Electri-Flex Co.

ELECTRI-FLEX COMPANY 847 Electri-Flex Company and District No. 122, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Cases 13-CA-14739 and 13- CA-15036 March 17, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On October 28, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions, a brief in support thereof, and an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith. 1. We find no merit in the Respondent's exception to the Administrative Law Judge's statement that a major portion of the 8(a)(1) allegations is not specifi- cally denied. The statement accurately reflects the fact that the 8(a)(1) allegations attributed to Supervi- sors Bonner and Bongiovanni were undenied as the supervisors were not called to testify. We note that together Bonner and Bongiovanni were responsible for a significant and varied amount of 8(a)(1) conduct. Respondent also excepted to the findings with respect to a number of 8(a)( 1) statements made by Supervisors Garcia, Caban, Colosi, and Brilz on the grounds that the Administrative Law Judge based his findings solely on the absence of specific denials by these supervisors to the respective allegations. We I We hereby correct the following inadvertent findings in the Admimstra- tive Law Judge's Decision which in no way affect his Decision nor our adoption thereof: In the last sentence of par. 25 ofsec. II,C, the words "laid off" should be replaced by the word "discharged"; in the next-to-last sentence of par. 6 of sec. II,D,1 the dates "May 22 effective June 2, 1975," should be substituted for the date "August 22 "; in the last sentence of par. 3 of sec. II,D,2 the month "June" should be substituted for the month "July"; in par. 3 of sec. II,D,4 the Administrative Law Judge found that Rose was suspended for 1 day while the record shows, and we find, that he was merely reprimanded ; in the last sentence of par. 8 of sec. II,D,4, the name "Capasso" should be substituted for the name `Brilz" after the words "and that"; and in par 2 of sec. IV the word "discharged" should be inserted after the words "making whole all employee." 2 N L.R. B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404,408 (1962). 3 We agree with the Respondent that Marano Rivera and Ignacio Marrero did not testify that around August 5, 1975, Celestino "rino" Hernandez told them separately that they, Adrian Velez, and William Negron would be fired if the Union lost the election and if the Union won the 228 NLRB No. 79 do not agree. Viewing the Decision as a whole, it discloses that the Administrative Law Judge's find- ings on the excepted 8(a)(1) allegations were not based solely on the presence or absence of specific denials by Respondent's witnesses. The Decision initially credits the General Counsel's witnesses who testified to the 8(a)(1) allegations. There was, to be sure, certain testimony by Respondent's witnesses which conflicted with that of the General Counsel's witnesses. However, although the Administrative Law Judge did not make explicit credibility findings with respect to this conflicting testimony, it is clear from reading the Decision that the Administrative Law Judge implicitly resolved this conflict by accept- ing and relying on the testimony of the General Counsel's witnesses. Finally, we note that the Admin- istrative Law Judge's findings were also based on demeanor.2 In these circumstances, we conclude that there is no basis to overturn the Administrative Law Judge's evaluation of credibility based on demeanor and the record as a whole with respect to the Administrative Law Judge's findings of independent 8(a)(1) violations .3 2. We agree with the Administrative Law Judge that Respondent unilaterally instituted and enforced a written warning notice-discipline system without first bargaining with the Union in violation of Section 8(a)(5) and (1) of the Act. However, the Administra- tive Law Judge failed to find additionally that the warning notice system was implemented in violation of Section 8(a)(3), despite the fact that the amended complaint alleged that the system was instituted because Respondent's employees had engaged in union and/or protected concerted activity, because the 8(a)(5) finding afforded the same remedy as that which would have been appropriate pursuant to an 8(a)(3) finding. The Administrative Law Judge fur- ther stated that "it would be an exercise in futility and merely further prolong a long decision to go through the circumstances of all these warning notices." Contrary to the Administrative Law Judge, it is not election they would be transferred to different jobs or pushed out of the Company one-by-one. In fact, Velez credibly testified that Hernandez made the statements to him and that Velez then had a conference with Merrero and Rivera and told them what Hernandez had said . In agreement with the Administrative Law Judge, we fmd, based on the credited testimony of employee Adrian Velez, that such statements were made and that Respon- dent thereby violated Sec. 8(axl). The Respondent has excepted to certain other credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 . Nor do we find merit in Respondent's contention that because the Administrative Law Judge credited the General Counsel's witnesses, his credibility resolutions are erroneous or attended by bias or prejudice. N.LRB. v. Pittsburgh Steamship Company, 337 U.S. 656 (1949). Accordingly, we find no basis for disturbing the Administrative Law Judge's findings in this case. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to examine the merits of each individual warning notice in order to find an 8(a)(3) violation as the evidence herein is sufficient to show that Respon- dent instituted the written warning notice-discipline system because of employees' union activity. Thus, the Administrative Law Judge stated in his Decision that: There are examples which will be detailed further infra, where this written warning notice system was used by supervisors in an apparent effort to build cases against known union sym- pathizers and where this occurred it violated Section 8(a)(3) of the Act as well. There are other incidents which were alleged as being violative of Section 8(a)(3) and (1) where a warning to an employee might have been warranted because of what the employee did. But that is not the question. The question presented in this case is whether Respondent, by what it called its amplifi- cation of a rule and what General Counsel calls its implementation and enforcement of a brand new set of rules, violated Section 8(5), (3), and (1) of the Act. The fact that the Administrative Law Judge found certain uses of the warning notices to be illegally motivated supports a finding that the system was instituted with the same illegal motivation in viola- tion of Section 8(a)(3) of the Act. Prior to the institution of the system and before the employees' selection of the Union as their exclusive bargaining representative in an election, Respondent made threats to numerous employees concerning its inten- tions if the Union won the election. Thus, it warned that the Company could make it "rough" on union sympathizers and that employees could be "hurt" and "things would be different" if the Union came in. Almost immediately after the election, in which the employees overwhelmingly voted in the Union, Respondent initiated its written warning notice-disci- pline system. It did not inform employees, however, that they would be "uniformly" subject to this system. Respondent contends that the system was instituted to assure more accurate recordkeeping because of a potential "new experience in terms of grievances, arbitrations and perhaps even NLRB charges." However, inherent in Respondent's rationale for adopting the system is the idea that the system would not have been instituted but for the employees' initial action in seeking union representation. Indeed, had more accurate recordkeeping been Respondent's sole 4 Alberts, Inc, 213 NLRB 686 1974); Evans Products Company, 160 NLRB 1822 (1966) S The Administrative Law Judge did find that Respondent 's use of the tentatively agreed to probationary period was a subterfuge to allow it to lay objective, Respondent could have accomplished this objective without giving out warning notices to employees and creating a new system of employee discipline. Rather, Respondent's illegal motive is revealed in statements made to employees upon receipt of warning notices and particularly in the revealing, credited, and undenied testimony concern- ing the conversation between Supervisors Colosi and Bonner which was overheard by employee Keith Uelsmann. During this conversation, Colosi told Bonner that if the Company could get rid of the union people and replace them with employees who would support the Company, they could overthrow the Union. Bonner replied, "You can't go around and fire union people; you have to give them warning slips or the Union will just get them their jobs back." The fact that all warning notices to employees and consequent discipline of employees pursuant to the system after the election may not have been unwar- ranted does not negate Respondent's illegal motiva- tion in instituting the system. For if the motivation was illegal and retaliatory, the effect of the applica- tion of the system to employees, regardless of whether their conduct warranted any disciplinary action, could only have pointed out to employees that Respondent was attempting to discourage union adherence. Respondent further explained the warning slips by arguing that it was merely refining, adjusting, and improving the use of procedures previously em- ployed. We do not agree. The foregoing and the record as a whole show Respondent made it indelibly clear to the employees why the changes were being made. Accordingly, we conclude that the institution of the system additionally violated Section 8(a)(3) and (1) of the Act,4 and shall order Respondent to cease and desist from instituting and imposing a written warning notice-discipline system because of employees' union activity. 3. In his Decision, the Administrative Law Judge failed to find that Respondent unilaterally instituted two specific tentatively agreed to contract provisions; namely, a 60-day probationary periods and a call-in rule. Although the Administrative Law Judge labeled Respondent's action in instituting the 60-day proba- tionary period as unilateral action and made findings of fact with respect to the institution of the call-in rule, he failed to explicitly find that Respondent's unilateral action in instituting the two rules violated Section 8(a)(5) and (1) of the Act. We agree with the off Ignacio Marrero in violation of Sec. 8(a)(3) and (1) and its application to six other employees was a part of the subterfuge and thus violated the Sec. 7 rights of the six employees. ELECTRI-FLEX COMPANY 849 General Counsel that such conduct violated Section 8(a)(5) and (1) of the Act.6 We agree with the Administrative Law Judge that prior to the institution of the 60-day probationary period provision on February 5, 1976, Respondent and the Union agreed to a layoff and seniority list, without mention or consideration of the 60-day probationary period. With respect to the call-in rule, the evidence shows that it was instituted in about December 1975, and was thereafter applied to employees by means of the written warning notice- discipline system. Prior to the application of the tentatively agreed to call-in rule, and since the institution of the written warning notice-discipline system after the election, Respondent had applied a 9 a.m. call-in rule.? Respondent neither informed employees of the call-in rule prior to its application by means of the disciplinary system, nor of the 60-day probationary period prior to its application to Merre- ro and the other six employees. Although these provisions had been tentatively agreed to in negotiations between Respondent and the Union, negotiations had not been completed and the contract had not been submitted for ratification, a condition which Union Business Representative Haderly clearly made a condition precedent to final agreement on a contract. Further, there was never any agreement between the parties that particular contract provisions could be implemented nor was there any agreement between the parties that contract provisions would be implemented as soon as they were tentatively agreed upon.8 In these circumstances, we fmd that Respondent's institution of the 60-day probationary provision and the call-in provision without bargaining with the Union as to the institution of the provisions violated Section 8(a)(5) of the Act. Accordingly, we shall order Respondent to cease and desist from implementing the 60-day probationary provision and call-in provi- sion and to bargain on request about these matters. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Electri-Flex Company, Roselle, Illinois, its officers, agents, successors, and assigns, shall: s Although not specifically alleged in the complaint or amended com- plaint, the institution of these two tentatively agreed to contract provisions was fully litigated at the hearing and is in accord with the substance of the complaint. Further, the counsel for the General Counsel argued that the institution of the two tentatively agreed to contract provisions violated Sec. 8(aX5) and ( 1) in their brief to the Administrative Law Judge. Ref-Chem Company, 153 NLRB 488, fn. 16 (1965), Rocky Mountain Natural Gas Company, Inc, 140 NLRB 1191 1192 (1963), enfd. as modified 326 F.2d 949 (C.A. 10, 1964). 7 The 9 a.m rule required employees to call in in case of absence or 1. Cease and desist from: (a) Refusing to bargain collectively in violation of Section 8(a)(5) and (1) of the Act with District No. 122, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of its employees by unilaterally initiat- ing and imposing a warning and disciplinary proce- dure. (b) Instituting and imposing a system of written warning notices and discipline for our employees because of their union activities. (c) Unilaterally instituting a 60-day probationary rule and a call-in rule without notification to and bargaining with District No. 122, International Asso- ciation of Machinists and Aerospace Workers, AFL- CIO. (d) Transferring, discharging, laying off, or sus- pending employees because of their known or sus- pected union sentiments and activities or in further- ance of the unilaterally imposed warning and disci- plinary procedure. (e) Terminating employees because of their giving information to the National Labor Relations Board. (f) Interrogating employees about their own union sentiments and activities and those of other employ- ees. (g) Threatening employees with the loss of benefits or employment or with other reprisals if they support the Union. (h) Promising employees benefits for withdrawing support from the Union. (i) Threatening employees with reprisals for taking matters to the Board and promising benefits for withdrawing charges from the Board. (j) Creating an impression of surveillance of union activities of employees and maintaining lists of pro- and anti-union employees. (k) In any other matter violating the Section 7 rights of employees. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain on request about a written warning and disciplinary procedure, a 60-day probationary rule, and a call-in rule and if an agreement is reached embody such agreement in a written document. (b) Offer reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, and make whole all employees transferred, tardiness by 9 a.m. The rule was "uniformly" applied to employees after the election by means of the written warning notice-disciplinary system. Pursuant to the system, for a first offense , an employee would receive a verbal warning ; for a second offense, an employee would receive a written warning; for a third offense, an employee would receive a written warning and 3-day suspension ; and for a fourth offense, an employee would be discharged 8 With respect to the 60-day probationary period provision, in particular, the parties never agreed that it would be applied retroactively. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged, laid off, or suspended under the opera- tion of the unilaterally imposed warning and disci- plinary procedure including Adrian Velez, Martin Ibarra, Tony Capasso, Juan Martin, and Ignacio Marrero, and to those laid off under the unilaterally revised and discriminatorily imposed layoff list including Ignacio Marrero, Teodoro Feliciano, Gil- bert Espinosa, Juan Santiago, Luciano N. Lopez, Daniel V. Perez, and Sebastian Gomes and make them whole in accordance with the recommendations set forth in "The Remedy" in the Administrative Law Judge's Decision. (c) Remove from the personnel or other files of employees all disciplinary warning letters or memo- randa issued since August 7, 1975. (d) Post at its plant in Roselle , Illinois, copies in both English and Spanish of the attached notice marked "Appendix."9 Copies of said notice, in both English and Spanish, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the 8(axl) allegation concerning Feliciano and Luis Caban and the allegation concerning bypassing the Union and soliciting grievances and the 8(aX3) and (1) allegation concerning Hermenejildo Mendoza be dismissed. 9 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TIM NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing in which the company and the General Counsel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the Act. We have been ordered to post this notice and to abide by what we say in this notice. WE WILL NOT refuse to bargain collectively with District No. 122, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of our employees by unilaterally instituting and impos- ing warnings and disciplinary procedures for our employees. WE WILL NOT institute and impose a system of written warning notices and discipline for our employees because of their union activities. WE WILL NOT unilaterally institute a 60-day probationary rule and call-in rule without notifi- cation to and bargaining with District No. 122, International Association of Machinists and Aerospace Workers, AFL-CIO. WE WILL NOT transfer, discharge, lay off, or suspend employees because of their known or suspected union sentiments and activities or in furtherance of the unilaterally imposed warning and disciplinary procedure. WE WILL offer Adrian Velez, Martin Ibarra, Tony Capasso, Ignacio Marrero, Juan Martin, Teodoro Feliciano, Gilberto Espinosa, Juan San- tiago, Luciano N. Lopez, Daniel V. Perez, and Sebastian Gomes, immediate and full reinstate- ment to their former jobs or, if such jobs no longer exist, to substantially equivalent ones, and reim- burse them for the pay they lost as a result of our action. WE WILL remove from the personnel or other files of our employees all disciplinary warning notices or memoranda issued by us since August 7, 1975, and WE WILL make whole any employees suspended or terminated under such procedure. WE WILL NOT question employees about their union sentiments or activities or those of other employees. WE WILL NOT threaten employees with the loss of benefits or employment or with other reprisals if they support the Union. WE WILL NOT promise employees benefits for withdrawing support from the Union. WE WILL NOT threaten employees with reprisals for taking matters to the Board and promise benefits for withdrawing charges from the Board. WE WILL NOT create the impression of surveil- lance of union activities of employees and main- tain lists of pro- and anti-union employees. WE WILL NOT discharge employees for giving information to the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL on request bargain collectively with District No. 122, International Association of ELECTRI-FLEX COMPANY Machinists and Aerospace Workers, AFL-CIO, about a written warning and disciplinary proce- dure, a 60-day probationary rule, and a call-in rule, and, if an agreement is reached, embody such agreement in a written document. ELECTRI-FLEX COMPANY DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: District No. 122, International Association of Machinists and Aero- space Workers, AFL-CIO, herein called the Union or IAM, filed charges and amended charges in Cases 13-CA- 14739 and 13-CA-15036 between October 1, 1975, and March 8, 1976,1 against Electri-Flex Company, herein called Respondent or the Company, alleging that Respon- dent violated Section 8(a)(1), (3), and (5) of the Act.2 An order consolidating cases following issuance of complaints and amended complaints in these cases was issued by the Acting Regional Director for Region 13 on March 8. The complaint in Case 13--CA-14379 was thereafter amended prior to the hearing and during the hearing of this matter. In essence, the complaints allege that Respondent com- mitted numerous violations of Section 8(a)(1) by interrogat- ing and threatening employees and making promises of benefit and violated Section 8(a)(5), (3), and (1) by. instituting a new or different disciplinary system after the Union won a Board-conducted representation election and thereafter disciplined, discharged, or laid employees off to retaliate against them for choosing the Union as their collective-bargaining representative. Respondent's answers to, the complaints and amended complaints admitted the commerce and jurisdictional allegations, the supervisory status of its foremen and officers, and that the Union won the representation election on August 7, and was certified on August 15. Although originally admitting that Respondent had, around August 8, instituted a system of written warning notices and discipline and began to enforce it, Respondent later amended its answer to deny this allegation stating that the warning and disciplinary systems had been in effect prior to that time and had only been amplified and made more consistent around the time of the election . Respondent denied committing the extensive 8(a)(1) allegations but admitted the various discharges and transfers of employees, but denied that such were violative of the Act. It admitted issuing the written warning notices set forth in the com- plaint and thereafter amended into the complaint. Respon- dent denied that it had violated Section 8(aX3) and (5), but later conceded that some of its supervisors had violated Section 8(a)(1). Since a major portion of the 8(aXl) allegations is not specifically denied, the principal question in the case is Unless specifically stated otherwise, the events in this case took place from June 1975 through the early months of 1976. 851 whether Respondent's warning system and its effectuation and the several discharges, layoffs, and suspensions violat- ed the Act. On the basis of all the evidence, I have concluded that Respondent unilaterally established a system which really had not been in use, and thereby violated Section 8(aX5) and (1) of the Act. I have also found that the suspensions, discharges, and layoffs were, with one exception, violative of the Act. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing in this matter held in Chicago, Illinois, on April 13-16 and 20-23, and May 10-14, 1976. General Counsel and Respondent filed extensive careful briefs which have been fully considered. On the entire record in this case, including the exhibits and the testimony offered and on my evaluation of the reliability of the witnesses based on both the evidence and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE FINDINGS AND UNION STATUS Electri-Flex Company is an Illinois corporation engaged in manufacturing flexible electrical conduit, with its princi- pal office and place of business in Roselle, Illinois, where, during the past year, it purchased and received goods and materials directly from points outside the State of Illinois which were valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. U. THE UNFAIR LABOR PRACTICES A. Background and Facts The Company stated in a cover sheet on a document given to its employees, that it was "the second largest producer of flexible, liquid-tight conduit in the world" and that it had been in business for 20 years at its Roselle plant. The Company slits the raw steel into proper size and then produces its product by coiling narrow strips of galvanized steel into a flexible tube which is then covered by extruding polyvinyl chloride over the flexible tube. This conduit is used in the machine-tool construction and maintenance industries where there is a need for moisture-proof, water- proof, and oil-tight electrical cable. The Company is owned and operated by the Kinander family, with West Kinander, the president of the corpora- tion; his brother, Bruce, the vice president; and their father, the chairman of the board. In June 1975, Respondent had a total complement of approximately 70 employees with about three-fourths of them Spanish-speaking employees of Puerto Rican and Mexican extraction. Some of the employ- ees speak only Spanish and a number of the supervisors' principal language is Spanish, so that some of the employ- 2 An allegation of an 8(aX4) violation was added during the hearing in this matter. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees and the supervisors needed the services of an interpreter to testify. The supervisory setup in 1975 under the Kinanders consisted of Mario Colosi, the manufacturing manager with some five departments under him , and Larry Bonner as superintendent over the extruding and shipping depart- ments. Reporting to Bonner were Bob Bily, foreman in extruding, and Celestino "Tino" Hernandez, the foreman of the shipping department . Reporting to Colosi were Luis Caban, foreman of the square lock department; Greg "Poncho" Bongiovanni, foreman of the interlock depart- ment; Enrique Garcia, foreman of the slitting department; Ed Brilz, foreman of the toolroom; and Casmir "Casey" Stawinski, foreman of the maintenance department. In addition to the day shift, there was also a small night shift under Foreman Marvin Detrick. On its managerial staff the Company had Dean Guidi, its in-plant purchasing agent, who on occasion signed warning slips, and Plant Engineer Ducette. Under the foremen were a number of "setup" men who were charged with repairing and maintenance of the various pieces of machinery and they would sometimes fill in for absent foremen and instruct employees in the use of machines or safety equipment and sign warning slips. There were between 6 and 10 "setup men" prior to the August election and they had authority from Respondent to warn employees about any derelictions they observed. This practice was stopped after the election. In January 1976, Respondent offered Larry Bonner a job in the office where he would not have contact with the employees. Bruce Kinander testified that the job was offered to Bonner because the job happened to be open and because Bonner continued to have animosity toward the Union and the outcome of the election and continued to interrogate employees concerning the Union. Kinander stated he felt it was best to remove Bonner from direct supervision of the bargaining unit people and union members. At that point Colosi became plant superinten- dent in charge of all seven plant departments. It is noted that Bonner was not produced to testify by Respondent and there was no explanation offered for his nonproduction, and, consequently, there was no denial of the numerous allegations of Section 8(axl) attributed to him. Similarly, Foreman Greg Bongiovanni did not testify for Respondent and there was no explanation for his nonproduction as a witness and the allegations of Section 8(axl) concerning Bongiovanni are therefore undenied. When some employee sentiment concerning organizing a union began in June 1975, employees Ignacio Marrero and Mariano Rivera went to the offices of the Union to discuss organizing a union at Respondent. Business Representative Haderly talked to them and contacted Union Representa- tive Parker who assisted them in organizing and set up a second meeting for Friday, June 13. At this meeting Parker met with Rivera, Marrero, and employee Teofilo Lopez and discussed what was necessary to organize a union and explained about procedures of filling out union authoriza- tion cards. Rivera, Marrero, and Lopez signed cards and were given cards to distribute to other employees. They said the employees were fearful of losing their jobs and would not admit organizing a union if they were asked, although Parker advised them that would be their best defense. Parker then advised them to tell the employees to deny any knowledge of the Union if they were asked by Respondent. The Union held a meeting on June 21 which some 40 or more Spanish-speaking employees attended. After listening to speeches concerning the Union, a number of the employees signed authorization cards. On June 26, the Union filed a representation petition with the Regional Board Office and, on July 9, a Stipulation for Consent Election was signed setting the election for August 7. The Union won the election 44-11 with the certification issuing on August 15, and the first negotiation meeting taking place on September 26. As of the time of the hearing in this matter the parties had not agreed on a contract. B. The 8(a)(1) Violations It was noted above that neither Larry Bonner nor Greg Bongiovanni appeared at the hearing or testified and as a consequence the 8(axl) allegations against them are undenied and, there appearing to be no reason to discredit those who testified that these statements were made, I fmd that they occurred as they are listed below. I find that by Supervisors Bongiovanni and Bonner making these state- ments Respondent violated Section 8(ax 1) of the Act. 1. Around August 6, Bongiovanni interrogated Rivera by asking him who was going to vote for the Union. 2. Around July 31, Bongiovanni told Eleazor Hernan- dez that the Union was no good, would not bring him any benefits, that anyone who signed a union card would be fired, and that if he knew that Hernandez signed a card he would fire him. 3. Around August 7, Bongiovanni told Wilfredo Rosa that if the Union won things would be harder and, even though Rosa could not vote, he would have to be with the Union. 4. Around August 6, Bongiovanni told Rivera that he knew who was voting for the Union. 5. Around August 11, Bongiovanni told Daniel Kwas- niewski that things were going to get tough now that the Union had been voted in. 6. Larry Bonner on two occasions, at the end of June and the beginning of July, asked James Carlson if he had heard anything about the Union. 7. Around July 7, Larry Bonner, with Mario Colosi present, asked Nelson Acevedo if he was talking about the Union. Acevedo denied that he had been doing so. 8. Around July 10, Bonner, with Colosi present, asked Adrian Velez if he knew something about the Union. 9. Around July 13, Bonner asked Velez if he had signed a union card and who else had signed cards. 10. Around July 7, Bonner asked Hermanjildo Mendo- za if he knew anything about the Union. 11. Around July 24, Bonner asked Mendoza if he was still against the Union and whether Carlson had given Mendoza a union card. 12. Around August 8, Bonner asked Mendoza why he had voted for the Union. 13. Around July 17, Bonner asked Perez if he liked the Union. 14. Around July 17, Bonner asked Negron Acevedo if he was in the Union. ELECTRI-FLEX COMPANY 853 15. On four or five occasions in July, Bonner asked Dick Rose if he were interested in the Union and if he knew who was involved or who was trying to bring in the Union. 16. Around August 8, Bonner asked Rose if he was part of the Union. 17. Around July 31, Bonner asked William Negron and again, around August 14, asked Negron and Marrero who had brought the Union into the plant. 18. On three or four occasions in July, Bonner asked Teofilo Lopez how he would vote and, around August 14, asked him how he had voted. 19. Around July 17, Bonner asked Rivera how he was doing with the Union. 20. Around August 21, Bonner asked Rivera who had voted for the Union. 21. Twice on September 4, Bonner asked Marrero, who was with William Negron, who brought in the Union. 22. Around July 17, Bonner told Rivera that the Union would hurt the employees and they would lose their benefits. 23. Around August 3 and 7, Bonner told Velez it would be better for him to vote for the Company. 24. Around August 3, Bonner told Velez that he had a list of how the employees would vote. 25. Around August 28, Bonner told Nelson Acevedo that he knew that he was not with the Company. 26. On August 8, Bonner told Rivera that there were going to be changes made because the Union had won the election. 27. Around August 12, Bonner told Velez that he did not worry about the Union because the Company had a way to resolve the problem. (See 32.(f), infra.) 28. On August 8, Bonner told Mendoza that Colosi would be worse than he had been because the Union had won the election. 29. On August 8, Bonner told Rose that things were going to be different now that the Union had been voted in. 30. On August 8, Bonner told Rose that if he knew who voted for the Union he would take good care of them and put them in management. 31. Foreman Enrique Garcia testified that Martin Ibarra on one occasion asked his opinion of the Union but that he did not give it. He did not specifically deny Ibarra's credited testimony that, around July 31, he had asked Ibarra whether Ibarra was attending union meetings. Garcia did not recall the occasion testified to by Juan Munoz that during July Garcia had told Munoz that it would not be good for him to vote for the Union because the Union would not give them raises until after a year had gone by and the men were working hard. There being no denial of these statements, I find that Respondent through Garcia violated Section 8(a)(1) by interrogating Ibarra as to whether he was attending union meetings and threatened Munoz by stating that it would not be good for him to vote for the Union because he would not get raises for a long period of time. 32. Foreman Luis Caban testified that he did not recall any conversations he had concerning the Union before the election. Caban did not deny having any such conversa- tions. There being no specific denial of the testimony concerning statements made by Caban and there being no reason to doubt the credibility of the witnesses testifying as to what he said, I fmd that, by the following statements and questions of Caban, Respondent violated Section 8(a)(1) of the Act: (a) Around the end of June, Caban asked Juan Munoz if he attended any union meetings and which other employees were attending those meetings ; (b) around July 17, Caban told William Negron that anyone who signed a union card would be fired one by one; (c) around July 24, Caban told Teofilo Lopez that the Company would call the Immigration & Naturalization Service because some of the employees who were Mexican citizens were in favor of the Union; (d) around July 24, Caban told Munoz that if the Company lost the election Marrero and Velez would be the first to go and then the others would follow; (e) around July 31, Caban told Juan Martin that if the Union lost the election all of them would be fired; (f) around August 6, Caban told Adrian Velez that if the Union lost the election everyone would be fired, that the employees would be transferred or pushed out one by one, and that the Company had a good way to resolve the union problem; and (g) around the beginning of July, Caban told Munoz that he knew Munoz and Ibarra attended union meetings because he had been told so by another employee. 33. Caban did not deny that around August 11 he told Velez not to worry about the election results because they ,had a good way to resolve the problem. This threat of retaliation for union support violates Section 8(a)(l) of the Act and I so find and conclude. (See 32.(f), supra.) 34. Caban did not deny, although talking around the point, that around August 21 he told William Negron that the Company was going to do something to put the Union out. This threat against the employees' bargaining represen- tative violates Section 8(a)(1) of the Act and I so find and conclude. 35. I do not fmd an 8(a)(1) violation in regard to Caban's supposed statement to Aurecilio Feliciano, be- cause the complaint allegation places this event in October, some 2 months after the election and, if the remarks occurred as Feliciano testified, it would certainly have had to have been some time prior to the election, some 2 months earlier. This allegation is therefore dismissed. 36. Mario Colosi did not deny the following items of interrogation and there being no reason to doubt the credibility of the witnesses who testified to them, I find that Respondent violated Section 8(axl) of the Act by the following remarks of Colosi: (a) In early July, Colosi asked James Carlson if he had heard about the Union; (b) around July 13, Colosi asked Adrian Velez if it was true that he had signed a union card and who else had signed union cards; (c) around July 30, with Bonner present, Colosi asked Flores if he knew anything about the Union; (d) on four or five occasions in July, Colosi asked Dick Rose if he were interested in the Union and who was trying to bring the Union in; and (e) around August 8, Colosi asked Rose if he knew who the I 1 people were who voted against the Union and if he were one of them. 37. Colosi did not deny that around July 17 he told Rivera that the Union would hurt the employees, and around July 24 told Velez that the Union was no good, that the employees would lose their profit sharing, and that he should tell the other employees not to vote for the Union 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he (Colosi) was the boss and could not do so. I find that these statements are threats violative of Section 8(axl) and that by Colosi making these undenied statements Respondent violated Section 8(axl) of the Act. 38. Dick Rose testified that on four or five occasions in July Colosi told him that things would change if the Union came in and the employees would lose all of their benefits. Colosi denied making these statements to Rose . However, these statements are of the same genre that Colosi made to Lopez and that other supervisors made to other employees and are part of a pattern of violative remarks . As will be detailed further, Colosi was not completely truthful in his testimony and I do not believe his denial of Rose's testimony. Therefore, I find that Respondent violated Section 8(a)(1) by these threats of changes made to Rose by Colosi. 39. Mariano Rivera testified that in February 1976, he was given a 3-day layoff and protested to Colosi stating he should be paid for those 3 days. Colosi said he would not do so. When Rivera insisted, Colosi said, "Well, Mario, I'm sorry, you can do whatever you want. I'm your friend but for your own good, you had better not take it to the labor board." Colosi testified that he never said anything to Rivera about the labor board. As stated above, and as will be shown further below, Colosi was not a completely credible witness . Rivera was a union leader and known as such by Respondent. This statement is in line with other statements by Colosi and other Respondent supervisors and I find no reason not to credit Rivera. I therefore find that the statement was made and that it constitutes a violation of Section 8(axl) by Respondent. Similar statements were made to Velez and Rosa and the testimony concerning them will be considered with the testimony concerning Velez' transfer and Rosa's layoff, infra 40. James Carlson, who had been employed in the toolroom, testified that toward the end of June and again in early and mid-July, Supervisor Ed Brilz asked if he had heard about the Union, whether he knew who was bringing it in, how he would vote, and whether he went to union meetings. Brilz did not specifically deny asking Carlson these questions, but said in answer to a general question that he never asked the employees who was responsible for bringing in the Union. This reply is not a denial of Carlson's testimony. There appearing no reason to discredit Carlson and his testimony being undenied , I find and conclude that Respondent through Brilz' questions to Carlson violated Section 8(a)(l) of the Act. 41. Daniel Kwasniewski testified that around July 7 and 14 Supervisor Brilz asked how he felt about the Union. There is no denial of this interrogation, and there being no reason to discredit Kwasniewski, I find that Respondent through Brilz' questioning of Kwasniewski violated Section 8(axl) of the Act. 42. Dick Rose testified that in mid-July Supervisor Brilz asked him who was bringing in the Union , who was involved in the Union and what Rose thought about the Union. There is no specific denial of Rose's testimony but only Brilz' general answer that he never asked who was responsible for bringing in the Union and this at most would cover only one part of Rose's testimony . As may be seen, supra, this same type of question was being asked by numerous other supervisors so that there is a pattern of interrogation by Respondent. Further, the related questions are not denied by Brilz and finding no reason to discredit Rose, I conclude and find that Brilz did ask the questions as Rose testified and that thereby Respondent violated Section 8(a)(1) of the Act. 43. Capasso testified that around July 10 Supervisor Brilz asked if he had heard about the Union and what he thought about it, and around July 17 Brilz told Capasso that he wanted to know who favored the Union and a few days later asked Capasso if Carlson and Rose were for the Union. Brilz' general denials do not touch this testimony and since the testimony is undenied and I have no reason to discredit Capasso that these events occurred as he testified, I conclude and find that Respondent through Brilz violated Section 8(axl) of the Act by these inquiries. 44. Keith Uelsmann testified that beginning in mid-July and running up to the election, Brilz asked him how he felt about the Union, if his feelings had changed about the Union, and if he had decided how to vote. Brilz testified that he and Uelsmann talked about the Union and that Uelsmann asked him questions and he told Uelsmann to make up his own mind. Brilz' testimony is not a denial of Uelsmann's testimony and it being undenied and there appearing no reason to discredit Uelsmann, I conclude and find that Respondent through Brilz violated Section 8(a)(1) of the Act by his interrogations of Uelsmann. 45. James Carlson testified that around July 10 Brilz told him he would go by the book and make it rough on those trying to bring in the Union, and a few days later said that the Union would hurt the employees at the Company. There is no specific denial of these statements and I conclude and find that Respondent through Brilz violated the Act by threatening to make things harder on the union supporters and by telling Carlson that the Union would hurt the employees if it was installed at the Company. 46. Dick Rose testified that in a conversation where Brilz asked who was involved in the Union that Brilz also said he would like to make an example of the employees who were trying to bring the Union in. There is no specific denial of this testimony and finding no reason to discredit Rose I conclude and find that Respondent by Brilz violated Section 8(a)(l) of the Act by inquiring who the prounion employees were and by threatening to make an example of them. 47. Dick Rose testified that around July 31 Brilz told him that if the Union came in things would be different and the employees would lose all of their fringe benefits. Although Brilz stated that he never threatened that employ- ees would lose their benefits if they voted for the Union, there is no specific denial of Rose's testimony. Here again the statements appear to be part of a pattern used by many of Respondent's supervisors and I conclude and find that the statements were made by Brilz and that thereby Respondent violated Section 8(a)(1) of the Act. 48. Keith Uelsmann testified that around mid-July Supervisor Brilz told him that if the Union came in, profit sharing would go down the drain, working conditions would be tightened up, there would be no more overtime, and other changes would take place. Again around the end ELECTRI-FLEX COMPANY of July, Brilz told him if the Union came in there would be changes in the break system and just prior to the election Brilz said there would be changes in the employer-employ- ee relationship and that employees would be watched. There is no specific denial of this testimony by Brilz and again it is similar to that indulged in by most of Respon- dent's supervisors. I conclude and fmd that it occurred as Uelsmann testified and that Respondent thereby violated Section 8(a)(1) of the Act. 49. Capasso testified that around the end of July, Brilz told him that he had a book of rules and regulations and would make things rough on the union supporters. There is no specific denial of this testimony and I conclude it occurred as Capasso stated and that Respondent thereby violated Section 8(a)(1) of the Act. 50. James Carlson testified that near the beginning of July Brilz told him that he had a list of the people who were bringing in the Union. There is no specific denial of this testimony and I conclude and fmd that it occurred and that thereby Respondent violated Section 8(a)(1) by creating an impression that it knew who the union supporters were and was surveilling their activities and maintaining a list of prounion employees. 51. Rose testified that on August 8, the day after the election, Brilz said there would be changes in the hours and the breaktimes and since the Union had won the election it would be a different ball game and they were on opposite sides. Rose told Brilz that Bruce Kinander had told him the day before that there would be no changes until the Company saw what the Union wanted. Brilz later stated there would be no changes. Keith Uelsmann testified that on that same date Brilz told him the very same things. Respondent asked Brilz whether on the day after the election he had talked to Uelsmann about the results of the election and Brilz said no. This is not a denial of the testimony of Uelsmann or Rose. I conclude that there being no reason to discredit Uelsmann and Rose in this regard, that Brilz made the statements , and that thereby Respon- dent violated Section 8(a)(1) of the Act by threatening reprisals to the employees for their support of the Union. Further corroborating this type of 8(a)(1) conduct was the testimony of Marrero who was not at work on August 8 but went in to pick up his paycheck and spoke with Juan Martin and Martin Ibarra who asked him what had happened saying that Supervisors Bongiovanni and Caban would not let the employees go to the bathroom or the cafeteria except at break. When they complained about it, both Caban and Bongiovanni said they could not go and the Union agreed with them that this was the new rule. Marrero told the employees that there was no contract and that nothing like that should be occurring. 52. Capaso testified that around August 7, Brilz told him that the Company would take care of those who voted for the Company by placing them in management where they would not be hurt. There is no denial of this testimony and I conclude and find that Respondent violated Section 8(a)(l) of the Act by Brilz' statement that antiunion supporters would be rewarded. 53. Adrian Velez, Mariano Rivera, and Ignacio Marre- ro each testified that around August 5, Foreman Celestino "Tino" Hernandez told them separately that the three of 855 them and William Negron would be fired if the Union lost the election and if the Union won the election they would be transferred to different jobs or pushed out of the Company one by one. Velez also testified that around August 11, "Tino" Hernandez told him the Company did not worry about losing the election because it would make changes and push the people out one by one. This latter statement was just about the same as that made by Larry Bonner to Mariano Rivera right after the election and similar to other Bonner statements . It is noted that Hernandez was then under Bonner and there was no denial that Bonner made such statements. "Tiro" Hernandez testified that he never started a conversation with any of his employees concerning the Union and only answered questions. He stated that he had many conversations with Velez about work and Velez at one time asked him his opinion about the Union and that he replied it was no good. I do not credit Hernandez' denials of the above testimony and find and conclude that by those statements Respondent violated Section 8(a)(1) of the Act. C. The Warning Notices Respondent, in its answer and first amended answer to the complaint in Case 13-CA-14739, admitted that it commenced the use of warning notices around August 8, 1975, but stated that the warning system was merely an improvement over what it had done in the past. In its second amended answer to this complaint, Respondent for the first time denied that it had commenced use of the warning notices immediately after the election . Respondent thereafter, and in its brief, took the position that for years it had used written warning notices in enforcement of its rules and regulations but that verbal warnings had been heavily used and its discipline system had been inconsistent. Respondent's counsel asserted that after the filing of the representation petition, it surveyed Respondent's disciplin- ary procedures and advised Respondent to use a consistent disciplinary system of a progressive nature beginning with verbal warnings and going to written warnings, suspen- sions, and finally discharges for appropriate situations. Company Vice President Bruce Kinander said he passed such instructions on to the supervisors and believed he did that about a month before the election. Mario Colosi, who supervised most of the employees through other supervi- sors, was evasive in his answers as to when any such more consistent program was initiated, and said that it may have been before the election and may have been afterwards. As to when he had a meeting for the foremen to start this uniform procedure, Colosi said that it may have been before and may have been after the election. Supervisor Brilz was much more definite. He stated it was after the election that Colosi told all the supervisors that the Company and the Company's lawyers had said that there would have to be better bookkeeping in the disciplinary area and they would have to give out written warning notices whereas before they had been giving employees verbal warnings. In seeking to demonstrate Respondent was merely enlarging the number of written warning notices given and that this was not a new or different disciplinary system, 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent introduced its exhibits 9(a) through (n), which according to counsel were being offered as "an illustration of prior use of a particular form here at issue for a variety of reasons." Asked whether the word illustration meant that the proffered exhibits were merely a sampling of the written warning forms in prior use , counsel replied that from a search of Respondent's files that these were all the written warning slips that were on file as having been issued from 1972 up to the August 7 election. Of the 14 warning slips one was a duplicate of another reducing the number to 13. Of the 13 warnings issued 9 were to notify employees of safety violations with 4 of these 9 issued by Supervisor Garcia in a 1-1/2-month period to one employee for stopping a machine with his foot. Three of the safety violation warning forms were issued by a supervisor no longer with the Company, Earl Shields, for employees not using safety glasses. One of the nine safety warning forms was issued by Bongiovanni to an employee in February 1975 for not wearing safety gloves and the remaining safety warning was issued in 1974 for nonuse of safety glasses. Of the remaining four written warning slips , two were issued in 1973 by Larry Bonner. One was for "poor attitude" and the other gave an employee a day off for repeated lateness. The third was issued by Mario Colosi in December 1974 because an employee had not been careful and the last one was issued in February 1975, by Bongio- vanni giving an employee 3 days off for not obeying his foreman. Most of the warning notices regarding safety were issued between March and May 1974. The issuance of written warning notices after the election commenced almost immediately and grew swiftly in vol- ume. Beginning with a written warning notice to Martin Ibarra on August 11, 1975, and running through March 1976, Respondent issued 147 written warning notices. One of the earlier written warnings was given by Foreman Ed Brilz on August 11, to Keith Uelsmann, who testified that Brilz said he had to give him the ticket because he did not have his safety shoes on and the Company had to give these out now because they had to protect themselves and watch themselves because there was a union there now. Prior to giving Uelsmann the ticket, Brilz mentioned to Uelsmann that he did not have this safety shoes on and Uelsmann replied that he had forgotten them and would go home at lunchtime and get them. Brilz returned before noon and gave Uelsmann the written warning. Uelsmann testified without contradiction that there had been other times prior to the election when he had not worn safety shoes; the supervisors had known about it and had not said or done anything about it. Uelsmann further testified that around October 1, while in the cafeteria with Larry Bonner and Mario Colosi, he heard Colosi tell Bonner that, if they could get rid of the union people and get enough people in there that were for the Company, they would overthrow the Union. Bonner replied that you just could not go around firing the union people, you had to give them warning slips or the Union would get them their jobs back. Again this testimony was undenied. There are a number of other instances where employees were given warning tickets and protested that they had never received anything like that before and the supervisor would remark that now that the Union was in it was necessary to give them these written warnings. Ignacio Marrero said that, after looking for his supervisor and not fording him, he left his partner in charge of his machine and went to Bruce Kinander's office to speak to him. Kinander not being there, he returned to his machine, being gone only a couple of minutes. When he got back his supervisor gave him a written warning ticket for having left his job unattended. Marrero complained that he had left the job before and never received a warning and the supervisor replied that this was the way it would be. After receiving two warning notices Marrero, one of the three elected union committeemen (William Negron and Dick Rose), called Union Business Representative Haderly and said he was afraid the Company was setting him up to discharge him. Haderly called Bruce Kinander and a meeting was set for September 18. Haderly, Union Agent Menendez, and Marrero met Kinander and raised ques- tions about the warning notices and in particular those given to Marrero. According to Haderly and Menendez, Kinander told them that the warning notices were to be used only to straighten out the employees and when Haderly asked if they were to be used for any disciplinary or discharge purposes Kinander said no. At that point Haderly agreed that if all they would be used for was to straighten out employees he had no objections to them. Kinander testified that he explained to Haderly that the warning notices were justified and it was merely a continua- tion of the warning system they had used before and that they were not singling out Marrero. He said that he told Haderly the warnings were given uniformly to employees for safety infractions and where disobedience or tardiness occurred and they were not meant to harass people. Kinander said he explained that the Company had handled things in the past with verbal warnings and then gave written warnings after several verbal warnings and that in the instances involved they were either of a repetitive nature or of such a degree that necessitated a written warning notice. Kinander claimed that in effect he was telling Haderly Respondent had a progressive disciplinary system and that Haderly agreed that progressive discipline was the proper approach and that they should continue it. Kinander did admit he told Haderly the tickets were to call the attention of the employees to their deficiencies but denied telling Haderly that they were not to be used for disciplinary purposes. In regard to what occurred at this meeting, I have to credit Haderly and Menendez that Kinander said these warning slips were not to be used for disciplinary purposes. Haderly here was concerned because one of his three committeemen had received a number of warning notices. If Haderly had understood or Kinander had said that these warning notices were steps in a disciplinary system leading to discharge, Haderly would have been upset and inquiring as to the steps and what Respondent planned to do. Certainly Haderly would have protested these slips being issued to a union committeeman where the offenses, if any, seemed to be trivial and where the warning notices had not been given in this manner in the past. Thereafter when warning notices continued and suspensions and other discipline were imposed as a part of the issuance of the ELECTRI-FLEX COMPANY 857 warning notices, the Union did not acquiesce in this use of the warning notices and protested such use by their statements to the Company and by filing charges concern- ing them with the Board. There was no agreement between the Company and the Union on what the Company called its progressive disci- plinary system. In fact during negotiation sessions when the term progressive discipline was mentioned, Haderly asked Company Attorney Burlage for a definition. When Burlage replied that by that he meant a system of verbal then written warnings with suspensions and finally discharge with arbitrators decisions as the yardstick, Haderly replied that was too ambiguous and that to actually install a progressive disciplinary system they would have to negoti- ate and come to an agreement on it. The only item in this line which was negotiated to a tentative agreement con- cerned employees calling in. Respondent insisted that it had a rule which required employees to call by 9 a.m. if they were going to be absent. While such appears in the English-language version of Respondent's rules, the Spanish-language version gives no time limit but merely says employees should call in. This is why there were protests by the Spanish-speaking employees concerning warnings to them about not calling by 9 a.m. The Union and the Company did reach tentative agree- ment on employees calling in within 4 hours of their starting time and if they did not do so then for the first infraction they were warned with more serious discipline to be meted out for further infractions of this rule over a set period of time. As a part of the contract this agreement was tentative to ratification of the whole agreement. No announcement of this tentative agreement was made to the employees either by the Union or the Company or that such a rule was in effect. Apparently from the testimony of supervisors the Company instructed them to go by such a rule even though there was no final agreement. There are examples which will be detailed further, infra, where this written warning notice system was used by supervisors in an apparent effort to build cases against known union sympathizers and where this occurred it violated Section 8(a)(3) of the Act as well. There are other incidents which were alleged as being violative of Section 8(aX3) and (1) where a warning to an employee might have been warranted because of what the employee did. But that is not the question. The question presented in this case is whether Respondent by what it called its amplification of a rule, and what General Counsel calls the implementation and enforcement of a brand new set of rules, violated Section 8(5), (3), and (1) of the Act. It seems clear from the paucity of the written warning notices prior to the union election and the large number of written warning notices issued in the 6 or 7 months thereafter, that Respondent was not implementing an old disciplinary system but was structuring a brand new system which it put in both to protect itself, where it meted out discipline, and to harass some of the union supporters. While the latter may not have been intended by Kinander, this was certainly the message that came down through Colosi and Bonner as was amply illustrated by Colosi and Bonner's conversation about the use of warning notices cited above. Certainly there were no negotiations with the Union concerning the advent of this written warning notice- disciplinary system and Respondent does not claim that there was. Viewed as it must be from the facts , this was a new system that was initiated by Respondent , effective when the Union won the election on August 8. Certainly the Union did not agree with the institution of this system as it continued to protest it both to the Company and by filing charges alleging it as violative of the Act. Considering first the 8(aX5) and (1) aspect of the allegations, it seems clear that under Board law Respondent violated Section 8(a)(5) and (1) by unilaterally beginning and imposing this disciplinary system at a time when the Union had just become the collective-bargaining agent of Respondent's employees. In Murphy Diesel Company, 184 NLRB 757 (1970), the Board found that the posting of plant rules with disciplinary penalties attached clearly affected conditions of employment and were mandatory subjects of collective bargaining. Although there had been some plant rules before they had been loose and lax and this tightening up of the system amounted to a new system of rules. Although there the company claimed that the union had waived its rights in regard to the rules where there had been prior contracts, the Board found that there was no waiver and that respondent made "material, substantial, and significant changes" in its rules and practices which affected all of its employees and that doing so without bargaining with the union violated Section 8(a)(5) and (1) of the Act. The Board reiterated this rule in Amoco Chemicals Corporation, 211 NLRB 618 (1974). Amoco is closer to the instant case because there respondent began issuing written disciplinary letters to its employees immediately following the election where it had more or less abandoned such a system a year previously. The company claimed it was merely resuming a prior irregularly enforced policy. The Board held that implementing such a system where it had been in disuse for a period of time, and where only a few such notices had previously been issued, amounted to an innovation and constituted a significant change in the employees' working conditions and that beginning such a system without bargaining with the union constituted a violation of Section 8(aX5) and (1) of the Act. The Board's decision was upheld by the United States Court of Appeals for the fifth Circuit, 529 F.2d 427 (1976). Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1977), did not involve a "material, substantial, and a significant change" and is therefore inapposite. On the basis of the evidence herein and on the basis of the Board's findings in similar circumstances, I conclude and find that Respondent violated Section 8(aX5) and (1) of the Act by instituting and enforcing its disciplinary system on and after August 8, 1975, and I will recommend that such system be rescinded and all written warning notices issued thereunder and any discipline meted out pursuant thereto, be rescinded and any employees affected thereby be made whole by Respondent. This finding has particular reference to employee Wilfre- do Rosa. Rosa was given a series of warning notices regarding his productivity. After an economic layoff when he returned he was placed in a different department and 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told that he would be given a certain amount of time to pick up on the work. He was given less than that amount and received additional warning notices . The night supervisor, Detrick, said that he had fired a number of other people and that there had not been one the Union could bring back because he had fired them for a good reason. Very shortly after that Rosa was laid off. After being discharged he returned to the plant to pick up his paycheck, saw Bongiovanni and Colosi, and asked if they could do him a favor . He was seeking another job and wanted them to back up his statement that he had quit. Colosi asked since Rosa wanted a favor what sort of a favor could he return and mentioned that Rosa had a case in court (a charge before the NLRB) and if he took the case out of court he could do a favor for him because he was really fired. Rosa replied that he really was not fired properly because he had only been given 3-1/2 days to work on the machine and it was a completely different machine. Colosi disputed that saying the only thing different was the way the coil came out of the drum. Again Rosa complained that he did not have time enough to learn to run the machine properly and had been improperly discharged. Colosi replied that he knew how to run the machine. Colosi finally said that to show Rosa that he was not a bad guy if somebody called about Rosa he would tell them that Rosa was laid off and was a good worker. Rosa had previously been a satisfactory worker as Bongiovanni told him. Here, he was given a short time to pick up on work after he had been laid off for more than a month and any supposed lack of production was not documented by Respondent's records. Here, Respondent relied on its previous warnings to Rosa to build a case against him and to lay him off as Night Supervisor Detrick had stated. The treatment of Ignacio Marrero provides another example of the use of the warning notices . As noted above, Marrero had received several warning notices by early September and felt that Respondent sought to get rid of him. This led to Haderly's meeting with Kinander about the notices. In late September, Marrero had the flu and did not report for work one morning. He was awakened by a telephone call from a fellow employee, Mike Messina, who said he had not called in and had later been told he was discharged for failure to call in. Marrero, as the union committeeman, called Supervisor Bily and started to talk to him about Messina and Bily said Messina was fired and since Marrero did not call in he was fired too. Marrero protested that he did not know of any 9 a.m. call-in rule, had the flu, and had fallen asleep finally early in the morning and had not been able to get up and telephone the Company that he was going to be out. Marrero then contacted Union Business Agent Haderly who called Bruce Kinander and discussed the situation with him. Kinander said he would check into it and called Haderly back and Haderly relayed the message to Marrero that since Messina had a good record they were only going to suspend him for 1 day but that since Marrero did not have a good record he was receiving a 3-day suspension. The "record" refers to the written warning notices the individuals had received. General Counsel adduced evidence concerning a number of the written warnings contending that they all showed animus to the Union and as such violated Section 8(aX3) of the Act as well. Certainly some of the examples did so demonstrate. Yet other examples were ambiguous or indicated that possibly the employees' actions were not proper- I conclude that since I am ordering the entire system rescinded because its innovation and enforcement violated Section 8(a)(5) and (1) of the Act and since all employees who received notices will have them physically removed from their personnel files and will be made whole if they were suspended, laid off, or discharged as a result of the notices, that it would be an exercise in futility and merely further prolong a long decision to go through the circum- stances of all these warning notices . The remedy here is sufficient to answer any remaining questions. D. The Individual 8(a)(3) Allegations 1. Martin Ibarra started with Respondent in March 1974 and by October of that year had been promoted to a "setup man" and worked at that job in several departments, starting on the night shift and then moving to the day shift. As a "setup man" he did some of the paper work, writing down production reports and turning in such . In August 1975 he was working under Supervisor Luis Caban as a setup man. On the morning of the election he and several other employees and several union agents were outside Respondent's building distributing handbills to the people coming to work. According to the Union, the distributors arrived outside the plant around 6:30 a.m., and remained there until the employees had to go in to work. Ibarra testified that as he was distributing handbills Luis Caban passed by some 4 or 5 feet away but nothing was said between them. When Ibarra went in to work that morning he gathered his handtools and was near the timeclock waiting for Caban to tell him where to start work. Caban came up to him and told him to put away his tools because he would not be working any more as a setup man because he was for the Union, as Mario Colosi had told Caban. Ibarra was transferred to another department as a machine operator and was not permitted to continue as a setup man even though he had been one for 8 months and had been complimented by Colosi on being a good mechanic. While Ibarra suffered no immediate loss of pay as a direct result of that transfer the pay of setup men is usually higher than that of machine operators and if he had continued as a setup man his pay probably would have increased. Immediately after transferring to, the- other department Jessie Garcia who was the setup man , came by and gave him a warning notice for not wearing safety gloves and said that Mario Colosi had seen Ibarra without the gloves and told him (Garcia) that Ibarra was for the Union . Ibarra protested the warning notice stating that they had not given him safety gloves to wear. The warning notice was not rescinded but he was given gloves shortly thereafter. On the following day, after the Union had won the election, Luis Caban told him that by order of the Union all employees would now have to ask the foreman for permission if they wanted to go to the washroom or to the cafeteria. Three days later Ibarra was called to the office ELECTRI-FLEX COMPANY 859 where Mario Colosi gave him a written warning notice which had written on it "second warning for this man" and told him that someone had told Colosi that Ibarra was not using the clutch on the machine . Ibarra denied it saying that he was using the clutch. About 2 weeks later Garcia gave him another warning notice stating that he had a bad attitude and was making poor production and told him that Colosi had said Ibarra was not making production. Ibarra had never been told about production prior to that time. About a week later Ibarra was given another warning notice stating his production was bad and giving him 3 days off. Garcia gave him the ticket saying that Colosi had sent it to him. Ibarra protested that the machines had been out of order the previous day and they had not taken into account the length of time they were not running . In late September, Ibarra was given another warning ticket which stated that he had been noticed talking to another employee on several occasions and doing nothing when he could have been working. A warning notice with the same message was given to Juan Martin. Garcia told Ibarra he was giving him the ticket because Colosi from his office had seen them talking too much. Ibarra said he had only asked Martin to watch his machine while he went to the washroom. Ibarra had never had any prior reprimands for talking and as far as we know there were no rules against talking in the plant. In late November Ibarra was given a warning notice by Garcia who said Colosi had told him to give Ibarra the ticket because Colosi had seen Ibarra not wearing gloves when he put material on the machine . Ibarra explained it was almost impossible to thread the machine without taking the gloves off. He testified that Garcia had seen him without gloves doing the same thing on a number of occasions and nothing had been said. Ibarra continued to receive warning notices thereafter, most of them inspired by Colosi. Respondent attempted to show that Ibarra was merely a learner and had never been a "setup man." During Ibarra's cross-examination there was testimony and written evi- dence that he had received a 25-cent raise in October 1974 with a notation that he was a setup man and again in February 1975 he received another 25-cent raise with the same notation. Even after he had been transferred for supposedly not doing his job he received another 25-cent raise on August 22. These were individual raises. Caban stated he normally arrived at Respondent 's plant between 7 and 7:30 a.m. and presumed he did so on the morning of the election. He said he saw no one outside the plant that morning. Ibarra had been working for him about 2 weeks and Caban said Ibarra was not a "setup man" and that he had become unhappy with Ibarra's work and had talked to Colosi about transferring him. Colosi said that Caban had complained about Ibarra's work a few days prior to the election and thought that Caban had done so a couple of times, the last time being when he transferred Ibarra on the morning of the election. Caban contradicted himself on a number of occasions concerning Ibarra and others and generally showed his testimony was not credible. Caban denied that Ibarra told him he was going to the Labor Board, yet on an absence report for Ibarra signed by Caban this reason is given for Ibarra's absence. Caban said he did not remember that Ibarra had ever been a setup man before the 2 weeks Ibarra worked for him. The pay change slips showed that Ibarra had been a setup man for some 8 months previously and indeed the payroll change notice for Ibarra dated 10/ 14/74 was signed by Caban and showed Ibarra was the "setup man" and under remarks said that he was excellent in that position. This graphically demonstrates Caban's unreliabil- ity. Caban testified that he gave out written warning notices in 1974, but as Respondent's Exhibit 9 shows none of the 13 written warning notices for the years 1972 through August 1975 had Caban's signature. Caban was evasive in his testimony but finally did admit that he talked to Colosi about transferring Ibarra on August 7. Indeed, when shown the payroll change slip with Martin Ibarra's name on it, Caban said it was true if that was the same man. Counsel for Respondent said there was no question that it was. In the face of this testimony there is no question but that Ibarra was a setup man and was transferred from that position to a machine operator because he had been seen at least by Caban and probably also by Colosi distributing union handbills on the morning of the election . The transfer was an attempt to downgrade Ibarra and to inhibit his future with Respondent. I conclude and find that this action was violative of Section 8(a)(1) and (3) of the Act and will recommend that Ibarra be returned to the status of "setup man" and be made whole for any loss he suffered due to Respondent's discrimination against him. 2. Adrian Velez began with Respondent in February 1975 and in May was promoted to "setup man" from machine operator by Colosi, who told him at the time that he was a good worker and had a good future with the Company. While at work, Velez broke his fmger on June 12 and was transferred to the night shift on June 16 by Colosi, saying that he could work nights helping the "setup men" and help train new employees and that when his finger healed he would be transferred back to the day shift. On July 16 Supervisor Bonner told Velez that someone had said he had signed a union card and asked if it were true. Velez admitted it. Later that same day Colosi asked Velez whether it was true that he had signed a union card and again Velez admitted it. Colosi said he could not believe it because Velez had had a good future with Respondent. Later that same day Velez was called into Colosi's office where Colosi in Bonner's presence told him that he could no longer be a "setup man" and that they were transferring him to the extruding department where he would be a packer on the day shift. In its records Respondent referred to Velez as a "setup man" although Bonner and Colosi said that he was a trainee. Concerning the transfers Colosi said he transferred Velez to the night shift because he could not work whatsoever with his fmger and at the time of that transfer (June 16) he had no knowledge of Velez' union sentiment. Colosi did not deny knowing Velez' sentiments at the time of the July 16 transfer. The transfer on July 16 was purportedly for the reason that Velez could do light work and had not been doing his assigned work on the night shift. Respondent also claimed that Velez had been released by the doctor and that the finger had healed properly and he should be doing some 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. However, Respondent neglects that Velez reinjured his forger, and conveniently neglects that Colosi had authorized a 25-cent-per-hour raise for Velez on July 26. A better insight into this July 16 transfer was offered by the testimony of Keith Uelsmann that, prior to the election while in the toolroom, he heard Bonner tell Bily to try to get rid of Adrian Velez, that Velez' finger had not healed right and he had not had proper medical attention. Bily replied that there was no reason to get rid of him because Velez was a good worker. Bongiovanni spoke up and said put him in my department and I will get rid of him. Colosi said that he would get rid of him, and that he wanted to be rid of him before the Union came in, that afterwards they would never get rid of him. There is no specific denial of this testimony by any of the supervisors involved. Bily attempted to get Velez to package the reels. Bily testified that he felt Velez could do the job with one hand and said he showed him it could be done. How a person could put a metal band around a coil and secure it with one hand strains the imagination. Further somewhat in contra- diction to this Bily stated that packing cartons which involves the reels requires two hands. On the basis of all the testimony I conclude and ford that the transfer of Velez on July 16 was for the purpose of punishing and discouraging Velez for his union sentiments and an attempt to get rid of him prior to the union election. I conclude and ford that this July 16 transfer of Velez was violative of Section 8(axl) and (3) of the Act and will recommend appropriate remedial action. 3. In January Respondent arranged a meeting with the Union at the office of a Federal mediator and stated that the economic situation was such as to necessitate the layoff of some 30 employees. A layoff list of some 30 employees was presented by the Company to the Union at the company office shortly thereafter and it was based accord- ing to the Company on the seniority dates of the employees with those with the lowest seniority being laid off. Since two employees had in the interim resigned, the Union and the Company agreed to trim the layoff list to 28. Included in the list with a seniority date of April 4, 1975, was Ignacio Marrero, one of the three union committeemen in the plant. When Marrero saw this date, he protested that his seniority date should be October 29, 1974, and produced a letter of recommendation from the Company establishing that as his seniority date. Marrero had worked for Respondent from latter October through the first part of December 1974. Respondent got Marrero's personnel file and on checking its contents the Company and the Union agreed that the correct date for Marrero's seniority should be October 29, 1974. Marrero was then excluded from the layoff list and because of this error the Company got the personnel folders of the other employees on the layoff list so that they could be checked. Some eight changes were made as a result of this procedure. Respondent said that it would prepare a revised layoff list from the seniority dates and wished to review all the personnel files and prepare an updated correct seniority list. About 5 days later the revised layoff list was presented to the Union. Marrero was not on the layoff list and continued to work. About a week later Respondent advised the Union that they had discovered other mistakes in the seniority dates and arranged a meeting for February 5. At this meeting Colosi informed the Union that the corrections they were making for the revised layoff list were based on what was "agreed to at the bargaining table," which meant to the Company that it was granting a seniority date only where the employee had completed a 60-day probationary period. Respondent had never had a 60-day probationary period but in the negotiations between the Union and the Company there was tentative agreement on a 60-day probationary period, but no agreement that items tentative- ly agreed to were to immediately go into effect or to be retroactive. The Company announced that it was revising the seniority list and dropping Marrero's seniority date to April 1975, because he had not completed a probationary period the previous year which resulted in laying him off and recalling the most senior person on the layoff list. Respondent also announced that employees on the layoff list who had never completed a 60-day probationary period would not be recalled. These actions were taken over the Union's protest and when the Union said it would file charges the Company told it to do so. Bruce Kinander was asked about the 60-day probation- ary period and whether it was mentioned in any of the meetings concerning layoff. Kinander was uncertain and finally said that it was mentioned. He then did not recall whether attorney Burlage or himself had said it but stated that it had been discussed during the prior negotiations. Pressed further, Kinander said that he did not mention it and was not sure whether it was brought up by the Union or the Company. He retreated further and stated that he did not remember whether it was brought up at the time the list was given to the Union or not. Finally he said that nothing about it was brought up when the Union was first given the layoff list nor during the second meeting. Colosi testified that they had revised the seniority list and after revising it again brought it to attorney Burlage and it was only after consultation with Burlage that they went through the probationary period idea. During further examination Colosi was extremely vague as to when, if at any time during the meeting concerning layoff, the 60-day probationary period was mentioned. He attempted to indicate that it was, by saying that they were going according to the contract. But when pressed as to whether those words were used in any of those meetings he agreed they were not. Colosi's disingenuousness was further demonstrated by his statement that he took the word of the Union that the probationary time had been served. The Union had never mentioned probationary period and had no thought whatsoever of introducing probationary period retroactively. Colosi further stated that the people whom he determined had not served a 60-day probationary period were never recalled and these individuals were never informed why they were not recalled to Respondent but that only the Union was informed of the reason for the nonrecalls. Separation notices were made out for these six individuals about 1 month later, but it is not known whether they ever received them. Respondent's dredging up the use of a probationary period and using it retroactively in this context to lay off one of the Union's committeemen is in keeping with Respondent's use of the contract proposals where it felt it ELECTRI-FLEX COMPANY 861 was to its best advantage to do so and disregarding those sections which it did not want to put into effect. I would agree that Respondent sought to avoid complications with the Union by laying employees off in accordance with seniority but its determination to get to Marrero and lay him off demonstrates its desire to disrupt the Union and rid itself of as many aggressive union employees as it could. Certainly where Respondent and the Union had agreed on the system of layoff as they had done at the two meetings and there was no disagreement and no mention of a retroactive probationary period it is a breach of that agreement, and a demonstration of bad faith, to announce a "mistake" and revamp the whole procedure by bringing in an unconsidered item. That this was contrary to the understanding of both the Union and Respondent at the earlier meetings is shown by the Union's reaction to this unilateral restructuring of the layoff. Rights which the employees had at, the time of layoff by the use of the agreed- to seniority layoff were abrogated unilaterally by Respon- dent's actions. I conclude and fmd that Respondent's use of the tentatively agreed-to probationary period, in this instance, was a subterfuge to allow it to lay offIgnacio Marrero and I conclude and find that Respondent thereby violated Section 8(axl) and (3) of the Act. Additionally, as Respondent admitted that it laid off others and did not call them back because they had not served the "probationary period" and since this is undenied and was brought out in full during this hearing, I find that the use which Respondent made of the "probationary period" also violated the Section 7 rights of these other six employees, and that Respondent's refusal to recall them violated Section 8(a)(l) of the Act. The six who were not recalled are : Teodoro Feliciano, Gilberto Espinosa, Juan Santiago, Luciano N. Lopez, Daniel V. Perez, and Sebas- tian Gomes. I will recommend that Respondent restore Marrero to the position which he would have held had he not been laid off by Respondent and further that Respondent offer reinstate- ment to the above-named six employees whom it refused to recall, making them whole for any losses that they have suffered. 4. Tony Capasso was a toolroom machinist who worked for Foreman Brilz from February 1975 to his discharge. Capasso had been questioned by Brilz about his knowledge of the Union in July and whether Carlson and Rose were for the Union. Near the end of July, Brilz told Capasso that he had a book of rules and regulations and would make things rough on union supporters. Around the time of the election Brilz told Capasso that the Company would take care of those who voted for the Company by putting them in management where they would not be hurt. On Tuesday or Wednesday, October 21 or 22, Capasso said that Brilz was in a bad mood and asked Brilz what was wrong. Brilz replied it was because people from the Labor Board had come out and he knew that Capasso had something to do with the complaint. Capasso told Brilz he was only doing what he thought was right, and Brilz replied that he could have Capasso's job in a week if he wanted it. On Monday, October 27, Brilz talked to Capasso and Rose about not wearing their safety shoes. Capasso said he had left them home and Rose said that his were locked in the trunk of his car and he did not have the key. Capasso asked Brilz if he wanted him to go home and get them and Brilz said no, but came back several hours later and gave both Rose and Capasso warning notices including a 3-day suspension for Capasso and I day off for Rose. Rose testified that at lunchtime he removed the back seat of his car and was able to get into the trunk and get his safety shoes and as he came back in the plant Brilz and Capasso were standing outside the toolroom door talking in loud voices but he did not hear what they were saying. Around noon Capasso saw Brilz and complained they were not treating anybody right handing out those yellow tickets and he was getting a 3-day suspension while Rose was only getting 1 day off. Capasso testified he told Brilz that some day someone was going to take one of those yellow warning tickets and shove it down Brilz' throat. Brilz said he would like to see it happen and Capasso replied that one day it would happen. Brilz asked if Capasso was going to do anything about it and Capasso said that sooner or later somebody was going to take Brilz out in the parking lot. He testified that Brilz asked why Capasso was not doing anything about it and he replied that he would not do anything on company property but if Brilz wanted to go off company property it would be different. Capasso left the plant and the next day, October 28, came back to pick up one of his toolboxes. He testified that Brilz asked if he could look inside the toolbox and he said sure, but that Brilz did not do so. On the morning of October 29 he called the plant to fmd out when he should return to work and Colosi told him not to do so because he had been fired. When Capasso asked why, Colosi said for not letting Brilz look in his toolbox. He told Colosi that he asked Brilz if he wanted to look in the box and Brilz said it was all right. Capasso went to the plant and met with Brilz, Bonner, and Colosi and Union Committeeman Dick Rose and asked why he was being discharged . Colosi said he was discharged because he would not let Foreman Brilz look in his toolbox. Capasso said he had asked Brilz if he wanted to look in it and Brilz said it was all right. Brilz said that a box of drill bits were out and he thought Capasso had taken it. Capasso told Brilz he had given the box of drill bits to another employee and named him. Colosi asked if that were true and Capasso offered to prove it and he and Brilz went into the plant and the other employee confirmed that Capasso had given him the box of drill bits. They returned to Colosi's office and Brilz said that the other employee had the box of drill bits. Capasso then asked Colosi if he could be reinstated. Colosi said no, he was being discharged for threatening Brilz. Capasso protested that he had made no threat to Brilz. Colosi said he would believe his foreman before he would believe Capasso and was sick and tired of the employees making complaints and the Company was going to run it the way they thought, union or no union, and if they did not like it to have the Union take it to court. After some further words Capasso was given a discharge slip stating that he was discharged for threatening bodily injury to Brilz and that such threats had been witnessed by Dick Rose. As noted above Rose said that he never heard any threats. In the meeting Brilz stated that Rose had witnessed 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it and Rose replied to Brilz that he had heard Brilz and Capasso talking in loud voices, but did not hear what they were saying to one another. Brilz testified that Capasso had his safety shoes there but refused to put them on and that Capasso and Rose were being insubordinate in refusing to wear them . I do not credit Brilz' testimony that Capasso had his safety shoes there at the plant in Brilz' view. If Capasso had, he certainly would have put them on at that time as Brilz allowed Rose to do. Brilz also stated Capasso refused to let him look in the toolbox the first time and that Brilz specifically threatened him with meeting him in the parking lot after work. Colosi testified that Brilz told him Capasso had threat- ened to fight with him in the parking lot and he and Bonner went with Brilz to the parking lot to see if Capaso would attempt to carry out his threat but Capasso was nowhere around. He said that the following day Capasso called and said he would like to have a leave of absence because things were a little hot down there and he told Capasso he was discharging him for threatening his foreman. Colosi said that Capasso came to the plant a few minutes later and in a meeting he told Capasso he was discharged for threatening Brilz. Colosi did recall something about a toolbox but said that Capasso refused to let Brilz look in his toolbox, but denied that he said anything to Capasso about it. In this situation I credit the testimony of Capasso that he walked the thin line about not specifically threatening to do bodily harm to Brilz. Brilz may have taken it as a direct threat but I do not believe from the context that Capasso indicated that he was going to carry out the threat. Weighing on this credibility question is the undenied 8(axl) statements of Brilz to Capasso including the prior interro- gations and most specifically the event of the previous week where Brilz told Capasso he was angry because the Labor Board had come out there and he knew Capasso had something to do with it, and threatened that he could have his job within a week . The heavier suspension given to Capasso over Rose with no explanation for the disparity lends credence to Brilz' threat. The discharge events did not occur as Colosi testified, there being 2 days between the "threat" and the discharge and with Capasso coming to the plant on the intervening day to pick up a toolbox and talking to Brilz and nothing being done on that occasion . If Colosi had considered the "threat" serious, he would have done something about it when it occurred and not 2 days later . Brilz and Rose corroborated that Capasso was accused of taking company drill bits and that Capasso proved that did not occur. It is only after this reason for discharge was punctured that Respondent fell back to the "threat." Even there, both Brilz and Capasso said there was no animosity between them, and Brilz never recommended any disciplinary action for this "threat." On the basis of this resolution of the facts, I conclude and find that Respondent violated Section 8(aX3) and (1) of the Act by its discharge of Tony Capasso. Further based on this resolution of the facts, I find that Respondent violated Section 8(a)(4) and (1) of the Act by its discharge of Tony Capasso. 5. Juan Martin was one of Respondent's senior employ- ees having been employed since February 1971. Martin signed an authorization card and attended union meetings and on one occasion Colosi accused Martin and others of talking about the Union. When they denied it he said that the Puerto Ricans and Mexicans were stupid because so many of them wanted a union. Colosi then gave them a "Rockefeller gesture" saying what he meant and that was what should be done to the Union. Colosi testified that he assumed the production floor employees were for the Union and this would have included Martin. Martin also helped distribute union handbills on the day of the election and would have been seen by a number of Respondent's supervisors. Caban's denial of seeing anyone outside that morning is specifically disbe- lieved and Caban was Martin's supervisor. On January 28 employee Auricilio Feliciano, a mainte- nance man, received Martin's help in emptying a barrel of scrap near his machine. Later Feliciano returned and again sought Martin's help in emptying a trash barrel . Martin refused, saying that he was too busy and for Feliciano to go to his foreman and get somebody else to help him. Feliciano's foreman, Stawinski, was incensed that Martin refused to help and reported it to Plant Superintendent Colosi who called Feliciano, Martin, Stawinski, Caban, and the union committee into his office . Colosi took the position that since the barrels were too heavy for one man to lift, it was the duty of the employees to help the maintenance men lift the barrels and Martin was instructed to help Feliciano when he sought help. Everyone was then sent back to work. Martin and Feliciano were walking in an aisle which at one point was partially blocked by a lift truck and trash gondola and there was only room for one to pass. As they went through that area, Feliciano and Martin, as they later testified, bumped shoulders and continued on their way back to work. Stawinski who was behind them saw it differently and testified first that Martin was behind Feliciano and pushed Feliciano with both hands into the lift truck, knocking him off balance . Stawinski said he was about 5 feet away at the time and that he immediately called Martin's supervisor, Luis Caban, and told him that Martin had deliberately pushed Feliciano into the lift truck and that Feliciano could have been injured. To an inquiry Stawinski said that Feliciano spoke half in English and half in Spanish and told him that Martin had pushed him in a fit of anger. Stawinski said he then went to see Colosi and told Colosi that Martin was full of anger and had pushed Feliciano between the lift truck and the trash gondola. When they went into the office , according to Stawinski, Colosi spoke to them and discharged Martin for what he had done. Stawinski testified on cross-examination that after the pushing incident both Martin and Feliciano were back at their duties when they were told to go back to Colosi's office. Stawinski specifically said that there was no fighting, only one man shoved another, and that was the reason for the discharge which he insisted Colosi imposed in this second meeting. Stawinski insisted that Martin did not go back to work after the second meeting. Stawinski said that Feliciano stated Martin had pushed him. Later Stawinski said that after Feliciano got pushed, ELECTRI-FLEX COMPANY 863 he immediately spoke to Feliciano and then went and got Caban but that Martin had already left and gone to his machine. Asked if he waited until Martin left before he talked to Feliciano and Caban, Stawinski stated he talked to Caban right as it happened because Caban was standing just a few feet away. During further examination Stawinski reversed the order of march and stated that Martin was first followed by Feliciano and that when they got by the lift truck and trash gondola Martin turned around 180 degrees, pushed Feliciano with both hands shoving him into the lift truck and turned around again and walked on to his machine some 40 feet away. According to Martin, when they got to the office the second time Colosi asked why they had fought and both he and Feliciano replied that there had been no fight. Union Committeeman Marrero was called to the office both times. On the second occasion he talked in Spanish to both Feliciano and Martin who told him that the place was a bit close and that Martin had pushed or bumped Feliciano a bit but that there had been no fight. Marrero then told Colosi what they had said and Colosi said if what Marrero said was true and nobody fought he was going to let it go, but he did not want to see it happen again, did not want anybody fighting. Marrero again repeated that nobody had been fighting. Both Feliciano and Martin were told to go back to work and both did. Marrero stated that about an hour later Colosi came by and said that he trusted him and was going to forget about it but that he did not want anything like that to happen again. Luis Caban testified that Stawinski told him Martin had pushed Feliciano in anger, hard enough to push him inside the gondola, and that Feliciano had said the same thing. Feliciano testified that there was no grudge between him and Martin and when he was asked if there had been a fight he told Colosi there had not been, and they were told to go back to work. Caban said that he told Martin at that time that he was suspended until Colosi decided what was going to be done, but that Martin was going to be fired for pushing Feliciano. Caban insisted on cross-examination that Martin was discharged at that second meeting and Colosi said Martin was suspended and would be fired the next morning, but both of them were sent back to work. Colosi said that Stawinski was very mad when he came to the office and said that his man had been pushed or shoved and that Stawinski later cooled down and told him that Martin had pushed Feliciano by the lift truck hard enough to hurt him. Colosi stated that in this second meeting Feliciano said that he was pushed and through Caban, acting as an interpreter, asked if Juan Martin hit Feliciano and Martin said yes. Colosi said he decided to discharge Martin and told the union committee present that he would let them know that night, to reaffirm the decision he had made, and then sent Feliciano and Martin back to work. Colosi said that Marrero came in an hour later and told him that Martin and Feliciano were friends and had not been fighting. He said he told Marrero that they did fight and he was not going to retreat on what he had said . He testified he confirmed his decision with West and Bruce Kinander that evening and told Marrero that same day that he would discharge Martin the next morning. Marrero disagreed and said he was surprised the next morning when he was called into the office and Colosi said he was going to discharge Martin . He asked Colosi why, since there had been no fight, and Colosi replied that he was discharging Martin because he had a boss (Bruce Kinander) too, that he had talked it over with Kinander and they decided to discharge Martin. Marrero stated that Colosi said he was sorry about it because Martin was a good worker but there was nothing he could do about it. When Marrero said that this was another charge for the Labor Board, Colosi told him he could do anything he wanted to. From the recitation of the witnesses and what the facts appear to be there was no fight, but rather an insignificant bumping. Stawinski's version of what happened was contradicted by Stawinski a number of times. Colosi's use of the word "fight" in this situation shows a propensity to exaggerate a minor incident into a major one so that a union supporter could be let go. Certainly if the incident had been serious enough to warrant discharge it would have been accomplished then and Martin and Feliciano would not have been sent back to work where they were in close proximity to one another. Commonsense dictates that Respondent's reasons, statements, and testimony here are erroneous and that Respondent was seeking again to get rid of prounion adherents one by one and took this opportuni- ty to magnify a minor incident into a major confrontation as a reason to discharge an individual. I conclude and find that Respondent violated Section 8(a)(l) and (3) of the Act by its discharge of Juan Martin. 7. Hermenejildo Mendoza started with Respondent in June 1974 and was a lift truck driver. Part of his duties included moving raw materials to various departments, moving machinery, and cleaning and weighing raw and slitted steel. Mendoza would deposit a skid with steel on the scale, note the weight, put it on a tag, and place that tag on the steel. Apparently there was a device on the scale which would automatically compensate for the weight of the skids, but there were two different skid weights, one for the skids used for raw steel and one for the skids used for slitted steel. It was therefore necessary for Mendoza to be sure how the scale was set. Mendoza testified that in early December 1975, and on numerous other occasions, he complained about the scale being out of balance and had been told when it was not to weigh anything at that point, but to wait until the scale had been repaired. About mid-December Mendoza stated he told Enrique Garcia that after he had weighed a number of skids, he noticed that the scale device which deducted skid weight had been altered and that he would have to reweigh some of those skids. He said that Garcia merely shrugged his shoulders and said nothing and since it was close to Mendoza's quitting time, he did not reweigh any of those skids and did not have time to do so over the next 2 weeks. In latter December, when a yearend inventory was being run, Respondent's outside accountants had a number of the skids weighed and noticed that the skid weight had not been deducted to get a net weight for the steel. Respon- dent's supervisors were then told that to get a true picture for the yearend inventory and financial documents it would be necessary to reweigh all of the steel to be sure just what 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had. According to Respondent, it took about a day and a half to reweigh all the skids of steel . Mendoza was given a 3-day suspension for not properly weighing the steel, although he had originally been threatened with discharge. When Mendoza was asked about the errors, he told Kinander and Colosi that the scale had been off any number of times. This, however, did not answer the question about deducting the skid weight . It should be apparent that if the skid weight had not been deducted by Mendoza by an adjustment on the scale, that by knowing the skid weight that adjustment could have been made by deducting the weight of the skid from the steel when it was done. But nothing was done and the incorrect weights were left on the tags on the steel. Mendoza on December 30, when he was being reprimanded and given the 3-day suspension apparently did not tell anybody that the scale appliance for deducting the skid weight had not been set properly, but merely blamed it on the inaccuracy of the scale which was no answer to the problem. Even though Mendoza's prounion sentiments were known to the Company I do not think that this enters into this suspension. It appears that Mendoza made a mistake and did not correct it, although he had some 2 weeks within which to do so and when caught on it did not answer the questions truthfully but sought to cover them up by saying that the scale was inaccurate. In this situation I find that Mendoza was not suspended because of his support of the Union and, accordingly, dismiss this 8(aX3) allegation. E. Other 8(a)(1) Allegations 1. Several days prior to the election Colosi took the employees' timecards and met with a group of supervisors in the toolroom. They went through the timecards and made up a list of who they thought was for the Union and who was against the Union . A number of employees including Uelsmann and others observed them making up this list. Colosi said he was guided by what he thought the sentiments of the employees were and eventually they came to the conclusion that the Company would probably win the election. The complaint alleges that this activity within the sight of the employees created the impression of surveillance of the employees' union activity and that Respondent was main- taining a list of those that were for and against the Union in violation of Section 8(aXl) of the Act. It is clear that employees did see Respondent's supervi- sors engaging in these activities and would get the impres- sion that Respondent did have some knowledge of what their union activities or sentiments were and was making lists of them. I conclude and fmd that this action did violate Section 8(aX 1) of the Act. 2. The complaint was amended to allege that the Company bypassed the Union and solicited grievances from employees in violation of Section 8(aXl) of the Act. The story of what was done concerns Dick Rose and I conclude and find that what Respondent did, did not violate the Act. Dick Rose and Supervisor Brilz were not getting along and on one occasion Rose felt that Brilz was having another employee improperly mark company tools with Brilz' name. This led to a confrontation where Brilz was angry and made remarks to Rose . There were also a number of warning tickets given out and Rose complained vociferously about them. Rose was one of the three union committeemen and, at one of the negotiation meetings after the tool matter, Bruce Kinander asked Rose to stay after the negotiation meeting and asked if Rose would meet with Colosi and Brilz in an effort to work out their differences and suggested that they meet each morning for 15 minutes to handle their problems. They did start meeting and handled a number of problems such as the parking lot and when the allotment of overtime was discussed and either Colosi or Brilz said that Rose was the only one complaining, Rose got the other people in the toolroom and they all went in and talked to Colosi and Brilz about overtime and other things they were complain- ing about. Rose said that they talked on one occasion for some 20 to 30 minutes about not receiving work, or having tools to work with. These sessions gradually diminished and stopped altogether. Since Rose was a union committeeman, I would consider these discussions as more or less first-step grievances in that the union committeeman was there ironing out with supervisors problems that he and the employees had with supervisors and with their working conditions. I therefore would dismiss this allegation of the complaint. However, there is another allegation entwined with it, that Rose had been told by Bruce Kinander that if he refrained from filing additional charges Kinander would remove all warning notices from Rose's personnel file. This testimony is undenied and I credit Rose and find that by such statement Respondent by Bruce Kinander violated Section 8(aXl) of the Act. 3. On another occasion Rose's wife was in the hospital and Respondent sought her room number in an effort to send flowers. Rose felt that the inquiry was to check up on him and became incensed and talked to Brilz about it. This became known to Kinander and he called Rose in and explained to him that Company policy provided that Respondent would send flowers to employees or their spouses when they were in the hospital. Rose stated that he was being harassed and Kinander became angry. Rose said something about filing charges and Kinander asked wheth- er he intended to do so and told him to do what he wanted but he was making him extremely angry. This allegation of Section 8(a)(1) is, I think, a bit of overstatement and really was a result of touchiness on behalf of the two people involved. I feel that Rose was overly sensitive about being questioned and that Kinander, being threatened with charges for something he felt the Company was doing in a humane way, lost his temper and made a statement that was unnecessary and probably not intended. I will not find that this incident violated Section 8(a)(1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section II, and therein found to constitute unfair labor practices in violation of Section 8(a)(l), (3), (4), and (5) of the Act, occurring in connection with Respondent's business opera- tions as set forth, above, in section I, have a close, intimate, ELECTRI-FLEX COMPANY 865 and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating and implementing a warning and disciplinary system, it is recommended that such rules and the procedure to enforce them be rescinded and withdrawn and that the status quo as of August 7, 1975, be restored by Respondent removing from its personnel or other files and destroying all warning notices issued since August 7 , 1975, and by rescinding all disciplinary action taken pursuant to its unilaterally im- posed warning and discipline procedure and making whole all employees suspended or laid off thereunder by reinstate- ment and the payment to them of those sums which they would have earned as wages for such periods, less any net earnings, as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent violated Section 8(a)(3) and (1) of the Act by its transfer, discharge, layoff, or suspension of Adrian Velez, Martin Ibarra, Juan Martin, Ignacio Marrero, and Tony Capasso and additionally violated Section 8(a)(4) of the Act regarding Capasso, it is recommended that Respondent offer them full and immedi- ate reinstatement to their former positions and make them whole for any loss of pay they may have suffered by reason of Respondent's discriminatory treatment of them by payment to them of a sum equal to what they would have normally received as wages from the dates of their transfers, discharges, layoffs, or suspensions until they are fully reinstated by Respondent, less any interim net earnings. Backpay is to be computed as set forth above. I further recommend that Respondent make available to the Board, on request, payroll and other records to facilitate checking the amounts of backpay due them and any other rights they might be entitled to receive. Further having found that Respondent violated Section 8(a)(1) of the Act by the numerous acts and conduct detailed above and since it is part of the purpose of the Act to prevent the commission of unfair labor practices, I recommend that Respondent be ordered to cease and desist from violating the Act in the above or in any other manner. Having found that Respondent discriminatorily laid off Ignacio Marrero by manipulating the layoff list and that it also laid off and did not recall Teodoro Feliciano, Gilberto Espinosa, Juan Santiago, Luciano N. Lopez, Daniel V. Perez, and Sebastian Gomes, I recommend that Respon- dent reinstate them to their former positions and make them whole for any loss of wages they may have suffered in the same manner as set forth above. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by unlawfully : (a) Interrogating employees about their own union sentiments and activities and those of other employ- ees; (b) threatening employees with the loss of benefits or employment or with other reprisals if they supported the Union; (c) promising employees benefits for withdrawing support from the Union ; (d) threatening employees with reprisals for taking matters to the Board and promising benefits for withdrawing charges from the Board; and (e) creating an impression of Surveillance of the union activi- ties of employees and maintaining lists of pro- and anti- union employees. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily transferring, laying off, discharging, or suspending Adrian Velez, Martin Ibarra, Juan Martin, Ignacio Marrero, and Tony Capasso and violated Section 8(a)(4) of the Act by its termination of Tony Capasso. 5. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally initiating and imposing a warning and disciplinary system at a time when the Union had become the employees' collective-bargaining agent. [Recommended Order omitted from publication.]