Dart Industries, Inc.

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tupco, Division of Dart Industries, Inc. and Arthur Gonyea. Case 1-CA-9297 December 9, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 24, 1974, Administrative Law Judge John F. Corbley issued the attached Decision in this pro- ceeding. Thereafter, General Counsel and Respondent each filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. 1. The Administrative Law Judge failed to find a violation of the Act in a statement by Respondent's agent, Hagan, to all employees at Respondent's Au- burn plant on May 2, 1973, to the effect that Tupper- ware had made molds at plants other than Respondent in the past and that if necessary such work would be sent elsewhere again . Hagan stated at the same meet- ing, which occurred on the same day as the first union organizational meeting, that he was aware of the up- coming union meeting and that Plant Manager Per- reault would get tougher if the Union got in.2 We find that, within the context of these remarks, Hagan's statement that work could be taken out of the facility was calculated as a threat to reduce the work level in the plant, if the union organizational campaign were continued, and that the employees so understood Ha- gan's remark. Consequently, unlike the Administrative Law Judge, we find that Hagan's statement amounted to a threat violative of Section 8(a)(1) of the Act. 2. Respondent excepted to the Administrative Law Judge's finding that it has violated Section 8(a)(1) in creating the impression of surveillance in Foreman Lo- vec's statement that Respondent had gone through its records for the preceding years which showed that union adherents had gotten more money and raises ' i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We adopt the findings of the Administrative Law Judge that these statements violated Sec. 8(a)(1) of the Act. than other employees. Unlike the Administrative Law Judge we find no violation in this comment. Rather, Re- spondent thereby indicated only that it had reviewed its records and had observed what was apparent on casual reflection, that certain of its employees, who happened to be union adherents, were earning more money than others. Such a remark to employees in the course of a hotly contested union campaign would not be reasona- bly calculated to suggest that Respondent was watch- ing the activities of union supporters, nor could it be understood as implying that Respondent had previ- ously done so, since the campaign was conducted openly and the union supporters were well known. Rather, this remark appears to have been no more than an apparently truthful reporting of information. 3. In excepting to the Administrative Law Judge's findings that Respondent violated the Act by reducing overtime for employees at the commencement of a union organization campaign at the Respondent's facility, Respondent argued that it was economical- ly justified in reducing such overtime based on an appraisal of the potential costs of the Union's eco- nomic demands, relying on G. W. Murphy Indus- tries, Inc., Portable Electric Tools Division, 184 NLRB 62(1970). We agree with the Administra- tive Law Judge that Murphy is inapposite because here, unlike in Murphy, the Union had not been established as the bargaining representative by recognition or otherwise, and no specific demands had been presented to Respondent. Consequently, Re- spondent was in no position, on the facts of record, to make an appraisal of potential costs of the Union's economic demands, nor was there any evidence that such an appraisal was attempted. Furthermore, we find Murphy inapplicable because there is no credible evi- dence in the record to support Respondent's suggestion that it reduced overtime to meet speculative increases in costs due to a possibly successful union campaign. Finally, Murphy is inapplicable because there the Ad- ministrative Law Judge concluded that in fact the em- ployer had an economic motive, whereas here we find, in agreement with the attached Decision, that Respon- dent's reduction in overtime for all employees had nothing to do with any economic demands by the Union but was aimed instead at the union cam- paign itself. Consequently, we find that Respondent by such conduct discriminated against the em- ployees in regard to conditions of employment to discourage membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act. 4. The Administrative Law Judge failed to find a violation of the Act in the reduction by Respondent of overtime opportunities of employee Dees on grounds that such reduction was imposed because of her poor 215 NLRB No. 90 TUPCO, DIVISION OF DART INDUSTRIES, INC. job performance, rather than because of her union activities. We disagree.' Respondent was well aware of Dees' union activities as was evidenced by Plant Manager Perreault's state- ment to employee Gonyea that he had a list of union supporters which included Dees' name and by Fore- man Lovec's admission that he knew that Dees had signed a card. Shortly after the election Foreman Lovec told Dees that other union supporters had said they would quit their jobs if the Union lost the election, "so, why don't you get the f-k out?"' This remark, at- tributable to Respondent, revealed that Respondent wanted to get rid of Dees because of her union activi- ties, and supports the inference that it was disposed to taking action which would encourage Dees to leave Respondent's employment. Furthermore, Dees' over- time was reduced without any warning that her perfor- mance was below par,' which strongly suggests that Respondent was not interested in taking corrective ac- tion with respect to her work but acted to get rid of a known union adherent. See North Shore Publishing Co., 206 NLRB 42 (1973). We find Respondent's reliance on a "lack of work" to justify the reduction of Dees' overtime unworthy of belief, since there is no indication in the record that overtime was reduced for anyone else in her depart- ment or that any lack of work had occurred in such department. The Administrative Law Judge also found, which finding we adopt, that Respondent un- lawfully reduced the overtime of two other leaders of the Union's organizational campaign, Bezdegian and Gonyea, in retaliation for their union activities. Dees, Bezdegian, and Gonyea, all leaders in the campaign, were the only employees to have their overtime reduced after the election. We find, therefore, that Respondent's treatment of these employees constitutes a pattern of activity by Respondent directed at union organizers to punish and discourage them and other employees from supporting the Union. 3 Chairman Miller is of the opinion that the Administrative Law Judge correctly decided that the reduction in overtime opportunities for Dees was for cause. Consequently, for the reasons relied on by the Administrative Law Judge, he would find there was no violation of the Act involved in such reduction, and therefore he would dismiss this allegation of the complaint. ° The Administrative Law Judge found, and we agree, that Perreault's statement to Gonyea violated Sec. 8(a)(1) of the Act. We also agree with the Administrative Law Judge that Levec's statement to Dees to "get the f-k out" violated the same section of the Act. Padre Dodge, 205 NLRB 252 (1973); RamarDress Corp., et. al., 175 NLRB 320, 327 (1969) Gem Knits, Inc., 174 NLRB 449, 452-453 (1969). 5 Although the Administrative Law Judge found that Perreault informed Dees that her overtime was reduced because of poor job performance, we note that this conversation did not take place until sometime after the election when she inquired why she was not being allowed to work more overtime. Consequently, it is apparent that Dees was neither informed that her work was faulty nor offered an opportunity to improve her poor job performance before being disciplined. 425 For the above reasons we find, unlike the Adminis- trative Law Judge, that the reasons given for the reduc- tion of Dees' overtime, viz, poor performance and lack of work, were pretexts to cloak the true reason for Respondent's conduct, which was to retaliate against her for union activities and to discourage such activities in the future, in violation of Section 8(a)(3) and (1) of the Act. 5. We agree with the Administrative Law Judge that the written warning system was, in effect, adopted when the organizational effort began. However, he inadvertently failed to direct the abolition of that dis- criminatorily established and applied written warning system in his recommended Order and notice, although he indicated in the "Remedy" section that he would do so. Accordingly, we shall make appropriate corrections to the Order and notice.' We deem it inappropriate to permit the maintenance of an improperly established rule; however, our order does not preclude the nondis- criminatory adoption in the future of a written warning system as a valid disciplinary procedure. 6. Although we agree with the Administrative Law Judge's determination of the periods of time over which employees were unlawfully deprived of backpay as stated in the "Remedy" section of his Decision, the specific formula and method of backpay are more ap- propriately left to the compliance stage of this proceed- ing; consequently, we do not adopt that portion of the "Remedy" in his Decision. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Tupco, Division of Dart Industries, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add the following paragraph as 2(b) and reletter the remaining paragraphs accordingly: "(b) Discontinue the use of and abolish the dis- criminatorily established and applied written warning system put into effect in June 1973 to harass employees engaging in union or protected concerted activities." 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. 6 Chairman Miller would limit the remedy in this connection to an order to cease and desist from discriminatorily applying or implementing the warning system. In his view, a written warning system is a permissible and equitable disciplinary procedure and need not, like the proverbial baby, be thrown out with the tainted bath water. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B DECISION NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the chance to give evidence it has been decided that we , Tupco, Division of Dart Industries, Inc., have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights , including the right to self- organization, to form, join or help unions, and to bar- gain through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT interrogate you concerning the un- ion membership, activities, or sympathies of your fellow employees. WE WILL NOT try to make you, our employees, believe that we have ways of finding out whether you participated in union activities or what those activities were. WE WILL NOT hold out to you the possibility you might continue to have virtually unlimited over- time opportunities if the Union were not seeking to organize you. WE WILL NOT threaten to shut down or phase out our plant or take any other reprisal against you if you organize a union. WE WILL NOT ask you to resign because you have joined a union. WE WILL NOT do anything which interferes with your rights above. WE WILL NOT implement a written warning sys- tem to discipline you, as the Board has found we started this system to discourage your union acti- vites. WE WILL NOT reduce your overtime opportuni- ties, close down our business or phase it out be- cause you join, support, or engage in organiza- tional activities on behalf of Laborers International Union of North America, Local 243, or any other union. WE WILL make up all overtime pay you lost as the result of our reduction of overtime opportuni- ties with 6-percent interest as the Board has found that we made such reductions because of the or- ganizational campaign of the above-named Union. WE WILL abolish our written warning system which was established and applied to harass our employees engaging in union or protected con- certed activities. WE WILL expunge all written warnings from the records of our employees: STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge : A hearing was held in this case of January 29, 30, and 31 , 1974, at Worcester, Massachusetts, pursuant to a charge filed by Ar- thur Gonyea, an individual, on August 28, 1973, a copy thereof being served on Respondent the same day, on an amended charge filed by the same individual on October 18, 1973, a copy thereof also being served on Respondent that same day and a complaint and notice of hearing dated Octo- ber 29, 1973, issued by the Regional Director for Region 1 of the National Labor Relations Board, which was likewise duly served on Respondent. The complaint was amended on December 5, 1973, and the amendment was served on Re- spondent. The complaint , alleges that Respondent violated Section 8(a)(1) of the Act, variously, by interrogating its employees about their union activities , threatening that it would take reprisals against its employees for engaging in such activities and creating the impression of surveillance of its employees in their concerted activities . The complaint further alleges that Respondent violated Section 8(a)(3) and (1) of the Act by: initiating a written warning system and issuing warnings to certain employees because they had en- gaged in union activities ; reducing the hours of overtime for all production and maintenance employees from May 30 to July 15, 1973; continuing that reduction of overtime for some of its employees until August 5, 1973, and by further continu- ing this reduction for three employees including the Charging Party until as late as August 26, 1973. ' In its answer, which was also amended, Respondent denied the commission of any unfair labor practices. For reasons which will appear hereinafter I find and con- clude that Respondent has violated Section 8(a)(3) and (1) of the Act by reducing the overtime of production and mainte- nance employees at the times stated with one exception and has committed certain independent violations of Section 8(a)(1) as alleged in the complaint. I further conclude that Respondent has not violated Section 8 (a)(3) and (1) of the Act by reducing the overtime of employee Dees during a certain period in August 1973 and did not commit ;ertain other independent violations of Section 8(a)(1), as alleged in the complaint. At the hearing the General Counsel and Respondent were represented by counsel . All parties were given full oppor- tunity to examine and cross-examine witnesses , to introduce evidence, and to file briefs. The parties waived oral argument at the conclusion of the hearing. Briefs have subsequently been filed by General Counsel and Respondent and have been considered. Upon the entire record' in this case and from my obser- vation of the witnesses, I make the following: ' At the hearing I granted the General Counsel 's unopposed motion to strike the 8(a)(4) and (5) allegations of the complaint. 2 The transcript of the record in this proceeding is hereb corrected w Y Tupco , DIVISION OF DART INDUSTRIES , INC. follows : At p. 66 , line 14, "Build" is deleted and "Billed" substituted. TUPCO, DIVISION OF DART INDUSTRIES, INC 427 FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Delaware At all times matenal herein Respondent has maintained an office and place of business at 303 Washington Street, Au- burn, Massachusetts, and is now and continuously has been engaged at said plant in the manufacture, sale, and distribu- tion of molds and related products Respondent in the course and conduct of its business causes, and continually has caused at all times matenal herein, large quantities of steel used by it in the manufacture of molds to be purchased and transported in interstate com- merce from and through various States of the United States other than the Commonwealth of Massachusetts, and causes, and continuously has caused at all times material herein, substantial quantities of molds to be sold and transported from its said Auburn, Massachusetts, place of business in interstate commerce to States of the United States other than the Commonwealth of Massachusetts. Respondent annually ships from its Auburn, Massa- chusetts, place of business goods valued in excess of $50,000 directly to points outside the Commonwealth of Massa- chusetts. The complaint alleges, the answer admits, and I find that Respondent is, and has been, engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Laborers International Union of North America, Local 243, hereinafter sometimes referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III BACKGROUND AND SEQUENCE OF EVENTS '. The Relationship of Respondent to Certain Other Companies Respondent is a wholly owned subsidiary of Dart Indus- tries Respondent's president is John Ansley who is also the president of 13 other companies of Dart Industries including Tupperware.' Respondent makes molds for Tupperware and Tupperware is Respondent's largest customer. Tupper- ware is also wholly owned by Dart Industries. - Richard Anterni is in charge of Tupperware's engineering department and visits Respondent 's plant in Auburn once a week to check on the progress of Tupperware molds Anterni was the acting plant manager of Respondent for 3-1/2 months in 1969 and then transferred back to Tupperware. Anternt was examined by the General Counsel at the hearing under the provisions of Section 43(b) of the Federal Rules without objection from Respondent. 3 The complaint alleges, the answer admits, and I find that Ansley is an agent of Respondent and a supervisor within the meaning of Sec 2(11) of the Act James Hagan, vice president of personnel and public rela- tions for Tupperware,' has visited Respondent's plant in Auburn to explain to the employees the nature of their bene- iits as personnel of a Dart Industries subsidiary . Ansley ad- mitted in connection with certain allegations of the complaint that Respondent should have a written warning system be- cause such a system "is in all Tupperware [sic] plants." Ans- ley also admitted there should also be a set of work rules in operation at Respondent 's plant because that "would be a normal Tupperware [sic] policy" and that Hagan, Tupper- ware's vice president for personnel , would handle such mat- ters with George Perreault, Respondent's plant manager. I conclude on the basis of the foregoing that Respondent and Tupperware have a common labor relations policy and are a single employer within the meaning of the Act.' B Relevant Hierarchy of Respondent and Tupperware John Ansley is the president of Tupperware and Respond- ent, as previously noted. James Hagan is vice president of personnel and public relations for Tupperware. Ansley and Hagan are admitted agents and supervisors of Respondent and I have so found. The complaint also alleges , the answer admits, and I find that each of the following carries the title opposite his name and is an agent of Respondent and a super- visor within the meaning of Section 2(11) of the Act: Josef Lovec, foreman Richard Morris, personnel manager Harry Penniman, general foreman George Perreault, plant manager Charles Witkus, foreman The complaint further alleges, inter aha, but the answer denies, that Richard Anternt is an agent of Respondent. An- terni, as noted, is in charge of Tupperware's engineering de- partment, visits Respondent's plant once a week to check on the progress of Tupperware's molds there and was acting plant manager of Respondent for 3-1/2 months in 1969 after which he transferred back to Tupperware. Anternt is also responsible, at least, to make recommendations to Ansley in respect to placement of contracts for production of molds including those contracted to Respondent. I find on the basis of the foregoing that Anternt is an agent of Tupperware within the meaning of the Act, and since Tupperware and Respondent are a single employer within the meaning of the Act, it follows that Anterni is an agent of the same employing entity which includes Respondent C Background and Sequence of Events--An Overview Respondent is in the business of manufacturing molds. It operates with a normal work force of some 50 to 60 em- ployees who have frequently worked as much as 55 to 60 hours per week or longer since the plant began operations in 4 The complaint alleges , and the answer admits, and I find that Hagan is an agent of Respondent and a supervisor within the meaning of Sec 2(11) of the Act Hershel Phillips who was served with a copy of the complaint and entered an appearance for Respondent at the hearing , is, as Respon- dent's Plant Manager Perreault admitted, labor counselor for Dart Indus- tries, serving all Dart companies 5 See, e g , Manitowoc Shipbuilding Inc, 191 NLRB 786 (1971) 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1966. Until the events in question here there has never been an across-the-board reduction of employees ' overtime. Arthur Gonyea, the Charging Party, initially contacted the Union at the end of April 1973 in connection with the organi- zation of Respondent's employees . The first union meeting was held on the evening of May 2, 1973. Prior to this union meeting but on the same day, or the day before, Hagan, the vice president for personnel and public relations of Tupperware, came to Respondent's plant in Au- burn , Massachusetts, and addressed Respondent's em- ployees Hagan discussed the Union and various employee benefits at this meeting. Further union meetings were held on May 10 and 16 and an organizing committee of plant employees was established. Serving on the committee were Carole Dees, Arthur Gonyea, Walter Micolites, and Victor Skalubinski. On May 21, 1973, Massachusetts Laborers District Coun- cil of the Laborers' International Union of North America, AFL-CIO, sent a letter to Respondent demanding recogni- tion in a unit of its production and maintenance employees on behalf of Laborers Local Union 243. On May 23, 1973, the same District Council on behalf of Local Union 243 filed a petition for a Board conducted election in this unit at the office of Board Region 1 in Boston , Massachusetts (Case 1-RC-12773). On May 23, 1973, after the Union's demand for recogni- tion, Ansley, Respondent's president, addressed a mass meet- ing of Respondent's employees. This was the first time he had ever done so. In his brief speech to them on this occasion, which was made primarily from a prepared text, Ansley told the employees that he was opposed to having Respondent unionized and that he had instructed Perreault, the plant manager, to advise Respondent's outside customers that a union organizing campaign was going on and that Respond- ent could not guarantee production on schedule . After stating in the speech that it was the customer's decision whether or not to continue giving orders to Respondent in these circum- stances Ansley told employees that they, the employees, were probably tired of working overtime anyway.6 In late May 1973 Perreault did in fact advise several of Respondent's customers of the Union's organizing campaign and at least one decided not to give an order to Respondent at that time. Also on May 30, 1973, Perreault posted a bulletin to all employees announcing that the normal workday would con- sist of 9 hours until further notice. On a weekly basis of 45 hours (5 days at 9 hours per day) this would represent an average reduction of about 5 hours or more below the number of hours employees had been working since at least January 1973. During the week ending June 3, 1973, job No. 1391-a mold to be made for Tupperware-was removed from Re- spondent's plant and sent to Diecraft, another moldrraking company owned by Dart Industries but located in Australia. No 1391 is a duplicate of another mold being made by Re- spondent for Tupperware and originally ordered by the latter at the same time as 1391. No. 1391 would have taken over 3,000 man-hours for Respondent to have completed. 6 The findings as to this speech are based on the admissions of Ansley in this regard Also during the period May 22 through July 20, 1973, Tupperware placed no molds with Respondent for manufac- ture but instead gave Diecraft in Australia orders for 28 molds. In June 1973 Perreault started issuing written disciplinary warnings to his employees . In Perreault's 4-1/2 years as plant manager he had never previously issued written warnings. On or about June 19, 1973, a conference was held at the office of Board Region 1 in Boston , Massachusetts, in connec- tion with the election petition in Case 1-RC-12773. Repre- senting the Union at this meeting, inter aka, were Gonyea (the Charging Party), Victor Skalubinski, and Carole Dees. On or about July 15, 1973, some employees began working again in excess of 45 hours per week to complete "rush" orders while others continued to work within the 45-hour limit. On July 30, 1973, Tupperware placed four molds with Respondent-the first so placed since Tupperware sent a series of molds to Diecraft in Australia beginning on May 22, 1973. On August 3, 1973, the election was held in Case 1-RC-12773, in the following unit which the Respondent (Employer) and the Petitioner stipulated to be appropriate: All full time and regular part time production and maintenance employees employed by the Employer at its Auburn, Massachusetts plant, but excluding all other employees, office clerical employees , draftsmen, engi- neering employees, guards and supervisors as defined in the Act. The Board's Tally of Ballots after the election in that pro- ceeding, which was held on August 3, 1973, indicated the following- Votes cast for Petitioner, Votes cast against participating Labor Organization(s), 22 32 Challenged Ballots, 1 No objections were filed to the conduct of this election. Beginning the following week after the union lost this elec- tion the limitations on the overtime opportunities of plant employees were withdrawn except for three well-known union adherents, Dees, Gonyea, and Bezdegian. On August 13, 1973, the Board issued a Certification of Results of Election reflecting the foregoing outcome of the election.7 In mid-August 1973, the Charging Party spoke to Per- reault in the latter's office at the plant. Gonyea expressed the hope that things would return to normal at the plant with the election over. Perreault admittedly told Gonyea something to the effect that he, Perreault , would hate to go through such an experience again. 7 The facts as to the election in Case 1-RC-12,773 and its results are found on the basis of administrative notice of the Board's files and records in that case On April 19 , 1973, I issued on all parties an Order to Show Cause on or before May 2, 1974, why I should not take notice of these facts No party responded to said notice in timely fashion On May 6, 1974, Respondent sent a letter in which it stated that it and the General Counsel stipulated that such administrative notice was properly taken TUPCO, DIVISION OF DART INDUSTRIES, INC. 429 On August 28, 1973, the original charge herein was filed by Gonyea as previously mentioned. On October 25, 1973, Perreault sent a letter to all em- ployees in which Perreault referred to the charge filed by Gonyea in this case and the investigation of the case by the Board. In the letter, Perreault stated that he did not think that the Board's investigation of the case was fair and that the investigators had concentrated their interviews on the "com- plainers, gripers, antis and poor losers." The letter went on to say that the man who filed the charge would not, however, be fired if he continued to do his job. The letter concluded with Perreault's expressed wish to "get things back to normal as soon as possible" but stated that this would not be possible as long as a minor number of poor losers and nonproductive employees were trying to impose their will on the majority of faithful and considerate employees. At some time after the election and also after at least the initial charge was filed, Gonyea met with Ansley, Perreault, and Hagan at a restaurant to discuss what his future relation- ship with the Respondent would be. In this meeting Gonyea told Ansley that he had discussed with the Government the possibility of withdrawing the charge filed by him, but that they had refused. The meeting apparently was an amicable one with Ansley paying for dinner. During the late spring and summer of 1973 supervisors discussed the Union with employees on a number of occa- sions. As a result, as Perreault admitted at the hearing, it was indeed "pretty well open who was and who wasn't" a union supporter. In the next section of this Decision I will, inter alia, deal with the question whether the participation of Respondent's supervisors in these discussions violated Section 8(a)(1) of the Act. D. The 8(a)(1) Allegations 1. The Hagan speech on May 2, 1973 (subparagraph 8(a), (b), and (c) of the complaint)' As noted Hagan spoke to all the employees at work at Respondent's Auburn plant on or about May 2, 1973. There is a dispute in the testimony as to what Hagan said on this occasion. Based on my resolution of credibility, I find that the following occurred. Hagan began by telling the employees about existing com- pany personnel policies and benefits . He also told employees he was aware that a union meeting was scheduled that night and this was the reason that he was there.' Hagan suggested 8 Reference to these subparagraphs here and infra denotes the factual allegations of the complaint. Legal conclusions as to these factual allegations are set forth elsewhere in the complaint. 9 These findings are based on the credible testimony of Dees and Mico- lites in this regard. I discredit Hagan's denial that he made this statement and any of his testimony where it conflicts with that of other witnesses. Hagan, according to his testimony, had difficulty remembering the details of what happened at the meeting on May 2, 1973. At first he couldn't remember mentioning the Union in the speech and then after extensive cross-examination by the General Counsel he remembered a number of statements he made in relation to the Union. He noticeably blushed on cross-examination. His testimony as to what he said also conflicts with that of Perreault, the plant manager . I also discredit Perreault's denial that Hagan said the Union was Hagan's reason for being at the plant on May 2. On that employees attend this union meeting but to be wary about signing union authorization cards which he compared to signing a blank check. Hagan went on to tell the employees that, if they thought Perreault, the plant manager, was a tough supervisor then they should wait and see what he would be like if the Union got in. 10 Hagan also advised the employees that Tupperware had made molds at plants other than Tupco and that, if necessary, such work could be sent elsewhere again." I conclude on the basis of the foregoing, that Hagan's statement that he was there because of the union meeting that night was calculated to, and did, convey to the employees the impression that the union activities of Respondent's em- ployees were a cause of concern to it and that Respondent was maintaining surveillance of these activities. I find that by creating this impression Respondent violated Section 8(a)(1) of the Act.12 I also find that Hagan's remark suggesting that Perreault would get tougher if the Union came in was a threat to take reprisal against its employees in that eventuality and that Respondent also thereby violated Section 8(a)(1) of the Act.13 As to Hagan's further comments about other places where Tupperware could have mold work done, if necessary, I find that these statements fall short of a threat to take such action if the Union came in and I shall recommend that this allegation of the complaint be dismissed.14 2. Alleged statement in mid-May 1973 of Foreman Lovec to employee Micolites (subparagraph 8(d) of the complaint) In mid-May 1973 Lovec spoke to Micolites and told the latter that another employee, Stanley June, was going "on long hours" (apparently speaking of extended overtime). Lo- ves went on to say that Perreault had found out that June had signed a card the night of the union meeting and Lovec commented "you do a guy a favor and this is what happens to you."'5 examination by the General Counsel under Sec. 43(b) of the Federal rules, Perreault denied that Hagan discussed the Union in his speech. Perreault changed this testimony when called as a witness by Respondent. I will comment further on the credibility of Dees, Perreault, and Micolites later in this Decision. to Dees credibly so testified and Perreault admitted that Hagan so stated. I discredit Hagan's denial that he made this statement. 11 Dees credibly so testified and Hagan admitted mentioning other places where Tupperware had sent work to be done. Dees' version is also essen- tially corroborated by Perreault. 12 Hatteras Yachts, AMF Incorporated, 207 NLRB 1043 (1973). 13 I find no merit in Respondent's contention that this remark was a joke, even if, as Perreault testified, the employees laughed when hearing it. The statement is, in haec verba, a threat of reprisal in the event of unionization of the plant. I am aware of no license in the Act for management to make such a statement in the guise of humor. 14 Dees also testified on direct examination that Respondent would phase out or close down if anyone other than Respondent tried to manage Re- spondent. On cross, Dees stated she didn't think Hagan threatened a phase out if the Union came in. Other witnesses including Hagan either denied or could not recall any such threat. In these circumstances, I find no probative evidence that a threat was then made to shut down or phase out in the event of unionization. 15 Micolites credibly so testified. I found Micolites, who was subpenaed to appear by both sides (and not as a hostile witness), to be a sincere witness who testified in a conscientious manner. Lovec, whose denial here I dis- credit, did not create a favorable impression as a witness. He looked away when I gave him the oath and also when denying the testimony of the 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that Lovec's statement to Micolites also created the impression that Respondent was keeping the union activities of its employees under surveillance and that Respondent thereby violated Section 8(a)(1) of the Act. 3. Ansley's speech to Respondent's employees on or about May 23, 1973 (subparagraph 8(e) of the complaint) As previously noted Ansley gave a speech, primarily from a prepared text, to Respondent's employees on this date in which he, admittedly, told them he was opposed to the Union . He also, admittedly, told them in the fourth para- graph of this speech that: I've told George [Perreault, the plant manager] that we cannot at this time take any risk of hurting our custom- ers until this union thing is completely settled. George has advised our outside customers that we are having a union organizing drive and that he couldn 't guarantee production on schedule. The decision is theirs based on the urgency of their requirements. We felt that we might tell them of the potential problems in order to maintain good customer relations." At this point in the speech Ansley then, admittedly, de- parted from his prepared text and added: But I imagine most of you are tired of working overtime anyway. Boiled down to its essentials, Ansley's open message in the prepared text here was that Respondent through Perreault was discouraging its customers from sending it work because of the onset of the Union. The unmistakeable implications of Ansley's ad lib were that customers would, in fact, curtail their orders to Respondent for this reason and that overtime work would be lost as the result." The obvious impact of these remarks by Ansley was to convince employees that, because of the Union's campaign, Respondent would take action to reduce work and overtime opportunities for its employees. By gratuitously shifting to the Union-which had made no threat to strike and had yet to advance its first bargaining demand-the onus for Respon- dent's predicted reduction of overtime, Respondent sought to disparage and undermine the Union by conveying to the employees the impression that the Union stood in the way of customary liberal overtime opportunities." Thus Respond- General Counsel 's witnesses. I also find incredible his statement that he and Perreault did not discuss which employees had signed union cards in the light of his further admission that employees told him who had signed cards. 16 George Perreault in fact so notified Respondent's customers, as has been found. 17 Perreault admitted that , at this time , no one had mentioned a strike to him. No bargaining demands had been received from the Union-only its demand for recognition. 18 As noted, the subsequent across-the-board cut in overtime was the first in Respondent's history. I discredit Ansley's self-serving testimony that the reason he made the ad lib about overtime was because it was difficult to obtain employees to work overtime. No such explanation was given in his speech. On the other hand, any reduction in overtime would be a natural consequence of Respondent's efforts to discourage its customers from sending work to Respondent-a matter Ansley had just discussed in his speech. Also I note that, when first examined by the General Counsel, Ansley stated he made no announcement ent held out to the employees the possibility that the previous virtually unlimited policy would be continued but for the Union and that changes in this policy would be made by Respondent in reaction to the Union's campaign. By this conduct, Respondent, through Ansley, interfered with, re- strained and coerced its employees in the exercise of their right to support the Union guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act.19 More will be said hereinafter about Ansley's remarks on this occasion. 4. Alleged threat of Penniman to employees (subparagraph 8(f) of the complaint) On the day before the conference at the Board's Regional Office in Boston which, I have found, occurred on or about June 19, 1973, Foreman Penniman and Lovec spoke with employee Micolites at the Respondent's plant in Auburn. Penniman asked Micolites who was going to Boston. When Micolites responded that he did not know, Penniman re- marked that he would not want to be in the shoes of anyone who went to Boston.20 Since Micolites was an employee and since the incident occurred the day before the Boston conference on the Union's petition in the representation case, I conclude that, in asking Micolites who was going to Boston , Penniman was inquiring which employees were going to Boston for that conference. In so doing and by adding the statement he would hate to be in that employee's shoes, I conclude that Penniman coer- cively interrogated Micolites concerning his fellow em- ployees' union activities in violation of Section 8(a)(1) of the Act. 5. Alleged interrogation by Perreault (subparagraph 8(g) of the complaint) On or about June 15, 1973, Dees overheard a conversation between Perreault and Ed Spinnie. In this conversation, Per- reault asked Spinnie if the latter knew who was going to Boston.21 Inasmuch as Spinnie was an employee and since the confer- ence on the Union's representation election petition was to be held at Boston within the next few days, I conclude that Perreault was inquiring which employees were going to this conference. In making this inquiry, for which no business about the overtime reduction in his speech. He later admitted that he made the ad lib about overtime in his speech but claimed it was a joke. 19 See American Paper and Supply Co., 159 NLRB 1243 (1966). 1 am unimpressed with Respondent's contention that Ansley's remark about em- ployees being tired of overtime was a joke. That employees might have laughed when that was the apparent wish of the company president who had never addressed them before in a group, I do not find surprising. Returning however to the real world of objectivity, the earnings of a working man-or woman-are not a joking matter. 20 Micolites credibly so testified. I discredit the denial of Penniman that he made this remark. Penniman I found to be an evasive witness particularly with regard to his discussions with employees about the Union. Lovec did not deny this incident. 21 Dees credibly so testified. Spinnie did not testify. I discredit Perreault's denial that he, Perreault, so inquired of Spinnie. Perreault admitted he knew who was going to Boston and that he asked his foreman about this matter-thus clearly indicating his interest in it. When denying an earlier general question whether he asked nonsupervisory employees about this matter he noticeably ground his jaws together. TUPCO, DIVISION OF DART INDUSTRIES, INC. justification was shown nor any guarantee against reprisal given, I conclude that Perreault coercively interrogated Spin- nie about his fellow employees' union activities in violation of Section 8(a)(1) of the Act.22 6. Alleged statements by Foreman Witkus to employees as to why they were not receiving overtime (subparagraph 8(1) of the complaint) Foreman Witkus told employee Dunphy at the latter's machine at the plant on several occasions between the filing of the election petition (May 23, 1973) and the election (Au- gust 3, 1973) that the reason overtime was being cut during that period was because Respondent was not taking orders. Witkus added on these occasions that the employees should "use their head" and that they didn't need a union. Witkus told Dunphy, that it was true that the time was being cut down because the Union was there. He also told Dunphy to "forget the Union," to "go back to work and bring conditions back to normal." Witkus further told Dunphy on these occa- sions that if the Union were out of the plant and conditions were normal, overtime would be worked again.23 Witkus also told employee Skalubinski several times dur- ing June and July 1973 in the work area of the plant that if the Union came in the place would shut down.24 I conclude that by Witkus' remarks to Dunphy, supra, that overtime was cut down because of the Union and that over- time would resume if the Union were out of the plant, Re- spondent, as in the case of Ansley's speech discussed above, was holding out to Dunphy that employees would receive this benefit if it were not for the Union, and that Respondent thereby violated Section 8(a)(1) of the Act. I further conclude that by Witkus' remarks to Skalubinski, supra, Respondent was threatening Skalubinski with plant shutdown if the Union came into the plant and that these threats were in violation of Section 8(a)(1) of the Act.25 7. Alleged threats of plant shutdown by Lovec (subparagraph 8(i) of the complaint) After the petition was filed (May 23, 1973) and before the election (August 3, 1973) Lovec came into Skalubinski's work area at the plant and told Skalubinski on several occasions that if the Union tried to get in, the place would close down or they would phase out the factory.'6 22 Abex Corporation-Engineered Products Division, 162 NLRB 328 (1966); Swanson-Nunn Electric Company, Inc., 203 NLRB 213 (1973). 23 Dunphy credibly so testified. I found Dunphy to be a generally sincere witness, although a bit wordy. I was not so impressed with Witkus. Witkus looked down and blinked on several occasions when denying testimony of the General Counsel's witnesses. Moreover, although he made such denials, he admitted talking with employees about the Union-but claimed he did not remember what he said or to whom he spoke. Hence I do not credit his denials of the statements attributed to him by Dunphy. In so finding, I also note that Witkus admitted that he had discussed the matter of overtime reduction with employees after first denying he had done so. 24 Skalubinski credibly so testified. I discredit Witkus' denial that he made any such statements to employees. I found Skalubinski, who was subpenaed to testify by both sides in the proceeding (and not as a hostile witness), to be sincere and forthright in his manner. I have already commented on the impression created by Witkus. 25 See, e.g., Enterprise Products Company, 196 NLRB 549, 563, enfd. 471 F.2d 651 (C.A. 5, 1973). 431 I find that by Lovec's statements to Skalubinski on these occasions, Respondent threatened Skalubinski with reprisal if the Union came in, and that Respondent thereby violated Section 8(a)(1) of the Act. 8. Alleged threat by Lovec on or about July 16, 1973, of reduction of hours if the Union won the election (subparagraph 8(k) of the complaint) Inasmuch as no probative evidence was introduced in sup- port of this allegation of the complaint, I shall recommend its dismissal consistent with the unopposed motion of the Gen- eral Counsel therefor. 9. Alleged threat by Lovec to Gonyea (subparagraph 8(1) of the complaint) On the Monday following the election, that is, on or about August 6, 1973, Josef Lovec came over to Gonyea's machine at the plant where Gonyea was speaking to Connor. Lovec told these employees that the election was over, things would go back to normal, and that employees would go back on overtime. Lovec added that this (the overtime) would not, however, be enjoyed by Gonyea who would perhaps be fired.27 By Lovec's instant statement to Gonyea I conclude that Lovec was threatening Gonyea with reprisal for the latter's participating in the attempts to organize a union and that Respondent thereby coerced Gonyea in the exercise of his Section 7 rights in violation of Section 8(a)(1) of the Act. 10. Alleged threat of Perreault to Gonyea; alleged statement by Perreault to Gonyea that he, Perreault, knew who had supported the Union (subparagraphs 10(m) and (n) of the complaint) About a week or so after the election, or on or about August 10, 1973, Gonyea asked to speak to Perreault. A meeting thereafter took place in Perreault's office with only Perreault and Gonyea present. Gonyea told Perreault that the election was lost and that he, Gonyea, wanted things to get back to normal and to get back on a regular work schedule. Perreault told Gonyea that there was no way that this could be done; that he, Perreault, had his orders and that the union activity would not start up again. Perreault continued that it was either Gonyea's job, or his, Perreault's, job. Per- reault also said he, Perreault, had a list of union supporters, 26 Skalubinski credibly so testified. I discredit the denial of Lovec. I have already commented on the credibility of both Skalubinski and Lovec. 27 Gonyea credibly so testified. When Gonyea was a bit defensive in his manner on the stand, I found him to be a generally reliable witness. Re- spondent sought to discredit him by showing that he, Gonyea, at least at one point after the election , sought a meeting with Ansley and that such meeting took place . In that meeting Gonyea sought to ascertain what his, Gonyea's, status would be and he informed Ansley and other Respondent officials that he, Gonyea, had tried unsuccessfully to withdraw the charges herein-all as recounted supra. In my judgment these incidents are insufficient to provide a basis to discredit Gonyea. That he should seek to make peace with Re- spondent even on capitulation terms could hardly be unexpected in the light of this threat to which he was subjected by Lovec. I have already com- mented on the credibility of Lovec. I also note that Levee admitted that he knew Gonyea was a union supporter and also knew the identity of most of the employees who signed cards. Connor did not testify. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Gonyea's name was first on the list and others on the list included Turcotte and Dees.28 I find that Perreault's statement to Gonyea that, under Perreault's orders, if the Union started up again, it would be either Gonyea's job or Perreault's job, to be a threat to Go- nyea that the latter would be discharged in the event the Union started up again at the plant. I further conclude that by this threat to Gonyea, Respondent coerced and restrained Gonyea in his right to support the Union and thereby violated Section 8(a)(1) of the Act. 11. Alleged statement by Lovec to employees that Perreault kept a list of union supporters in his head (subparagraph 8(b) of the complaint) I find no probative evidence in support of this allegation of the complaint-only remarks by employees to Lovec stating or implying that they understood that Perreault or Respond- ent had such a list which, according to Lovec, he denied. Therefore, I shall recommend dismissal of this allegation of the complaint. 12. Alleged suggestion by Lovec to employees that they should quit because they had supported the Union (subparagraph 8(p) of the complaint) On or about August 8, 1973, a date also after the election, Lovec came over to Dees' bench at the plant and engaged in a conversation with Dees. On this occasion Lovec reminded Dees that the people who were for the Union had said they were going to quit because they didn't think they would have their jobs if the Union lost the election. Lovec then asked Dees "so, why don't you get the f-k out." Then he told Dees that the Company had gone through the records for the preceding years which showed that "you" (apparently speak- ing to Dees and other union adherents) had gotten the most amount of raises and the most money of anybody , thus the Company couldn't figure out why "you're trying to screw them." Dees responded that she did not say that she was going to quit and then told Lovec she did not want to argue the matter. With this Lovec said that the Union people were smiling before but they were now walking around with their tails between their legs. Lovec thereupon walked away.29 28 These findings are based on the credible testimony of Gonyea in this regard . Perreault admitted his participation in this conversation and he also admitted that he told Gonyea that he knew who was a union supporter. He further admitted that he knew the names of at least 10 or 12 union support- ers and that he told Gonyea that he would hate to go "through this" again. He did not precisely deny saying it was his job or Gonyea's job. I discredit his denial that he told Gonyea he had a list of union supporters . Perreault, a somewhat argumentative witness, was particularly argumentative, hence, in my judgment , evasive, when cross-examined -on this subject. 29 These findings are based on the credible testimony of Dees in this regard. I found Dees to be a sincere witness who appeared to testify to the best of her knowledge and belief. I am not persuaded that her failure to mention in her affidavits the precise words used by Lovec in the foregoing encounter suggests that Lovec did not speak to.her as I have found above. The necessity of repeating the specific expletive in her affidavits could reasonably be viewed by her as being less compelling at that time than it was in her testimony. This was indeed her explanation of the discrepancy, if it may be considered one, between her affidavits and her testimony . I discredit Lovec's denial that he made this statement. Lovec, in any event , admitted that several named union supporters-not including Dees-had said prior I conclude that in the foregoing conduct of Lovec, Re- spondent created the impression of surveillance of the union activities of its employees and further suggested that because of Dees' support of the Union the Respondent desired her to resign and that by these activities Respondent coerced and restrained Dees in any desire she may have had to continue to support the Union, thereby violating Section 8 (a)(1) of the Act. 13. Letter from Perreault to all employees on October 26, 1973, in which Perreault, it is alleged, impliedly threatened retaliation against employees who filed charges or who continued to support the Union (subparagraph 9(q) of the complaint) This letter, which is General Counsel's Exhibit 6, states, inter alia, that Perreault had refused to settle the unfair labor practice charges against Respondent; that he did not think the Government fairly investigated the charges (by tending to talk to "complainers, gripers, antis, and poor losers" and not other employees); that the case might take years to litigate; that the party who filed the charge would not be discharged (but would be treated like any other employee and discharged only if he did not do his job) and finally that he, Perreault, desired things to return to normal but that this would not "be possible as long as a minor number of the poor losers and nonproductive employees were trying to impose their will upon the majority of faithful and considerate employees." Perreault admitted at the hearing that the so-called "poor losers and nonproductive employees" were the union sup- porters. Insofar as the employees are concerned, I find nothing in this letter which exceeds the bounds of free speech protected under Section 8(c) of the Act. While the letter suggests that things will not get "back to normal" as long as a number of poor losers and nonproductive employees persist in their ef- forts to impose their will on other employees, I can detect no implication of threat or promise of benefit from the bald phrase "back to normal" in the context in which it appears. Accordingly, I shall also recommend that this allegation of the complaint be dismissed. E. The 8(a)(3) and (1) Allegations 1. Respondent's initiation of a written warning system on or about June 8, 1973, as a method of disciplining all em- ployees at the plant (subparagraph 9(a) of the complaint) Respondent first began giving written warnings to its em- ployees in May or June 1973 after the advent of the Union. While a written warning system has been in effect "at all Tupperware plants" including Respondent since at least 1969, when Perreault became plant manager of Respondent's Auburn plant here involved, no written warnings were given from 1969 until the Union appeared on the scene . Hence, for all practical purposes, Respondent itself had no such system until the latter time. The written warning system was put into effect by Per- reault because of employee talking-the extent of which will be discussed, infra. The talking was thought by Perreault to to the election that they would quit if the Union lost the election. Lovec also admitted that he knew Dees had signed a union card. TUPCO, DIVISION OF DART INDUSTRIES, INC. be about the Union. The names of a number of recipients of written warnings were recited by Perreault at the hearing. Most of these were known by him to be union adherents.30 Respondent defends that the issuance of written warnings beginning in May or June 1973 was necessitated by the exces- sive amount of talking in the plant at that time. Perreault so testified and gave this to the foreman as his reason for imple- menting the written warning system. Ansley also testified that he had noticed an excessive amount of talking and also "goofing off" and he mentioned the latter in his speech to employees on May 23, 1973. Ansley also testified that in response to his, Ansley's, accusation that employees were only working 80 percent of the time, one employee, Turcotte, stated employees were loafing 30 percent of the time. On July 24, 1973, Respondent also posted a notice explaining that employees could not talk about the Union on company time. It is clear from all the foregoing that the talking among employees which caused Respondent to implement a written warning system was talk about the Union and that the union advocates were the primary target of this system. The mere fact that such talk was about the Union does not, however, immunize it from employer discipline where it occurs on an employer's time and property. Indeed, as the Supreme Court has succinctly observed, working time is for work.31 On the other hand if talking is a normal condition of employment an employer may not change such a condition primarily for the purpose of blocking union activity and harassing union sup- porters. I am satisfied that the latter was the Respondent's purpose in implementing its written warning system here For, in answer to the question whether talking was customary at the shop, Perreault frankly admitted that a certain amount of it had gone on because he could understand that it was difficult for employees to "stay right at it" when they work 12 hours per day.32 While he stated that there was a limit to the amount of talking allowed and that he deemed 10, 15, or 20 minutes excessive, he did not explain how, if at all, incidents of talking of such duration, assuming their occurrence, dif- fered from talking which was customary at the shop and which had been permitted by Respondent without written warnings until the advent of the Union. The difference, rather, was that employees were talking about the Union, whereas they had not apparently done so before. In these circumstances I conclude that Respondent's im- plementation of a written warning system for the first time in at least 4 years and in the course of the Union's campaign had as its primary purpose the harassment of union adherents and that Respondent thereby violated Section 8(a)(3) and (1) of the Act.33 30 The foregoing findings is to this written warning system are based on the admissions of Perreault or Ansley in this regard 31 Republic Aviation Corporation v NL R.B., 342 U S 793, 803, fn 10 32 Perreault also so informed Dunphy when the latter began working for Respondent on January 15, 1973 33 Mississippi Tank Company, 194 NLRB 923, 925 (1972), Cf James Hoomaian d/b/a Chicago Master Mattress and Furniture Company, 196 NLRB 579 (1972), enfd 471 F 2d 654 (C A 6, 1973) 433 2. Written warnings to Skalubinski and Bezdegian (subparagraph 9(b) of the complaint) Respondent admitted in its answer to the complaint that it had given written warnings to Skalubinski and Bezdegian on August 13, 1973. I so find. The written warning given to each stated as follows: Excessive talking and loafing. You have been given ver- bal warnings on this several times by your foreman, Josef Lovec. Continuation of this practice will result in disci- plinary action or discharge. In the incident following which Skalubinski was given his written warning, Skalubinski, as he admitted, had been talk- ing for some 10 minutes with Stanley June and Walter Zbi- kowski who had left their work stations 75 to 100 feet away to talk to Skalubinski Skalubinski at the time had run out of work and was waiting to speak to his foreman who was in attendance at a management meeting . When the management meeting broke up, Lovec walked out of a door nearby and saw the three men talking. Lovec immediately came over to Skalubinski's station and June and Zbikowski departed. Lo- vec told Skalubinski that "you guys are stirring up the s-" and "a bunch of you guys are going to get fired-its either going to be them or me." After a few more words Lovec left but returned in several minutes to tell Skalubinski that Perreault wanted to see him. Bezdegian followed. After Skalubinski and Bezdegian reached Perreault's of- fice, each was handed the above-named written warning, which had already been prepared. Perreault then asked Skalubinski why he was not working and Skalubinski ex- plained he was waiting for a job . Perreault then suggested that Skalubinski wipe his machine down and sweep the floor to which Skalubmski responded that since no one else did this he questioned why he should.34 Both Bezdegian and Skalu- binski refused to sign their slips.35 Perreault and Lovec did sign them. There is no indication that either June or Zbikowski was given a warning slip on this occasion, although a number of warning slips were introduced into evidence. Nor were June and Zbikowski present when Perreault gave the warning slips to Bezdegian and Skalubinski. I, accordingly, conclude that June and Zbikowski were not given warning slips for this incident. Other employees also talked in the shop but were not given warning slips. A particular case in point was Bill Van Nieu- wenhuyze who talked with several employees at his machine for an hour and a half on the day of the election.36 Van Nieuwenhuyze had been a union advocate early in the cam- paign but changed his mind before the election. The latter was seen talking by Lovec on the day of the election but was not warned by Lovec because, according to Lovec, Lovec was not then his supervisor. This difference in supervision did not, however, deter Lovec from initiating the written warning to 34 The foregoing findings are based on the credible testimony of Skalubtn- ski in this regard and are not essentially disputed by the testimony of Perreault and Lovec Bezdegian did not testify 35 Perreault so admitted 36 Skalubmski credibly so testified His testimony is not disputed by that of Van Nieuwenhuyze 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Skalubinski, on August 13, 1973. At that time Skalubinski was working for Witkus, for whom Skalubinski was waiting to receive a job assignment when Lovec spoke to Skalubinski. The incident, if any, which gave rise to Bezdegian's warn- ing slip is not shown by the record. However, the latter was not talking to Skalubinski when the confrontation between Lovec and Skalubinski developed. I conclude in all the circumstances that Respondent's writ- ten warning system was applied discriminatorily to Bezde- gian and Skalubinski on August 13, 1973. Both were known by Respondent to be union adherents. Skalubinski had, in fact, been a member of the plant organizing committee and had been one of those representing the Union at the represen- tation election conference at the Board's Regional Office in Boston on or about June 19, 1973. Lovec's remark at least to Skalubinski that "you guys are always stirring up the s-" further suggests that Lovec was singling out the latter for punishment for offenses which, in Lovec's mind, were beyond mere talking..I, accordingly, conclude that in issuing written warnings to Skalubinski and Bezdegian on August 13, 1973, Respondent violated Section 8(a)(3) and (1) of the Act. 3. The reduction of overtime for all employees from May 30 to July 15, 1973 (subparagraph 10(a) of the complaint) In its answer to the complaint Respondent admitted that it reduced the hours of overtime of all production and mainte- nance employees at the plant from May 30 to July 15, 1973. I so find. The complaint alleges that Respondent took this action to discriminate against its employees thereby discouraging their membership in the Union, whereas Respondent defends that this action was taken for reasons of economic necessity, primarily because Respondent did not have enough work to continue extended overtime. Respondent further contends that its action was designed to stretch out the work then available to avoid layoffs. I conclude that the reason Respondent reduced the over- time of its employees during this period was a discriminatory one. As previously found, the Union made its demand for recog- nition on Respondent in a letter dated May 21, 1973, and filed its election petition on May 23, 1973. On the latter date Ansley spoke to Respondent's employees about the Union. In this speech Ansley said, inter alia, that he was instructing Perreault to notify Respondent's customers of the Union's campaign at Respondent's plant and the effect it might have on Respondent's production schedule. Ansley also told the employees that the decision what to do would be up to the customer. Ansley then stated that he felt this action necessary to keep up customer relations but added that employees were probably tired of working overtime anyway. Since Respon- dent's principal customer was, and is , Tupperware, and in view of the reference of overtime, the obvious implications of Ansley's remarks were that Tupperware and other customers would act on Perreault's representations to cut back on their orders to Respondent while the Union was on the scene and that this would result in a reduction of the overtime of Re- spondent's employees." Both of these implications turned out to be predictions of the events which followed. Beginning with the day before Ansley's speech, that is, on May 22, 1973, and continuing to July 20, 1973, Tupperware awarded 28 mold orders to Diecraft, a mold manufacturer in Australia which is wholly owned by Dart Industries (Re- spondent and Tupperware, as noted, are also wholly owned by Dart Industries). During the same period Tupperware gave no mold orders to Respondent. Further, Tupperware, during the week ending June 3; 1973, removed a mold order from Respondent (Respondent's job 1391) and awarded the job to Diecraft. Job 1391 was a Tupperware mold just like another mold then being worked on for Tupperware by Re- spondent's employees. In early June 1973, one other cus- tomer, Mack Molding, declined to place an order with Re- spondent after Perreault had told its chief tool engineer, Brown, of the Union's organizing campaign. The order cutting overtime came a week after Ansley's speech, that is, on May 30, 1973. On the latter date Respond- ent published a notice to all employees in which it stated. Effective immediately, and until further notice, the nor- mal working day will consist of nine (9) hours a day-7:00 a.m. to 4:30 p.m. This notice was signed by George Perreault. As Perreault admitted, the new limit meant that the employees' work week was thereby reduced from 50-55 hours to 45 hours. Previ- ously there had never been a general reduction of overtime in the more than 7 years the plant had been in operation. Prior to issuing the above notice, Perreault and Ansley discussed the presence of the Union in the plant. As Perreault testified, the order was implemented on May 31. The aforementioned notice did not explain the reason for the reduction in overtime and Perreault did not explain it to the employees. While Perreault claimed at the hearing that he directed his foreman to tell employees that overtime was being reduced to stretch out the work load, Foreman Penni- man did not call his employees to tell them this but only mentioned it, he testified, when employees asked hint. Lovec testified that he followed Perreault's instructions in this re- gard. For his part, ForemanWitkus did not recall so advising his employees but, as I have found, told employee Dunphy on several occasions after the overtime was cut, that the work week was reduced because Respondent was not taking orders and because the Union was there. Witkus also told Dunphy on these occasions that the overtime would be restored if the Union were out of the plant. In his testimony, Anterni, heretofore found to be an agent of Tupperware, which exists in a single employer relationship with Respondent, acknowledged that the Union's organiza- tional campaign was a factor in his determination to award mold contracts to Diecraft rather than Respondent during the period in question here." 37 The force of these implications was not lost on Dees and Turcotte who testified that it was their recollection that Ansley stated on this occasion that Respondent would take no more orders or that Respondent's work would be done elsewhere. Both also recalled Ansley's admitted statement about employees being tired of working overtime. 38 In this testimony Anterni admitted making a statement in his prehear- ing affidavit to this effect. I have considered this admission not only as it may tend to contradict his other sworn testimony on this same subject, TUPCO, DIVISION OF DART INDUSTRIES, INC. I conclude from all the foregoing that the General Counsel has established a substantial prima facie case that the reduc- tion of overtime for all employees lasting from May 30 to July 15, 1973, was caused by Respondent to discourage member- ship in the Union in violation of Section 8(a)(3) and (1) of the Act. Thus, Respondent's animus against the unionization of its employees and particularly by this Union is well demon- strated by Ansley's speech and the conduct of Respondent's supervisors heretofore found violative of Section 8(a)(1) of the Act.39 The reduction of overtime was announced only a week or so after the Union had demanded recognition and had filed an election petition. Also Ansley's speech, in effect, predicted, just as Foreman Witkus later told employee Dun- phy, that Respondent was taking action to curtail its business and that a reduction of overtime was developing because of the Union's presence in the plant. Respondent, as noted , asserts that the reduction of over- time was due to lack of work or, more precisely, to stretch out the work then available. It also asserts that the actions of Tupperware to make mold assignments to Diecraft including job 1391, which was taken away from Respondent, were based on economic reasons and not on any discriminatory motivation. In support of these arguments , Respondent ad- vances a number of contentions. I will treat with each of these seriatim. A. The Sequence of Events which Led Up to the Reduction of Overtime Prior to the Advent of the Union Campaign Respondent contends that Perreault and Ansley first dis- cussed the matter of reducing Respondent 's overtime in March 1973. Ansley so testified without contradiction. Hence, I so find. And Ansley testified, and I find, that Ansley and Perreault continued thereafter to discuss the matter of stretching out the work at Respondent's plant every 2 weeks for several months. Ansley and Perrault also contacted An- terni, who is in charge of Tupperware's engineering depart- ment, in an effort to obtain more repair work from Tupper- ware. This latter effort was successful in that more repair work was sent to Respondent by Tupperware. In May, Per- reault told Ansley that Respondent had to get more work or he would have to lay off employees. Ansley ultimately told Perreault to cut hours rather than lay people off and this decision was reached about the last of May . Ansley and Per- reault also discussed the Union's organizational campaign before this decision was made , as already found. That Perreault and Ansley discussed Respondent 's over- time situation and its workload prior to the initiation of the Union's campaign I do not find significant, however, in rela- tion to the issues before me here . For the fact remains that no decision to reduce hours was made until the Union's de- mand for recognition . And this decision was made after Per- reault and Ansley had also discussed the presence of the Union in the plant. Further , work never ran out at Respon- dent's plant although its backlog had decreased from what it had been (as will be discussed more fully hereinafter). which will be discussed infra, but also an affirmative evidence in support of my findings herein . Awrey Bakeries, Inc., 197 NLRB 705 (1972) (fn. 4). 39 Foreman Penniman also frankly admitted that it was common knowl- edge that Respondent did not like unions. 435 B. Economic Reasons for the Placement of New Molds with Diecraft in Australia rather than with Respondent During the Period May 22 to July 20, 1973 Respondent asserts that these 28 molds were placed with Diecraft rather than with Respondent-to which Tupper- ware gave no new molds during this period-because Tup- perware has a policy that whenever a mold is to be "run " (i.e., used to manufacture Tupperware products ) in Australia the mold itself must also be made in Australia . That Respondent has such a policy was attested to by Ansley . I so find. The reason underlying this policy according to Ansley is that if a foreign (e.g., American) mold is later "run" in Australia, the Australian government charges a 50-percent duty on the total cost of the mold. Respondent asserts that the instant 28 molds were to be "run" in Australia, therefore compelling the placement of these molds with Diecraft . In support of this assertion Re- spondent relies on the testimony of Anterni to this effect although I note that Ansley likewise testified that these molds were eventually to be "run" in Australia. In all the circumstances , I conclude that Respondent has not established its defense that the instant molds were sent to Australia for manufacture because they were to be "run" there. I reach this conclusion for the following reasons. The responsibility to place molds for Tupperware is appar- ently a shared one. Ansley testified that he decides on mold placement based on Anterni's recommendation . For his part, Anterni testified that he, Anterni , makes the decision in 80 percent of the cases and in other cases consults Ansley. In these circumstances I conclude that both play a role in this determination and that the basic responsibility is Anterni's. There are also apparently several criteria considered in the placement of a mold . Anterni testified that these criteria are the location where a mold is to be "run ," where it is going to be placed or based and its delivery date. Later he added the criterion of price and stated that Respondent and Diecraft bid competitively against each other on mold manufacturing work and that their bids were apart 50 percent of the time. There is no showing that Respoi ..dent was given an oppor- tunity to bid on the 28 molds sent to Australia during this period. But even if Respondent did bid and was the low bidder, I conclude from Anterni's testimony that price was not the controlling factor but rather that any decision to award these contracts was based on an evaluation of a num- ber of considerations . The question here is what was the controlling factor in Tupperware 's determination to send the instant 28 molds to Australia during this period. As noted, Anterni testified that these molds were sent to Australia by Tupperware because the molds were to be "run" in Australia. I do not credit this testimony in the light of the entire record and particularly other statements by Anterni. To begin with this testimony is at odds with Anterni's pretrial affidavit . In the latter Anterni stated "also considered in the decision on where to place certain of the molds between March 28 and July 30 , 1973, was where the mold was going to be based." (Emphasis supplied.) Of the 28 molds sent to Diecraft in Australia during this period , 14 or half of them were, according to Respondent 's mold placement order sheets, to be "based" in the United States and not Australia.40 40 See Resp. Exh. 18. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The distinction, if any, which Respondent draws between where a mold is "run" and where it is "based" is not ex- plained by Respondent. The General Counsel sought an ex- planation from Anterni of this distinction but Anterni was indefinite, as will appear. In so inquiring of Anterni the General Counsel referred to the mold placement forms which are used by Tupperware. These forms contain entries for mold numbers, number of mold cavities, mold description, place of ownership, place of base, name of moldmaker, estimated price and mold comple- tion date. There is no entry designating where the mold is to be "run." The General Counsel therefore asked Anterni to explain-as to Tupperware's Mold Placement sheet No. 213, dated July 18, 1973, in which 6 molds are described and whereon Diecraft is designated "moldmaker" (these being 6 of the 28 molds sent to Australia during this time)-whether Anterni could tell from the sheet where the mold would be "run." Anterni responded that the last two molds on this sheet would definitely be "run" in Australia because, as the sheet shows, they are "based" there. As to the other four which are "based" in the United States, Anterni initially said they would be "run" in the United States, then he said they would be "run" at first in Australia, later he stated he wouldn't say if they're going to be run in the United States and finally he said merely that it was a possibility that they would "run" in Australia. In these circumstances I do not credit his other testimony that all 28 molds were sent to Diecraft because they were to be "run" in Australia.41 I conclude rather that there is an absence of probative credible evidence that at least 14 of the 28 molds sent to Diecraft during this period were sent there because the molds were to be "run" in Australia. I further conclude, consistent with Anterni's prehearing admission, acknowledged at the hearing (about the reasons work was not being sent from Tupperware to Respondent at this time), and the statement in Ansley's speech that Perreault was discouraging Respon- dent's customers from giving it orders, that these molds were sent to Diecraft in Australia for manufacture because of the Union's organizational campaign at Respondent's plant. In reaching this conclusion, I further rely on Witkus' remark to Dunphy that Respondent was not taking work at the time in question here because of the presence of the Union in the plant. Finally, I rely on the expectations of Morris, Respon- dent's administrative assistant in charge of purchasing and personnel (which expectations Morris included in a sales pro- jection report in April 1973, before the advent of the Union, and about which more will be said hereinafter), that Re- spondent would be receiving mold orders from Tupperware in May, June, and July 1973.42 41 I also discredit Ansley's testimony that the instant molds were to be "run" in Australia. For his testimony and that of Anterni do not jibe with respect to the responsibility for placing molds, as has been pointed out. Also in his testimony about molds Ansley stated that Tupperware had no molds to place in May when he talked to Perreault about the Union's organizing drive. Respondent's records show that six molds were placed with Diecraft between May 22 and 30, 1973. I also discredit Ansley's testimony concern- ing why these 28 molds were sent to Australia because of Anterni's tes- timony, recounted supra, which does not corroborate Ansley's testimony in this regard but rather leaves the matter unclear whether 14 of these molds, which were to be based in the United States, would be "run" in Australia. 42 The only mold orders from Tupperware during this period came on July 30, 1973. C. Removal of Respondent's Job 1391 (Tupperware Mold 792E) Molds 792E and 792D, identical molds, were originally placed by Tupperware with Respondent. During the week ending June 3, 1973, Mold 792E (i.e., Respondent's job 1391) was taken away from Respondent and sent to Diecraft in Australia. Mold 792E had a due date of September 21, 1973, as of the week before the job was removed. It was a job which would have taken 3,027 hours to complete. Respondent contends that mold 792E was taken away from Respondent because, anticipating labor problems, Per- reault was unable to guarantee delivery on time. Respondent also asserts that this job could not in any, event have been completed by working overtime because only five or six men could work on it at one time. I reject these contentions on the grounds which follow. There is a conflict in the testimony of Respondent's wit- nesses as to the reasons the job was removed. Ansley, Per- reault, and Anterni were all involved in the decision. Per- reault and Ansley testified that this job was removed for the reason that Perreault could not promise delivery because of union negotiations and the possibility of a strike. Anterni, for his part, testified that the reason for the removal was Respon- dent's lack of machine capacity and Anterni further stated that Perreault did not say he could not guarantee delivery. Anterni said he, personally, was fearful that Respondent might not meet its delivery date which was "August 14, 1973." Respondent's records, however, show that the deliv- ery date was September 21, 1973, as found above. Anterni also testified that the work would not be done by Respondent even on any overtime basis because only five or six men could work on it at one time. Perreault, for his part, admitted that job 1391 might possibly have been completed if the overtime had not been cut during the instant period. At any rate mold 792E had still not been delivered from Diecraft at the time of the hearing and was not expected until Febru- ary 15. Mold 792D was expected to be completed by Re- spondent at the same date. Anterni's testimony that Respondent's lack of machine capacity, i.e., the need to use the same machinery to build molds 792E and 792D (which remained with Respondent), was the reason the job was removed suggests that Respondent would be unable to build two molds of the same type at the same time. However, Respondent's records indicate that it has made duplicate molds at the same time before and indeed had two such Tupperware duplicate jobs in the house at the time Mold 792E was removed (i.e. Tupperware molds 1200A and B, each of which was a job requiring 2,828 more hours work, and Tupperware molds 1204B, C, and E which re- quired, variously, 2,260 hours to 2,845 hours more work to be done). Anterni also admitted that it was easier to build a duplicate mold after the first had already been built. Nor am I impressed with Respondent's argument that it anticipated labor problems because the Union was talking (at union meetings) about hourly wages $4 to $5 above Respon- There is no showing that any of the previous 28 mold orders of Tupper- ware, all of which were awarded to Diecraft, were beyond Respondent's technical capability. TUPCO, DIVISION OF DART INDUSTRIES, INC. 437 dent's wage rates. The Union never made any demands on Respondent except a demand for recognition. Respondent had no way of knowing what wages it would seek. Even the wages discussed at union meetings varied from $2.65 to $4.65 an hour in amount (i.e., $6.35 per hour to $9 to $11 per hour). I conclude, in all the circumstances, particularly the timing of the removal of job 1391 shortly after the reduction in overtime at the plant and Respondent's reaction to the Union at that time, that the job was taken away from Respondent to reduce the work available to its employees. D. Reduction of Tupperware Capital Expenditures for Molds during 1973 Respondent also contends that, during the period January 1 to December 1, 1973, Tupperware spent about 32 percent less money for molds than in the comparable period in 1972. Respondent's records support this conclusion. I so find. However, the amount of money spent by Tupperware for molds in this period is beside the point. The question here is whether Respondent was being deprived of whatever Tupper- ware molds there were available-along with other work-because of the Union's campaign. And it is clear that Tupperware was committing funds for work at this time because it ordered 28 molds to be manufactured in Australia and such orders were placed between May 22 and July 20, 1973. E. Respondent's Projected Decrease in Sales Which, says Respondent, Was Arrived at Prior to the Union's Organizational Campaign Respondent also refers to other evidence that its business was down in 1973 and that this picture of decreased sales had developed before the Union campaign began at its plant. More precisely Respondent points out that administrative assistant Morris revised Respondent's "profit plan" (planned sales for the year based on the molds to be manufactured, repair work, and trade) downwards on April 19, 1973, after consultation between Morris and Perreault in early April 1973. The profit plan is prepared in December of each year for the coming year and is revised every succeeding quarter. The procedure in preparing it is to look at work orders "in house," work in progress (here that which was scheduled for 1973) and the predictions of Respondent's customers. Also taken into consideration, according to Morris, is the number of employees available. Based on the April 19 revision, the profit plan's estimate of about $1,950,000 business in 1973 was reduced by $250,000. The final figures for the year 1973 showed that the actual total business of Respondent for the year came to approximately $1,700,000. Morris, who prepared the estimates, and who is, conced- edly, an agent of Respondent and a supervisor, also admitted, however, that when his revised projections were made he had hoped to receive molds from Tupperware in May, June, and July and the sales "looked fairly well" for May and June. Morris also admitted that he arrived at his projections after checking with Tupperware. I find that the actual business performed by Respondent in 1973 fell by $250,000 from its original projection in Decem- ber 1972 and that this decrease coincides with its downward revised projections which were made on April 19, 1973, prior to the advent of the Union. But since this revised estimate anticipated mold work from Tupperware in May, June, and July which never materialized (until one order on July 30, 1973) it follows that the $1,700,000 actual business did not include Tupperware mold orders which had been projected for May, June, and July. Thus, even without receiving the projected Tupperware mold orders Respondent did as much work-dollar wise-as it predicted that it would do with the Tupperware mold work. What this means is that, if Respondent had received the expected orders for Tupperware mold manufacture in May, June, and July 1973 and had performed such work (as it would have done at least in part by continuing its normal virtually unlimited overtime policy during the period May 30 to July 15 and thereafter) then its business for 1973 would have exceeded the $1,700,000 figure by the amount of work it would have done on said expected Tupperware molds. That is, if Respondent had gotten the Tupperware mold orders it expected in May, June, and July 1973", it would not have suffered a loss of business amounting to $250,000, as reflected in Morris' profit plant revision of April 19, 1973. This loss would have been cut by the dollar value of whatever work would have been done on the instant Tupperware molds. I also note that after April 19 (when Respondent's shop force stood at 57 with 2 on vacation) that this force fell by June 3 to 53 men and women. Since Morris' projections were based on the number of employees available-and since that number fell after the projections were made-it follows that there would have been fewer people (hence more overtime opportunities for them) to perform the work projected. Far from supporting Respondent's defense of a correctly predicted business downturn in 1973, the foregoing shows that Respondent's business would have exceeded its revised projections if it had received the mold orders projected to be received from Tupperware in May, June, and July 1973. Further, despite the downward revision of the profit plan on April 19, 1972, of which revision Perreault was then aware, no decision to reduce overtime was made at that time. The decision came 6 weeks later after the union campaign had begun at Respondent's plant and after the Union had de- manded recognition. F. Respondent 's Request for Additional Work from Tupperware Respondent also urges, consistent with its contentions that its volume of work started to slacken early in 1973, that it sought additional mold work from Tupperware to take up this slack. Thus, Anterni testified that Perreault began calling Anterni to look for more mold work and the earliest of these calls came around the first of the year, 1973. 43 The mold contracts awarded by Tupperware during those months (ex- cept for July 30) went, as previously noted, to Diecraft in Australia. The dollar figure for these orders, including those for the 14 molds to be "based" in the United States, has been deleted from the copies of these orders placed in evidence. The purpose of this deletion was to assure that Respondent will not learn what Diecraft charges for these types of molds and to keep Die- craft and Respondent competitive. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The short answer to this contention is that whatever Per- reault may have done at the beginning of the year to increase Respondent's sales, the picture changed when the Union ar- rived on the scene. After that time, admittedly, Respondent through Perreault took actions to reduce its work; e.g., by telling its customers that it had a union campaign going on at its plant and therefore could not guarantee deliveries on schedule. In at least one instance a customer other.than Tupperware-Mack Molding-did not give Respondent an order after Perreault had given it this information. Further, as noted, Tupperware shut off its mold orders to Respondent in May, June, and July until July 30. G. Tupperware Repair Work Increased During the Period March 28 to July 30, 1973, Over What It Had Been- During the Previous Year Respondent also asserts that it sought and obtained more repair work from Tupperware during this period to increase the amount of work in Respondent's shop. However, it is not clear whether Respondent would have been awarded this mold repair work in any event. Respond- ent does not have to compete with Diecraft in Australia for repair work as it does on mold manufacture and there is no showing that any other Dart Industries subsidiary does mold repair work for Tupperware. In any event, such repair work does not involve the majority of Respondent's man-hours (e.g., only 600 hours at its peak during the week ending June 24, 1973, compared with 2,308 hours of total work in the same week). Nor does it alter the facts that Perreault was discouraging Respon- dent's other customers from sending it work during the same period nor that Tupperware was sending all its mold manu- facturing work to Diecraft and none to Respondent at that time. H. Statistics Concerning Respondent's Workload During the Period in Question Here,- Relationship to Similar Statistics for the years 1971 and 1972 Respondent introduced a number of charts developed from statistics taken from its weekly progress reports. The latter reports show the hours Respondent's employees work each week and the amount of work expressed in hours which Respondent had pending at the end of each week, with a breakdown of such work in terms of mold manufacture or repairs. The charts concern, variously: Respondent's 1971, 1972, and 1973 workloads expressed in man-hours of work to be performed; its workload of Tupperware molds for each of these years; its actual hours worked on Tupperware repair work for each of these years; its 1973 repair and so-called trade workloads; and its total hours worked, average hours worked, and number of shop employees in 1973. These charts show that commencing in February 1973 when Respondent's total workload high for the year was reached there was a steady decline thereafter in that work- load, dropping 23,000 hours by April and with a further decrease of 10,000 in May-or 33,000 hours total decrease from the February high. Tupperware molds constituted the most significant aspect of Respondent's total workload dur- ing this period. This mold work declined in parallel to the decline in the overall workload described above. This decline also commenced in February, dropped by 23,000 hours in April and another drop in May-or again a difference of 33,000 from the February high. The 1971 workload also dropped substantially from a high in April to a low in September-a drop of approximately 32,000 hours.The 1971 statistics for Tupperware molds paral- lel the foregoing statistics as to the entire workload-a high in April to a low in September. Respondent's workload,on trade items (apparently grind- ing and milling assignments for other manufacturers) bot- tomed out to almost nothing at the end of June and the first part of July 1973. Respondent's Tupperware repair work surged upwards at the end of June 1973 but not to its highest for the year. Insofar as the 1973 overall workload of Respondent can be compared to earlier years, there was a large downswing near the middle of the 1973 as in 1971. In 1972, however, the workload stood steady at a high level. Hence there is no basis to conclude that Respondent's workload decreases in the middle months of every year. The same conclusions obtain with respect to a comparison of Respondent's 1973, 1972, and 1971 workloads of Tupperware molds. Also regardless of workload fluctuations in prior years there had never been an across-the-board reduction of over- time as in 1973. As to the 1973 workloads for overall repair and trade work, no comparison is offered with respect to experience in prior years in regard to these same items. The 1973 trade workload, as noted, fell to almost nothing at the end of June. The overall repair workload dropped in June and dropped still more in July. As to the Tupperware repair work, no significant pattern emerges by comparing the records for 1973 with those of 1971 and 1972 except that the workload at the end of June 1973 was higher for that item than it had been at the same time in the previous years. However, the difference between amount of this work in June 1972 and June 1973 for this small item is of 475 hours and the difference between June 1971 and June 1973 is only 350 tc• 450 hours. The 1973 charts show that Respondent's overall workload dropped off from a high in February to a low near the end of July. The total hours worked dropped from a high in January to a low at the end of June, but the drop in average hours during this same period is neither as great nor as sharp a decline. This last may be explained in part by a drop of 25 percent in productive personnel from the first of February 1973 to July 1973 and again in August 1973. Although Respondent's overall workload dropped near the end of July 1973 it never hit bottom. At that time there still remained over 20,000 hours of work to be performed and with, as noted, a 25 percent smaller work force than at the first of February. The shrinkage of the available work force was due not only to vacations but also apparently to separa- tions. There was then work for at least 8 weeks at the rate of hours logged in the last week of May before the cut in over- time was ordered by Respondent. Receipt by Respondent of the 14 U.S. based molds awarded to Diecraft between Ma} and July 20 would, of course, have swollen this work backlog as would the mold order not given by Mack Molding and job 1391, which was taken away from Respondent during the week ending June 3, 1973. There remained at that time over TUPCO, DIVISION OF DART INDUSTRIES, INC. 439 3,000 hours work to be done on the latter mold alone, which would have expanded Respondent's total backlog by at least the equivalent of 1 week at the end of May rate of weekly hours worked. Also the vacations which began in June would have stretched the available work even further. Based on my analysis, supra, of all of Respondent's eco- nomic defenses, I am not satisfied that it has established that its reduction of the previous virtually unlimited overtime of its employees-a reduction enforced for all of them from May 30 to July 15, 1973-was economically motivated. While its workload decreased during this same period, I further con- clude, as I have held above, that Respondent and Tupper- ware, with which Respondent exists in a single-employer rela- tionship, were also responsible for substantial aspects of this decrease and that the joint efforts of Respondent and Tupper- ware to reduce Respondent's workload during this period were occasioned by the advent of the Union at Respondent's plant. Respondent argues, however, that it is not a violation of the Act for an employer to reduce its business operations in the face of a union's organizational campaign, where such a re- duction is based on an appraisal of the potential costs of the union's economic demands and such appraisal shows that continuation would be uneconomical or would be infeasible because of potential labor problems. In advancing this con- tention Respondent relies on G. W. Murphy Industries, Inc., 184 NLRB 62 (1970). Murphy is, however, distinguishable because there a union had already made bargaining demands on the employer for toolroom employees which, if granted, would have made the operations of the instant toolroom uneconomical. Here, as has been pointed out, no bargaining demands were ever made nor could they have been anticipated because, as noted, the wage rates discussed at union meetings varied widely. Nor was the Union already recognized here as in Murphy. Respondent's actions here therefore had nothing to do with any economic demands by the Union but were aimed instead at the Union's organizational campaign itself. The mere existence of that campaign caused Respondent to discourage its customers from sending it orders and to reduce the overtime of all employees at the plant. For Ansley in his speech, and later Witkus, effectively gave the message to Respondent's employees that this was the reason for Respon- dent's actions. That message was a very clear one. With the Union the employees could expect less work and less over- time. Without the Union, according to Witkus, things would stay the way they were, that is, there would be work in the plant and the usual virtually unlimited overtime for all. I, accordingly, conclude on the basis of all the foregoing that by reducing overtime for all its employees during the period May 30 to July 15, 1973, because of the Union's organizational campaign, Respondent violated Section 8(a)(3) and (1) of the Act.44 44 E.g., Master Transmission Rebuilding Corporation & Master Parts, Inc., 155 NLRB 364 (1965), enfd. 373 F.2d 402 (C.A. 9, 1967 ); Schott's Bakery Inc., 159 NLRB 1040 (1966); Waldoroth Label Corporation, 91 NLRB 673. 4. The continued reduction of overtime after July 15, 1973, until on or about August 5, 1973 (subparagraph 10(b) of the complaint) There was no across-the-board removal of the overtime restriction on July 15. The overtime restriction generally con- tinued until August 5, 1973, a date following the Union's loss of the election. After July 15 there were, however, certain assignments of increased work beyond the 9-hour day limita- tion to individual employees. These assignments beyond the 9-hour day were occasioned by receipt of a job from the Morgan Company and by the press of delivery dates on cer- tain other work .41 The complaint, however, alleges that 30 named employees (appearing on Appendix "A" attached hereto) continued to be restricted in their overtime opportunities and that this continued restriction for these named employees was in viola- tion of Section 8(a)(3) and (1) of the Act. For the reasons set forth in detail, supra, as to the illegality of the across-the-board decrease from May 30, to July 15, 1973, I agree that the continuation of the limitation from July 15 to August 5, 1973, albeit with exceptions, further violated Section 8(a)(3) and (1) of the Act.46 Since the across-the-board restriction was not removed, the mere fact that Respondent, in the press of absolute business necessity, made certain exceptions to the general restriction does not alter, in my judgment, the impact of its unlawful reduction on the bulk of the employees for whom no excep- tion was made. Respondent defends, specially, as to these allegations of the complaint, that the complaint is deficient because a number of the named employees received some increase in their hours or were on vacation for part of this period. I disagree. This contention is really addressed to the question of remedy, hence is premature for me to consider at this point in my decision. The essential fact remains again that the across-the-board restriction was not removed and that the named employees suffered loss of overtime as the result. Where certain of the named employees may have been on vacation during one or another of the 3 weeks involved in this period or received some overtime beyond the 9-hour day means only that Respondent's backpay liability will be re- duced to that extent. These factors do not alter the question of a violation. Respondent also contends that some employees, not on the 30 employee list, who received increased overtime were known union adherents and, further, that there is no showing that the 30 named employees on the list were union adher- ents. From this, Respondent asserts there is an absence of evidence that Respondent discriminated against those em- ployees on the list. I also disagree with this contention. The thrust of the violation here is not against individual em- ployees as such, but is rather based on the impact of Re- spondent's unlawful program against its entire shop force generally.47 The fact that the entire shop force is not named 45 Lovec credibly testified that Perreault so informed him. Dunphy's testimony is consistent. 46 In reaching this conclusion I also rely on my finding, supra. that Lovec told Gonyea on August 6, 1973, that the election was over and that em- ployees would be working overtime again. 47 Cf. Arnoldware, Inc., 129 NLRB 228 (1960). 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this allegation of the complaint does not alter the nature of the violation but is based on the circumstance that excep- tions were made for certain employees because of business necessity. I, accordingly, conclude that by continuing the reduction of overtime for the 30 named employees during the period July 15 to August 5, 1973, Respondent violated Section 8(a)(3( and (1) of the Act. 5. The continued reduction of overtime for Dees, Gonyea, and Bezdegian for certain periods after August 5, 1973 Immediately after the election which the Union lost, Re- spondent's shop returned to the virtually unlimited overtime situation as it existed prior to May 30, 1973, except for Dees, Gonyea, and Bezdegian all of whom were well known union adherents. Bezdegian: The complaint alleges that Bezdegian's over- time was discriminatorily reduced during the period August 13 through August 26, 1973. Bezdegian had already been unlawfully discriminated against by being given a written warning for talking on August 13, 1973, as I have found, supra. Respondent defends that the allegation of the com- plaint that Respondent also discriminatorily reduced the overtime of Bezdegian is inaccurate because Bezdegian's overtime increased during the period. Bezdegian did in fact work 50 hours during each of these 2 weeks but he had worked 53 to 55 during the 3 preceding weeks.48 Hence I conclude that his overtime was in fact re- duced and in view of Respondent's animus against the Union, generally, and the union activities of Bezdegian particularly, as already found and as freshly shown by Respondent on August 13, I conclude that his overtime from that date to August 26 was discriminatorily reduced in violation of Sec- tion 8(a)(3) and (1) of the Act. Dees: The complaint alleges that Dees' overtime was dis- criminatorily reduced from August 6 through August 19, 1973. Dees, a polisher, was a very active union adherent who participated in the conference on the representation election petition at the Board's office in Boston and had served on the Union's organizing committee at the plant. Dees did in fact work no more than 9 hours per day during the period in question here. Respondent defends as to Dees that Dees was not given extended overtime49 because of lack of work in her depart- ment and because Dees had not been performing up to par. Respondent points out that Perreault so informed Dees when Dees asked Perreault why she was not permitted to work more than 9 hours during this period. The testimony of Dees and Perreault confirms that Dees and Perreault had the instant discussion. Although Dees stated she was not satisfied with P,.erreault's explanation why she was not being given additional overtime, she admitted that she agreed with him at the time that her performance on two jobs showed that she was not producing efficiently by comparison with other polishers. 48 Bezdegian is not on the list of those whose overtime was dis- criminatorily reduced from July 15 to August 5, 1973. 49 Dees has subsequently been laid off but this layoff is not alleged to be unlawful. It is well settled that an employee's active participation in union affairs does not insulate that employee from employer discipline for failure to give proper performance on the job. Since it is clear that Dees' performance here by comparison with that of her peers was low and because she was informed that this was the reason why she was not being given greater overtime opportunities at that time, I conclude that her depri- vation of such opportunities at that time was justified for this reason.5° I further conclude that the Respondent did not thereby violate Section 8(a)(3) and (1) of the Act. I shall, accordingly, recommend that this allegation of the complaint be dismissed. Gonyea:The complaint also alleges that Gonyea's overtime was unlawfully reduced during the period August 6 until August 26,1973. Gonyea, a grinder worked only 44.4 hours during the week ending August 12, 1973, 43.7 during the week ending August 19 but was on vacation the following week. Since Gonyea was on vacation the following week Re- spondent's liability for backpay, if any, for increased overtime would not concern that week. There were at least three grinders in the 2 weeks preceding August 19-Gonyea, Turcotte, and Connor. Turcotte was on vacation during these 2 weeks whereas Connor worked 52.9 and 48.9 hours, respectively, in each of these 2 weeks. Gonyea spoke to Perreault to inquire why he was not receiving extended overtime during this period but was told by Perreault there was no work for grinders." The experi- ence of Connor set forth above during this period, however, indicates otherwise. Further, as I have already held, Lovec told Gonyea on August 6, 1973, that although the election was over and employees would go back on overtime, Gonyea would not receive it because, he, Gonyea, might be fired. Also on or about August 10, 1973, Perreault told Gonyea that he, Perreault, had a list of union supporters and Gonyea was first on the list. I conclude on the basis of the foregoing, particularly the threatening prediction of Lovec, that Gonyea's overtime was discriminatorily reduced during the instant period and that Respondent thereby violated Section 8(a)(3) and (1) of the Act.52 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations described in section I, above, have a close, intimate, 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. 50 I find it unnecessary to reach or pass on the additional reason proffered by Respondent that Dees' department had a lack of work at that time. 51 Gonyea credibly so testified. 52 Respondent argues, as to the allegations of the complaint generally, that they lack merit because the Union filed no objections to the election. From this it follows, says Respondent, that no objectionable conduct occurred. The short answer to this contention is that we are not dealing with election objections but with unfair labor practices. Charges alleging unfair labor practices need not be filed by a Union but may, as here, be filed by an individual. TUPCO, DIVISION OF DART INDUSTRIES, INC. 441 V. THE REMEDY The recommended Order will contain the conventional provisions for cases involving findings of interference, re- straint, and coercion and unlawful discrimination in violation of Section 8(a)(1) and (3) of the Act. This will require Re- spondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take including its affirmative action to remedy its unlawful reduc- tion of the overtime of its employees.. Respondent contends that, in the event of any violation finding in respect to reduction of overtime, no award of back- pay should be made because there is no practical way to measure how much overtime would have been available and how much of the available overtime would have been worked by each employee. I reject this contention. Congress has provided the Board with considerable au- thority to fashion remedies under Section 10(c) of the Act. And the Board has issued remedial orders requiring backpay when it has found that employees have been discriminatorily deprived of overtimes' In view of the fact that the majority of employees were unlawfully deprived of overtime both dur- ing the period from May 3 to July 15 (about 6 weeks) and also July 16 to August 5, 1973 (3 weeks), I shall recommend a backpay order requiring Respondent to pay each employee discriminated against (i.e., all of them during the first 6-week period and 30 of them, additionally, during the following 3-week period) an amount based on his average weekly over- time earnings above 45 hours (40 hours straight time plus 5 hours overtime) during the 9 weeks preceding the week in which May 31, 1973, fell. This amount will be paid to each employee for each week in which he was discriminated against (6 weeks for all employees and 3 weeks, additionally, for the 30 employees named in Appendix A, and 2 weeks each for Gonyea and Bezdegian, because of their respective unlaw- ful reduction in August). All employees will receive, as well, two-fifths of this weekly average figure because of the unlaw- ful reduction on May 31 and June 1. Any employee who did not work a full 9-hour day in any week during the period of the discrimination against him will have his backpay reduced by one-fifth of the weekly average for each such day but will suffer no other penalty. Any employee whose work experi- ence was abnormal during the 9-week period preceding the week in which May 31 fell will have his backpay calculated at the rate of the average of other employees in his classifica- tion (e.g., Gonyea, whose work weeks in April 1973 were shortened pursuant to doctor's orders after his illness).54 53 E.g., Schott's Bakery, Inc., supra. 54 The following hypothetical situations will demonstrate the manner in which this order should be executed. Employee A, whose name would appear on Appendix A hereto, worked only 45 hours each week from May 30 to August 5. He worked 55, 50, 45, 50, 55, 45, 50, 45,and 55 hours, respectively, each of the 9 weeks preceding the week in which May 31, 1973, fell, or an average of 50 hours per week each of those weeks. His backpay will be 9 times (50 minus 45) plus two- fifths (50 minus 45) or, in total, 47 (hours) times his overtime rate. Em- ployee B's experience is the same as A's (as to discrimination and prior average hours overtime) but B had 1-week vacation in July and worked a half day and took another day off during 1 week of June in which week he worked a total of 32 hours. His backpay will be (9 minus 1) times (50-45) plus two-fifths (50-45) minus two-fifths (50-45) or, in total, 40 (hours) times his overtime rate. Employee C, whose name would not appear Backpay shall otherwise be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1963). It is noted that the instant 9-week period used as a base to determine averages here not only immediately precedes the week in which the discriminatory reduction of overtime be- gan but also falls entirely within the Respondent's business downswing which started in February 1973. It will also be recommended that the written warning sys- tem be abolished and that all warnings issued thereunder be expunged from Respondent's records. Finally, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (1941) it will be recommended that Respondent be ordered to cease and desist from infring- ing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and the Union is a labor organization all within the meaning of the Act. 2. By discriminatorily reducing the overtime of all of its shop employees during the period May 30 to July 15, 1973, of those listed in Appendix A hereof during the period July 16 to August 5, 1973, and Arthur Gonyea and Aram Bezde- gian for certain periods in August 1973 as found in section III hereof, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By instituting a written warning system and issuing certain warnings thereunder, as found in section III hereof, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By creating the impression of surveillance of the union activities of its employees; threatening them with reprisals therefor; holding out to employees that virtually unlimited overtime opportunities would be available but for the Union; coercively interrogating them about their fellow employees' union activities; and by suggesting that employees resign be- cause of their union activities, in the manner found in section III hereof, Respondent has violated, and is violating, Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record in the proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: on Appendix A hereto, was discriminated against only during the period May 30 to July 15. His average overtime during the preceding 9-week period was the same as A's . C's backpay will be 6 times (50-45) plus two-fifths (50-45) or, in total, 32 (hours) times his overtime rate. Employee D's situation is exactly the same as A's except that D worked 45, 46 and 52 hours during the weeks between July 15 and August 5, 1973 . D's backpay will be (6 plus 1) times (50 minus 45) plus (50 minus 46) plus 0 (for the last week) plus two-fifths (50 minus 45) or, in total, 41 (hours) times his overtime rate. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER55 Respondent Tupco, Division of Dart Industries, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Laborers International Union of North America, Local 243, or any other labor organization by establishing or implement- ing a written warning system; or by discriminating in regard to overtime work or by discriminating in any other manner in regard to any term or condition of employment of any of Respondent's employees in order to discourage union mem- bership or other concerted activities. (b) Coercively interrogating employees concerning their fellow employees' union membership or activities; threaten- ing to shut down or phase out the plant or take any other reprisal if the employees organize a union ; creating the im- pression among employees that it has ways or means of iden- tifying employees who participated in union activities and of knowing what these activities are; holding out to the em- ployees that they would have virtually unlimited overtime opportunities but for the Union; suggesting that employees resign because they joined the Union or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make whole its employees for any loss of overtime pay they may have suffered as the result of Respondent's dis- criminatory reduction of their overtime opportunities in the manner set forth in the section of this Decision entitled "The Remedy." (b) Expunge from the records of its employees any written warnings issued pursuant to the establishment of Respon- dent's written warning system. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this 55 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 56 In the event the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Order and necessary to insure compliance with the record expungement requirements of this Order. (d) Post at its plant in Auburn, Massachusetts, copies of the attached notice marked "Appendix B."56 Copies of this notice on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. APPENDIX A 1. Spinnie, Edward 2. Sugalski, Joseph 3. Braney, James 4. Millowicz, Walter 5. LaBonte, Albert 6. Cote, Loenel 7. Desy, Owen Sr. 8. Zukowski, Walter 9. Zbikowdki, Walter 10. Plona, Stanislaw 11. Dion, Robert T. 12. Dees, Carole 13. Boucher, Arthur 14. Shea, Robert 15. Foster, Romeo 16. Groth, Edward 17. Israelson, Alan 18. White, Robert 19. Stapleton, Joseph 20. McGhee, James 21. Gallagher, Albert 22. Stevens, Eugene 23. Connor, Hugh 24. Gauthier, Louis 25. LaForge, Robert 26. Micolites, Walter 27. Mastoris, John 28. Dunphy, Harold 29. Skalubinski, Victor 30. Dion, Robert J.