber what shift did he like to work and further said, "You don't like working third shift," and Webber agreed. After talking over the matter of union affiliation with his wife, Webber called Scott Thurner and advised him that he had decided it would be best to play ball with Respondent and he (Respon- dent) said okay. Webber also requested to speak with him that afternoon and Thurner said "okay,- come in early." Webber reported to the office of Scott Thurner that af- ternoon and advised him that he needed a raise and Thur- ner said "okay, you'll get it." Webber did in fact receive the raise in salary. The complaint alleges that employees Timothy Zimmer and Richard Thraves were also discharged by Respondent on March 24, 1975. However, neither Zimmer nor Thraves appeared in this proceeding and no evidence was intro- duced with respect to their discharges and no finding is made as to whether they were lawfully discharged. Based on the foregoing credible evidence, I conclude and find that Respondent employees were engaged in union activity, inside and outside the plant, from about March 13 through April 9, 1975. However, since the above- described evidence raises crucial issues as to whether Re- spondent had knowledge of such activity, and, if in fact it did, did it discharge any of its employees for engaging in such union activity , a close examination of all of the evi- dence of record in this regard is warranted. F. In the Midst of Its Employees' Organizing Campaign, Respondent Interrogated Its Employees, Solicited Their Grievances, Promised Them Wage Increases, Threatened To Withdraw Their Benefits and To Transfer or Terminate Them Although Respondent denies knowledge of union activi- ty of any of its terminated employees, the credible evidence of record nevertheless shows that on March 19 Foreman Randy Kocherer stood near union conversations carried on between Amos Raffeet and other organizing employees; and on March 19, Tom Thurner told Pamela Miller she was being assigned to other nonclerical work because she had friends in the plant, "friends" referred to organizing employees, and that Scott Thurner did not want -her in the plant because she had some savory friends (organizing em- ployees); that on March 8 General Foreman Don Hausen told employee Robert Whitney that Respondent fires union organizers right away; that on March 24, Hausen told Brian Holst, following his signing a union card 'on the plant's parking lot, that he was discharged for his extracur- ricular activities and being late; that on March 24 Hausen walked up behind Robert Hardtke while he was signing a union card and discharged Hardtke instantly; that on March 21 Hausen looked at employee Garth Fletcher with THURNER HEAT TREATING CORP. an angry expression when Fletcher was talking with union organizing employees in the plant. The uncontroverted evidence establishes that, on March 24, Respondent (Don Hansen) sent employees Eugene La- March and one Tony to its parking lot to verify his hunch or belief that- the employees congregated there were en- gaged in union solicitation. Thereafter, Foreman Hansen called the police who appeared on the lot and questioned the employees. On April 4, Foremen Hansen and Adamski drove down to the plant's parking lot to again satisfy Hausen's curiosity that the employees congregated there were engaged in union solicitation. I hereupon conclude and find that such conduct by Respondent (Hausen) evi- denced it had prior knowledge on its first hunch, and for certain on its second effort, to verify the legal union activi- ty of its employees; and that such conduct constituted sur- veillance of its employees in the exercise of protected rights, in violation of Section 8(a)(1) of the Act. On March 26, Respondent (Scott Thurner) held a con- versation with William (Dewey) Webber during which it promised Webber a raise in pay if Webber would let Re- spondent know where it stood on the Union and play ball on the Respondent's team. Respondent then stated that it would terminate or demote employees who supported the Union or that it would assign them to the dirtiest sloppiest jobs; that Webber and other employees did not need the Union but could bring their grievances to it; and that it would withdraw benefits to its employees by selling its plant to the Union and open a new plant nearby to com- pete with and drive the Union's plant out of business, be- fore it would allow the Union to run its current business. I hereupon conclude and find such promises and threatening statements and conduct by such high-ranking managerial officials (the Thurners and Foremen Kocherer and Hau- sen) of Respondent constituted an interference with, a re- straint upon, and coercion against protected rights of its employees in violation of Section 8(a)(1) of the Act. Respondent Prepared and Circulated an Antiumon Petition On or about March 31 or April 3, 1975, General Fore- man Don Hansen presented his draft of an antiunion peti- tion to employee Kenneth Colle to type in final and circu- late among Respondent's employees. The petition read as follows: We, the undersigned employees, of Thurner Heat Treating are aware of action being taken by former employees to force us to accept representation by the United Auto Workers: U.A.W. The small minority of people involved in the action is in no way representing the wishes of those workers that put in a good days work. Furthermore, the harrasment and pressure being ap- plied by the U.A.W. is not going to force us to accept their union, or any other union, we don't want. We don't want union representation, any help that you can give us on this -matter will be greatly appreci- ated., - Donald Hausen told Colle that he thought it was unfair 739 that the Union could force its way into the plant without all of the employees being in favor of it. Colle thereafter typed and circulated the petition on which he was able to secure the signatures of several of his fellow employees. Colle said he told the employees that he did not feel that their not signing the petition would help them to keep their jobs and he urged them to sign it if they wanted their jobs. Upon Foreman Hausen's instructions, Colle thereafter showed the petition to Tom Thurner, who copied the names signed thereon. Colle returned the petition to Hau- sen as instructed and Ted Davis continued the circulation of the petition. During the course of the investigation of this case by the Board, Colle gave the Board an affidavit which Foreman Hausen asked Colle to see. Hausen had also asked Colle was he for or against the Union. I further conclude and, find that employee Colle and Da- vis were agents for Hansen (Respondent) in circulating the petition and that such conduct, including Hausen's ques- tions of Colle, constituted coercive interrogation, as well as other interfering, restraining, and coercive action against employees' protected rights in violation of Section 8(a)(1) of the Act. G. Respondent's Discriminatory Discharge of Employees In examining all of the evidence, it is readily observed that, while Respondent disclaimed knowledge of union ac- tivity of any of its employees, it nevertheless proceeded to discharge 13 of its employees within a period of 21 days following the first 4 days of employee organizing activity, and one employee (Buenning) 5 weeks later (May 20, 1975). Specifically, dischargee Laura Giefen, the originator of the organizing movement , was the first employee dis- charged by Respondent on March 17, 1975, only 3 days after the first employee organizing meeting on March 14. Respondent contends that it discharged Giefen for speed- ing on the plant's parking lot and , since the record does not contain direct evidence that Respondent had prior knowl- edge of her organizing activity, her discharge has the ap- pearance of having been based upon cause, regardless how trivial. However, the evidence of record cannot be justly evaluated in isolated and piecemeal dimensions, which ig- nore the overall organizing climate in the plant and the succession of employees discharged within a period of 21 days immediately subsequent to the outset of union activi- ty. In this regard, it is particularly noted that, subsequent to inplant and out-of-plant discussions of organizing the Union by each of four employees on March 18 or 19, Re- spondent, without warning or reprimand, precipitously dis- charged each of the four employees for the contended rea- sons set opposite their respective names as follows: Allan Mann, for leaving his machine operating while unattended. Del Wilson, for spilling sandblast shot over some treated metal parts. John Banner, for throwing a plastic coffee can lid like a frisbee. - Amos Raffeet, for excessive tardiness and indefinite 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and' unsubstantiated telephone calls from the welfare department regarding child support. Clerical employee Pamela Miller, who did not sign a card but had been associating with the discharged union organizers and attending their meetings at the Tosa Inn between March 14 and 20, was suddenly assigned several nonclerical and onerous work assignments by Respondent on March 21, thereby provoking her to voluntarily termi- nate her employment with Respondent on that afternoon. Dischargees Garth Fletcher, Brian Holst, and Robert Hardtke were each approached by fellow employee organ- izers on the plant's parking lot on the morning of March 24, 1975, when they were given union authorization cards, which each of them signed and returned to the organizers. When they entered the plant to work, without any warning Respondent immediately advised Fletcher that he was dis- charged because Foreman Kocherer thought he would not work out. Later that day, without any warning, Respon- dent discharged Brian Holst allegedly for absenteeism dur- ing his probationary period and advised Robert Hardtke that he was discharged because it did not need him since work was slow. Respondent also discharged Timothy Zim- mer and Richard Thraves, both of whom were active union organizers but neither of whom appeared and testified in this proceeding, and no evidence was adduced with respect to the nature of their discharges. Dischargee Robert Rau signed a union authorization card and solicited union support from all fellow employees in the plant on March 24 and 25. On March 25, Respon- dent, without any warning or reprimand, precipitously dis- charged him for being late, as he had been on previous occasions. Dischargee Tom R. Whitney left the plant with fellow employee organizers on March 25 and signed an authoriza- tion card on the plant's parking lot. On the next day, March 26, without any warning or reprimand, he was pre- cipitously discharged by Respondent because Respondent contends it decided he would not work out in the job. Between March 24 and, early April 1975, dischargee Ralph Andersen was actively soliciting support for the Union inside and outside the plant and he signed an au- thorization-card at the union meeting on March 22. After taking the polygraph test which was administered to ascer- tain which employees were responsible for sabotage in the plant, Respondent advised Andersen he had failed the test and was therefore discharged. Respondent admits it knew Andersen was involved in union activity before it dis- charged him, but it maintained that it discharged him only because the test results indicated he knew who was involved in the sabotage in the plant. H. Respondent's Knowledge of Employees' Union Activity Motivated Its Discriminatory Reprisal While initially there might have -been a question as to whether Respondent had knowledge of the union activity of Laura Giefen before she was discharged on March 17, as well as prior knowledge of the union'activity of the other 12 dischaxgees, the overwhelming chain of circumstantial and direct evidence now makes it clear that Respondent did in fact have such knowledge prior to the voluntary termina- tion of Pamela Miller, and prior to its discharge of Laura Giefen and 11 other employees discharged by, it"in late March and early April 1975. More specifically, when the well-established union activ- ity of Respondent's employees is considered along with the fact that Respondent is a small plant, operated under a rather closely observed family-type management wherein employees' gossip and hearsay are in all probability ob- served, and/or communicated to management, knowledge of -the union activity of Laura Giefen and other employees is reasonably inferred to the Respondent. LC.-Sutton Han- del Factory, 119 NLRB 951 (1957), enfd. 255 , F.2d 697 (C.A. 8, 1958), cert, denied 385 U.S. 865 (1958).'When Re- spondent's precipitous assignment of Pamela Miller to more onerous'work on March 21 is considered in conjunc- tion with its commencement of''the sudden and wholesale discharge of 12 employee union organizers on March 17, only 4 days after the employees initiated "their organizing activity, it becomes obvious that Respondent had knowl- edge of such activity. The above conclusions are further supported when it is observed that all of the discharged employees were actively engaged in union activity at the time of their discharge. The only two avowed employee union organizers Respon- dent did not discharge were Kenneth Colle and William (Dewey) Webber. But this is understandable since Colle, at the request of Respondent, typed, circulated, and submit- ted the signed antiunion petition to Respondent as its agent, and Webber agreed to play ball with Respondent by refraining from further supporting the Union. Moreover, pursuant to the request of counsel for the General Counsel, I also hereby take administrative notice of Respondent's long history of union animus as found by the Board in Thurner Heat Treating Corp., 199 NLRB 883 (1972). Respondent advanced a host of reasons for the discharge of its employees, such as speeding on, the parking lot, spill- ing sandblast shot on finished parts, throwing a harmless plastic coffee can lid like a frisbee, the sudden thought that an employee would not work out in the job, an unestablish- ed slowdown in work, and poor time and , attendance. However, when it is noted that the widespread unlawful antiunion conduct of Respondent and the timing of the discharges coincided with the recent onset of employees' union activity, of which Respondent was fully aware; the fact that all of the dischargees were actively supporting the Union; the precipitous character of all of the discharges without prior warning or reprimand; and the sudden sig- nificance of enforcing time and attendance, it is clearly evident that the reasons advanced by Respondent were a pretext contrived by it to mask its true and-unlawful mo- tive for discharging 12 employees, and causing the con- structive discharge of one employee. It might be argued that Ralph Andersen was discharged for cause because the polygraph test simply indicated, not established as a fact, that he might have known who was .involved in the sabotage in the plant. However, it is noted that Respondent also obtained definite knowledge in the polygraph report that Andersen was engaged in union ac- tivity,'and, while having such knowledge, the record does THURNER HEAT TREATING CORP. not show that Respondent -ever asked Andersen who was involved in the sabotage. Rather, it precipitously dis- charged Andersen as if it were more concerned with dis- charging him than with learning who was responsible for the sabotage, if in fact Andersen knew who was involved. Thus, it is apparent that Respondent's primary motive for discharging Andersen was his union activity. This conclu- sion is consonant with the logical consistency of all of the evidence of record. Dischargee Bruce Buenning signed a union authoriza- tion card on March 28, 1975. On and subsequent to April 10, both Ken Colle and-Ted Davis, on behalf of Respon- dent, repeatedly asked Buenning to sign the petition against the Union and he refused to do so. Ted Davis, who represented that he had close ties with the Thurners, even implied Buenning ° might be terminated if he did not sign the petition. Thereafter, Colle said he was asking Buenning just one more time to sign the petition but Buenning still declined to sign. A week later Davis mentioned the petition to Buenning who made no response. On May 20, 1975, Foreman Don Hansen, without any warning or reprimand, suddenly advised Buenning that Respondent had decided to let him go because he had not worked out in inspection nor in induction, and that Buenning could ask anyone, and Hansen said, "ask Davis." Although the evidence shows that Davis trained and as- signed work to Buennmg and also gave him overtime, I nevertheless find the evidence insufficient to support a finding that Davis was a supervisor within the meaning of the Act. However, I do conclude and find the evidence sufficient to support a finding that Davis, with Colle, on behalf of Hansen (Respondent), promoted the antiunion movement by circulating an antiunion petition which they encouraged and threatened Buenning and other employees to sign; and that, in doing so, Davis and Colle were anti- union agents of Respondent, whose conduct is violative of Section 8(a)(1) of the'Act. I further conclude and find on'the above credible evi- dence that Respondent learned about Buenning's union ac- tivity through the same means it learned about the union activity of its other employees, and that it was provoked by Buenning's refusal to sign its antiunion petition and there- upon discharged him' for not doing so. This conclusion is further supported by the precipitous nature of the dis- charge without any prior warning,-the time proximity of his discharge to the discharge'dates of the other dischargees, as well as the entire record of Respondent's unlawful conduct. Hence, Respondent's discharge of Buenning on May 20 was also discriminatory in violation of Section 8(a)(3) and (1) of the Act. Respondent's sudden and vague contention that, it discharged I Buenning because he was slow and did not work out is obviously a pretext to again conceal Re- spondent's real and unlawful motive, Buenning's union ac- tivity and his refusal to join Respondent's antiunion move- ment. In view of all of the foregoing evidence, I conclude and find that Respondent's reassignment of Pamela Miller to onerous work on March 21 was motivated by her union activity or sympathies for the Union, thereby causing her constructive discharge on March 21, 1975; and that Re- spondent's discharge of the following 12 employees on the 741 dates set opposite their respective names, and at all -times since said dates has failed or refused to reinstate any of said employees to their former or substantially equivalent positions, all because of their sympathies for and activities on behalf of the Union:- Laura Giefen 3/17 Allan Mann 3/20 Amos Raffeet 3/20 John Banner 3/20 Del Wilson 3/20 Garth Fletcher 3/24 Brian Holst 3/24 Robert Hardtke 3/24 Robert Rau 3/26 Thomas Whitney 3/27 Ralph Andersen 4/7 Bruce Buenning 5/20 I further conclude and find that since a majority (29) of Respondent's total work force of employees (56 or 57) have selected (by single-purpose authorization cards- which I find valid) the Union as their representative for purposes of collective bargaining, of-which fact Respondent was ap- prised (by the Union's demand letter dated April 10) on or about April 10, 1975, the Union became the employees' official bargaining representative on April 10, 1975; that in view of Respondent's widespread, substantial, systematic, and pervasive unfair labor practices which were designed to dissipate and undermine the Union's majority, Respon- dent has interfered with its employees' exercise of a free and untrammeled choice to elect a collective-bargaining representative, which thereby- rendered the holding of a free and fair election impossible and warranting the is- suance of a collective-bargaining order. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969); Steel-Fab, Inc., 212 NLRB 363 (1974). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. They are unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Thurner Heat Treating Corp., the Respondent, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. - 2. International Union, Automobile, Aerospace and Ag- ricultural Implement Workers of America (UAW), is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. A unit consisting of all production and maintenance employees of Respondent, excluding office clerical em- 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, professional employees, guards and supervisors as defined in the Act, is appropriate for purposes of collective bargaining. 4. On April 10, 1975, a majority of Respondent's em- ployees in the aforesaid appropriate unit had authorized the Union as its exclusive bargaining representative and Respondent was notified of this fact on April 11, 1975. 5. At all times since April 10, 1975, the Union has been the exclusive collective-bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(e) of the Act. 6. Respondent having been notified of the Union's ma- jority must recognize, and, upon request, bargain collec- tively with the Union as the exclusive representative of em- ployees in the aforedescribed appropriate unit. 7. Respondent threatened, coerced, and restrained em- ployees in the exercise of their rights under Section 7 of the Act thereby committing unfair labor practices within the meaning of Section 8(a)(1)-of the Act by: (a) Coercively interrogating its employees and appli- cants for employment about their sympathies for, interests or desires in, or their affiliation with unions. (b) Surveilling the union activity of its employees by ap- proaching groups of employees suspected of talking about organizing a union. (c) Threatening employees with the withdrawal of bene- fits by telling them they would lose their jobs or benefits if the Union got in the plant. (d) Threatening to demote, transfer, or terminate its em- ployees by telling them it will fire them or give them the dirtiest and sloppiest work in the plant should the employ- ees elect the Union as their collective-bargaining represen- tative. (e) Threatening its employees with the close of its plant before it would recognize or bargain (accede to any of the Union's demands with which it would not initially agree) with the Union. (f) Soliciting grievances of its employees by telling them they do not need a union because Respondent's door is open to employees to solve their problems. (g) Using one of its employees to assist it in preparing and, thereafter, two of its employees to independently cir- culate an antiunion petition and encourage and threaten other employees to sign it, by implying that their jobs may not be secure if they did not sign it. 8. Respondent discriminated with respect to employees' hire and tenure of employment and terms and conditions of employment, thereby discouraging membership in a la- bor organization and committing unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by: (a) Discriminatorily reassigning Pamela Miller to oner- ous work for her activities or sympathies thereby causing her constructive discharge. (b) Discriminatorily discharging Laura Giefen, Allan Mann, Amos Raffeet, John Banner, Del Wilson, Garth Fletcher, Brian Holst, Robert Hardtke, Robert Rau, Thomas Whitney, Ralph Andersen, and Bruce Buemmng for their activities on behalf of the Union. 9. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order, I shall recom- mend that- it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It has been found that Respondent interfered with, re- strained, and coerced a substantial number of its employ- ees in the exercise of their Section, 7 protected rights in violation of Section 8(a)(1) of the Act, by coercively inter- rogating applicants for employment and employees, sur- veilling employees' union activity, threatening to withdraw benefits, demote, transfer, or terminate employees and/or close its plant, soliciting employee grievances, promising a wage increase- to an employee, soliciting and encouraging employees to initiate and subscribe to a petition against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and threatening employees with discharge if they did not sign the petition against designating the UAW the collective- bargaining representative of the employees; that Respon- dent discriminatorily reassigned Pamela Miller to onerous work thereby causing her constructive discharge; that it discriminatorily discharged employees Laura Giefen, Allan Mann, Amos Raffeet, John Banner, Del Wilson, Garth Fletcher, Brian Holst, Robert Hardtke, Robert Rau, Thomas Whitney, Bruce Buennmg, and Ralph Andersen in violation of Section 8(a)(3) of the Act; and that all, of such unlawful conduct by the Respondent prevents the carrying out of a free election and has the likelihood of dissipating the Union's majority status. The recommended Order will provide that Respondent cease and desist from engaging in such unlawful conduct; that it bargain with the employees' designated collective-bargaming representative, the Inter- national Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America; and that it offer to Pamela Miller, Laura Giefen, Allan Mann, Amos Raf- feet, John Banner, Del Wilson, Garth Fletcher, Brian Holst, Robert Hardtke, Robert Rau, Thomas Whitney, Ralph Anderson, and Bruce Buenning reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, and make them whole for loss of earnings, if any, within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding and, pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend the following: THURNER HEAT TREATING CORP. 743 ORDER 16 Respondent, Thurner Heat Treating Corp., Wauwatosa, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Transferring, discharging, refusing to employ, or otherwise discriminating against employees in order to dis- courage membership in or support of International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), or any other labor or- ganization. (b) Threatening its employees with discharge or other reprisals if they become or remain union members or give assistance or support to "a union. (c) Threatening employees that the plant will be shut down or moved away, or that the work done in the plant will be moved away, if a union comes into the plant. (d) Threatening or enforcing more onerous conditions of employment to discourage union membership or activi- ties. (e) Threatening employees that the selection of a union as their bargaining representative will result in loss of bene- fits or other detriment. (f) Interrogating employees concerning their union membership or activities in a manner violative of Section 8(a)(1) of the Act. (g) Soliciting and encouraging employees to initiate, cir- culate, and subscribe to a petition discouraging employee support of the UAW, or any other labor organization, and threatening employees with discharge if they do not sub- scribe to such petition. (h) Promising or granting employee benefits in order to discourage union activities or membership. (i) Engaging in or creating the impression of surveil- lance of the union activities of its employees.- (j) Inducing, instructing, or encouraging employees to ascertain or report on the union activities, membership, or union adherence of other employees. (k) Threatening its employees that Respondent will not bargain with a union selected by its employees, or will not contract with such a union except upon unfavorable terms, or by any like or similar means indicating that the selection of a union by the employees as their bargaining representa- tive will be a futile act. (1) Soliciting employee grievances and telling employees they do not need a union in order to discourage union membership or activities. 16 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended, 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. (m) Requiring prospective employees to answer ques- tions on the employment applications as to their union membership. (n) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Offer to the employees whose names appear in the attached notice immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them, as set forth in that section of this Decision entitled "The Remedy." (b) Upon request, recognize and bargain with the above-named Union as the exclusive representative of all the employees in the bargaining unit described above and, if an understanding is reached, upon request embody such understanding in a signed agreement. (c) Mail a copy of the attached notice marked "Appen- dix" 11 to each employee found to be on the adjusted eligi- bility list, and to all current employees, and post copies thereof at its Wauwatosa, Wisconsin, plant. Copies of said notice, on forms provided bythe Regional Director for Region 30, shall be signed by a representative of Respon- dent, and additional copies shall be posted by Respondent and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Convene during working time, by departments and shifts, all its current employees, and a responsible official of the Respondent, at the departmental supervisor level or above, shall read to department employees the contents of the attached notice. (e) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. (f) All our employees are free to become or remain, or refrain from becoming or remaining, members of the Inter- national Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), or any other labor organization. IT IS FURTHER ORDERED that the consolidated complaint be dismissed insofar as it alleges violations of the Act not found herein. 17 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "